text:
    [L. A. No. 16712.
    In Bank.
    September 29, 1938.]
    FRED J. FURMAN, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.

      Marcus, Rabwin & Nash and Eugene H. Marcus for Petitioner.
    Philbrick McCoy for Respondent.
   THE COURT.

This proceeding is a review (as distinguished from certiorari) of an action of the board of governors of The State Bar, wherein by a vote of ten members voting in favor thereof, as opposed by a vote of three members, it was recommended to this court that the petitioner herein, Fred J. Furman, “be disbarred from the practice of the law in the State of California”. Prior to the presentation to this court of the said recommendation, the local administrative committee of The State Bar before which had been produced practically the identical evidence on the hearing of the charges that had been preferred against petitioner as had been presented to the board of governors, had made its recommendation “that the respondent (Fred J. Furman) be publicly reprimanded”.

The specific offense of which petitioner was found guilty of having committed was that “by deliberate fraud perpetrated by him upon Thelma W. Clark, and by false or exaggerated testimony upon the hearing before the Montana Court” (Italics added), petitioner had obtained an award of $82,500 as attorney’s fees which purportedly had been earned by him as an attorney who represented the executors of the will of William Andrews Clark, III.

Other than a challenge to the sufficiency of the evidence to support the determination that was reached by the board of governors of The State Bar, no question is suggested regarding the propriety of the recommendation that was made by the said board. It therefore becomes advisable to consider the evidence which tended to establish the truth of the ultimate fact upon which the recommendation was made to rest; and with respect thereto, the patent fact that a considerable portion of the testimony that was received in that behalf was seriously and appropriately questionable regarding both its accuracy and its truth, is not necessarily determinative of the question that is involved, in this proceeding. In the case entitled Fish v. State Bar, 214 Cal. 215 [4 Pac. (2d) 937], this court said, “It has repeatedly been indicated by this court that the board of governors, when sitting in discipline cases, is an administrative body acting as the administrative arm of this court. Its findings, although based on conflicting evidence, are not binding on this court. ... In other words, in such cases this court can and always does pass upon the weight of the evidence.’’ (See, also, to the same effect: Bentson v. State Bar, 216 Cal. 58 [13 Pac. (2d) 512], Clark v. State Bar, 214 Cal. 281 [4 Pac. (2d) 944], In re Shattuck, 208 Cal. 6 [279 Pac. 998], In re Petersen, 208 Cal. 42 [280 Pac. 124], Gray v. State Bar, 7 Cal. (2d) 177 [59 Pac. (2d) 1033], In re Stafford, 208 Cal. 738 [284 Pac. 670], Ring v. State Bar, 218 Cal. 747 [24 Pac. (2d) 821], and Herrscher v. State Bar, 4 Cal. (2d) 399 [49 Pac. (2d) 832].) Although in many important respects contradictory one of the other, neither of the respective findings that were made by the local administrative committee, or by the board of governors, is conclusive on this court, nevertheless, permitting the existence of a mental reservation regarding such impeached evidence, holding it in the balance, and not according to it the weight to which unassailed evidence ordinarily is entitled, if the remainder of the entire evidence be either legally sufficient in itself, or be sufficiently corroborative of that which is under suspicion, the result should be that the conclusion upon which the recommendation by the state board is founded, at least should be accorded persuasive force by this tribunal.

Reverting to the finding of fact, in substance, that petitioner committed a “deliberate fraud’’ upon Thelma Clark, the record reveals the fact that according to her testimony the fees that petitioner told her would be allowable, and to which petitioner and the executors together would be entitled would amount to a sum not less than $35,000 nor more than $50,000. Although to some extent, that testimony may be said to be inferentially (but neither directly nor convincingly) corroborated by documentary evidence, nevertheless, by at least the great preponderance of evidence to the contrary, that testimony is not worthy of credence. Other indisputable evidence in the case utterly refutes the verity and reliability of such a conclusion. However, the finding that “deliberate fraud” was perpetrated by petitioner was not entirely dependent upon that isolated fact, but was assisted by extrinsic facts. In that connection, it appears that the principal portion of the estate was being administered in the state of Montana; that at the time when the amount of fees was proposed to be fixed by the probate court, nine other separate and distinct orders were sought in the matter of the administration of the estate; that Thelma W. Clark, who was the principal legatee of the estate, was absent from both the state of Montana and the state of California; that although in accordance with the pertinent statutes of Montana, notices were properly posted of the application of petitioner for an order by which he would be awarded not only ordinary fees, but also compensation for the performance by him of asserted extraordinary services, he did not send to Thelma W. Clark either a copy of his said petition to the latter effect, or personally acquaint her with his intention in the premises in that regard, but that to the contrary, a communication relative to the matter that was sent by petitioner to Mrs. Clark, although correctly containing a proper reference to the fact that at a contemplated hearing of the matter on a stated date, the amount of fees to be awarded to petitioner would be adjudged, no direct or express intimation was given, nor did Mrs. Clark have any knowledge of the fact that extraordinary compensation would be asserted to have been earned. Furthermore, as an inference or conclusion deducible from such facts, it is contended that such omission on the part of petitioner was intended to deceive Mrs. Clark with reference to the amount of fees that would be claimed by him; and that in fact such action on the part of petitioner actually did deceive Mrs. Clark in that regard, and prevented her from contesting any asserted right- on the part of petitioner to such extra allowance as might be, and in fact was made to him on account of fees; and finally, that in thus “preventing” Mrs. Clark from contesting the claim of petitioner in that regard, not only was she defrauded, but as well, extrinsic fraud was committed on the probate court. With reference thereto, the record herein reveals the fact that in,a proceeding known as “supervisory control”, and which in its effect was in the nature of an appeal from the order by which the fees of petitioner had been determined, after reviewing the evidence that had been presented in connection with the matter, in the case of State ex rel. Clark v. District Court, etc., 102 Mont. 227 [57 Pac. (2d) 809], the Supreme Court of Montana declared “that the order fixing the attorney fees was secured as a result of constructive fraud, extrinsic in character. ...” (Italics added.) And in a similar matter before the same court which involved an order by which the fees of one Regis, who was one of the executors of the will in the said estate, had been fixed, among other things, as a predicate for the conclusion that petitioner was guilty of constructive fraud, it was declared that “It would seem that, in the absence of statutory authority to the contrary, the only notice (to Mrs. Clark) which would suffice as accomplishing the purpose of notice in such a case as this would be actual notice brought home to the interested party.” (State v. District Court, etc., 102 Mont. 74 [55 Pac. (2d) 1295].)

On the hearing before the board of governors of The State Bar, evidence also was introduced of the fact that although at the time when the original order was made by which the attorney’s fee was fixed by the court in the sum of $82,500, on a rehearing of the petition for that- purpose, the petitioner was allowed a fee for his services in that regard of only $20,000. Furthermore, in the complaint in an action which thereafter at the instance of Mrs. Clark was brought against petitioner to recover a judgment against him for the difference between the amount which he had received under the first order and that which finally it had been adjudged he was entitled to receive for his services, in substance it was alleged that in pursuance of a scheme and plan to defraud Mrs. Clark, the petitioner herein had wrongfully and fraudulently obtained the original order of the Montana court by which he was authorized to and did secure the sum of $82,500 as attorney’s fees from the estate which he was representing; whereas, as compensation for such services, in justice he was entitled to the sum of $20,000 and no more. In answer to the said complaint an unverified general denial was filed. Quoting from the brief filed herein by the respondent board, it further appears that “Neither petitioner nor his counsel appeared at the trial. Judgment was ordered for Thelma W. Clark as prayed. Proposed findings of fact and conclusions of law, and a proposed judgment were served on petitioner’s attorney on February 8, 1937. The proposed findings found that petitioner had wrongfully and fraudulently and in pursuance of a scheme and plan to defraud Thelma W. Clark and the estate of W. A. Clark, III, deceased, obtained $82,500 belonging to Thelma W. Clark and to said estate, and found the facts substantially as heretofore set forth herein. Neither petitioner nor his counsel proposed amendments to said findings. Thereafter Mrs. Clark had judgment in part that petitioner had secured the said award of $82,500 to himself as an attorney’s fee by fraud practiced by him on his client, the said Thelma W. Clark, and that at all times between May 20, 1935, and September 10, 1936, petitioner was a trustee for the sum of $72,199.36, paid to him immediately after said award for the use and benefit of said Thelma W. Clark and the estate of W. A. Clark, III, deceased. Judgment was entered after the court had made its findings of fact and conclusions of law as stated above. Notice of entry of said judgment was served on petitioner’s attorney on February 25, 1937. No appeal was taken from said judgment, and thereafter the judgment was settled by petitioner’s paying Thelma W. Clark $15,000 and executing and delivering to her two promissory notes payable within two years for approximately $4,300.00. On April 16, 1937, a satisfaction of said judgment was filed. ’ ’

On the other hand, and without reference to any conclusion that was reached by the Supreme Court of the State of Montana with respect to the necessity of actual notice to Mrs. Clark of the intended' application for an order by which the attorney’s fees to be allowed to petitioner would be fixed, the record reveals the indisputable fact that Mrs. Clark did receive a specific written notice to the effect that at the time stated therein petitioner would make application to have the amount of his fee determined by the court. It also is in evidence “That under the probate practice of the State of Montana it is not necessary or usual for an attorney to prepare and file a petition for fees; that all that is required is that the attorney upon the hearing to fix fees, introduce evidence bearing upon the nature and extent of his services and that based upon his evidence the court makes its award. • The only reason petitioner prepared and filed a petition in this case was because he had promised the complaining witness all along that this was the way he would have his fee determined. ’ ’

In presenting his said application, the petitioner suggested no sum as suitable or proper. His request or petition was that he be awarded a reasonable amount of compensation for his services; and as an aid to a determination of the amount of fees to which petitioner should be entitled, the nature and the extent of the services that had been rendered were fully and completely set forth. Furthermore, it is noteworthy that on the hearing of the matter, not two attorneys, as was customary in such matters in the state of Montana, but five of the lawyers of the local Montana Bar were called as witnesses, who respectively gave testimony to the effect that a sum not less than $85,000, and from that amount up to $110,-000 would be a reasonable value to be placed upon the services that purportedly had been rendered by the petitioner. The appraised value of the total estate was over $1,100,000, of which approximately $857,000 was in the state of Montana. In addition thereto, the local administrative committee of The State Bar which heard the evidence and saw the witnesses, in rendering its decision with reference to the value of the services of petitioner, in part made the following finding of fact: “that the administration of the estate of said deceased continued actively for substantially three years; that there were many difficult problems of taxation and administration involved; that respondent (the instant petitioner) conducted the legal affairs involved in the handling of said estate ably and well, devoting practically all of his time during said period to such work; that the results which respondent obtained for the benefit of the estate were excellent, and that the petition of respondent in making application for and receiving a fee of $82,500 from the Montana court of his entire fee for the original probate in Montana and the ancillary proceedings in California and Arizona, was justified”.

