author: PRESTON, J. SHENK, J., Dissenting.

text:
    [L. A. No. 14531.
    In Bank.
    October 1, 1934.]
    THADDEUS D. McCALL, Petitioner, v. SUPERIOR COURT OF IMPERIAL COUNTY, Respondent.

      M. W. Conkling for Petitioner.
    Harry W. Horton and S. L. McCrory for Respondent.
   PRESTON, J.

By this proceeding we are required to redeclare the distinction between an action to secure the beneficial results which arise from a unilateral rescission of a contract already accomplished (rescission in pais) and an action in equity to compel a rescission and to secure an award by decree of the benefits resulting therefrom. We are also required to declare whether or not, under the law of attachment (sec. 537 of the Code of Civ. Proe.), a suit for return of the consideration paid upon a contract, after a rescission in pais for fraud, is an action upon a contract, express or implied, for the direct payment of money.

In the case of Harry E. Griffin et ux., Plaintiffs, v. Thaddeus D. McCall et al., Defendants, No. 13573, the Superior Court of the State of California, in and for the County of Imperial,. on February 24, 1933, gave its decree in favor of plaintiffs for a restoration to them by defendants of the consideration paid for the purchase of a tract of real property, a grapefruit grove of 6.12 acres, to wit: the sum of $6,381.40, with interest and costs. This followed a confirmation by said decree of a rescission of the contract, accomplished by plaintiffs on February 1, 1930, in the manner provided by law, which rescission was based upon fraudulent representations on material matters inducing the purchase. As a further provision of its decree, the court enjoined defendants from attempting to further enforce the obligations of plaintiffs found in a promissory note executed by them to defendants, secured by deed of trust upon the real property in suit. A still further provision of the decree purported to re-invest defendants with the title to said real property and to restore to them all other things of value received from them by plaintiffs as part of the transaction.

The original complaint was filed on April 22, 1930. It was east in three counts. The first count declared upon the fraudulent representations inducing the contract and upon rescission of it on February 1, 1930, as aforesaid, and set up in detail how the rescission was made, including notice to defendants and a plenary offer to restore. The second count declared upon a failure of consideration in that defendants failed to honor certain covenants respecting the planting, cultivating and earing for said grove of grapefruit trees planted by defendants on said land during the time it was held under lease by them as a part of the original transaction. The third was a common count for money had and received, indebitatus assumpsit. The prayer of the complaint was for return of the money paid on account of said purchase, with interest and costs, and for equitable relief in the cancellation' of various written instruments, contracts and obligations between the parties as a part of the transaction here in question. The complaint was amended in certain respects and defendants made answer thereto. These pleadings are not in the record before us. It does appear, however, that an appeal has been taken from said decree and lodged in this court.

Upon initiation of said action a writ of attachment for the amount paid on the purchase price of said property was procured upon an affidavit regular in form, setting up the transaction as a contract for the direct payment of money, and said attachment was levied upon certain property of the defendants. Although a dispute exists between the parties as to some of the steps which have been taken in the court below, looking to a discharge of said attachment, the fact remains that it is still in force.

Following said judgment, and perhaps following the appeal therefrom, to wit: on May 18, 1933, one of the above-mentioned defendants, Thaddeus D. McCall, instituted the present proceeding in mandate to compel said superior court to discharge the said attachment. Whether or not this relief should be granted is the ultimate question for our solution here.

The discussion that follows should be construed as a continuation of that found in the case of Philpott v. Superior Court, L. A. No. 14359 (ante, p. 512 [36 Pac. (2d) 635]), this day decided. From that action it is concluded that where a party to an executory contract parts with his money or goods as the result of fraudulent representations as to material elements of the transaction, he has an election of remedies, one of which is to waive the tort, rescind the contract and sue in assumpsit, upon the promise implied by law, for a return of the consideration paid, and where the defrauded party parts with his money or with his goods under such fraudulent inducements and has received nothing of value therefor, he may sue on the common counts of indebitatus assumpsit or quantum valebat in assumpsit, as the case may suggest.

This brings us to inquire whether or not the language of section 537 of the Code of Civil Procedure, allowing attachment “ ... in an action upon a contract, express or implied, for the direct payment of money ...” embraces within its terms an implied promise supplied by law of the character above described. In other words, there are at least three classes of promises to pay—an express promise to pay, a promise implied from the facts of the case, and a promise implied by law. Does the chapter of said code on attachments allow a writ where the promise is supplied by law?

