text:
    [Crim. No. 3760.
    In Bank.
    July 18, 1934.]
    THE PEOPLE, Respondent, v. REVELL KENNETH COVINGTON et al., Appellants.

      Gladys Towles Root and Louis B. Preston for Appellants.
    U. S. Webb, Attorney-General, and John D. Richer, deputy Attorney-General, for Respondent.
   THE COURT.

A petition for hearing was granted in order to consider more fully the question whether the evidence is sufficient to support the verdict finding the appellants guilty of the crime of robbery. After further consideration of the record we are satisfied that proof of essential elements of robbery is lacking, but that the appellants are, under the evidence, guilty of petty theft. We are in accord with the disposition of the appeal on this and other points by the District Court of Appeal, Second Appellate District, Division One, and adopt with slight modifications the opinion of that court, prepared by Mr. Presiding Justice Conrey, as the opinion of this court, as follows:

“By information in three counts the defendants were accused as follows: By Count I it was charged that on March 5, 1933, the defendants murdered one Marjorie Barr; by Count II it was charged that on the same date the defendants committed the crime of robbery, said crime being a different offense of the same class of crimes and offenses as the charge set forth in Count I, and connected in its commission. It was alleged that the defendants did wilfully, etc., take from said Marjorie Barr ‘the goods and personal property in the possession of Marjorie Barr’, without her consent, etc., and ‘by means of force used by said defendants upon and against the said Marjorie Barr, and by said defendants then and there putting the said Marjorie Barr in fear’.

“By Count III it was charged that on said date the defendants committed the crime of burglary by wilfully entering the house of one Stephens, with the intent then and there to commit theft. It was alleged that this crime was a different offense but connected in its commission with the crime set forth in Counts I and II.

“The defendant Peterson was convicted on Count I and Count II, and acquitted on Count III. The other defendants, who are appellants here, were acquitted on Counts I and III and were convicted of robbery as charged in Count II. This appeal is from the judgment of conviction of appellants on Count II, and from the orders of the court denying their motions for a new trial.

“The events referred to in the information all took place at the residence of one Delbert Stephens, where he lived with his family. Miss Barr and another young woman known as Miss Hammond were living with the Stephens family. At six o’clock in the evening of March 5th, Stephens with his wife and son left the house and, there being no one else there at home, locked the front door. The' windows were locked, except one which had no lock but was screened. During the evening, and while the house was thus vacant, the defendants came to those premises and entered the house. One of them took off the screen and went in through the window, and let the others in by the door. Barnett was acquainted with Stephens and had been in this house before, and according to his testimony Stephens had given Mm permission to enter the place. ‘We hung around awhile and thought we would go in and wait for Mr. Stephens to come home, so we took off the screen and went inside as he told me to do many times’. Stephens, on the other hand, denied that he had given Barnett permission to enter the house at any time when Stephens was absent although he admitted that Barnett had been his guest on some occasions prior to March 5th. The defendants all were sailors in the navy, and at the time in question were on leave from their ship.

“After the defendants had been for some time in the house, the two young women above mentioned came home and proceeded to entertain the defendants as guests. Without entering into details of the story, it should he enough to say that there was some eating and drinking, and after a while Miss Hammond retired to her room. The evidence shows that while she was thus absent Miss Barr was hit with a sap or blackjack in the hands of defendant Peterson. Prom the effects of that blow she died a short-time after-wards at the hospital to which she had been taken.

“According to the testimony of Miss Hammond, while she was in her room as above stated, she heard the deceased scream. Thereupon she jumped out of a window and ran to a neighbor’s house. When she returned a few minutes later with a man who came at her request, the defendants had gone, and Miss Barr was in the bathroom and blood ‘was all over her’. A diamond ring and a watch which deceased had been wearing were gone, and an electric clock and a cigarette lighter were missing.

“ In support of the appeal the first point suggested is that the information failed to charge the offense of robbery, or any public offense. By the direct terms of the information the defendants were, in general terms, accused of the crime of robbery. But it is contended that the accusation, a substantial part of which we have quoted, is insufficient to allege a public offense ‘in that it does not contain words sufficient to give the accused notice of the offense of which he is accused’. In other words it is contended that the information does not comply with the requirement of Penal Code, section 950, that in charging an offense each count shall contain a ‘statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended’. But the rule governing this requirement is more particularly stated in section 952, as amended in 1927, and further amended in 1929. Among other things, it is there provided that the statement that the accused has committed the specified public offense ‘may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he' is accused’. We think that the information charged commission of the crime of robbery in terms which sufficiently comply with the requirements of the code. The state has the right to establish forms of pleading to be observed in its own courts, subject only to the provisions of the federal Constitution involving the protection of life, liberty and property in all the states. (People v. Robinson, 107 Cal. App. 211, 217 [290 Pac. 470].) This fact disposes of the contentions of appellants that their conviction under this information is in violation of their constitutional rights. ...

“ The next point is that the charge of robbery was improperly joined with the charge of murder, ‘in view of -the fact that appellants were acquitted of murder’. Of course this contention is without merit for the district attorney could not know in advance that appellants would not be convicted of the murder.

“Finally appellants claim that the court erred in refusing to give to the jury certain requested instructions. Some of these requests were properly refused because the subjects thereof were sufficiently covered by other instructions given. Some of the requested instructions as offered by appellants were erroneous in their statement of the law.

Omitting from further' consideration all of those instructions, there remains one further item which seems to be of substantial merit. Appellants requested the following instruction: ‘You are instructed that if you do not believe that a robbery or burglary was committed but that a theft was committed by the defendants in the house of Mrs. Stephens you are instructed to find said defendants guilty of petty theft if the value of the property taken was $200.00 or less or grand theft if $200.00 or more’. This instruction should have been given, except that the last three words should have been, ‘more than $200.00’.

“These appellants stand convicted of robbery. . . . The jury might well have believed that appellants did not foresee that Peterson would commit the murderous attack, or the robbery of jewelry from the person of Miss Barr, and did not aid or abet the same. But appellants did share in the theft of other articles which were taken away at the same time. If the jury had been given an instruction under which appellants could have been convicted of theft, instead of being left only an alternative between a conviction of robbery or an entire acquittal, it is not unlikely that appellants would have had the benefit of the conviction of theft alone. This would have been a most substantial benefit, because in the absence of proof of the value of the property taken the conviction necessarily would have been limited to petty theft. The offense of robbery ‘includes larceny and under the indictment the defendant may be found guilty of larceny’ (People v. Chuey Ying Git, 100 Cal. 437 [34 Pac. 1080]; People v. Church, 116 Cal. 300 [48 Pac. 125]), and upon an information charging grand larceny petty larceny may be found. (15 Cal. Jur. 960.)

“In accordance with the foregoing statement of the law and upon consideration of the record, and particularly the evidence showing the part taken by appellants in this unfortunate affair, we are of the opinion that the verdict and judgment of conviction should be reduced from robbery to petty theft.”

The judgment of conviction of the defendants Covington, Kozak and Barnett of the crime of robbery is modified. The cause is remanded to the trial court with directions to enter judgment against each of the defendants finding him guilty of petty theft, and thereupon to pronounce judgment upon him as prescribed by law.


source: Caselaw Access Project

author: PRESTON, J.

license: Public Domain

text:
    [S. F. No. 15085.
    In Bank.
    July 19, 1934.]
    HARRY I. STAFFORD et al., Petitioners, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent.

      Edmund A. Cunha for Petitioners.
    Byron Coleman and Oliva & Coleman for Respondent.
   PRESTON, J.

This proceeding in mandate involves the following facts:

Subsequent to a final judgment of the superior court in favor of S. Morton Cohn, in an action against Lillian E. Cohn, annulling the marriage contract between said parties on the ground of insanity of-the wife at the time of said marriage, petitioners, who are attorneys at law, at the instance of the guardian ad litem of the incompetent, her sister, sought by motion to set aside said decree of annulment, and the property settlement made in connection therewith, for fraud in its procurement. This motion was denied. Petitioners conducted an appeal from the order denying said motion, prepared a record and filed an opening brief. Pending the appeal the incompetent died. Her administratrix, another sister, realizing the change which the death had wrought in the situation, had herself made a party to said proceeding and promptly dismissed the appeal.

When said annulment decree was entered, the husband made a property settlement for the benefit of the incompetent wife, which the court directed to be paid over to her general guardian. Petitioners did not represent the incompetent during this period. At the time petitioners were employed, respondent court had not, nor has it ever since had, any funds or property in its custody or control belonging to the incompetent or to her estate. Petitioners sought in a summary hearing had in said cause to have respondent court fix their compensation for services rendered said guardian ad litem. This the court refused to do, holding that it was without jurisdiction in the premises. This proceeding was then instituted" in the District Court of Appeal to compel respondent court to take jurisdiction of the application and dispose of it on its merits. The District Court of Appeal gave its decision and judgment in the matter and the cause was later transferred to this court.

Notwithstanding the fact that petitioners, in good faith, rendered services of considerable magnitude, we see no way of giving relief to them in this proceeding. As the services were not rendered to secure necessities, not even an independent suit would lie against the incompetent. (McKee v. Hunt, 142 Cal. 526 [77 Pac. 1103].) It is also conceded that in this proceeding petitioners could not hold the guardian ad litem, personally liable for the value of their services. Neither could the guardian ad litem successfully seek from the court in this proceeding an allowance of attorneys’ fees by way of expenses incurred, as the court has no funds within its jurisdiction belonging to the ward. In this respect the case differs from the situation in Cole v. Superior Court, 63 Cal. 86 [49 Am. Rep. 78], relied upon by petitioners. We are pointed to no authority that would permit petitioners, as attorneys, to proceed in any event independently of the guardian ad litem. An award of attorneys’ fees directly to them would be irregular and void. (Stevens v. Stevens, 215 Cal. 702, 704 [12 Pac. (2d) 432].) The only case where an attorney.may proceed independently, and maintain an action or an appeal, is for services rendered during administration of an estate as provided in section 911 of the Probate Code, formerly section 1616 of the Code of Civil Procedure. Prior to said enactment an attorney was without independent status in this respect. (Estate of Kruger, 143 Cal. 141 [76 Pac. 891]; Gurnee v. Maloney, 38 Cal. 85 [99 Am. Dec. 352].)