Considering such facts, and especially that in pursuing the course that was followed by petitioner in the matter, it becomes apparent that he was doing that which not only was in accord with the usual and customary practice in the state of Montana, but also that nothing to the contrary thereof, in anywise, theretofore had ever been prescribed or required either by statutory provision or by judicial fiat, it is impossible to legally adjudge that in that respect petitioner was guilty of the commission of a “deliberate fraud”. In the face of the local practice and in the absence of statutory provision by which petitioner might have been required to do otherwise than the record reveals was the course that was pursued by him, it would be a straining of the unwritten law of legal ethics to the breaking point, to concur in the conclusion that petitioner was guilty of any infraction of even the moral law.

In such circumstances, the final question of whether the recommendation of disbarment of petitioner should be adopted as the judgment of this court, depends for its solution primarily on whether the conclusion which was reached by the board of governors to the effect that petitioner gave “false or exaggerated testimony upon the hearing before the Montana court ’ ’, is sufficiently supported by the evidence.

At the outset, it may be noted that at least two objections very appropriately might be interposed to the finding of the said ultimate fact to which attention just has been directed: (1) that nowhere within either the detailed “findings of fact” or within the said ultimate fact, may be discovered in what particular respect petitioner gave either false or exaggerated testimony. In other words, for aught that appears, petitioner’s “testimony” in its entirety may have been both false and exaggerated. But equally, it may be surmised that his testimony may have been objectionable in that regard either in a dozen or so particulars, or possibly in one or two only. Everything in that regard is open to conjecture; and petitioner is afforded no fair opportunity to establish his point regarding the asserted lack of evidence to support the conclusion that was reached by the board of bar governors ; (2) the ultimate fact or conclusion that petitioner gave “false or exaggerated testimony upon the hearing before the Montana court” (emphasis added) was not only at variance with the charge upon which petitioner was prosecuted, but in addition thereto was not supported by any evidence, either by transcript of the record of the proceedings or by oral testimony, regarding what, if any, testimony petitioner gave at such hearing. In those respects the record herein discloses that by means of a “notice to show cause” it was alleged that, “On May 20, 1935, you presented to the Probate Court in Montana an eighteen page verified petition for fees and in said petition you set up many false or exaggerated claims to benefits which had accrued to said estate by reason of your efforts. . . . On May 20, 1935, without any notice or knowledge on the part of Thelma W. Clark you appeared in the Montana Probate Court and after you had testified to said false or exaggerated services set forth in your petition certain attorneys whom you had called as witnesses for. the occasion, gave as their opinion that the reasonable value of said services which you described were sums varying from $85,000 to $110,000. Based upon this showing, said Clourt entered an order awarding you an attorney's fee of $82,500.00 and ordering the executors to pay you this sum.”

As far as may be ascertained from the entire record herein the actual prosecution of petitioner was directed not with reference to any “testimony” that he ever gave either in Montana or elsewhere, but rather was limited and confined to general statements that were contained in his petition to fix attorney’s fees which he had presented to the Montana court. It thus becomes apparent that in those respects petitioner has just cause for feeling aggrieved.

But casting aside and leaving out of consideration such matters as may be deemed to constitute “mere technicalities”, it may be well to devote some attention to the facts and the circumstances of each of four different “claims” that were specified in the said petition that was presented by petitioner to the Montana court, and upon the allegations which therein are contained,—with reference to which the respondent board of governors now confines its charges against petitioner and asserts that he gave “false or exaggerated testimony”; and which “testimony”, it is contended, furnishes a foundation for its recommendation of petitioner’s proposed disbarment:

(1) The apartment lease: In that regard, petitioner’s statement in his petition to the Montana court was as follows: “Mr. Clark’s lease on the apartment at 1416 North Havenhurst Drive called for $500 a month rental and W. A. Clark, III, had not been able to break it or buy his peace during his lifetime. He, and after him Executor Regis and I, could not find a sub-lessor and we could not divide the apartment (it occupied an entire floor) into smaller units that could be rented. We stopped paying rent. In his lifetime W. A. Clark, III, had consulted me about breaking the lease. He insisted he had been misled into signing it; declared that he had an oral agreement allowing him to cancel at will. Undoubtedly he had been misled into the belief that the parol promise to permit cancellation was a binding promise. After many conferences with the landlords we reached the conclusion that a trip to New York City to see the person chiefly interested in the lease would result favorably. Executor Regis and I conferred with the residuary legatee (Mrs. Clark). She opposed the trip to New York City, declared it would prove fruitless and expensive and that she would eventually have to bear the expense. Executor Regis and I had neither time nor opportunity to ask authorization of this or any Court to make the deal. Executor Regis and I assumed the responsibility of settling. We had no money. We borrowed for the estate on the endorsement of one Clark J. Bonner the sum of '$8,500 and Executor Regis, with my approval but contrary to the wishes of residuary legatee, left at once for New York City where he bought for $8,500 the lease that called for $21,500 rentals. Had the effort failed we would doubtless have had to bear the expense personally. No claim was presented to the estate on this lease because the residuary legatee (Mrs. Clark) was a party to the lease and personally liable for the full rental. The saving was $13,000. We have since petitioned this Honorable Court to confirm the loan and the deal.”

On the hearing before the local administrative committee the petitioner gave testimony which in detail was entirely confirmatory of the said statement made by him in his said petition. No testimony other than that which was given by Mrs. Clark was in the least contradictory thereof. In that regard, she testified that by virtue of the settlement she did not “consider” that the full $13,000 had been saved; that she “had other ways” that she could have saved on the claim; that “the settlement was not my (her) original idea at all”; that although she knew “they” were trying to effect a settlement she had nothing to do with the negotiations; that “Mr. Regis did the work o£ settling the lease”. It thus becomes apparent that as far as the foregoing claim is concerned, the specific charge against petitioner, if not entirely unfounded, is so lacking in evidentiary support as to merit no serious consideration.

(2) The Smainia (or Smainis) claims: In this matter, petitioner ’s statement in his petition for the fixing of fees was as follows: "The claims of G. A. Smainis against the estate were extremely annoying and burdensome. In his lifetime Mr. W. A. Clark, III, with Smainis had organized the Casco Development Company. The name was made from the initials Clark and Smainis Co. It was organized to exploit natural resources and to engage in about all lawful enterprises. Smainis had a contract to act as an officer at a salary of $6,000 per annum. Among other activities it traded in the stock market. It borrowed large sums from the Citizens National Trust & Savings Bank of Los Angeles, and at Mr. Clark’s death owned [owed?] $28,500 secured by deposit of collateral owned by the Casco Company, by deposit of bonds owned by Mr. Clark and secured by the personal guarantee of Mr. W. A. Clark, III.

“On May 15, 1932, the date of Mr. Clark’s death, all the collateral was insufficient by thousands of dollars to pay their indebtedness to the bank. Under the will Smainia would come into control of the Casco Company. Once in control he could fix his salary at any sum. He claimed the Casco Company owned [owed] him $18,400 plus. At the expiration of one year he demanded delivery of his Casco stock. We advised him repeatedly that we would transfer the shares to him only when compelled by Montana’s highest court unless he agreed by proper contracts to protect the estate and the residuary legatee. The only chance the estate had to salvage anything was to buy its peace. The estate and the residuary legatee agreed to pay $13,000 and deliver all Casco stock to Smainis and agreed to assume the debt at the Citizens National Trust & Savings Bank. The Casco Company and the Smainis in consideration of the foregoing agreed to sell and assign all collateral owped by the Casco Company to the residuary legatee.

"To consummate the transaction it was necessary to petition this Honorable Court for partial distribution. The matter was fully recited in our petition for partial distribution on file in this Court. Reference is hereby made to the petition. Partial distribution was ordered and the agreement was completed according to the order.

"Practically, the deal cost $28,500 with some interest at the bank and $13,000 to Smainis. The residuary legatee acquired about 667 shares of Continental Oil, since sold for about $13,340; 500 shares of Texas Gulf Sulphur, since sold for $17,100; 1,800 Cord Corporation selling for $5.00 when delivered to the residuary legatee, or soon after delivery; 500 shares Petroleum Corporation, sold for about $6,000; 200 Transcontinental Air Transport, worth $300 to $500. So the residuary legatee benefited about $14,000.