We have seen that the implied promise supplied by law is ex contractu in its nature. (Philpott v. Superior Court, supra.) With this in mind, we ai'e unable to see any distinction between the three classes of promises so far as said chapter of the code is concerned, or why all are not included in the section allowing attachment. In the case of Nevada Co. v. Farnsworth, 89 Fed. 164, 165, 166, an early case before the United States Circuit Court, this identical subject is treated as follows:

‘‘The statutes of Utah only permit of an attachment in an action upon a judgment, or upon a contract, express or implied; and it is urged with much force that, treating the action as in assumpsit, it is based upon a gitasi-contraet, which it is a misnomer to call an implied contract, wanting, as it is, in most of the elements of a true contract. The whole theory of contracts implied in law was originated for the purpose of giving a remedy ex contractu for certain wrongs, and it does not promote clear thinking to embrace in one classification two things so essentially different as an obligation based on the consent of the parties and one imposed by law, from motives of public policy, frequently against the intention of the parties. But, however unscientific such a classification is, simple implied contracts are usually subdivided into contracts implied in fact and contracts implied in law. The first, it is needless to say, is a true contract, the agreement of the parties being inferred from the circumstances; the latter but a duty imposed by law, and treated as a contract for the purposes of a remedy only. This classification of implied contracts makes it difficult to interpret a statute where the term is used. In each case it becomes a question whether the general meaning, or the more limited, if more accurate, meaning, was, by the legislature, intended. This legislative intent must be sought in the particular statute in question, but, in the absence of any light thrown thereon by the language or object of the statute, or of other statutes in pari materia, it must be held, I think, that the legislature intended that meaning which is commonly assigned to the words, even if such definition be less accurate or scientific. . . . There is a plain reason why attachments were not permitted in actions sounding in damages, for, if allowed in such actions, property of the defendant might be incumbered in an amount altogether out of proportion to the sum finally recovered. But in assumpsit, where the tort is waived, the sum sued for is the benefit unjustly retained by the defendant; not the damage to the plaintiff, usually more uncertain in amount. (Keener, Quasi Cont. 160.) There is nothing in the wording of the statute which would warrant a holding that the legislature used the term ‘implied contract’ in other than its usual meaning, or that contracts implied in law were not intended to be included. The weight of authority supports this conclusion. (Reviewing authorities.) ” Other cases to the same effect are: May v. Disconto Gesellschaft, 211 Ill. 310 [71 N. E. 1001]; Lipscomb v. Citizens’ Bank, 66 Kan. 243 [71 Pac. 583] ; Turner v. Schwartz, 140 Md. 465 [117 Atl. 904, 24 A. L. R. 444] ; Farmers’ Nat. Bank v. Fonda, 65 Mich. 533 [32 N. W. 664] ; State v. Superior Court, 105 Wash. 676 [178 Pac. 827] ; Western Assur. Co. v. Towle, 65 Wis. 247 [26 N. W. 104].

The above authority was followed in the case of Aronson & Co. v. Pearson, 199 Cal. 286 [249 Pac. 188, 51 A. L. R. 1380], where it was expressly held that the stockholders’ liability, under the constitutional and statutory provisions relating thereto, was an implied contract within the meaning of said section 537 of the Code of Civil Procedure, and the right to a writ of attachment was confirmed. There was in such case no privity of contract whatsoever. In fact, there is little, if any, difference between the promise implied by law in the case before us, where the transaction was induced by fraud, and a case of total failure of consideration such as S. C. V. Peat Fuel Co. v. Tuck, 53 Cal. 304; Mahony v. Standard Gas Engine Co., 187 Cal 399, 405 [202 Pac. 146]; Bennett v. Superior Court, 218 Cal. 153 [21 Pac. (2d) 946].

The action in assumpsit in such cases is not upon the failure of consideration or upon the fraud practiced but upon the promise or obligation set up by the law to afford the injured party additional relief. Failure of consideration, duress, fraud, or mistake, are elements only in the sense that they furnish a foundation upon which. to rest the rescission from which flows the promise or obligation. We therefore conclude that in such cases when suing for the consideration paid, the injured party may, where he has received nothing of value, have the writ of attachment.