No authority can be found authorizing the court, in an action where no funds exist, to make an order fixing attorney’s fees to be collected from some other source. The nearest thing applicable to the question before us seems to be the provisions of sections 1509,- 1510 and 1511 of the Probate Code, formerly section 1810b of the Code of Civil Procedure, where approval of a contract for attorneys’ fees of a guardian is authorized, when made prior to rendition of the services; and also where, in the absence of a contract, a judgment is recovered in favor of the ward, the court may fix an attorney’s fee to be paid out of the funds under its control.

It seems, however, that even these sections can be invoked only by the guardian or guardian ad litem, who may represent the ward. The attorney is not a party to the suit and an award directly to him under any circumstances is unauthorized. Although these code provisions expressly mention minors and do not specifically mention other classes of wards, they are found among the general provisions applicable to all guardians and we see no reason to hold otherwise than that they measure the power of the court to bind estates 'of insane persons under guardianship as well as estates of minors. Likewise, we find no reason to hold that the rule respecting a guardian ad litem should differ from that respecting a general guardian.

We think that the language of 14 Ruling Case Law, section 57, page 290, indicates the proper course in the matter before us, to wit: “If a fund is recovered from the infant by the suit, or if. the infant's property is under the control of the court, it will order proper counsel fees to be charged upon it; and if not, the attorney must look to the court which has jurisdiction of the general estate of the infant.” And failing to enlist the aid of such representative of the ward, a personal action against the party employing him is all that is left:

The petition is denied.

Curtis, J., Langdon, J., Waste, C. J., and Shenk, J., concurred.

Rehearing denied.


text:
    [Sac. No. 4760.
    In Bank.
    July 21, 1934.]
    HAPPY VALLEY WATER COMPANY (a Corporation), Respondent, v. WM. M. THORNTON et al., Appellants. HAPPY VALLEY WATER COMPANY (a Corporation), Respondent, v. FIDELITY SAVINGS AND LOAN ASSOCIATION (a Corporation) et al., Appellants.

      Jesse W. Carter, E. Lee Chamberlain, Arthur P. Coe and Philip Grey Smith for Appellants.
    L. C. Smith for Eespondent.
   PRESTON, J.

The above causes were consolidated for trial and the appeal is from the single judgment therein which forecloses liens upon certain parcels of real property for water charges for certain calendar years and grants personal judgments against the owners for so much of the charges as arose during their respective periods of ownership of said property. The questions urged on appeal are common to all of the actions and all of the defendants; hence details as to the respective interests are not necessary to this decision. The following statement of facts shows the origin of the litigation:

On and for some years prior to June 27,' 1925, Happy Valley Irrigation District was a duly organized and existing public corporation located entirely within Shasta County and having, at all times involved herein, a large bonded debt. Early in 1925 it occurred to the electors and property owners of said district that conditions were such that a dissolution under the Act of 1903 (Stats. 1903, p. 3) was in order. This act has for its title the following: “An act to provide for the dissolution of irrigation districts, the ascertainment and discharge of their indebtedness, and the distribution of their property/’

Accordingly, on the twenty-eighth day of February, 1925, a majority of the electors petitioned the board of directors to invoke said statute. The bondholders, acting in conjunction with said board, devised a plan of dissolution substantially as follows: That the bondholders would take over all the assets and property of the district; that a charge of $60 per acre against first and second grade land of the district be levied, without interest, and made a lien thereon, to be amortized in thirty years at the rate of $2 per acre per annum and used to liquidate the existing obligations of said district; and that, to this end, a water corporation should be organized by the bondholders to hold said property and collect said indebtedness;, that said corporation should be capitalized at 795,000 shares of class A stock and 395,000 shares of class B stock, all of a par value of $1 per share; that said bondholders should take class A stock dollar for dollar and cancel the outstanding indebtedness against said district; that said stock should then be retired from time to time as the $60 per acre charges were paid by the land owners; that class B stock was to be divided as nearly equally as possible between the bondholders and the land owners.

At this juncture it is necessary to note particularly the further provision of this plan, which was that, as a necessary ingredient thereof, the land owners were to have dedicated to their lands from said water company, a water right consisting of a minimum of 25 miner’s inches of water per acre per annum, for which they were to pay 20 cents per miner’s inch, consonant with a decision of the railroad commission of California rendered March 30, 1916. This plan was duly submitted to the electors of the district and was by them adopted without a dissenting vote. Following the election of the board of directors, said district forthwith invoked the further provision of said Act of 1903 by petitioning the Superior Court of the County of Shasta for a decree validating and confirming the proceedings theretofore had for the dissolution of said district and for ascertainment and settlement of its indebtedness and for the distribution of its property. This decree was duly entered, although certain questions as to its validity will be hereafter referred to. So far as here material, it provided as follows:

“3. That the proceedings for the dissolution and reorganization of the Happy Valley Irrigation District are valid and conform to the provisions of the laws of the State of California. . . .

“4. That the plan for Dissolution and Reorganization of said Happy Valley Irrigation District is fair, just and equitable and is valid and conforms to the provisions of the laws of the State of California. . . .

“13. That the Happy Valley Water Company has been organized as a water company under the provisions of the act hereinabove mentioned, and in accordance with said plan to take over and operate the irrigation works of the Happy Valley Irrigation District, and the distribution system and for the sale and distribution of water to the landowners within said district, and in accordance with the plan, the landowners have agreed to take and pay for a minimum of twenty-five (25) miner’s inches of water per acre per year (1.24 acre feet), for all land taking water or under cultivation for irrigation within said district, and said Happy Valley Water Company is entitled to collect and receive therefor water rates of twenty cents (20c) per miner’s inch, for each twenty-four hours during irrigation season as fixed and established by the Railroad Commission in its decision No. 3212 of March 30, 1916.”

The present consolidated action is to enforce a lien for these water charges for certain subsequent years against certain lands formerly in the district and also to secure personal judgments against owners of such lands for the respective delinquent years of their ownership thereof. Plaintiff had full relief in the court below both for foreclosure of the liens for these charges and for the personal judgments in the manner and to the extent prayed for. The defendant land owners appealed. The assignments of error made by them are as follows: “I. That the Dissolution Act of 1903 gave the court no authority to make a decree imposing a charge against person or property for water to be delivered subsequent to the date of the decree of dissolution. II. That the court acquired no jurisdiction of the land, in order to make such a decree. III. That the court acquired no jurisdiction of the person of the defendants.”

We shall consider these assignments in the order named.

The argument first is that under the title of the act above quoted, the decree establishing the water right and the validation of the water rate and the fixing of a lien for such charge is not within the scope of the title of said act. This, appellants say, is particularly true as to the charges for the ensuing years which followed the entry of said decree.

We can see nothing illegal about the contract between the bondholders and the land owners, nor can we see why the title of the act does not embrace the matters complained of as logical details of the dissolution and readjustment plan. They seem clearly to be logical attributes of the general plan of dissolution and settlement contemplated by the act. “When the general purpose of the act is declared, the details provided for the accomplishment of that purpose will be regarded as necessary incidents.” (Ex parte Liddell, 93 Cal. 633, 637 [29 Pac. 251, 252].)

But even if this were not true, it does not seem to us that under the record the question is really vital. The issue more properly is that of the validity of such an agreement between bondholders and land owners. The decree was deemed advantageous at the time to all parties concerned, including appellants or their predecessors. It was 'supported by mutual covenants and, therefore, rests upon sufficient consideration. We can see nothing illegal about it and were there no decree, under the proceedings of dissolution covering this point., we would nevertheless be constrained to hold, upon the record before us, that the charges made were proper and the result of either express or implied contract between the parties and binding either upon express consent or by acquiescence.

It is next contended that the court acquired no jurisdiction of the land in order to make such a decree. This is predicated upon the alleged insufficiency of the notice provided for in the act. The act, which was literally complied with, requires that dissolution proceedings be initiated by a majority in number of the land owners, as well as a majority in value of the lands in the district, by means of a petition to the board of directors of the district summarizing the financial condition of the district as well as giving a survey of its assets. A plan of dissolution based upon the consent of creditors of the district, including a plan to settle with nonconsenting creditors, must be inaugurated and then be by the board of directors submitted to a vote of the district, upon due .notice, both by posting and by publication. If the dissolution plan carries, the law then provides for the obtaining of a decree of confirmation and validation of the proceedings. Such a proceeding is in rem and notice is conveyed by publication for a period of thirty days in a designated newspaper, which notice should describe the proceeding and authorize an appearance in opposition thereto by any interested party. It is true that the form and contents of the notice are meagerly described in the statute but in view of the knowledge of all parties gained from the preceding steps required in the proceeding, said notice is ample and gives to the court jurisdiction to bind all persons interested. This proceeding is similar to those sustained in earlier provisions of acts in aid of irrigation district development, such as Crall v. Poso Irr. Dist., 87 Cal. 140 [26 Pac. 797], and Board of Directors v. Tregea, 88 Cal. 334 [26 Pac. 237], For a general discussion of the subject of service of process in in rem proceedings, see Estate of Davis, 136 Cal. 590 [69 Pac. 412], Title etc. Restoration Co. v. Kerrigan, 150 Cal.. 289 [88 Pac. 356, 119 Am. St. Rep. 199, 8 L. R. A. (N. S.) 682], and State v. Security Savings Bank, 186 Cal. 419 [199 Pac. 791].