"Actually, the work on this matter consumed more time than any other single detail. The controversy lasted more than a jmar. I had at least fifty conferences with Smainis, and probably twice that number. With his attorney many. Once more we had vast difficulty raising the money, but induced the United Verde Copper Company to advance a sufficient sum [of] from a treasury distribution soon to be made. The agreement reached with Smainis and his counsel, Mr. Leonard S.losson, did not end the grief. Mr. Smainis delayed affixing his signature to the necessary documents, which had been prepared by his own attorney to preclude his refusal to sign. Once signed up the stocks, or par [t] of them were delivered. I requested E. F. Hutton & Company to transmit the certificates for transfer to Thelma W. Clark. Counsel for E. F. Hutton & Company, brokers, advised the brokers that the settlement was invalid and Hutton & Company refused to transmit the certificates to New York for transfer. I requested the Citizens National Trust & Savings Bank to guarantee signatures and transmit the certificates. They did, and the transfer was made and new certificates were returned in almost record time. ’ ’

Again, the only evidence which by any stretch of the imagination might be considered adverse to Furman’s statement was that which was presented by the testimony which was given by Mrs. Clark. By far the greater part of her testimony was entirely corroborative of the facts set forth in the statement and the later testimony of petitioner. In effect, Mrs. Clark’s complaint was that petitioner had been dilatory in effecting a settlement and in consequence thereof that she had employed an outside attorney to get the matter closed. However, on cross-examination she admitted that during the time that the proposed settlement was pending she had been away from California on several different trips and “couldn’t know . . . what Mr. Furman was doing in regard to this Smainia claim”. She further testified that petitioner told her “That George [Smainia] was holding out for the whole sum, and I wouldn't consider paying the whole claim because I didn’t think it was justified. Q. Is that what you or Mr. Furman thought? A. What I thought. Q. Didn’t Mr. Furman say that the reason they couldn’t settle was because Mr. Smainia was holding out for a figure far in excess of what the estate should be obligated to pay? A. Well, we were agreed on that. Q. At the same time, of course, you weren’t willing to pay this exorbitant amount that Mr. Smainia was asking ? A. I was not. I thought there should be some way of dealing with him other than just fight back and forth with him trying to beat him down on the amount of his claim. Q. In fact you did beat him down eventually, didn’t you? A. Yes. Q. What other thing did you think could be done. A. I didn’t have anything definite in mind. That was the reason I went to Mr. Doherty.” Furthermore, with reference to the new services that were rendered by Mr. Doherty, who was the extra attorney whom she had employed, Mrs. Clark testified that Furman “sat in on the conferences. After we had employed Mr. Doherty Mr. Furman sat in on every conference that we had. Mr. Doherty was representing me as an individual”.

In addition thereto, from the contents of a letter which Mrs. Clark had written to Mr. Regis [who was one of the executors of the will], regarding such services, it appeared that Mrs. Clark had declared that “I fail to see in which manner Hops’ (Doherty’s) advice was so valuable as we made all the plans and carried them out. He was chiefly an observer.” It, therefore, becomes clear that, with reference to the Smainia claim petitioner had made no “false or exaggerated” statement.

The next assignment of “false or exaggerated testimony” that appears in the brief of the board of governors has to do with a matter known as “Pilot Ray”. The “testimony” or more accurately speaking, the statement in that regard which was made by Furman in his petition for allowance of fees was as follows:

“In his lifetime W. A. Clark, III, had engaged in the business of manufacturing headlights for automobiles. The device known as the Pilot-Ray, was patented, and so attached that automobile headlights turned with the wheels, but twice as fast as the wheels. It was a highly useful device at night, especially on hilly and curving roads. Large sums were spent on advertising. Full pages in the Saturday Evening Post and other similar publications were used. To finance the enterprise large sums were borrowed; one was a $1,000,000 [$100,-000] loan from the Citizens National Trust & Savings Bank, evidenced by a note. One Ella K. Perm, an aged woman, had an interest in the manufacturing company named the Pilot-Ray Corporation. She joined W. A. Clark, III, in signing the note for the $100,000. Finally the note then amounting to $97,000 was called for payment. W. A. Clark, III, paid and demanded reimbursement of $47,500 from Ella IC. Perm, who then lived in Pasadena, California. She moved to Baltimore, Maryland, possibly to escape service of process. W. A. Clark, III, started two suits in Baltimore, both of which resulted adversely without a hearing on the merits. He tried to settle the claim for $10,000 but failed. I advised W. A. Clark, III, that he would lose any suit he started because Ella K. Perm was in my judgment (1) incompetent; (2) she had been misled by a relative, or had failed to know what she had been induced to sign by her relative; (3) if judgment were obtained it would be valueless and unenforceable because the judgment creditor could find no property from which to satisfy the judgment. W. A. Clark, III, told me that Judge Sydney Banner had given him substantially the same advice. I had a series of conferences with Judge Sanner and we agreed that there was no justification for spending more money on the matter.
“Mrs. Ella K. Perm died and there was a will offered for probate in Baltimore. The will had been executed subsequent to the execution of the note to the Citizens National Trust & Savings Bank. The relative then, alone, could testify to the circumstances of the execution of the note, and I concluded that he would testify the proceeding had been regular in all particulars.
“Executor Regis and I submitted a plan of attack on the Per in heirs to the residuary legatee (Mrs. Clark). She opposed the plan on the ground that the claim could not be established, and if established the estate of Ella IC. Perm could not pay and it would cost her the expenses of the trip. Contrary to her orders I directed Executor Regis to go to Baltimore. It was better for Regis than I to go because he could deny all knowledge of law and could negotiate immediately with the Ella K. Perm heirs. He did all these things and reached an agreement with the Ella K. Perm heirs. Baltimore counsel then put the agreement in legal form. We petitioned this Honorable Court, and settled on order of this Court, for a sum net to the estate of over $20,000 cash. Had we failed to recover, doubtless we would have been called upon to bear the expenses of the trip.” pated in the settlement discussion and it was upon his authority that the settlement basis was agreed upon. . . . Mr. Fred J. Furman, attorney for the estate of William Andrews Clark, III, deceased, assisted me in effecting the settlement. . . . Mr. Furman assisted me in the settlement of the estate as follows: After the rejection of the claim of the Clark estate, Mr. Morgan advised me that his defense was based on the California Constitution and California law. He stated that under the law of California each stockholder of a corporation is personally liable for such proportion of the debts contracted while he is such, as the amount of his stock bears to the whole subscribed, and the liability of a stockholder in a corporation formed under the laws of any other state or territory of the United States but doing business in California, is the same. He stated further that this provision of law was repealed November 13, 1930, effective August 14, 1931, but that the repealing provision contained a saving clause. He referred me to the eases of Thomas v. Matthiessen, 232 U. S. 221 [34 Sup. Ct. 312, 58 L. Ed. 577], and Fry v. Baltimore Hotel Company, 80 Cal. App. 415 [252 Pac. 752]. I made a study of this contention and it appeared to me that the principle laid down in the case of Yule v. Bishop, 133 Cal. 574 [62 Pac. 68, 65 Pac. 1094] (1901), constituted a complete answer to Mr. Morgan’s contention. On October 10, 1932, I sent Mr. Furman a memorandum on the California law bearing on Mr. Morgan’s defense. When Mr. Regis was in Baltimore for the settlement I wired Mr. Furman for his opinion on the validity of Mr. Morgan’s defense. I advised him that it was difficult to discuss settlement with Mr. Morgan without an opinion from a California lawyer to the effect that the proposed defense was without merit under the California law. He advised me by telegraph that the case of Yule v. Bishop was the unquestioned law of California and that there were no adverse decisions. He stated further that the defense had absolutely no foundation in California law. ... In view of the fact that I received a telegram from Mr. Furman on California law when Mr. Regis was in Baltimore, I think it may be assumed that Mr. Regis and Mr. Furman acted together in effecting the settlement. ...”

The record shows that Mrs. Clark's connection with the settlement of the “Pilot-Ray” matter was negligible. In effect, she testified that she “didn’t have much personally to do with the settlement of that matter ’ ’; but that she discussed with Mr. Regis “the advisability of his going to Baltimore. ... We agreed that it would be a very good move;” and that it was not contrary to her orders “that Mr. Regis went to Baltimore”. However, by the testimony that was given through the medium of the deposition of one Huntington Cairns, it appears that in confirmance of Furman’s questioned statement in the matter, it was Cairns’ firm of attorneys that had charge of the claim in Baltimore, and that it was principally through its efforts that the litigation in the Pilot-Ray matter was compromised. But Cairns admitted that both Furman and Regis had assisted in the settlement. In that regard, Mr. Cairns deposed that:

“The negotiations for settlement after Mr. Clark's death, extended from May 28, 1932, to December 29, 1932, the date on which the settlement which was entered into was finally agreed upon. It included six conferences with Mr. Morgan, culminating finally in the settlement of December 29, 1932. . . . Mr. Regis was present at the conference with Mr Morgan on December 29, 1932, in, Baltimore, at which the claims of the respective estates were finally settled. Mr. Regis partici-

In the said matter, it therefore becomes evident that in his petition to have his fees determined Furman neither swore falsely, nor did he exaggerate, with reference to the services that had been rendered by him. To the contrary, with perfect propriety, he might have made a much stronger claim in his own behalf in that regard than that which he actually made. According to the evidence, Regis, although one of the executors of the will, was not an attorney; nor had he had any legal training. “He was a stenographer. He did all the stenographic work in connection with the estate. . . . He was a secretary, a man of business ability, ’ ’ who for years had been in the employ of W. A. Clark, III. As indisputably appears from the record, his ability to render service in the settlement of this particular claim was acquired through weeks of coaching by Furman, who instructed him thoroughly in the various details of law and factual knowledge necessary to be employed in reaching a satisfactory compromise.