But this observation does not dispose of all questions raised by this proceeding. It appears that in asking for injunctive relief, plaintiffs included in their complaint both legal and equitable issues and it might well be held that the equitable issues predominate and that a court of equity, having taken hold of the subject-matter of the litigation, should administer both equitable and legal relief. This however, does not prevent the issuance of an attachment as to so much of the action as discloses a contract, express or implied, for the direct payment of money. The prayer for equitable relief, therefore, has no bearing upon the issuance of an attachment in a proper case. This subject was thoroughly considered in the recent case of Bennett v. Superior Court, supra. (See, also, Hallidie v. Enginger, 175 Cal. 505 [166 Pac. 1], DeLeonis v. Etchepare, 120 Cal. 407 [52 Pac. 718], and Kohler v. Agassiz, 99 Cal. 9 [33 Pac. 741].)

In Stanford Hotel Co. v. M. Schwind Co., 180 Cal. 348 [181 Pac. 780], one of the reasons assigned, as ground for discharging the attachment was that it was an action in equity. There the prayer of the complaint was for a temporary restraining order enjoining defendants from selling or otherwise disposing of the property involved in the bill of sale and that the sale be declared void, and that it be decreed that the defendant held the property charged with payment of plaintiff’s claim in the sum of $3,617.60; that the property be sold and for further and proper relief. The court, in discussing whether or not an attachment would lie, said: “If a recovery upon such a contract is the purpose of the suit, so far as the right of attachment is concerned it is immaterial whether the action be regarded as strictly legal or strictly equitable, or partly legal and partly equitable. The subdivision does not in terms prescribe that the action must be one in law, or that it may not be one in equity, or that it may not be one of either law or equity, or of both. Hence it is not necessary in order to uphold the writ of attachment to establish the proposition that the action is either legal or equitable. "What must be established is that the action is based upon contract, either express or implied, for the direct payment of money. It is clear that this action addresses itself to both the legal and equitable powers of the court.. But that circumstance will not operate to deny the plaintiff a writ of attachment if he is seeking recovery upon the breach of such contract. . . . Consequently, even if such an action may properly be regarded as partially legal and partially equitable, it will make no difference. The plaintiff is nevertheless entitled to a writ of attachment by virtue of the fact that he is suing for a recovery upon the contract which is the gravamen of the action. ’ ’

But we have not yet considered what shall be the rule of law where the failure of consideration is only partial or where, in case of fraud, something of value has been received. Is a complaining party, on rescission, entitled to a writ of attachment? We cannot see how such party can meet the test set by section 537 of the Code of Civil Procedure, which, at the times here involved, required the affidavit to state that plaintiff’s demand “is not secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or, if originally so secured, such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless.

For example, if the case is one where plaintiff is the purchaser of personal property, the Civil Code, section 1789, subdivision 5, expressly gives him a lien. And where, as here, the purchase is real estate, whether the right of rescission is based upon fraud or partial failure of consideration, the rules of equity give the purchaser a lien upon the real estate involved for the payments made on the purchase, and this lien, too, is supplementary to that created by section 3050 of the Civil Code, which is applicable only to cases of failure of consideration. (Montgomery v. Meyerstein, 186 Cal. 459 [199 Pac. 800] ; Lockie v. Cooperative Land Co., 207 Cal. 624 [279 Pac. 428]; Bennett v. Superior Court, supra.)

It is now necessary to emphasize the difference between rescission in pais and rescission in equity. The former class only have we thus far treated, for in it the law supplies, after notice and offer to restore, a promise of repayment, but in the latter this right follows the decree in equity which for the first time creates the duty to refund.

“The fact that the same word, ‘rescission’, is used to designate both the equitable remedy of cancellation and the termination of a contract by the act of a party has been productive of no little confusion. ‘In many of the cases for rescission in equity language is used from which it might be inferred that precisely the same principles govern in suits in equity that are applied to determine the right of the party to sue at law’.” (9 Cor. Jur. 1159.) “In the opinions in many of these cases the courts advert to the distinction, so often lost sight of, between the equitable remedy of rescission or cancellation, where the' avoidance of the contract, with its indispensable adjunct of restoration, is accomplished by the decree of the court, and legal rescission, where the act of plaintiff in avoiding the contract reinvests him with his legal title or right to sue, and must therefore be accompanied with restitution of the thing received by him.” (9 Cor. Jur. 1215.)