It is next contended that the court acquired no jurisdiction of the person of the appellants. We think this ground too is untenable. The fact is that without protest these land owners allowed these charges to stand against their lands. Bills were rendered to them quarterly and were not repudiated or disputed by any of them at any time. It therefore seems clear that an implied agreement or promise to pay these charges arose at least for the period such appellants were in possession of the lands. It seems also clear on the face of this proceeding that the plaintiff is a public utility and water rights have become dedicated to these lands and that in order to maintain these rights charges should be imposed upon "such lands for the privilege of using water thereon; and if said rates were objectionable or confiscatory, it, would have been in order for these property owners to seek relief from the railroad commission of the state of California. This decree would not render the commission powerless to change the rates where the facts justified such action.

The attacks made here are purely collateral and, as above noted, we find no merit in any of them.

The judgment is affirmed.

Curtis, J., Langdon, J., Shenk, J., and Waste, C. J., concurred.

Rehearing denied.


author: CURTIS, J.

text:
    [Sac. No. 4858.
    In Bank.
    July 21, 1934.]
    CALIFORNIA SMITH, a Minor, etc., Plaintiff, v. FALL RIVER JOINT UNION HIGH SCHOOL DISTRICT (a Body Politic) et al., Defendants; INDEPENDENCE INDEMNITY COMPANY (a Corporation), Appellant; M. D. PRATT, Respondent.

      John Ralph Wilson for Appellant.
    Oliver J. Northup and W. C. Sharpsteen for Respondent.
   CURTIS, J.

Plaintiff was enrolled as a pupil of the Fall River Joint Union High School District, one of the defendants herein. The school district entered into an agreement with the defendant Dave Fitzwater to transport by bus pupils living in certain territory within the district to and from the school building of said district. The defendant Fitzwater was the owner of the bus, and was paid a definite amount per month by the district for his services under said agreement. While said bus was being operated by him, it collided with an automobile driven by the defendant M. D. Pratt, as a result "of which the plaintiff was severely injured. At the time of said collision the plaintiff was a passenger in said bus, and was being transported therein to said school building. Plaintiff brought this action for damages sustained by reason of her said injuries against the district and defendant Fitzwater, as the driver of the bus, and also against the defendant Pratt. She recovered judgment in the sum of $15,805 against all three of said defendants on a showing of concurring negligence on the part of Fitzwater, the driver of the bus, and defendant Pratt. The defendants appealed from said judgment, and a bond on appeal to stay execution thereof was given by the district and Fitzwater with the Independence Indemnity Company as their surety. The defendant Pratt, while he appealed from said judgment, did not give a bond to stay execution thereon. The judgment was affirmed. (Smith v. Fall River Joint Union Sigh School Dist., 118 Cal. App. 673 [5 Pac. (2d) 930].) Upon affirmance, judgment was entered against the Independence Indemnity Company for the full amount of the judgment as the surety of the district and defendant Fitzwater. An execution was issued against the Independence Indemnity Company as such surety, and it paid to the plaintiff the full amount of the judgment. Upon receiving such payment, the plaintiff executed and delivered to the Independence Indemnity Company a satisfaction of said judgment and an assignment thereof. The satisfaction was never filed, and in due time Pratt moved the court to compel the entry of the satisfaction of the judgment under section 675 of the Code of Civil Procedure. This motion was granted by the trial court, and from that order the plaintiff and the Independence Indemnity Company have appealed. As the Indemnity Company is the only appellant interested in this appeal, we will refer to said company as the appellant.

At the time of the hearing of said motion, the respondent Pratt was permitted, over the objections of' the appellant, to introduce evidence which, if admissible, supported one of the findings of the trial court reading as follows: “That it is true that the Independence Indemnity Company prior to the injury complained of in this action entered into a contract in writing with the Fall River Joint Union High School District, a body politic, and Dave Fitzwater, defendants in this action, whereby the said Independence Indemnity Company insured the said defendants against loss from any liability imposed by law upon the said insured for damages on account of bodily injury, including death at any time suffered or alleged to have been suffered by any person or persons, as a result of the ownership, maintenance, or use of the school bus mentioned in the complaint in this action and by said agreement the said Indemnity Company agreed to pay and satisfy judgments finally establishing the said defendants’ liability in an amount not to exceed $50,000.00.”

Appellant now makes the contention that the court erred in directing a satisfaction of said judgment as said judgment was paid by the surety under the stay bond given under section 942 of the Code of Civil Procedure for the other two tort-feasors, and therefore, it was subrogated to the rights of the plaintiff against the defendants, including the defendant Pratt. If the appellant’s sole liability to the parties herein was that incurred under said stay bond, its position is undoubtedly correct. Upon paying the judgment it could then proceed against each and all of the defendants in said action to recover the money paid to the plaintiff in satisfaction of her judgment. Having, however, indemnified the defendants, the school district and Fitzwater, against the very liability upon which said judgment was based, the appellant, of course, could not enforce payment of said judgment against said defendants. It is, therefore, necessary for us to look beyond the terms of the stay bond to determine the rights of the parties under all the facts in the case. This the trial court did when, at the hearing of the motion to satisfy the judgment, it admitted evidence of prior contract of appellant to indemnify the district and Fitzwater against all loss sustained by either of them in the operation of said school bus. There was no error, therefore, in the admission of this evidence. As appellant cannot recover from either the district or Fitzwater by reason of its indemnity bond, can it recover against the respondent whose negligence concurred with that of Fitzwater in causing plaintiff’s injuries? It is well settled in this state that there is no right of contribution between joint tort-feasors whose concurrent negligence has made them jointly liable in damages. (Adams v. White Bus Line, 184 Cal. 710 [195 Pac. 389].) Therefore, had either of the two defendants, the school district or Fitzwater, paid said judgment, no claim for contribution against the respondent could have been made by the defendant making said payment. Neither could the appellant, after paying the judgment as the indemnitor of the two defendants, the school district and Fitzwater, compel contribution or .recover anything from the respondent, a joint tort-feasor with the other two defendants. This was the point involved and definitely settled in the case of Adams v. White Bus Line, supra.

The further question remains to be answered and that is, did the fact that the appellant was also the surety on the appeal or stay bond so change the situation of the parties as to give to appellant the right, not to compel contribution from respondent, but to force him to pay the entire judgment and thus relieve the appellant from all liability thereunder ? Appellant contends that such changed situation gives it the legal right to make such exaction, and cites La Fleur v. M. A. Burns Lumber Co., 188 Cal. 321 [205 Pac. 102], in support, of its contention. In that action the surety upon the appeal or stay bond paid the judgment, and • thereupon its principal applied to the court to direct satisfaction of the judgment under section 675 of the Code of Civil Procedure. While a number of collateral issues were disposed of in the court’s opinion, the principal point decided, in so far as we are now interested, was that, as the surety had paid the judgment against its principal, who was also the defendant in said action, it was under section 709 of the Code of Civil Procedure subrogated to all the rights of the plaintiff in said action including the right to enforce the payment of said judgment against its principal, the defendant in said action. In that case the defendant carried no indemnity insurance, and the rights of the parties under a bond of indemnity like that issued by the appellant in favor of the defendants, the school district and said Fitzwater, was not involved therein. Had the defendant in that case carried indemnity insurance in the same company which issued the appeal or surety bond, the decision therein would in our opinion have been quite different. Other authorities are cited by appellant, but they involve the rights of sureties under supersedeas bonds only. They are accordingly not applicable to the facts in this ease, where the surety company is also the indemnifying company, and the liability it seeks to fasten on another is one which it is bound under its indemnifying contract to pay.

A case more in point is the case of Holmes v. Hughes, 125 Cal. App. 290 [14 Pac. (2d) 149], cited by respondent.. In that case a judgment was recovered against the defendant Hughes in a personal injury action. Hughes carried liability insurance in a certain insurance company. The judgment was appealed, and bond to stay execution was given with another insurance company as surety. The judgment was affirmed, and the surety paid the judgment and then sought repayment from Hughes. It was shown that while Hughes was the nominal appellant he in fact knew nothing about the appeal being taken nor the surety bond being given. In fact, these acts had all been performed by the indemnity company without the knowledge or consent of Hughes, and the court held in effect that the indemnity company being liable for the payment of the judgment as originally rendered by the trial court could not avoid its liability and shift it on to the indemnitee by the subterfuge of taking an appeal therefrom and procuring some other company to act as surety on the appeal bond. We think there are some points of similarity at least between the situation existing in that ease and that appearing in the present action. As we have seen, the appellant here by its written contract, or insurance policy, indemnified the school district and Fitzwater against all loss from any liability for damages suffered by any person as the result of the operation of said school bus. This contract, or insurance policy, is not before us. Certain of its terms were proved by the affidavit filed on behalf of the respondent. We assume it was in the usual and ordinary form used by companies engaged in the business of writing indemnity insurance, and that it provided that appellant. at its own expense and through its own attorneys should defend any action brought against the insured by any person sustaining an injury through the operation of said school bus by the insured. We indulge in this assumption from the facts set forth in the affidavit above referred to, and from the further circumstance that no attempt was made by appellant to controvert these facts so alleged, or to produce the policy of insurance or any copy thereof. The judgment, therefore, that was rendered against the school district and Fitzwater, while nominally against them, was in its practical effect against the indemnity company, the appellant herein. Nothing was to be gained by the defendants so insured by an appeal from the judgment, as the indemnity company was legally bound to pay the same. On the other hand, it was to the interest of the indemnity company to take such appeal, and as it had entire control of the case in so far as the defense of the two insured defendants was concerned it could take said appeal without the consent of either of said defendants. The practical effect of the appeal was, therefore, as if the appellant had taken the appeal itself from a judgment against itself. By giving the bond on appeal with itself as surety, it did not in any way enlarge its liability in the premises. It was legally bound to pay the judgment before giving the surety bond. It was no more so after it had executed and delivered the stay bond. The only conceivable change in its legal status which the giving of this bond by itself might work, would possibly be in relation to its rights against the respondent herein. If appellant’s contentions are to be sustained, then the indemnity company, although it had mo right even of contribution against the respondent before the appeal, by taking the appeal and furnishing an appeal bond with itself as surety, created a right against the respondent, making him liable not only for contribution but for the entire amount of the judgment. We do not believe that under the laws of this state the appellant by such indirect methods can enrich itself at the expense of another. In Holmes v. Hughes, supra, in denying the surety the right to be subrogated to the rights of the plaintiff, the court said (p. 295): “However, the right of a surety to be subrogated to the rights of the original creditor as against the judgment debtor upon payment of the judgment has long been recognized and enforced in equity; and, as has been said with regard to section 709 of the same code section 1059 gives to a surety the summary remedy of using the judgment itself to enforce his rights against the judgment debtor. It is but a method of procedure based upon the doctrine of subrogation and governed by the same equitable principles. The letter of the statute will not be followed where the result of such interpretation will be absurd and unjust, it being the rule that the spirit and reason of the law should prevail.”