Finally, the prosecution attacks Furman’s conduct with respect to his statement concerning the sale of certain shares of stock which constituted the principal asset' of the estate of W. A. Clark, III. Although the report and the statement of Furman’s activities in connection with the disposition of this stock covers more than three legal-size sheets of typewriting, the attack which is made by the prosecution is centered upon the point that whereas Furman asserted that a certain plan which had for its object the sale of the stock was originated by him, as a matter of fact it was initiated either by Mrs. Clark or by one Douglas, who was the president of a corporation which possibly might (but as a matter of fact, did not), become interested in acquiring the stock. However, the undisputed documentary evidence clearly would seem to settle the controversy in favor of Furman’s contention in that regard. But it appears that the point is wholly immaterial for the reason that the proposed plan was never adopted nor carried out in any particular. That fact is made very plain by Furman’s statement with reference thereto, which occurs in his petition for the allowance of attorney’s fees, as follows:

‘ ‘ This transaction marked the passage of the ownership and control of the United Verde Copper Company from the hands of the Clark family. All the evidence points to the fact that my efforts to promote the sale of the stock belonging to this estate set in motion events which resulted in the transfer of title. It is true that the United Verde Copper Co. was not eventually sold to the Newmont Mining Company. It is true that it was not sold to the United Verde Extension Mining Company. But, it is true that I, first, presented a concrete, logical plan for the sale and disposition of the United Verde Copper Company. The plan was approved in general outlines by the management of the United Verde Extension Mining Company, but at the end of the transaction I was advised that the United Verde Extension Mining Company ‘had always been a good neighbor of the United Verde Copper Company and they hoped to continue so’. In other words, I was politely bowed out of the picture on the theory that my aid was no longer essential or necessary. It is a fact that the Newmont Mining Company is the largest stockholder in the Phelps-Dodge Company, and it is . . . reasonable to believe that it was my primary efforts that created a market for the United Verde Copper Company, and I believe that is (it) is due to my efforts that we received $55 per share for 4,000 shares and $61 for 6,000 shares, and that if the effort had not been made the entire 10,000 shares would have been sold at a price not to exceed $40.00 per share, ...”

With respect to the later actual sale of the stock, it is most evident that although Mrs. Clark made the closing arrangements therefor, practically all the preliminary work in connection with such sale was done by Furman or by Regis, the executor, under the direction of Furman. As is not an uncommon observation with respect to such matters, each of the participants in that sale claimed to be entitled to the major credit for bringing it about. Undoubtedly each of them played a part, but an examination of the evidence with respect to the transaction reveals the fact that the sale was primarily due to Furman’s activities and management. His was the guiding hand; and although he may not have been entitled to the entire credit for making the sale, nevertheless since he was generally responsible for its consummation, his statement to that effect cannot properly be regarded as being either “false or exaggerated”.

It should not be forgotten that a disbarment proceeding is giíosí-criminal in character; and that although it is not essential that the guilt of the accused be established beyond a reasonable doubt, nevertheless his guilt must be established by “convincing proof to a reasonable certainty”. (Bar Assn. v. Sullivan, 185 Cal. 621 [198 Pac. 7]; Golden v. State Bar, 213 Gal. 237 [2 Pac. (2d) 325].) Such proof does not here appear.

It follows that this court cannot approve the recommendation of disbarment of the accused in the instant matter.

The proceeding is dismissed.

Rehearing denied.


source: Caselaw Access Project

author: THE COURT.

license: Public Domain

text:
    [L. A. No. 16677.
    In Bank.
    September 29, 1938.]
    ULYSSES E. METHEVER, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.
    Ulysses E. Methever, in pro. per., for Petitioner.
    Philbrick McCoy for Respondent.
   THE COURT.

On June 28, 1937, Gertrude E. Kamla, wife to Peter Kamla, made complaint to local administrative committee number nine of The State Bar of California, charging petitioner, a member of said State Bar, with defrauding ¡complainant and her husband of the sum of three hundred dollars by a scheme devised by him, whereby he was to form a Nevada corporation in which the Kamlas and petitioner and his wife, as majority stockholders, were to engage in the business of raising for market purposes sheep, cattle, hogs and all kinds of poultry on a somewhat extensive scale.

Peter Kamla was an oil worker and spent most of his time in the oil fields of Kern County. His wife resided in Los Angeles, and the husband spent as much time as his employment would permit at their Los Angeles home. They owned three hundred and twenty acres of unimproved land near Barstow, San Bernardino County. On September 22, 1935, they caused an advertisement to be published in a Los Angeles city newspaper, as follows: “Partner. Ideal location for sheep ranch, need partner with capital. 10253 San Miguel, South Gate.”

The advertisement came to petitioner’s attention and he contacted Mrs. Kamla and she interested her husband in petitioner’s proposition to form a corporation and issue capital stock in the sum of $100,000, of which the Kamlas and petitioner and his wife were to own 51,000 shares of stock, and the remaining 49,000 shares were to be sold to the public to raise funds to finance the project. Petitioner was to be the president of the corporation, Kamla, vice-president, and Mrs. Kamla and petitioner’s wife, treasurer and secretary, respectively. The proposition was entirely the scheme of petitioner. The Kamlas knew nothing about the organization or functioning of a corporation, and were guided wholly by the advice of petitioner, who represented himself as being well experienced in the organization and promotion of corporations. The capital necessary to operate the corporation was to be raised by the Kamlas deeding to the corporation their 320 acres of land, and by petitioner deeding a like acreage to the corporation, in consideration of which they were to hold 51,000 shares. The proceeds of the remaining 49,000 shares which were to be sold to the public were to be used in purchasing livestock and equipping the lands for production.

Petitioner had several conferences with Mrs. Kamla, who seemed to have been impressed with his proposals by reason of his representation that he was experienced in the law of corporate organization, and his further representation that he had a thorough knowledge of stock and poultry raising, and that he was in close connection with the stock-raising industry. Mrs. Kamla testified that when she first called on petitioner at his request she told him that she and her husband were looking for a partner to help finance the sheep business. Petitioner said he did not have any money, but he was a ‘‘ corporation lawyer”, and that he had incorporated many companies, and he advised that they incorporate and sell shares and raise money in that way. She further testified that the proposition was all new to her, and she told him she would have to consult her husband about the incorporation proposal. Petitioner asked her to bring her husband to see him when he should next return home. Some two weeks thereafter, on a Sunday morning, she and her husband called on petitioner, as requested by him, and petitioner disclosed to them his proposal and showed them a book containing pictures of cattle and sheep. He told them he was experienced in the stock-raising business and that he would go in with them as a partner in the business; that he would put in an equal amount of money and equal acreage with them; that he had 400 acres of land in the San Joaquin Valley. Mr. Kamla told him he would think it over. Petitioner told them that he would come to the Kamla home that evening and explain more fully his proposition to them. He arrived in the evening, taking with him a scrap-book containing pictures of cattle and sheep and hogs, which were pasted in the •book.

Mr. Kamla asked him what he expected as a fee for his services as a lawyer, and petitioner said he would make no charge for his services in forming the corporation. Mr. Kamla told him he could not pay anything as he did not have any ready money. He then asked him what would happen if the corporation was not formed, and petitioner assured him that he would get his money back. Petitioner advised that the corporation be formed at Las Vegas, Nevada, and that the incorporation costs would be $600, each party to put up $300. Petitioner was asked if any part of that sum was to be used in promotion, and he replied that it would be necessary to get out some literature which would cost $27, and the balance would be expended solely as costs incurred in obtaining articles of incorporation.

Mr. Kamla went to Bakersfield, and the next morning Mrs. Kamla went to petitioner’s home and gave him a check for $150. Petitioner said he would go to Las Vegas as soon as she paid the balance and effect incorporation of the entity to be known as the “Tally-ho Livestock Farms, Inc.” The balance of the $300 was paid by Mrs. Kamla within three months thereafter. Petitioner never went to Las Vegas nor formed the corporation, nor paid his share of the costs, nor made any satisfactory explanation as to how he expended the sum of $300 which he took from Mrs. Kamla to be applied as costs in forming the corporation. After it became apparent that he had no serious thought of forming a corporation, and had made no bona fide effort to do so, the Kamlas made a demand upon him for the return of the $300 which petitioner had collected from them. Mr. Kamla obtained a judgment against him in the sum advanced, which he has not been able to satisfy.

The feeble defense which the petitioner made to the accusations proffered by the local committee does not deserve extended review. Petitioner attempted to justify his retention of the $300 as an attorney fee by virtue of the following paragraph of a contract prepared by petitioner and signed solely by Mrs. Kamla and petitioner: ‘ ‘ That all parties herein performing service in forming and maintaining said corporation are to receive compensation therefor.”

The foregoing paragraph is immediately preceded by the ■following paragraph: “That the parties hereto are to pay the costs and expenses necessary to form and finance said cattle and poultry company, not to exceed the sum of Six Hundred Dollars. ’ ’

It is the claim of Mrs. Kamla that at the time petitioner read to her a purported memorandum of the agreement prepared by him the paragraph above quoted providing for the payment of services was not mentioned; that it was inserted afterwards as a part of the contract which she signed with the understanding on her part that it was the same in all material respects as the memorandum which he had read to her. The husband never saw nor signed the contract. In fact, petitioner testified that he did not think anything was said by him about the payment of attorney’s fees.in his estimate of the costs of organization.