In Gould, v. Cayuga County Nat. Bank, 86 N. Y. 75, 83, the court said: “At any rate the difference between an action to rescind a contract and one brought, not to rescind it, but based upon the theory that it has already been rescinded, is as broad as a gulf. They depend upon different principles and require different judgments.”

In California the flame of confusion has been fed by the requirement that the rule as to tendering restoration prior to court action applies in both classes of rescission. (Crouch v. Wilson, 183 Cal. 576, 584 [191 Pac. 916]; Kelley v. Owens, 120 Cal. 502 [47 Pac. 369, 52 Pac. 797]; Gifford v. Carvill, 29 Cal. 589.) In other jurisdictions it is necessary only in the unilateral or in pais rescission to have previously offered to restore to the party against whom the rescission is claimed everything of value received, and not so in equity. But California decisions plainly recognize the two classes of rescission. Our Civil Code specifically provides how a contract may be rescinded. Sections 1688-1691, inclusive, thereof, provide that a contract may be extinguished by a rescission and the grounds upon which this may be done, including the manner in which it is to be effected and they seem clearly to contemplate a rescission in proper cases by the individual act of one of the parties to the contract. It is provided in sections 3406-3408, inclusive, of said code, for the additional and supplemental action in equity by which a rescission may also be accomplished.

The case of Loaiza v. Superior Court, 85 Cal. 11, 13 [24 Pac. 707, 20 Am. St. Rep. 197, 9 L. R. A. 376], was an action where the basis of the rescission was fraud. Speaking of rescission on that ground, the court said: “It is upon and after rescission, and to enforce rescission, so far as the means of enforcing it are within the jurisdiction of the court. It does not require mutual consent of the parties to rescind. Under section 1689, either party may rescind when consent was given by mistake or obtained by fraud. According to the record, the purchasers did actually rescind, and rescind promptly before the action was brought, and did all that is required of them by section 1689, which gives them the right, and section 1691, which prescribes the mode of rescission. They did not restore, because restoration was not accepted; but they offered to restore, and in the action they again offer to restore, everything of value received- by them under the contract. This offer, with the prompt and proper notice, makes the rescission complete, and entitles them to the aid of a court of competent jurisdiction in securing to them the results and fruits of the rescission. To secure those results and fruits is the object of the action they have brought. Those results and fruits are the restoration of the moneys and things of value which they gave in consideration of the purchase. . . . That the court has jurisdiction to afford the relief sought is supported by ample authority (citing many cases). ...”

See, also, Kelley v. Owens, supra. Also Spreckels v. Gorrill, 152 Cal. 383, 394 [92 Pac. 1011], where it is said: “In effect, this is a suit to enforce a rescission which has been offered and refused, and it is of equitable origin and nature. Under our form of procedure whereby the distinction between forms of action is abolished, the court could in this action administer equitable relief, regardless of the question whether, under former systems of jurisprudence, the action would be deemed an action in assumpsit for the money paid, or an action in equity to compel rescission and a return of the consideration.”

In McNeese v. McNeese, 190 Cal. 402, 404 [213 Pac. 36, 37], it is said: “The interposition of a court of equity to set the contract aside was not necessary to rescission. A contract may be rescinded by the act of the party entitled and desiring to rescind. It is well recognized that sections 1688, 1689 and 1691 of the Civil Code provide for rescission effected by the act of the parties (citing many cases).”

In the case of Fitzhugh v. University Realty Co., 46 Cal. App. 198, 201 [188 Pac. 1023], the court said: “That quasi contract went into effect instantaneously upon the service of the notice of rescission, and at the place where such notice was served . . . and upon this contract created by the law the plaintiff had the right to bring an action in general assumpsit for money had and received.” (See, also, Bennett v. Superior Court, supra, and Orton v. Privett, 202 Cal. 754, 757 [262 Pac. 713].)

It may be urged that in rescission in pais a party will never know until after the judgment of the court is given that he had a right to rescind and hence the causes of action are the same and in equity. This confusion arises from a failure to keep in mind that a court of law as well as a court of equity applies equitable principles. The distinction, as pointed out in the case of Philpott v. Superior Court, ante, p. 512 [36 Pac. (2d) 635], lies more in the relief administered than in the principles applied.