A state of facts precisely like those existing in the present action was before the Supreme Court of Ohio, and it was there held that the payment of a judgment by an insurance company that was not only the indemnitor of the appellant but was also the surety on the bond on appeal from said judgment was a complete satisfaction of the judgment and that no right of subrogation existed in favor of said company against defendants, who had neither indemnity nor other insurance. In that case one Gordon was indemnified by the Royal Indemnity Company against loss by reason of claims growing out of negligence. During the time the policy was in force, one Webber sustained injuries as the result of the concurrent negligence of Gordon and two other persons named Becker. Webber recovered judgment against all three tort-feasors. Gordon appealed, and gave a surety bond to stay execution on appeal with the Royal Indemnity Company as surety. The judgment was affirmed, and the Royal Indemnity Company paid the judgment, and then sought to collect from the Beckers the amount so paid. The court held that no such right of recovery existed in favor of the Royal Indemnity Company. Its reasons for so holding are contained in the following paragraph of the opinion: “It must be concluded that Gordon would have no right whatever to enforce contribution by his joint tort-feasors, the Beckers. In our opinion the right of the indemnity company was no greater than that of its tortfeasors indemnitee, and that the attempt- to accomplish by indirection what Gordon could not' have done directly must fail. The judgment was paid in full, and it is immaterial whether i1¿ was paid by Gordon or by his indemnitor, the Royal Indemnity Company. Whether it was paid by reason of its obligation as indemnitor, or as surety upon the supersedeas bond, such payment operates as a complete satisfaction, just as it would have done if payment had been made by Gordon. Where the right of subrogation exists an assignment is unnecessary, for that is supplied by equity; but here there was no right of subrogation, and no additional right accrued by reason of the assignment of the judgment”. (Royal Indemnity Co. v. Becker, 122 Ohio St. 582 [173 N. E. 194, 195, 75 A. L. R. 1481].)

It seems to us that this reasoning of the Ohio Supreme Court is sound and that the rule announced by it should control the decision of the present action. We find no authorities to the contrary, and after the exhaustive examination of the law both by counsel and this court, we feel reasonably certain that none exists. The appellant, as the indemnitor of the two appealing defendants was liable for the payment of the judgment against them and such payment gave it no recourse against the respondent as the joint tort-feasor of said defendants for the amount so paid or for any part thereof. It would be most inequitable to permit the appellant to now assert that it paid the judgment as the surety on the appeal bond and not as the indemnitor, and thus by the application of equitable principles of subrogation escape the liability which, for an adequate consideration, it had undertaken to discharge, and force such liability upon another who was not a party to said appeal bond and who received no benefit whatever from its execution and delivery. Some attempt was made to show that execution had been issued and levied upon the property of the respondent and subsequently the property was released from the levy. Whatever may have been the reason for such release, it is apparent that the appeal bond given by the school district and Fitzwater would have no effect in staying the judgment against respondent, and we are unable to perceive any legal connection between the execution of said appeal bond and the release of respondent’s property from the levy of said execution.

The judgment having been paid by the appellant under the circumstances shown above, such payment operated as a complete satisfaction thereof as to the other defendant, the respondent herein. Respondent was therefore entitled to an entry of satisfaction. (Adams v. White Bus Line, supra.)

The order appealed from is affirmed.

Shenk, J., Preston, J., Langdon, J., and Waste, C. J., concurred.


author: WASTE, C. J.

text:
    [Sac. No. 4877.
    In Bank.
    July 21, 1934.]
    UNITED BANK AND TRUST COMPANY OF CALIFORNIA (a Corporation), Respondent, v. A. P. HUNT et al., Appellants.

      Francis C. Brown, J. Oscar Goldstein and Ray Manwell for Appellants.
    Keyes & Ersldne, Butler, Van Dyke, Desmond & 'Harris and Rich, Weis & Carlin for Respondent.
   WASTE, C. J.

This cause was taken over, upon petition, after a decision in the District Court of Appeal, Third Appellate District. Upon a reading of the record, and an examination of the authorities, we are satisfied that the opinion of that court, prepared by Mr. Presiding Justice Pullen, reached a correct conclusion upon the issue presented. We therefore adopt the following portions of the opinion of the District Court of Appeal as and for the decision of this court:

“This controversy arises out of an agreement between appellants and cross-complainants, hereinafter referred to as the Hunts, and United Bank and Trust Company, now known as the Bank of America National Trust & Savings Association, a corporation, cross-defendants and respondents, hereinafter referred to as the Bank.

“Some time prior to April, 1924, the Hunts were the owners of an undivided one-half interest in three parcels of farm lands in Butte county and held a lease upon the other one-half interest thereof. The lands were known as the adobe ranch and referred to as parcel I in the agreement, the home place referred to as parcel II and the upper place designated as parcel III.

“In 1924 all of the property was subject to a deed of trust to secure an indebtedness to the Bank of $45,000 and there were in addition, liens for water supplied for irrigation and certain unsecured notes due from the Hunts to the Bank.

“In April of that year the parties met and adjusted their financial relations, which resulted in the execution of the following instruments:

“1. A promissory note for approximately $14,000 in favor of the Bank, which included the amounts due for water and various unsecured notes. There was also included $2,500, an agreed future advance for irrigation water, and $1,000 which the Bank agreed to advance to finance the farming operations on the home place.

“2. A chattel mortgage as security for the foregoing-amounts covering all of the farming equipment of the Hunts.,

“3. A crop mortgage covering all of the crops to' be grown during the season of 1924 by the Hunts on the home place, and any interest they might have in any crops grown on the adobe ranch.

“4. A written agreement whereby the Bank was to make the future advance referred to; to suspend foreclosure under the trust deed for a reasonable time; to negotiate a lease with C. A. Bayless as tenant on the adobe ranch on a crop-sharing basis; to protect the Hunts against foreclosure on any water liens, and to endeavor to secure for the Hunts the repayment of money expended by them for plowing on the leased premises. The Hunts on their part agreed to apply on the indebtedness all of the proceeds from the crops raised on the home place, and to execute all necessary papers to consummate the agreement.

“Thereafter differences arose between the parties, principally as to a tenant for the adobe ranch, and the Bank treating the agreement as having been abrogated, caused the property to be sold under its deed of trust. The property failed to bring the full amount of the note with interest and other advances, and in March, 1925, the Bank brought an action in Sacramento county against the Hunts for this deficiency in- the sum of $14,378.37. This action was transferred to Yuba county, and is hereinafter referred to as the Yuba county case. To that complaint the Hunts in June, 1928, filed an answer admitting the execution of the trust deed, and a cross-complaint and counterclaim praying for judgment against the Bank, alleging a claim for damages for loss of the crop on parcel II by reason of the Bank’s failure to advance the money for planting and water charges; a claim for damages for loss of anticipated profits from the Bayless lease on parcel I, due to the failure of the Bank to complete the negotiations for the lease and for its act in wilfully inducing Bayless not to enter into the lease; a claim for damages arising out of the foreclosure under the deed of trust in alleged violation of the agreement wherein the Bank undertook to withhold foreclosure for a reasonable time, and a claim for damages for foreclosing a chattel mortgage after failure to advance the money which was the sole consideration thereof, all in the sum of $89,800.

“In the meantime, and a few months after the Bank had filed the Tuba county case against the Hunts, they, in October, 1925, filed a complaint against the Bank in Butte county. In that complaint the Hunts set out in haec verba the agreement of 1924, and alleged they had done the various acts imposed upon them by the agreement, but that the Bank retook the seed rice they had obtained for cropping parcel II, refused to furnish any money to pay for the water charges upon said land or for the planting and harvesting of the crops thereon, and in violation of their agreement, advertised the lands for sale under the deed of trust and caused the property to be sold by the trustees in March, 192'5.

“The answer of the Bank admitted the execution of the agreement and set up a counterclaim of $14,378.37 which it claimed was due as a deficiency under the deed of trust after it had sold parcels I, II and III. This counterclaim was identical with the complaint filed in the Tuba county case. Nothing was done in the Butte county ease until March 9, 1928, when the present attorneys for the Hunts, having in the meantime been substituted for their original attorneys, moved to file an amended complaint, which was by the court, denied. The proposed amended complaint was virtually identical with the cross-complaint and counterclaim in the Tuba county case.