He attempted to account for the expenditure of the $300 received from Mrs. Kamla, but in doing so made no claim or pretense that any portion of said sum was to be used in payment of attorney’s fees. His testimony is inconsistent with any claim or suggestion that he regarded any part of the $600 expense fund subject to the payment of attorney’s fees. He testified that the $600 was “for the expense to form the corporation”. Again, “Q. What was the conversation relating to that $600? A. Well, we figured out it would cost about $600 expense to form the company and get it on a paying basis to start. Q. Filing articles. A. Filing articles and I told them if we had to hire an attorney [petitioner had prior to this testified that he had no recollection of anything being said about the payment of attorney’s fees] anybody that was to do the work was to get paid. After the company was formed we all expected to get paid. I was corresponding with a man in Texas who wanted to go into the cattle business with us. He had a large ranch. If I did the work I would draw a plan. When it comes to paying me for services, the same as some other lawyer we would get, they didn’t see it that way. I guess they didn’t see it. Finally when I found out I couldn’t go ahead with it they wanted their money back and I figured I had done some services. I had spent cash and it should be reimbursed.”

Petitioner owned no land which he could put into the project. He furnished no part of the $300 which he was to put in the proposed enterprise. He kept no account of moneys claimed to have been expended by him in a futile and purposeless attempt at organizing the corporation. The services rendered by him were worthless. The whole project was a sham. Petitioner retained for himself practically the entire fund paid for organization purposes and paid nothing on his own account.

The evidence amply supports the findings and the recommendation of the board of governors of The State Bar suspending petitioner from the practice of the law in this state for a period of one year on the ground that his conduct as described by the evidence amounted to and involved moral turpitude on his part as defined by the decisions of this state.

The recommendation of said board of governors is hereby approved and adopted by this court and petitioner is accordingly suspended from the practice of the law for a period of one year, effective thirty days from the filing of this order. It is so ordered.


author: SEAWELL, J.

text:
    [L. A. No. 16381.
    In Bank.
    September 29, 1938]
    SARAH A. NEWCOMB, Appellant, v. CITY OF NEWPORT BEACH (a Municipal Corporation), Respondent.

      P. E. Keeler, James W. Bell and Edward V. Jones for Appellant.
    Roland Thompson for Respondent.
   SEAWELL, J.

This is the second appeal in this action. In 1931 plaintiff succeeded to the title of the patentee of two tideland lots in Newport bay. At the time of issuance of the patent by the state in 1907, and for many years thereafter, said lots constituted an island in the bay at low tide, but at high tide were completely submerged to such a depth that rowboats could navigate over them. In 1927 the state granted to the City of Newport Beach its interest in certain tidelands of Newport bay, in trust to establish, improve and conduct a harbor. Thereafter extensive dredging was done to improve the harbor, with the result that the two lots were dredged and are now submerged at all times.

The purpose of plaintiff in bringing the action was to obtain an adjudication that the city was without right to make any “physical changes or improvements in the land without the exercise of eminent domain”. The trial court sustained plaintiff’s contention. In reversing the judgment we held that the title of the patentee was subject to the public trust for navigation and commerce, and that the city, by virtue of the grant from the state in 1927, was the administrator of said public trust, with the right to make physical changes and improvements in the interests of commerce and navigation. (Newcomb v. City of Newport Beach, 7 Cal. (2d) 393 [60 Pac. (2d) 825].)

Upon said appeal the city further contended that the trial court erred in failing to hold that it was the owner in fee of said lots as purchaser at tax sales for delinquent city taxes and county taxes. We held that the city had no title. Its rights as purchaser for delinquent city taxes in 1923 were barred by subsequent proceedings for registration of title under the Torrens Title Law, in which the city failed to appear after service on it. The later sale to the city for delinquent county taxes was void for the reason that notices of the purchase at the tax sale by the state from the county, and by the City of Newport. Beach from the state were not filed with the registrar, as required where land is registered under the Torrens Law. (See. 77, 2 Deering’s Gen. Laws, [1937], p. 4065.) ’Said law provides: “ . . . Unless such notice is filed as herein provided, the land shall be forever released from the effect of such sale, and no deed shall be issued in pursuance thereof.”

An owner may not, however, quiet his title against a void tax sale without payment of the amount paid by the purchaser for taxes, penalties and costs. (Newcomb v. City of Newport Beach, 7 Cal. (2d) 393, 406 [60 Pac. (2d) 825], citing cases.) Accordingly we reversed the judgment with directions to the trial court to ascertain the amount which plaintiff should pay as a condition to quieting her title, subject to the public trust, with the right in the city to make changes and improvements incident to said trust.

Upon proceedings had pursuant to our reversal it appeared that the amount paid out by the city was $708.75. The trial court provided in conclusions of law filed by it that if plaintiff should pay the sum of $708.75 within five days from the signing of its findings and conclusions a decree should be entered quieting her title, subject to the public trust, but if she failed to pay within said period, “then and in such event defendant, City of Newport Beach, shall be entitled to a decre.e of this Court quieting title in it to said described premises. ...”

The findings and conclusions were signed and filed on February 10, 1937. Plaintiff’s attorney was notified of their filing on March 17, 1937. Plaintiff failed to pay the amount fixed in the findings. On May 15, 1937, the court entered its judgment that the City of Newport Beach was the owner of the two tideland lots. Plaintiff appeals from said judgment.

Upon the hearing held in the lower court after our reversal, plaintiff moved to dismiss the action, which motion the court denied. A dismissal would have denied to defendant city, which had filed a cross-complaint, an adjudication of its right as administrator of the public trust pertaining to said lands to make changes and improvements in the interest of commerce and navigation.

Plaintiff further contends that the court was without right to adjudge that defendant city was the owner of the two lots upon her default in paying the sum of $708.75 to said city. This contention is well taken. Upon the first appeal we held that no title vested in said city by virtue of said tax sales. The trial court, acting pursuant to our direction, found the tax sales void. The finding that the sales to the city were void will not support an adjudication that it is the owner of the lots. The owner of property sold for delinquent taxes may not quiet his title without reimbursement of the purchaser at a void tax sale. But it does not follow that if the owner fails to make reimbursement within the time fixed by the court, he forfeits his title to the purchaser. Validity cannot thus be imparted to a void tax sale.

The proper decree in the event the owner fails to pay the amount fixed by the court within the time limited is not an adjudication that the purchaser at the void tax sale owns the land, but a denial of any relief to the owner. In the usual situation this is accomplished through a dismissal of the action. (Gage v. Thompson, 161 Ill. 403 [43 N. E. 1062]; Alexander v. Merrick, 121 Ill. 606 [13 N. E. 190]; Brophy v. Taylor, 30 Ill. App. 261; Larson v. Peppard, 38 Mont. 128 [99 Pac. 136, 129 Am. St. Rep. 630, 16 Ann. Cas. 800]; Fenton v. Minnesota Title Ins. & Tr. Co., 15 N. D. 365, 374 [109 N. W. 363, 125 Am. St. Rep. 599].) The owner of property is required to reimburse a purchaser at a void tax sale only when such owner is afforded affirmative relief quieting his title as against the void tax sale. (Warden v. Ratterree, 215 Cal. 215 [9 Pac. (2d) 215, 86 A. L. R. 1204, note, p. 1208].)

In the instant case the defendant city properly objects to a dismissal of the whole action for the reason that it is entitled to judgment affirming its right to make changes and improvements in the tideland lots in question as administrator of the public trust for navigation and commerce. This right of the city as administrator of the public trust exists without regard to the private ownership of the fee in the land. The rights of the city in this respect may be protected by dismissing the action only in so far as it involves plaintiff’s cause of action to quiet her title.

It cannot be held that the owner of property who fails to make payment within the time fixed by a decree is not prejudiced by a judgment vesting title in the purchaser for the reason that he, the owner, has failed to perform the condition which would have entitled him to a quiet title decree. His title cannot be terminated through the device of vesting it in the purchaser at the void tax sale.

In support of the decree rendered by the trial court herein, defendant city relies on Warden v. Nahas, 212 Cal. 740 [300 Pac. 815]. Said decision cited only Bloom v. Bloom, 207 Cal. 70 [276 Pac. 568], as authority for a decree quieting title in the purchaser at a void tax sale upon the owner’s failure to reimburse the purchaser within the time fixed. The Bloom ease involved not a tax sale, but a deed executed for security purposes, and, therefore, in effect, a mortgage. Our decision recognized the settled rule that upon the failure of the mortgagor to pay the amount fixed to redeem from the mortgage within the time allowed by the court, the mortgagee (grantee in deed) is entitled to a decree of foreclosure where foreclosure is not barred by the statute of limitations. (Murdock v. Clarke, 90 Cal. 427, 442 [27 Pac. 275]; Vierra v. Fontes, 135 Cal. 126 [66 Pac. 241]; Moss v. Odell, 141 Cal. 335 [74 Pac. 999]; Wadleigh v. Phelps, 149 Cal. 627 [87 Pac. 93]; Cohn v. Cohn, 1 Cal. (2d) 313 [34 Pac. (2d) 1000]; 18 Cal. Jur. 227.)

It is improper to provide that in default of the mortgagor’s complying with the decree, title is quieted in the mortgagee (grantee), for a decree of forfeiture without foreclosure may not be rendered in this state. (Byrne v. Hudson, 127 Cal. 254 [59 Pac. 597]; Boyce v. Fisk, 110 Cal. 107, 116 [42 Pac. 473].) But we held that the mortgagor in the Bloom case, supra, by the form of his answer and prayer for affirmative relief had consented to the entry of a decree forfeiting title to the mortgagee. The decision is not intended to declare a right of forfeiture in the absence of consent of the mortgagor. Certainly it is not authority for the proposition that the effect of an owner’s failure to reimburse the purchaser at a void tax sale within the time fixed by the court’s decree is to authorize the court to decree that the purchaser at the void tax sale owns the property.