In any action for a money judgment alone, where rescission in pais is specially pleaded or is relied upon under the common counts, and the plaintiff is denied relief, and the attachment sued out is dissolved, the order of the court denying him a money judgment is not a decree in equity. The fact that the plaintiff is mistaken as to his right to rescind is not proof that the action is in equity. The plaintiff in any kind of an attachment case, upon a hearing on the merits, may be denied relief and, as a consequence, the attachment sued out by him may be dissolved.

A further observation is necessary respecting the pleading in rescission cases. While it has been held that the common count is sufficient where the contract is executory, or the action is merely to procure a return of the consideration paid and the party rescinding has received nothing of value, still we do not think the rule should be extended to other classes of rescission. We adhere to the holding as announced in Swanston v. Clark, 153 Cal. 300, 303 [95 Pac. 1117], as follows:

“Again, a party to a contract cannot rescind at his pleasure, but only for some one or more of the causes enumerated in section 1689 of the Civil Code. One seeking to rescind a contract, or to enforce a rescission which he claims he has effected in the manner provided in section 1691 of the Civil Code, must allege facts showing that he had good right to rescind, and for what cause a rescission had taken place, or that a rescission had been made by consent. (18 Ency. of Plead. & Prac., pp. 802, 803, 804.) The same rule controls where a rescission is averred as a defense. (18 Ency. of Plead. & Prac., p. 844; Bruch v. Tucker, 42 Cal. 353; Miller v. Fulton, 47 Cal. 146; Dorris v. Sullivan, 90 Cal. 286 [27 Pac. 216]; Kentfield v. Hayes, 57 Cal. 411; Arguello v. Bours, 67 Cal. 450 [8 Pac. 49]; Swasey v. Adair, 88 Cal. 182 [25 Pac. 1119].) ” (See, also, Crouch v. Wilson, supra.)

We have not thus far considered in extenso the case of Stone v. Superior Court, 214 Cal. 272 [4 Pac. (2d) 777, 77 A. L. R. 743], It is clear from our holding in the Philpott case, supra, and from the foregoing discussion, that the Stone case must give way in order to prevent ‘ further confusion. It would be perplexing to have the right of attachment in all other quasi-contract cases and to deny it in cases of fraud. As already observed, the law implies the promise and affords an added remedy if the injured party elects to follow it. The action is not on the fraud, or failure of consideration, or duress, but upon quasi contract imposed by law. It was through failure to concede this additional relief that error crept into the decision in the Stone case.

We agree in this respect with the statement of Mr. Justice Shaw in his dissenting opinion in the case of Willett & Burr v. Alpert, 181 Cal. 652, 666 [185 Pac. 976], as follows: “The statute allows an attachment in all cases of implied contracts for the direct payment of money. The word ‘direct’ is apparently surplusage, for every contract for the payment of money would be a contract for the direct payment of money. The common law has always been in force in this state except as changed by statute. It is to be presumed that the term ‘implied contract’, as used in the attachment law, was intended to include all cases where at common law a contract was implied. If this be not so, great confusion would result.”

In the Stone case the transaction was induced by fraud and the stock received was worthless. A proper rescission was made and a suit in assumpsit should lie to secure a return of the consideration paid. The case of Willett & Burr v. Alpert, supra, is not at variance with the conclusions announced herein. It was an action for damages, described by the court as follows (181 Cal., at p. 657): “As to the character of the action, it is simply one brought by the vendee in a contract for the sale of personalty against the vendors to recover damages for a failure of the vendors to deliver the full quantity of property claimed to be called for by the contract, a delivery of a part of the quantity having been made, and the vendee having paid the full purchase price. There was no entire failure of consideration so as to entitle the vendee to recover the purchase price paid on that ground, nor was there any attempt to rescind for a partial failure so that the vendee could recover the purchase price paid on that ground, and the action in fact is not brought for a recovery of the purchase price, or any part thereof, but is strictly for damages for a breach of contract.” The action is clearly for damages for a tort and not upon an implied promise where the tort is waived.

The case of San Francisco Iron etc. Co. v. Abraham, 211 Cal. 552 [296 Pac. 82], is plainly an action on the case for fraud and deceit. The same is true of Hallidie v. Enginger, supra. The case of Bennett v. Superior Court, supra, is in substantial accord with the present holding. We have but extended its doctrine to cover transactions rescinded for fraud, as well as failure of consideration.