“Upon motion of the Bank and over the objection of the Hunts, the Butte county case was set for trial. In opposition to the setting of the Butte county case it was contended by the Hunts that the action in Butte county, if based upon the original complaint, would not present all of the claims for damage which the Hunts had against the Bank, and that the action in Butte county should not be tried before the Yuba county action was tried, as a judgment in Butte county might be construed as an estoppel and res judicata against the action pending in Yuba county; that the Butte county case should be consolidated with the Yuba county case and all of the issues between the parties there determined. However, the motion to amend, postpone or consolidate was denied and the cause proceeded to trial, and upon appeal the Hunts were awarded a judgment against the Bank for $14,132.54 (Hunt v. United Bank & Trust Co., 210 Cal. 108 [291 Pac. 184]), reference to which is made for a clear statement of the facts of that casé and the issues submitted and determined therein.

“Thereafter and in October, 1931, the Hunts caused the issues pending in Yuba county to be brought to trial, and at the conclusion of the trial upon the issues raised by the cross-complaint, the court granted a nonsuit against the Hunts, and from that judgment this appeal is prosecuted.

“Upon the theory that the judgment in Butte county was a bar to the action in Yuba county the trial court sustained objections to the introduction of the evidence submitted by the Hunts upon the cross-complaint at the Yuba trial. We believe the trial court in this was in error. The issues tried in Butte county were limited to a single issue of the damages sustained by the Hunts through the loss of the rice crop on the home place. This is apparent from the pleadings, the complaint alleging ‘that by said wrongful violation by defendant as hereinabove set forth and that said failure to comply with the terms thereof . . . plaintiffs were. unable to farm any of said lands and were damaged in the sum of $20,000.00’. It will be recalled in that connection that the only lands the Hunts were to farm according to the agreement was parcel II, the home place. And in the opinion in the ease of Hunt v. United Bank & Trust Co., supra, the court said: ‘The result was that the home place was not farmed during the 1924 season and Hunt lost his rice crop. Defendant then caused the lands to be sold under its deed of trust. Plaintiff thereupon brought this action to recover damages in the sum of' $20,000.00 from defendant by reason of the loss of the crop. ’ Under the agreement between the parties the Bank was obligated to advance money to farm parcel II, to negotiate a lease to Bayless on parcel I, and to withhold foreclosure on the deed of trust.

“Therefore, the Butte county case having been confined to a single issue of damages arising out of the failure of the Bank to advance the money necessary for planting the rice crop and for the water charges as agreed on one parcel, it does not appear that anything pertinent to the Yuba county action was ‘actually and necessarily included’ in the judgment in the Butte case.

“ We are ... of the opinion that the Bank waived its right to raise the question of res judicata in the Yuba county case by its opposition to the motion to amend the Butte county case to include therein the various causes of action set forth in the Yuba county case, and by opposing a motion to try the two eases together.

“ Where counsel by timely notice call to a court’s attention the pendency of other proceedings covering kindred matters and strive to have the same embraced within the scope of the inquiry, and such attempt is successfully blocked by opposing counsel and the trial proceeds to the investigation of the specific issue before the court, counsel who were successful in preventing the consolidation of the issues cannot be heard later to object to a trial of the related matters upon the ground of res judicata. The course pursued by the court and counsel in the Butte county ease was tantamount to an express determination on the part of the court with the consent of opposing counsel to reserve the issues involved for future adjudication. (Asher v. G. F. Stearns etc. Co., 241 Ky. 292 43 S. W. [2d] 1012.) Litigants cannot successfully assume such inconsistent positions.

The rule against splitting a cause of action is for the benefit of the defendant and he may waive it or renounce it by agreement with plaintiff.’ (34 Cor. Jur. 829.)”

In Southern Pac. Co. v. Edmunds, 168 Cal. 415, 418 [143 Pac. 597], the rule is stated as follows: “The rule undoubtedly is that a former judgment between the parties to an action is conclusive in all subsequent actions involving the same question, not only as to the matters actually decided in the former controversy, but as to all matters belonging to the subject- of the controversy and properly within the scope of the issues which also might have been raised and determined; the presumption being that all such issues were presented and decided. (Bingham v. Kearney, 136 Cal. 175 [68 Pac. 597]; Rucker v. Langford, 138 Cal. 611 [71 Pac. 1123].)

“As to matters, however, which might have been litigated and decided in a former suit as within the scope of the issues, but which were not actually or expressly in issue and adjudicated, only a presumption is indulged in that they were decided. This presumption is, however, a disputable one and may be overcome by showing that although a particular matter was involved in the former action, it was by consent of the parties withdrawn from consideration at the trial and did not at all enter into or constitute any part of the verdict of the jury or final determination of that action. If this is the situation here, defendant certainly cannot invoke the doctrine of res adjudicata against the assertion by plaintiff in this action of a right to the credit claimed. He cannot assert the conclusiveness of the former judgment on that matter if he consented with plaintiff that it might be withdrawn from consideration by the jury as an issue in the former action and it was in fact withdrawn. ’ ’

The appellants therefore contend that it was error for the court to exclude the proffered testimony of witness Brown in the present case as to what had taken place before the court in the Butte case relative to a continuance or to consolidating the Butte and Yuba cases, the testimony there admitted and what was said and done by counsel for the Bank in opposition thereto. We believe the evidence was proper to determine whether or not defendant had waived or renounced the benefit of the rule.

It is also a general rule that either parol evidence or a reporter’s transcript is admissible to show what matters provable under the issues of a case were or were not submitted to a jury as an aid in determining whether a judgment acts as a bar to another action, and for that reason also the court should have permitted the testimony of Brown to have been received. (Goodman v. Dam, 112 Cal. App. 244 [296 Pac. 623]; People v. Bailey, 30 Cal. App. 581 [158 Pac. 1036]; Meredith v. Santa Clara Min. Assn., 56 Cal. 178.)

The judgment of nonsuit on the counterclaim and cross-complaint of the appellants was error. The judgment is therefore reversed and the cause remanded for a new trial.

Shenk, J., Thompson, J., and Curtis, J., concurred.

Rehearing denied.


author: THE COURT.

text:
    [S. F. No. 15219.
    In Bank.
    July 23, 1934.]
    JOSEPH P. GILMORE, Petitioner, v. FRANK C. JORDAN, as Secretary of State, etc., et al., Respondents.
    James D. Lucey for Appellant.
    U. S. Webb, Attorney-General, Robert W. Harrison, Chief Deputy Attorney-General, and John J. O'Toole, City Attorney, for Respondents.
   THE COURT.

In the procurement of the papers for the candidacy of Alexander Gillmor, referred to in the proceeding herein, fraud was committed upon the electors, upon the signers to the sponsorship certificate, and upon other candidates for the same office, as defined in the case of Power v. Jordan, S. F. No. 7077. Upon the authority of that case a peremptory writ of mandate is hereby ordered to issue to the registrar of voters of the city and county of San Francisco commanding him to omit the name of Alexander Gillmor from the list of candidates for the office of assemblyman from the twenty-first assembly district, to be hereafter published by him, and from the ballots to be printed and prepared. Further ordered that a transcript of testimony be delivered to the deputy city attorney representing respondent Collins, to be by him referred to the district attorney of the city and county of San Francisco for presentation to the grand jury.

       REPORTER’S NOTE.—The case of Powers v. Jordan, cited supra, was a proceeding in prohibition to prevent the Secretary of State from certifying Charles A. Powers as a candidate for nomination on the Democratic ballot and also on the Republican ballot at the August, 1914, primary election. It was alleged that after petitions for the certification of Lawrence J. Flaherty had been circulated by one Schienhard and sufficiently signed for each party, the name of Flaherty was erased and “Charles A. Powers” inserted therein with design to injure the candidacy of Charles James Powers, and to confuse and mislead the electors of the twenty-fourth Senatorial District. The opinion of the court, orally delivered by Acting Chief Justice Henshaw on July 24, 1914, is as follows:
      The urgency of the matter calls for a decision from the bench, without the expenditure of the time necessary for the preparation of a written opinion, and I am authorized by my associates, therefore, to express the views of the court, in which all of those who are now present concur, and Justice Lorigan, who departed a few moments ago, expressly desired me to say that he concurred. It is quite manifest that these petitions for Charles A. Powers were circulated, • as Mr. Schienhard has stated, not so much for the advantage of Mr. Charles A. Powers, who seems to have been not profoundly interested in his own campaign, since these petitions were circulated hut a day or two at the most before the final date of the presentation of them; but it is clearly the fact, and this court would have to shut its eyes to obvious circumstances if it did not so declare the fact to be, that Charles A. Powers’ petition was circulated to the injury, and designedly to the injury, of Charles J. Powers. That, however, has nothing to do with the right to circulate those petitions if that right is given by the primary law, a question which is not raised in this case. Assuming, therefore, that there was that right, we come to the essential and vital question in this case, namely, whether in such circulation there was a fraud perpetrated. The fraud was made up of two kinds. First, a fraud upon the electors if their signatures were improperly obtained; and, second, a manifest fraud and injury upon the other bona fide candidates for the same. office. The view of this court is that that fraud, from both points of view, is abundantly established; that the Schienhard petition and the Schienhard testimony are corroborated by that of disinterested witnesses, such as those ladies who here appear, and who have and can have no earthly reason for misrepresenting the facts as presented to them, and who concur from Ac beginning to the end in their testimony with the statement made by Schienhard. That being so, it necessarily follows that the electors themselves were tricked and defrauded when they were induced to sign a petition which they believed to be for Lawrence J. Flaherty, and which was in fact intended to be for Charles A. Powers. Nor does it matter in this connection whether or not Schienhard falsely or intentionally made his affidavit to those petitions when they were returned. The effect would be the same, which effect would be, in law and in fact, that the fraud still was perpetrated upon the electors, and the fraud was still perpetrated upon those who were bona fide candidates for the office.
      The ruling and order of the court, therefore, is that as to both of the petitions for Charles A. Powers they be denied a place upon the ballot, and the Secretary of State be advised accordingly.


text:
    [Sac. No. 4740.
    In Bank.
    July 24, 1934.]
    KNIGHTS LANDING RIDGE DRAINAGE DISTRICT, Respondent, v. RECLAMATION DISTRICT No. 730, Defendant; EMMA SNOWBALL et al., Interveners and Appellants.
    Devlin & Devlin & Diepenbrock and H. B. Wulff for Interveners and Appellants.
    Arthur C. Huston, Jr., and Rutledge & Rutledge for Respondent.
   WASTE, C. J.