The decision in Warden v. Nahas, supra, was rendered without the aid of a respondent’s brief. The appellant’s only brief contained nine pages, six of which were devoted to quotation of portions of the record, such as the court’s findings and the decree. In so far as said decision is inconsistent with our conclusion herein it is based on a misapprehension of our holding in Bloom v. Bloom, supra.

In the instant case it may be doubted whether as a practical matter plaintiff has been prejudiced by the decree forfeiting her title to the city. As noted above, the lands are now totally submerged lands in the bay. It seems inconceivable that plaintiff would ever wish to pay more than $700 to obtain a decree quieting her title to totally submerged lands in a public harbor, subject to the public trust for navigation and commerce. However, the principle of whether an owner’s lands may be forfeited to the, purchaser at a void tax sale upon the owner’s failure to reimburse the purchaser within a period fixed by court decree is a matter of public importance.

The judgment is reversed with directions to the court below to strike from the findings the provisions upholding plaintiff’s title and from the conclusions of law the provision for forfeiture of said title to defendant city upon plaintiff’s failure to make payment within five days. The court is further directed to enter judgment dismissing the action in so far as it involves plaintiff’s claim of title, but upholding the right of defendant city as administrator of the public trust for navigation and commerce to make changes and improvements incident to the carrying out of said public trust.

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


author: WASTE, C. J.

text:
    [Sac. No. 5234.
    In Bank.
    October 4, 1938.]
    FRED CHARLES et al., Appellants, v. CITY OF CRESCENT CITY (a Municipal Corporation) et al., Respondents.
    G. H. Van Harvey, John L. Childs and C. A. Degnan for Appellants.
    T. F. Peterson for Respondents.
   WASTE, C. J.

Motion to dismiss appeal.

This action was commenced by plaintiffs, suing as taxpayers and owners of real property in defendant city, for the purpose of having certain assessments and tax levies for the year 1931-1932 declared irregular aiid void, and to enjoin the city and its officers from executing or accepting deeds to certain real property, belonging to these plaintiffs and others, and from selling the same.

Defendants filed a general demurrer and a motion to strike certain parts of the complaint. The motion to strike was not acted upon. The demurrer was overruled with permission granted to plaintiffs, at their request, to file an amended complaint, and a preliminary injunction was ordered to issue upon bond in the sum of $2,000.

To the amended complaint demurrers, both general and special, were interposed.

On December 20, 1937, the trial judge filed his “Buling of the Court” sustaining demurrers, without leave to amend, and dissolving the preliminary injunction.

A judgment of dismissal, based upon the above order and dated December 23, 1937, was entered December 28, 1937. A further order, reciting inadvertence of the court, and dated December 28, 1937, was filed and entered as part of the original judgment on December 30, 1937. This order of December 30th provided that, if an appeal from the judgment of December 28th were properly and duly taken by plaintiffs, the preliminary injunction theretofore issued should continue in force pendente lite; otherwise, if no appeal were taken, the preliminary injunction to be finally and perpetually dissolved.

On December 31, 1937, plaintiffs filed their notice of appeal from the order sustaining demurrers without leave to amend, and from the judgment of dismissal, save and except that part thereof continuing in effect the injunction pendente lite.

A notice to the clerk, pursuant to the provisions of section 953a, Code of Civil Procedure, demanding the preparation of transcript, was filed March 15, 1938. The typed clerk’s transcript, properly certified by the clerk, was filed herein on May 6, 1938.

On June 15, 1938, respondents filed this notice of motion to dismiss appeal. Appellants filed their opposition thereto on July 2, 1938. By stipulation of the parties the matter was submitted, without argument, on July 5, 1938.

The sole ground upon which a dismissal is sought is the failure of appellants to file a printed transcript herein. It is supported by a certificate of the county clerk to the effect that no printed transcript has ever been presented to her for certification.

The necessity for a printed transcript was negatived by the decision of this court in Ramsay v. Rodgers, 189 Cal. 100 [207 Pac. 516], There the court said “We think that by fair intendment the code as it now stands allows the filing of a typewritten transcript of the judgment in cases where an attempt has been made to proceed under section 953a and the appellant has failed to procure the reporter’s transcript of the proceedings and evidence at the trial ... ”, and further, ‘‘ The point was expressly so decided by this court in denying a petition for rehearing after the decision of the District Court of Appeal in McKinnell v. Hansen, 34 Cal. App. 76-81 [167 Pac. 887], where we held that under rule VII, subdivision 2, an appeal on the judgment roll, prepared under section 953a, may be presented on a typewritten transcript. (See, also, Beckett v. Stuart, 35 Cal. App. 796, 797 [71 Pac. 107].)”

In Miller v. Price, 203 Cal. 772, at 774, 775 [265 Pac. 931], this court, in citing Ramsay v. Rodgers, supra, has further held that a transcript, such as is here presented, is sufficient under the provisions of section 950, Code of Civil Procedure, even where ho attempt has been made to secure a record pursuant to the procedure outlined in section 953a, Code of Civil Procedure.

No briefs have been filed in this cause and we express no opinion on the merits of the appeal. Appellants’ time to file their opening brief has been kept open until September 5, 1938.

While it is true that no appeal will lie from an order sustaining a demurrer, and such attempted appeal, as stated in the notice, should be dismissed, the point is not made on this motion, and we prefer to let the disposition of this matter abide the decision of the appeal on its merits, rather than dispose of the appeal piecemeal.

The notice to the clerk, under section 953a, Code of Civil Procedure, is not jurisdictional to the appeal, and if the filing thereof were late (a matter not clearly shown by the record herein) the defect was cured by the filing of the duly certified transcript prior to service and filing of this notice of motion. (Rule V, sec. 1.)

The motion to dismiss the appeal is denied.

Seawell, J., Shenk, J., Houser, J., Curtis, J., Langdon, J., and Edmonds, J., concurred.


text:
    [S. F. No. 15581.
    In Bank.
    October 6, 1938.]
    FRANCIS EDWARD REYNOLDS et al., Respondents, v. RALPH BARRETT, as City Building Inspector, etc., Appellant.

      Girard N. Richardson, City Attorney, and Robinson, Price & Macdonald for Appellant.
    Bestor Robinson and Breed, Burpee & Robinson for Respondents.
   THE COURT.

Respondents, as owners of property in a residential zone, instituted this proceeding in mandamus to compel the Building Inspector of the city of Piedmont to issue them a building permit to erect a business structure thereon. Prom a judgment ordering the Building Inspector to issue the permit, this appeal is taken.

The city of Piedmont embraces within its corporate limits about 1100 acres and has a population of approximately 10,000. It is entirely surrounded by the city of Oakland. It is operated under a freeholders’ charter approved by the legislature (Stats. 1923, p. 1564), which, among other things, declares the city to be “primarily a residential city” and authorizes the city council to provide such zoning systems as in its judgment may appear beneficial. Pursuant to such authorization, the city from time to time adopted three zoning ordinances, numbered 196, 268 and 315. By its terms, the second repealed the first, and the present ordinance (No. 315), passed March 21, 1929, repealed the - second. These ordinances have been the subject of extensive litigation. Ordinance No. 268, the immediate predecessor of the one here involved, came under judicial scrutiny in the case of Wickham v. Becker, 96 Cal. App. 443 [274 Pac. 397], In that case it was held that' Ordinance No. 268 was void on the ground that it created a monopoly. The same determination was made in Andrews v. City of Piedmont, 100 Cal. App. 700 [281 Pac. 78], and a like ruling was affirmed with reference to the very parcel of land here involved in Reynolds v. City of Piedmont, 100 Cal. App. 802 [281 Pac. 79]. To the same effect was the holding in Harris v. City of Piedmont and Williams v. City of Piedmont, 100 Cal. App. 802 [281 Pac. 79],

In addition to these cases it appears from the pleadings herein that the Superior Court of Alameda County in Harris v. City of Piedmont, No. 109,838, held the ordinance involved in the present proceedings (No. 315) void in so far as it affects the parcel of property adjacent to and immediately to the east of respondents’ property on the ground that the ordinance created a monopoly and was discriminatory. By that judgment the Harris parcel was ordered opened for business purposes. The city appealed, but the appeal was subsequently dismissed when the issues became moot by reason of the condemnation of the property by the city for school purposes.

Contemporaneously with the trial of the Harris case last above referred to, which as stated, held the ordinance here in question (No. 315) void as to property adjacent to respondents’ property, there was tried, before the same judge, the action of Langstroth v. City of Piedmont. As to the parcel of land involved in that case the trial court upheld the ordinance, on the ground that the designated parcel was several blocks removed from the business centers and that it was not within any reasonable or logical extension of such centers. The judgment was affirmed on appeal. (Langstroth v. City of Piedmont, 5 Cal. App. (2d) 146 [42 Pac. (2d) 356].)