Let the peremptory writ of mandate issue, directing the court below to dissolve the attachment, unless the plaintiffs in said action of Harry E. Griffin et ux., Plaintiffs, v. Thaddeus D. McCall et al., Defendants, No. 13573, on the coming down of this writ, justify said attachment by a showing that the security held by them, was or has become valueless.

Waste, C. J., Spence, J., pro tern., Langdon, J., and Seawell, J., concurred.

SHENK, J., Dissenting.

I dissent. A copy of the complaint in the action of Griffin v. McCall is attached to the petition herein. In the first cause of action, in twenty-six paragraphs, the plaintiffs set forth the facts on which they rely for relief. They allege their contract with certain of the defendants for the purchase and sale of real property, under which contract written documents were executed and exchanged, and under certain of which the plaintiffs acquired the title to the real property involved. They allege at length the fraudulent representations under which they were induced to enter into the contract and acquire the property, with appropriate averments of falsity and reliance. They allege rescission of the contract, on notice, and an offer to restore, upon the discovery of the alleged fraud. They pray that their rescission be confirmed; that the court order a cancellation of the written instruments and compel the defendants' to accept a reconveyance of the title to the property received by the plaintiffs in the transaction, and that money paid to the defendants be returned to the plaintiffs.

There can be no doubt that the pending action is a suit in equity, as distinguished from an action at law, and it is not an action on a contract, express or implied, for the direct payment of money. The second and third counts add nothing which may not be adjudicated on the trial of the main issues and are based upon the same transaction involved in the first cause of action. On the theory of the case of Stone v. Superior Court, 214 Cal. 272 [4 Pac. (2d) 777, 77 A. L. R. 743], in that respect, and other cases to the same effect, the right to an attachment should be denied. Whether the Stone case is right or wrong on the facts there presented is entirely beside the question in this proceeding. Involved herein is an action to confirm a rescission and to obtain the benefits resulting therefrom by a decree in equity without which such benefits could not be secured. Nothing else incorporated in this complaint should be considered in determining the right to an attachment. In my opinion the peremptory writ should issue without conditions.

Curtis, J., concurred.


source: Caselaw Access Project

author: PRESTON, J.

license: Public Domain

text:
    [L. A. No. 14232.
    In Bank.
    October 1, 1934.]
    ETHEL DAVIS, Appellant, v. SECURITY-FIRST NATIONAL BANK OF LOS ANGELES (a Corporation) et al., Respondents.
    W. H. Douglass for Appellant.
    Gibson, Dunn & Crutcher, H. F. Prince and Keith Bullitt for Respondents.
   PRESTON, J.

Appeal from judgment of dismissal entered upon motion of defendants, after refusal of plaintiff to proceed to trial without a jury.

The complaint in this cause alleges that plaintiff was induced to enter into two contracts for the purchase of lots located in a tract of land solely by fraudulent representations of defendants relative to value of the investment and improvements to he made in the tract; that plaintiff received nothing, rescinded the contracts and demanded her money back. The prayer of the complaint is for damages in a sum representing the payments made by plaintiff on said lots, together with interest and costs.

After issue joined, the court denied plaintiff a trial by jury upon the ground that the cause of action was equitable and not legal. The question here is whether the court erred in so ruling and, for its determination, we are required to declare the nature of the action alleged in the complaint, whether legal or equitable.

This subject is discussed .fully in the cases of Philpott v. Superior Court, L. A. No. 14359 (ante, p. 512 [36 Pac. (2d) 635]), and McCall v. Superior Court, L. A. No. 14531 (ante, p. 527 [36 Pac. (2d) 642]), this day decided. Upon that authority we have no hesitancy in declaring that the facts here alleged state an action at law.

The judgment is reversed with directions to the superior court to proceed to a trial of the case before a jury.

Waste, C. J., Spence, J., pro tern., Langdon, J., and Seawell, J., concurred.

Shenk, J., and Curtis, J., dissented.


author: SHENK, J.

text:
    [L. A. No. 14720.
    In Bank.
    October 1, 1934.]
    GEORGE SOUR et al., Petitioners, v. SUPERIOR COURT OF SAN DIEGO COUNTY et al., Respondents.