This court granted a petition for rehearing in the above-entitled cause, one of four consolidated cases (Sac. Nos. 4737, 4738, 4739 and 4740), decided on March 1, 1934. A full discussion of the facts involved in this cause and the situation of the parties is contained in the decision in the other three causes, supra [Hawley v. Reclamation Dist. No. 730, 220 Cal. 271 (30 Pac. [2d] 505)], and need not be here repeated.

Two questions only need be discussed in determining this cause. First, whether or not, under the provisions of section 3456c of the Political Code, the lands and rights of way of the plaintiff, Knights Landing Ridge Drainage District, can be assessed by the defendant, Reclamation District No. 730, within the bounds of which reclamation district the lands of plaintiff are situate.

When the commissioners viewed the lands in Reclamation District No. 730, and spread assessment number 4 according to the benefits accruing from the work of repair, maintenance and raising the height of the river levee, they laid no assessment against the property of the drainage district. Those lands consisted wholly of a strip of land 375 feet on either side of a center line, and constituted the easement and right of way for, and were occupied by, the drainage canal and its banks maintained by the drainage district. The board of supervisors, however, when it re-apportioned the assessment made by the commissioners, ordered that the sum of $5,000 be levied and assessed against the land so occupied. The trial court found that no benefit would accrue to the lands by reason of the expenditure of the money for which the assessment was levied, and also found that the land was dedicated to the public use and purpose, and is so used and occupied for such use, as required by the act of the legislature creating the drainage district. It accordingly annulled the resolution and order of the board of supervisors levying the assessment.

The relevant portion of section 3456c of the Political Code is: “Assessments levied by any reclamation district formed or operating under the provisions of this article (Art. II of Chapter I of Title VIII relating to ‘property of the state’) shall include all lands and rights of way lying within said district and owned by the state of California, or by any city, city and county, county, public corporation, or any utility district formed under the laws of the state of California, except school districts. The assessments upon such lands or rights of way shall be levied in proportion to the benefits that will accrue to such lands or rights of way in the same maimer as assessments are levied upon other lands or rights of way within said district.” The drainage district contends that it does not come within the designation of any body or entity mentioned in the section. Appellants concede that the district is not a public corporation nor a utility district, but contend that it is a public mandatory or governmental agency of the state. In other words, in effect the state itself. Therefore they contend that the land is owned by the state of California, and is assessable as such. In support of their contention, they cite the decision of the District Court of Appeal in Western Assur. Co. v. Sacramento & San Joaquin Drainage District, 72 Cal. App. 68, 74 [237 Pac. 59]. The district there being considered is identical in its organization and purposes with the Knights Landing Ridge Drainage District here involved, in that both districts were organized to carry on a part of the flood control program of the state. Each district was organized under a special statute and embraced within its territorial limits more than one reclamation district. The court there held that the drainage district in question was “a public mandatory or governmental agency of the state— indeed, the state itself”. The name “drainage district” is not used in section 3456c, supra, specifying what lands and rights of way may be included in assessments. The question, therefore, is whether or not the legislature, by the enactment of the section, intended to refer to and include within its provisions such districts as the plaintiff district, and to provide that its rights of way and land necessary therefor can be assessed by the reclamation district within its borders.

The whole scheme of reclamation originates with the state and is carried to a conclusion by agencies of the state— the districts—in furtherance of public policy, and the property of such districts acquired thereby which is indispensable to the execution of its objects is public property of the state. (Reclamation District No. 551 v. County of Sacramento, 134 Cal. 477, 479 [66 Pac. 668]; see, also, People v. Richards, 86 Cal. App. 86, 92 [260 Pac. 582].) We therefore see no legal reason why the state cannot permit property such as that owned by the drainage district to be assessed for benefits, if there be any, that may arise from reclamation projects such as that leading to the assessment levied by the defendant, Reclamation District No. 730, in this case.

The second question to be determined is whether or not the assessment levied and assessed by order of the board of supervisors upon the lands of the Knights Landing Ridge Drainage District was spread in accordance with any benefits derived froni the project involved. The strip of land owned by the drainage district on which the assessment was sought to be impressed consists of 312 acres comprising the right of way of the canal and its protecting banks or levees. Other than references in the hriefs and a description of the area of the right of way for the canal, neither party has pointed to any evidence as to the nature or condition of the land. There are terms used by civil engineers who were witnesses in the cause from which we gather that the drainage district canal • lies between large and substantial levees constructed in accordance with the best accepted practice, and which would not be endangered or affected by a break in the river levee being constructed by the reclamation district, and consequently would not be injured if the river levee was not raised. The commissioners who levied the assessment in the first instance testified that in their opinion no benefit would result to the lands of the drainage district from the works being constructed by the reclamation district. That conclusion appears to be borne out by the testimony of civil engineers of long experience who testified in the cause. The trial court found that “the amount of the assessment and charge made and apportioned by the board of supervisors on the lands of plaintiff [Drainage District] over and across which plaintiff has said easement and right of way for said canal and banks as aforesaid is in excess of the benefits and any benefit that has or will accrue or be derived by said plaintiff . . . and in excess of the benefit or any benefit that will accrue to said plaintiff or to said land or to the said right of way, easement or works of said plaintiff or any of the same by the carrying out of said plans of said [Reclamation] District”. It therefore annulled the resolution and order of the board of supervisors levying the assessment, and annulled the assessment so apportioned against the land and rights of way of plaintiff. Judgment was entered accordingly. The findings negative the idea that the lands, rights of way, canal and banks of the drainage district on which the assessment was levied and spread by the hoard of supervisors, received or could receive any benefit from the reclamation work done by District No. 730, and which was the basis of the assessment. There was evidence in the record and testimony supporting the findings which, in turn, support the judgment.

The judgment is affirmed.

Shenk, J., Curtis, J., Preston, J., and Langdon, J., concurred.


text:
    [Sac. No. 4870.
    In Bank.
    July 27, 1934.]
    EVELYN M. CAMINETTI, Respondent, v. BOARD OF TRUSTEES OF JACKSON UNION HIGH SCHOOL DISTRICT et al., Appellants.

      Ralph McGee and T. G. Negrich for Appellants.
    Snyder & Snyder for Respondent.
   THE COURT.

This is an appeal by defendants from a judgment directing that a writ of mandate issue to compel payment of plaintiff’s salary as a teacher. The appeal is on the judgment-roll.

In June, 1930, plaintiff was employed by defendant school district as a probationary teacher, and taught for the school year 1930-1931. Under the provisions of the School Code the teacher is deemed re-employed for the next year unless notice to the contrary is sent by registered mail, or is personally served, on or before June 10th. No valid notice in compliance with the statute was sent, but the district employed another teacher in place of plaintiff, and refused her services when she appeared in September, 1931. In October, 1931, plaintiff commenced a proceeding in the superior court, seeking a writ of mandate to establish her right to teach. The court gave judgment in her favor on October 13, 1931. It decreed that she “is now and has been ever since the commencement of this proceeding, entitled to perform the duties and services of a probationary teacher’’, and ordered that a peremptory writ of mandate issue commanding the Board of Trustees to assign her to a class. The defendants appealed, but the appeal was subsequently dismissed and the judgment became final. Defendants, however, ignored the writ and refused to reinstate plaintiff in her position.

On November 25, 1932, the present proceeding was commenced. Plaintiff alleged the above facts and her readiness, willingness and ability to teach during the school year 1931-1932, and sought a writ of mandate to compel payment of the sum of $1800 alleged to be due as salary during said year. Defendant filed a demurrer, which was overruled, and an answer denying certain allegations and setting up a special defense. The trial court gave judgment on the pleadings in favor of plaintiff, and ordered the defendants to pay the sum demanded and costs.

The defense relied upon by the district was that in May, 1931, plaintiff voluntarily withdrew her certificate of qualifications from the office of the county superintendent of schools, the same not being replaced until January, 1932. It is contended that under the law, this certificate must be on file as a basis for the implied contract of employment.

It is apparent that this defense, and the various denials found in the answer, are disposed of by the application of the doctrine of res jiidicata. By its judgment in the first mandamus proceeding the court in October, 1931, determined that plaintiff was entitled to teach, and was ready, able and willing to do so, during that school year. The defense that she had disqualified herself by removal of her credentials in May was available at that time, and hence, whether or not it was actually made, it was determined adversely to defendants by the judgment. It is elementary that the judgment is conclusive not only as to issues raised but also as to those which could have been raised. (Price v. Sixth Dist. Agr. Assn., 201 Cal. 502 [258 Pac. 387].)