The present action was tried before the same judge who decided the Harris and Langstroth cases, supra. In the instant case, the trial court found that the predecessor ordinance (No. 268) and the ordinance here in question (No. 315) each created two business districts, one in Upper Piedmont, known as the “Highland Business District” and one in Lower Piedmont, known as the “Grand Avenue Business District”; that the predecessor ordinance (No. 268) was declared invalid as to the Reynolds-Williams property and others, supra, because it created a business monopoly; that the ordinance here involved (No. 315) increased the area of the Grand Avenue Business District but did not enlarge the area of the Highland Business District; that said two business districts are so separated by differences in elevation, by street alignment and by distance as to be noncompetitive; that said districts serve distinct and separate portions of the city of Piedmont; that the number of persons tributary to the Highland Business District, and whose retail business needs could be readily and conveniently served by said district, if enlarged, is approximately 3,500; that said Highland Business District is insufficient to care for the retail business needs of the population tributary thereto; that a monopoly of ownership exists in the Highland Business District in that all the property therein is owned by one corporation, excepting only property owned and devoted to public use; that a monopoly of use also exists therein in that said district is completely occupied by one gasoline station, one bank, one real estate office, one grocery store, one delicatessen shop, one butcher shop, one barber shop and one candy store; that there is no room for expansion within said business district; that the ordinance, in so far as it prohibits the use of respondents’ property for business purposes, is unreasonable, discriminatory and arbitrary in that (a) the property immediately to the east of respondents’ property (across Vista Avenue) is by said ordinance open to business uses and is in fact occupied by the city of Piedmont for the purpose of conducting thereon a municipal garage; a fire department and a city hall; (b) that the Highland Business District is situated immediately across Highland Avenue from respondents’ property and said Highland Avenue is one of the main city arteries and has a street ear line operated thereon; (c) that the real property immediately to the west of respondents’ property (prior to its condemnation) was open to business uses; (d) that the real properties to the south of respondents' property are used for a fraternal meeting hall and for a public grammar school; (e) that respondents’ property is so zoned as to be available for a single family dwelling only; (f) that there is no difference with reference to its use for rexail business purposes or other uses prohibited to it between the character of respondents’ property and the character of the property surrounding the same, either immediately or across public streets as already described, which may be used for such other purposes; that the use of respondents’ property for the erection thereon of a gasoline station or any other lawful business purpose, will not endanger the safety, health or general welfare of the people of the city of Piedmont; and that in the event said Highland Business District is to be increased in area, respondents’ property is included within any reasonable or logical extensions thereof.

From this résumé of the findings it is apparent that the trial court’s judgment holding the ordinance void as to the Reynolds-Williams property was based on two theories,

(1) That the ordinance is invalid, generally, for the reasons that in the Highland Business District there exists a monopoly of ownership and use; that the existing business district in that area is fully occupied; that the city should have provided a larger area for business purposes; and
(2) That as applied specifically to the Reynolds-Williams property the ordinance, assuming its general validity, is unreasonable, discriminatory and arbitrary for the reason that said parcel is entirely surrounded by properties used for business, semi-business or public purposes.

In so far as the first theory is concerned we are of the opinion that the conclusions upon which it is predicated are not sound. The record, without conflict, shows that Piedmont is primarily a residential city. Its charter so declares. It is entirely surrounded by the city of Oakland in which are located many business houses which maintain frequent and adequate delivery service to all parts of Piedmont. The Grand Avenue Business District created by the challenged ordinance is not fully built up. The people of the cfiy of Piedmont have shown a determined effort to keep their city a residential city. This they have the legal right, within constitutional limits, to do. The power to declare zoning-ordinances unconstitutional only should be exercised where no substantial reason exists to support the determination of the city council. If the reasonableness of the ordinance is reasonably debatable the ordinance must be upheld. (Zahn v. Board of Public Works, 274 U. S. 325 [47 Sup. Ct. 594, 71 L. Ed. 1074].) The line between business and residential property must be drawn somewhere. The mere fact that business property is located across the street or even adjoining the residential property involved does not determine that the ordinance is invalid or discriminatory. (Smith v. Collison, 119 Cal. App. 180 [6 Pac. (2d) 277]; Feraut v. Sacramento, 204 Cal. 687 [269 Pac. 537].) The fact that nearby business property has the same characteristics as the parcel involved in the proceeding does not justify the court in substituting its judgment for the legislative judgment. (Ex parte Hadacheck, 165 Cal. 416 [132 Pac. 584, L. R. A. 1916B, 1248]; Brown v. City of Los Angeles, 183 Cal. 783 [192 Pac. 716].) The fact that the Highland Business District is fully occupied does not invalidate the ordinance as long as another business zone not fully occupied exists. (Langstroth v. Piedmont, supra.) Damage to petitioners’ property by reason of being in a residential zone adjoining business property in no way affects the validity of the ordinance. Damage caused by the proper exercise of the police power is merely one of the prices an individual must pay as a member of society. The adaptability and suitability of petitioners’ property for business purposes is' not controlling—the best interests of the entire district is the controlling factor. (Smith v. Collison, supra.) Under these principles there can be but little doubt that the ordinance here involved represents a valid exercise of the police power.

This holding, however, is not decisive of the issues here presented. As already pointed out, the trial court also held that, assuming the general validity of the ordinance, it is unreasonable, arbitrary, and discriminatory as applied to the particular parcel of land here involved. With this holding we are in accord. The lot in question is located on the corner of Highland and Vista Avenues. Immediately across Highland Avenue (northerly) is the Highland Business District. Immediately across Vista Avenue (easterly) is a large area also within the business zone under Ordinance No. 315, but at present completely occupied by the city hall, city garage, and city fire department. Immediately adjacent to the property of plaintiff to the south is located a fraternal meeting hall and adjacent to that a grammar school. The property adjacent to plaintiff’s property to the west is the Harris property, which, as already pointed out, by virtue of a final judgment, is also open to business uses, but now used for school purposes. Thus the Reynolds-Williams property is completely surrounded by non-residential property—one lot completely isolated from any adjoining residential property. It seems quite clear that as to this one lot the zoning ordinance is arbitrary and discriminatory. Obviously the property is valueless for a single family residence, and while that fact is not by itself conclusive, when it also appears that the property at no point is adjacent to residential property so that its use for business purposes'would not at all adversely affect residential property, the business use should be permitted. To hold otherwise would be to needlessly injure plaintiffs, without a compensating benefit to the public.

It is obvious that by a zoning ordinance a city cannot unfairly discriminate against a particular parcel of land. If the general scheme of zoning is sound and valid, nevertheless the courts may properly inquire as to whether the scheme of classification and districting has been applied fairly and impartially in each instance. (Miller v. Board of Public Works, 195 Cal. 477 [234 Pac. 381, 38 A. L. R. 1479].) As was said in Hurst v. City of Burlingame, 207 Cal. 134, 143 [277 Pac. 308]: “There is much force in the contention of the respondent that the ordinance, if otherwise valid, is void as to him for the reason, as concluded by the trial court, that the classification of the respondent’s property as residence property only was arbitrary, oppressive, discriminatory and void . . . the [trial] court also declared with reference to the plaintiff’s property: ‘A mere inspection of the property would present to the dullest of minds the impracticability of maintaining the portion left in this block for residential purposes.’ An inspection of the record before us leads to the same conclusion and satisfies us that the question of whether the respondent’s property was or was not properly zoned as residential property is not fairly debatable; that no consideration of public health, peace, safety, morals, order or welfare required that respondent be prohibited from using his property for commercial purposes and that the ordinance, if otherwise valid, would be void as to him.”

Applying these rules to the facts of the instant case we are of the opinion that reasonable minds cannot differ as to the arbitrary and discriminatory nature of the ordinance as applied to the particular parcel here involved. Obviously, a city, purporting to act under its police power, cannot create a business district, and entirely within it create an “island” of one lot restricted to residential purposes when no rational reason exists for such a classification. Clearly, and without possibility of doubt, such classification is discriminatory as to the isolated parcel, completely surrounded by business property. That is exactly the situation here presented.

In our treatment of this cause we have disregarded as surplusage the trial court’s finding of res judicata. We therefore find it unnecessary to consider the propriety of certain nunc pro'time orders by which the court below purported to admit into evidence the judgment rolls in certain of the above cited cases and upon which judgment rolls the finding of res judicata was predicated.

From what has been said it is obvious that although the ordinance is generally valid, as applied to the parcel here involved it is unreasonable, arbitrary and discriminatory. For that reason the judgment should be and is affirmed.


text:
    [S. F. No. 16048.
    In Bank.
    October 13, 1938.]
    FRANK SILVERMAN et al., Respondents, v. CHARLES GREENBERG, Appellant.

      William F. Herron for Appellant.
    Marcel E. Cerf, Robinson & Leland for Respondents.
   WASTE, C. J.

This action was. brought by plaintiffs in the superior court. The complaint contained four counts. The first count alleged that plaintiffs delivered $700 to defendant Charles Greenberg, which money he was to use for the purpose of purchasing certain real property for them; that, however, after accepting and receiving the $700 for that purpose, he purchased the property in his own name and converted the $700 to his own use and benefit; that plaintiffs demanded a return of the money but no part thereof has been returned or paid. The second count alleged that plaintiffs had demanded a deed by defendant to them of the property but defendant had refused to comply with the demand and purported to retain ownership of the property in his own name and right. The third count was in the form of an action to quiet title to the property. The fourth count alleged defendant’s indebtedness to plaintiffs in the sum of $700, money had and received by him for their use and benefit. The prayer of the pleading was for judgment against defendant in the sum of $700; or in the alternative that plaintiffs’ ownership and tight to possession of the property be decreed; that defendant be adjudged to have no right or interest therein and be ordered to execute and deliver a deed to plaintiffs, or in event of failure so to do, that the court authorize execution of such a deed; and that plaintiffs have costs of suit and general relief.