The objection that the first judgment only determined her fitness up to October 13, 1931, has no merit. Her status being once established, it is presumed to continue, and under the law as it then stood, she could not be dismissed after her re-employment, except for cause. (Blalock v. Ridgway, 92 Cal. App. 132 [267 Pac. 713].) The establishment of her right to teach determined her right to the salary fixed for the position. (Goldsmith v. Board of Education, 63 Cal. App. 141 [218 Pac. 296]; Hancock v. Board of Education, 140 Cal. 554 [74 Pac. 44].)

It follows that the questions involved in this proceeding were all determined by the prior judgment, and that no issue of fact remained to be tried. Under these circumstances it was not error for the lower court to render judgment on the pleadings.

The propriety of the remedy of mandate against a school board to collect salary due a teacher is established by several cases. (See Ross v. Board of Education, 18 Cal. App. 222 [122 Pac. 967].)

The judgment is affirmed.

Rehearing denied.


text:
    [S. F. No. 15068.
    In Bank.
    July 27, 1934.]
    LAWRENCE J. ARCHER, Respondent, v. CIVIL SERVICE COMMISSION OF SAN FRANCISCO, etc., et al., Appellants.
    John J. O’Toole, City Attorney, and Thos. P. Slevin, Deputy City Attorney, for Appellants.
    Leo A. Cunningham and John J. Dailey for Respondent.
   THE COURT.

This is an appeal from a judgment of the superior court, on petition for writ of mandate, ordering defendant Civil Service Commission to restore petitioner to his employment and to approve his claim for salary.

Petitioner, in February, 1927, was employed by the city and county of San Francisco in the bureau of engineering of the board of public works, in the capacity of engineering draftsman. His work consisted chiefly of preparing plans, specifications, estimates and other engineering data for use in connection with the construction and maintenance of the San Francisco airport. He worked under the direction of the city engineer, but the bulk of his time was spent at the airport, which is located in San Mateo County, outside the boundaries of the city and county of San Francisco. On January 8, 1932, the new charter of the city and county went into effect, and the airport work was, under its terms, transferred to the public utilities commission. On May 25, 1932, petitioner’s name was stricken from the civil service eligible lists on the ground that he had not been a resident of the city and county for more than a year prior to the taking of his examinations. Petitioner now concedes that he. does not fulfill such residence requirement, and grounds his claim upon certain special provisions of the old and new charters. Article XIII, section 11, subdivision A of the former charter provided that city and county employees employed on public works outside the city and county were not subject to the civil service requirements. Section 142 of the new charter provides: “Where existing positions that have heretofore been exempt from civil service examinations are now made subject to examination by this charter, the incumbents of such positions who have held such positions for a period of one year continuously next preceding the time that this charter shall go into effect, shall be continued in their positions as if appointed thereto after examination and certification from a list of eligibles and shall be governed thereafter by the provisions of this charter.” Petitioner, for more than a year prior to the going into effect of the new charter, held a position on a public works project located outside the city, and hence was undoubtedly “blanketed” into the position under the above charter provision, without examination. This was the finding of the court below, and it is clearly correct. The case of Cutting v. McKinley, 130 Cal. App. 136 [19 Pac. (2d) 507], is directly in point.

It is contended by appellant Civil Service Commission that section 125 of the new charter constitutes an exception to the provisions of section 142, and deprives petitioner of his status. Section 12'5 provides that employees of the municipal airport shall, subject to the approval of the public utilities commission, “be appointed by and hold office at the pleasure of the manager of utilities”. But the evidence shows and the court found that petitioner was an employee of the bureau of engineering of the department of public works. The fact that his engineering work was centered mainly on the airport did not change the character of his employment. He remained a member of the engineering staff, subject to transfer from the airport to any other public works project.

The judgment is affirmed.


text:
    [S. F. No. 15094.
    In Bank.
    July 28, 1934.]
    MERCER H. FARRAR, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.

      Mercer H. Farrar, in pro. per., for Petitioner.
    Philbrick McCoy for Respondent.
   THE COURT.

This is a proceeding to review the action of the board of governors of The State Bar of California recommending suspension of the petitioner Mercer H. Farrar from the practice of law in this state for a period of two years for professional misconduct and violation of his oath as an attorney.

Petitioner does not question the evidence before the board of governors, their findings thereon, nor the propriety of their recommendation. His only point, which is in the nature of a plea for clemency, is that, in view of all the facts and circumstances, the recommendation of the board of governors is unduly harsh and severe, and he asks that the period of suspension be reduced.

A partial hearing was had before local committee No. 3 of San Francisco County on June 8, 1933, and the petitioner not appearing, the matter was continued to June 29, 1933, when the respondent appeared and the matter was fully heard and submitted. The findings of the local committee were as follows:

“As to the first count, it appears that in June, 1931, John Baldanzi, the complaining witness, employed respondent, who was an attorney practicing his profession in San Francisco, with offices at 519 California Street, to establish a recbrd of the birth of Attilio Frederico Vomero. Vomero, who was a nephew of the complaining witness, resided at the time in Pennsylvania and complaining witness acted as his agent. The employment was accepted by respondent who agreed to complete the proceedings for a fee of $50.00. Respondent was paid at the time of his employment $20.00 and a short time later an additional $10.00. Respondent was also given at the time of his employment the baptismal record of Vomero. Respondent intimated to the complaining witness that he had filed the necessary petition and that a hearing would be had December 14, 1932 (1931). Later he told complaining witness he had been obliged to continue the matter over the Christmas holidays. Complaining witness, hearing nothing further, consulted Attorney Reisner in February, 1932. Mr. Reisner upon examining the records found no petition had been filed and he so stated to the complaining witness. Mr. Reisner filed the necessary petition March 16, 1932, and completed the proceedings in three weeks.
“Respondent has not returned the payments he received nor did he perform any of the services for which he was employed by complaining witness.
“As to the second count, it appears that Rachel Cosentino, the complaining witness, employed respondent to probate her husband’s estate. Yicenzo Cosentino, the husband, died January, 1917, leaving an estate consisting of $2',791.54 in a savings account in the Bank of Italy and an undivided interest in three flats at 16 Bernard Street, San Francisco. Joseph Sarubi, complaining witness’ brother, introduced respondent to Rachel Cosentino at the time of her husband’s death and she employed respondent to probate the estate. The employment was accepted by respondent who was paid $25.00 on January 20, 1928, and gave his written receipt therefor. On the same day complaining witness designated her brother, Joseph Sarubi, in a written nomination, to act as administrator. Respondent filed the petition for letters of administration on January 21, 1928. The hearing was had February 7, 1928, and Sarubi was appointed administrator. On the day that Sarubi was appointed administrator complaining witness and respondent went to the Bank of Italy and transferred decedent’s account to Joseph Sarubi individually and not as administrator. Upon completing the transfer Sarubi withdrew $250.00 and paid this to respondent who gave his written receipt reading: ‘Received of Mrs. Cosentino by hand of Joseph Sarubi $250.00 in full of fee and costs re estate of Y. Cosentino.’
“On August 25, 1930, respondent was paid an additional $20.00 by Sarubi and gave his receipt in writing as follows: ‘Received of Joseph Sarubi $20.00 re settlement in estate of V. Cosentino, dec’d.’
“Notice to creditors in the Cosentino Estate was published and the affidavit of publication filed. No inventory and appraisement or other proceedings were had in the estate. Sarubi, the administrator, died April 8, 1932. Respondent prepared a petition for letters of administration in favor of Rose A. Puchen, as successor to Sarubi, but this petition was never filed.
“Respondent has taken no further proceedings in the estate of Cosentino nor has he refunded any part of the payments he received.”
The-local committee drew the following conclusions from the record: “Respondent seeks to justify his acts by what he terms a plea ‘in confession and avoidance’. He admits the fact of his neglect but seeks his excuse in a series of personal misfortunes, financial reverses and illness in his family. Referring to the Baldanzi matter respondent testified, ‘He gave me the money and the pressure on me was such that every dollar I got into my hands I had to use in my wife’s condition.’ These things forced respondent to close his office and later leave town in an attempt to restore his wife’s health.
“The excuse is made in the Cosentino matter that Sarubi, as administrator restrained respondent’s hand. ‘He didn’t want me (respondent) to do anything and go ahead any more. ’ However, it is apparent that the true reason for the neglect in this estate, extending over a period of five years, was, as respondent states, ‘the condition of my own personal home’.
“The personal misfortunes of respondent though touching our feelings and sympathy cannot stand ‘in avoidance’ of his duties to his client. The widow of Cosentino is still awaiting her estate, and probably will face the necessity of additional costs. Respondent took his fees and costs in full in this estate, without order of Court and in advance of the statutory period. Respondent’s professed willingness to act in these matters was forestalled by his yielding to the necessities of the moment. There is, however, throughout the record a keen sense of respondent’s appreciation of the wrong to his clients and a depreciation of the facts to which he found himself a victim. While we cannot condone respondent’s "breach of duty, mitigating circumstances appear in his confession of wrong, his expressed willingness to retrieve his omissions, and, we believe, a sincere desire to re-establish himself. It would seem that the ends of justice would best be served by a limited suspension.”

Whereupon, the local committee recommended thirty days’ suspension. The board of bar governors approved and adopted the findings of the local committee but recommended suspension for a period of two years.

Notwithstanding the petitioner has expressed himself as satisfied with the sufficiency of the evidence and the findings of the local committee, the entire transcript of the proceedings before the local committee has been carefully examined for the purpose of appraising the respondent’s omissions of duty and it appears therefrom that the findings and conclusions above quoted are a very fair summary of the facts brought out by the investigation. While, like the local committee’s, our sympathy has been aroused by respondent’s story, “domestic or other private embarrassments of the attorney in such matters cannot be accepted as extenuating circumstances, at least to the extent of absolving the petitioner from discipline on the record here presented.” (Ring v. State Bar, 218 Cal. 747 [24 Pac. (2d) 821].)

The petitioner was charged with and found guilty of neglect of his duties as an attorney, and we do not condone his offense, but the misconduct consists of dilatoriness and negligence and he is not charged with or found guilty of any conduct involving moral turpitude. He appears willing to do whatever lies in his power to compensate for his neglect. He acknowledges his responsibility and the justice of the disciplinary action, and asks only that the punishment be not so severe as to preclude any possibility of his regaining his place in the legal profession. Under the circumstances we think that suspension for the period of one year is a punishment which is both ample and just.

It is therefore ordered that the petitioner be suspended from practice as an attorney at law in this state for the period of one year from and after the date of the filing of this order.


text:
    [Crim. No. 3692.
    In Bank.
    July 28, 1934.]
    THE PEOPLE, Respondent, v. REMIGIO SONOQUI et al., Appellants.

      Wm. T. Kendrick, Jr., and L. V. Peterman for Appellants.
    ü. S. Webb, Attorney-General, John D. Richer, Deputy Attorney-General, Buron Fitts, District Attorney, and Tracy Chatfield Becker, Deputy District Attorney, for Respondent.
   PRESTON, J.

This is an appeal from a judgment of conviction and from order denying motion for new trial; also from order denying motion in arrest of judgment. Our conclusion upon the question of the jurisdiction of the court below to try this cause, and enter the judgment complained of on the verdict, will dispose of the appeal.

Defendants were previously put to trial on the present charge of murder and were, on December 23, 1932, convicted in said court. On January 3, 1933, this motion for new trial was granted by the trial court upon the ground of insufficiency of the evidence. Immediately following this ruling, the People announced their appeal from the order and caused proper notice thereof to be entered in the minutes of the court. (Pen. Code, sec. 1238, subd. 3.) Thereafter, and on February 11, 1933, the District Court of Appeal, having jurisdiction of the appeal, upon motion of the district attorney, with consent of the attorney for defendants, entered its order dismissing said appeal. No attempt was made to secure a remittitur. A certified copy of the order was procured and, on February 14, 1933, filed in the court below. On February 16, 1933, four days after entry of the order of dismissal, defendants were again put on trial and thereafter convicted of murder in the first degree. On March 7, 1933, at the time fixed for pronouncing judgment, defendants moved in arrest of judgment on the ground that the court was without jurisdiction to enter same, inasmuch as the order dismissing the former appeal of the People had not become final nor had a remittitur issued thereon.

The said order of dismissal was tantamount to a judgment of affirmance of the order granting a new trial. (Sec. 955, Code Civ. Proc.; Rowland v. Kreyenhagen, 24 Cal. 52; Spinetti v. Brignardello, 54 Cal. 521; Garibaldi v. Garr, 97 Cal. 253 [32 Pac. 170]; Barnhart v. Edwards, 128 Cal. 572, 576 [61 Pac. 176].) Under the Constitution, article VI, section 4c, it did not become final in the District Court of Appeal until the elapse of fifteen days after its entry nor did it pass beyond the jurisdiction of this court to transfer the cause for determination until the elapse of an additional fifteen days. In point of fact, the remittitur upon said order was not filed in the court below until March 14, 1933, seven days after judgment had been pronounced against defendants. Hence their objection to the jurisdiction of the court must be sustained.

In the case of In re Johannes, 213 Cal. 125, 129, 130 [1 Pac. (2d) 984], discussing the principle involved, this court said: “An appeal from the judgment or order denying a motion for a new trial removes the subject-matter thereof from the jurisdiction of the superior court. Pending the appeal the superior court has no jurisdiction to vacate the judgment or make any order affecting it. (People v. Mayne, 118 Cal. 516 [62 Am. St. Rep. 256, 50 Pac. 654]; Stowe v. Superior Court, 72 Cal. App. 174 [236 Pac. 985] ; 8 Cal. Jur., p. 520, and eases cited.) The jurisdiction of the court on appeal is not determined by the presence or absence therein of the record on appeal. (Estate of Davis, 151 Cal. 318 [121 Am. St. Rep. 105, 86 Pac. 183, 90 Pac. 711].) The appeal may be subject to dismissal, either by the appellant or by the respondent on proper grounds, or by stipulation, but until it is disposed of the jurisdiction of the subject matter of the judgment is vested in the appellate tribunal.”

In Noel v. Smith, 2 Cal. App. 158 [83 Pac. 167], the District Court of Appeal duly issued a writ of mandate directed to the court below in the case of Noel v. Noel pending therein, directing the judge to disqualify himself and procure the services of another judge to preside in said cause or else show cause at a time named why he should not so do. On the hearing this writ was discharged but before the order became final the court below moved to bring certain pending motions in the cause on for hearing. It was held that the court was- without jurisdiction to proceed and that the act of the judge in hearing said motions was in technical contempt of court.

In the case of People v. Walker, 76 Cal. App. 192 [244 Pac. 94], it was held, in a criminal appeal to that court, where an order reversing the cause had been made, that the statutory time for a retrial of the defendant did not begin to run until after the order had become final both in the District Court of Appeal and in the Supreme Court, which time, as the Constitution then read, was sixty days. This decision also interpreted section 1264 of the Penal Code in harmony with the conclusion there reached, which section provides for the time of issue and contents of a remittitur in a criminal case.

On this general subject, see, also, Hubbard v. McCrea, 103 Ga. 680 [30 S. E. 628]; Chambers v. Philadelphia Pickling Co., 82 N. J. L. 1 [81 Atl. 573].)

The fact that the state had taken no steps to comply with rule II, section 7, of this court, requiring, among other things, a statement of the grounds of the appeal, is wholly immaterial as the notice of appeal invested the District Court of Appeal with jurisdiction of the appeal and divested the trial court of power to move in conflict with such jurisdiction. (Estate of Davis, 151 Cal. 318 [86 Pac. 183, 90 Pac. 711, 121 Am. St. Rep. 105]; In re Johannes, supra.)

Further supplementing the holding here, it may be noted that it has been held in other jurisdictions that pending an appeal the trial court may not dismiss the action, even with the consent of all the parties. (State v. District Court, 77 Mont. 214 [250 Pac. 609].) See, also, a similar principle announced in the case of State v. District Court, 61 Mont. 346 [202 Pac. 575],

It follows that the judgment and orders of the court below must be reversed and the cause remanded for new trial, and it is so ordered.

Shenk, J., Waste, C. J., Curtis, J., and Langdon, J., concurred.


author: LANGDON, J.

text:
    [L. A. No. 14393.
    In Bank.
    July 30, 1934.]
    DAISY E. ROSS, Appellant, v. FRED W. ROSS, Respondent.
    Clarke & Bowker and Nathan Newby for Appellant.
    C. P. Temple for Respondent.
   LANGDON, J.

Plaintiff appeals from orders of the trial court modifying the provisions of an interlocutory decree of divorce. The decree was given in favor of plaintiff in 1921, and ordered defendant to pay twenty-five dollars per week for the support of plaintiff and her minor children, “until the further order of the court”. On May 10, 1933, after an order to show cause issued at the instance of defendant, the court found that the parties had agreed to a reduction of the payments to twenty dollars in August, 1931, when the eldest child became of age; and the court ordered that the interlocutory decree be modified to require payments of ten dollars per week until the remaining child reached majority, and thereupon payments should cease. Subsequently the court, on its own motion, amended its order nunc pro tunc by adding the following: “The Court further finds that the plaintiff, at present time, is earning $146.00 per month salary in the Los Angeles County Assessor’s Office, and is therefore able to care for herself and the Order for the payment of alimony is hereby vacated, commencing May 15, 1933.” Plaintiff appealed from each order.

Plaintiff contends that the interlocutory decree was entered as a result of a property settlement agreement of the parties, and followed the terms of an agreement made by them, and that consequently it is not subject to modification. The cases cited, however, are those in which the agreement was incorporated in and made a part of the decree. (See Parker v. Parker, 55 Cal. App. 458 [203 Pac. 420]; Johnson v. Johnson, 104 Cal. App. 283 [285 Pac. 902]; note, 19 Cal. L. Rev. 532.) This was not done in the instant case, and whatever rights plaintiff may have for breach of the agreement are enforceable in a civil action. The record shows that the court made no attempt to rule on the contractual relations of the parties. The statutory power of the court under section 139 of the Civil Code to modify its order awarding alimony and support for children upon a showing of changed conditions is not affected in such a situation. (Hughes v. Hughes, 68 Cal. App. 195 [228 Pac. 675] ; Armstrong v. Armstrong, 132 Cal. App. 609 [23 Pac. (2d) 50].) There was here a showing of changed conditions sufficient to justify the exercise of the power, and no contrary showing was made by plaintiff.

One point which plaintiff makes is well taken. The court has undoubted power to modify the order, but certainly it cannot wholly vacate or annul it years after its entry. Changed conditions now warrant the cessation of all payments, but it is possible that in the future different conditions may require their resumption. Doubtless all that the court intended was such a cessation of payments, and not an annulment of the order itself. (See Soule v. Soule, 4 Cal. App. 97 [87 Pac. 205]; Molema v. Molema, 103 Cal. App. 79 [283 Pac. 956].) This is, in fact, conceded by defendant.

The last order of the court is modified by striking therefrom the words “the Order for the payment of alimony is hereby vacated, commencing May 15, 1933”, and substituting therefor the following: “the order for the payment of alimony is modified, payments thereunder to cease commencing May 15, 1933, until further order of the court”.

As so modified, the orders of the lower court are affirmed. Respondent shall bear the costs of the appeal.

Preston, J., Curtis, J., Shenk, J., and Waste, C. J., concurred.