After issue joined by the answer and cross-complaint of defendant, the cause went to trial. The court found that of the $700 delivered by plaintiffs to defendant to be applied on the purchase price of the real property, defendant had converted $600 to his own use and benefit. The court further found that plaintiffs were not the owners of or entitled to possession of the property but that defendant was the owner and entitled to possession thereof. A judgment was entered accordingly in favor of plaintiffs and against defendant in the sum of $600 and interest, with a decree quieting title to the property in defendant. From this judgment defendant appealed on the judgment roll alone. Plaintiffs now move to dismiss the appeal or affirm the judgment.

Appellant’s sole contention is that the superior court was without jurisdiction to render the judgment for' the reason that the counts of the complaint on which judgment was entered for plaintiffs each stated causes of action within the exclusive jurisdiction of the municipal court. In other words, appellant urges that when plaintiffs failed to establish their right to equitable relief, the equitable character of the action was lost, and it became simply a ease at law wherein the demand exclusive of interest was less than $2,000, such case being within the jurisdiction of the municipal court. (Sec. 89a, Code Civ. Proc.)

This position cannot be sustained. The test of the jurisdiction of a court is to be found in the nature of the ease as made by the complaint and the relief sought, and the fact that a plaintiff does not succeed in establishing all that he claims does not oust the court of its jurisdiction to give judgment for so much as is established. (Becker v. Superior Court, 151 Cal. 313 [90 Pac. 689]; Gardiner v. Royer, 167 Cal. 238 [139 Pac. 75]; Cook v. Winklepleck, 16 Cal. App. (2d) (Supp.) 759, 763 [59 Pac. (2d) 463].)

In the present case plaintiffs’ demand was for substantial legal and also for substantial equitable relief. By their complaint they sought to secure either a return of their money or a decree determining their title, ownership, and right to possession of the real property. The allegations of the pleading and the relief sought established the character of the action. The fact that it was substantially of an equitable as well as of a legal nature invested the superior court with jurisdiction to hear and determine the entire cause, and that jurisdiction was not divested by the subsequent denial of equitable relief. The court of equity having once obtained jurisdiction, properly retained the case and decided the whole controversy between the parties. For a complete discussion of this subject see Becker v. Superior Court, supra; also Cook v. Winklepleck, supra, and cases there cited.

The judgment is affirmed.

Curtis, J., Shenk, J., Edmonds, J., Langdon, J., and Seawell, J., concurred.


text:
    [S. F. No. 16072.
    In Bank.
    October 13, 1938.]
    In the Matter of the Estate of ESSIE ALFREY, Deceased. FANNIE P. ZERGA, Appellant, v. CASPAR A. ORNBAUN, Administrator, etc., Respondent.
    Alfred J. Hennessy for Appellant.
    Everett H. Roan for Respondent.
   WASTE, C. J.

On October 17, 1936, Mrs. Essie Alfrey died testate, leaving her property valued at $3,250 to her surviving daughters. The will named one of the daughters, appellant herein, as executrix. Although appellant had immediate knowledge of her mother’s death, she failed to petition for letters testamentary until more than four months had elapsed. Meanwhile respondent herein, the nominee of another daughter, had applied for and been granted special letters of administration, and had filed a petition for letters of administration with the will annexed. Appellant’s petition for letters, and that of respondent, were both heard on March 11, 1937, with the result that the court denied letters to appellant and granted them to respondent. Appellant did not appeal from this ruling, although she might have done so (see. 1240, Probate Code).

Respondent proceeded with probate of the estate and took steps to dispose of the real property therein. On July 22d he filed a return and account of sale of such property for the sum of $1750, and petitioned for an order confirming the sale. A few days later appellant filed a notice of motion to vacate the order of March 11th on the ground that the court was without jurisdiction to make it, and that it was taken against her by reason of surprise, inadvertence, mistake, and excusable neglect on her part and that of her then attorney. The motion was heard on July 2'9th and an order denying it was entered on October 14th. On October 29th appellant filed objections and exceptions to sale and confirmation of sale of the real estate. She based this protest upon the same grounds which she had urged in support of her motion to vacate the order of March 11th. The matter was heard on November 9th, and an order was entered confirming the sale. From this order appellant has prosecuted the present appeal. The cause is now before this court on motion of respondent to dismiss the appeal or affirm the order.

The order must be affirmed. On March 11th when appellant’s petition for letters testamentary was denied, she failed to appeal from the order of denial. Later, however, the matter was reopened by her motion to vacate that order, and on July 29th and October 14th there was a complete rehearing of the issue. The present bill of exceptions contains a record of the proceedings had at that time as well as a transcript of some of the evidence received on March 11th, and of testimony taken on O'ctober 14th when the motion to vacate was finally denied. This record contains nothing to indicate that appellant was entitled to relief under section 473 of the Code of Civil Procedure from the order of March 11th. On the contrary, the showing affords ample support for the conclusion that appellant’s delay in instituting probate proceedings was wilful, with intent to injure the interests of the other heirs, and that appellant incurred bills out of all proportion to the value of the estate. There was, therefore, no error in the court’s holding that appellant had renounced her right to letters (sec. 324, Probate Code), and in its appointment of respondent.

Appellant’s objections and exceptions to confirmation of sale of the real estate, based solely upon the grounds theretofore urged in support of her petition for letters and motion to vacate the order of March 11th, were properly rejected by the court. The order of March 11th from which no appeal was taken, and the proper denial of the motion to vacate that order, constituted a final adjudication of the issue. Appellant was not entitled to raise it again by way of collateral attack in the proceeding for confirmation of sale of the real estate.

The order appealed from is affirmed.

Curtis, J., Shenk, J., Edmonds, J., Langdon, J., and Seawell, J., concurred.

Rehearing denied.


text:
    [L. A. No. 15571.
    In Bank.
    October 14, 1938.]
    ROSE M. KNABEL, Plaintiff, v. MARY L. BAKER et al., Defendants; W. C. DALZELL, Appellant; FLOYD G. BAKER et al., Cross-Defendants and Respondents.
    W. C. Dalzell, in pro. per., for Appellant.
    Porter C. Blackburn for Respondents.
   THE COURT.

In this action to compel foreclosure of a deed of trust given to secure a $2,000 promissory note, W. C. Dalzell appeared as a defendant, as cross-complainant, and also as counsel for himself and defendant Mary Louise Baker. Upon trial of the cause the court entered judgment in favor of plaintiff. W. C. Dalzell filed notice of appeal on behalf of himself and Mary Louise Baker. Thereafter Mary Louise Baker substituted A. Benjamin as her attorney in the place and stead of W. C. Dalzell, who was no longer practicing law before the bar of this state, and upon the stipulation of Mary Louise Baker and her new counsel, the court dismissed her appeal. This left only the appeal of W. C. Dalzell. Plaintiff now moves to dismiss that appeal or to affirm the judgment.

The appeal does not present any substantial question. Appellant, by his cross-complaint, asserted an interest in the note and trust deed, claiming that they had been pledged to him by cross-defendants Floyd and Josephine G. Baker to secure payment of his reasonable fee for defending their son Robert Baker, husband of Mary Louise, in a pending criminal action; and that $1,000, the reasonable value of his services in said matter was owing and unpaid. The trial court found that it was not true that cross-defendants had pledged the note and trust deed to appellant to secure payment of his fee; therefore, it decreed that appellant take nothing by his cross-complaint except costs, taxed at $33.45. But the court did incorporate the following provision in the decree: "This Judgment is without prejudice to a new proceeding by cross-complainant against cross-defendants Floyd G. Baker & Josephine G. Baker for attorney fees.”

Appellant contends that the evidence established his claim to the note and trust deed and that the trial court erred in finding otherwise. Such a contention cannot be sustained. Although the evidence is not entirely free from conflict, it nevertheless affords ample support for the findings and judgment. This conclusion disposes of the appeal. There are no other questions which require discussion.

The judgment is affirmed.


text:
    [L. A. No. 16795.
    In Bank.
    October 14, 1938.]
    MARY E. HANSELMAN, Respondent, v. G. G. MEADVILLE et al., Defendants; ANNA MEADVILLE, Appellant.

      Anna Meadville, in pro. per., for Appellant.
    Leonard S. Barnes for Respondent.
   THE COURT.

In this action the trial court entered a decree for plaintiff, quieting her title to a parcel of real property in Los Angeles County, and allowing her costs in the sum of $23.30. Defendant Anna Meadville, wife of defendant G. G. Meadville, appealed. Plaintiff now moves to dismiss the appeal or affirm the decree.

The appeal does not present any substantial question. Appellant contends that as she was merely her husband’s scribe in his dealings with plaintiff and claimed no personal interest in plaintiff’s property, it was improper to join her as a party defendant in this action, and the evidence affords no support for a decree against her with costs. This position is untenable because in the answer to the complaint, appellant joined with her husband in asserting that they had a leasehold interest in the premises. The evidence affords ample support for entry of the decree with costs against both the defendants.

Appellant further claims that the court failed to find upon material issues raised by the answer. This contention arises from the fact that the findings erroneously refer to the answer as the “cross-complaint”. The findings are: “That all the allegations of plaintiff’s complaint are true; that the allegations of defendants’ cross-complaint admitting that plaintiff is the owner of and in possession of the property described in plaintiff’s complaint are true; that all of the rest of the allegations of defendants’ cross-complaint are not true.” The record shows that the use of the word “cross-complaint” to designate the answer was a pure inadvertence, which calls for correction by this court. (Sec. 956a, Code Civ. Proc.; 1 Cal. Jur. Supp., p. 602, see. 588b.)

It is ordered that the word “cross-complaint” be stricken from the findings, and that the word “answer” be substituted in its place and stead. The decree is affirmed.