      J. L. Hofflund for Petitioners.
    Liggett & Liggett for Respondents.
   SHENK, J.

The following opinion of the District Court of Appeal, Fourth Appellate District, prepared by Mr. Justice Marks, is adopted as the opinion of the court, to wit:

“Petitioners, George and Peter Sour, recovered judgment in the justices’ court of San Diego Township, county of San Diego, against Western States Grocery Company, Inc., which appealed to the Superior Court of San Diego County on questions of law alone. Judgment in the justices’ court was rendered April 3, 1933, and on October 31, 1933, the following judgment was rendered by the Superior Court: ‘It is ordered that the judgment of the trial court be reversed, and that judgment be entered herein in favor of the defendant Western States Grocery Company, Inc., a corporation. It is further ordered that said defendant recover costs in the trial court and upon the appeal. ’

‘ ‘ San Diego township has a population in excess of thirty thousand. At the time the appeal from the justices’ court was taken, section 982a of the Code of Civil Procedure provided that appeals from such justices’ courts ‘shall be taken, heard and determined as provided in chapter four of this title relating to appeals from municipal courts’. Section 988h of the Code of Civil Procedure provides that on appeal from a municipal court the superior court ‘may affirm, reverse or modify any judgment or order appealed from and may direct the proper judgment or order to be entered.’ “Section 982a of the Code of Civil Procedure was repealed on August 20, 1933. Effective the same day, the title of chapter III, title XIII, part II of the Code of Civil Procedure was amended to read ‘Appeals from Justices’ Courts’, with the machinery of appeal and power of the appellate court set forth in that chapter.

“Section 974 of the Code of Civil Procedure provides for appeals to the superior court on questions of law, or fact, or both. Section 980' of the same code provides that ‘upon an appeal heard upon a statement of the case [an appeal on questions of law alone], the superior court may review all orders affecting the judgment appealed from, and may set aside, or confirm, or modify any or all of the proceedings subsequent to and dependent upon such judgment, and may, if necessary or proper, order a new trial. ’

“ The principal question to be decided here is whether the powers of the superior court on appeal from the judgment were defined by section 980 or section 988h of the Code of Civil Procedure. There is no question but that the provisions of section 988h were applicable to .appeals from the justices’ court of San Diego township at the time the case was tried, judgment given, and the appeal perfected in that court. During the pendency of the appeal, section 982a of the Code of Civil Procedure was repealed. This had the effect of removing section 988h from the code provisions governing appeals from justices’ courts. During the same time chapter III, title XIII, part II of the Code of Civil Procedure was made the law governing appeals from all justices’ courts.

“The extent of the order which the superior court could make on appeal is a matter of remedy and procedure. ‘When a new statute deals with procedure only, it applies to all actions—those which are pending, and future actions.’ (Heron v. Bray, 122 Cal. App. 79 [9 Pac. (2d) 513].) (See, also, City of Los Angeles v. Oliver, 102 Cal. App. 299 [283 Pac. 298].)

“We conclude that the power of the superior court to make an order on appeal from a justices’ court on October 31, 1933, was defined and limited by the provisions of section 980 of the Code of Civil Procedure. The powers given by this section to the superior courts on an appeal from a justices’ court on questions of law alone was considered in the case of G. & H. Commercial Service v. Superior Court, 121 Cal. App. 191 [8 Pac. (2d) 549], where it was said: ‘The appeal to the superior court was heard upon a settled statement of the case, which assigned the admission of hearsay evidence by the justices’ court as error. The case was not tried de novo by the superior court. No evidence was adduced upon the hearing in that court. After argument by respective counsel, the superior court rendered and entered a judgment which read in part: “It appearing to the court that the said Justices’ Court erred in law in the matters specified as such errors in said statement of the case, above referred to: It is therefore ordered and adjudged that the judgment of said Justice’s Court of Marysville Township ... be and is hereby reversed and set aside, and that judgment be entered in favor of said defendant. ’ ’

“ ‘In an appeal upon questions of law alone, which is taken from a judgment rendered in a justice’s court, the superior court is without jurisdiction to try the cause de novo or to render a judgment on the merits.

“ ‘In the case of Lugo v. Superior Court, 55 Cal. App. 561 [203 Pac. 812, 813], it is said: “‘We think it clear, therefore, that upon an appeal on questions of law alone, like the one here under review, the superior court can merely pass upon the questions brought before it on the appeal, and has no jurisdiction to try and determine the whole cause as if it had been transferred to that court upon an appeal upon, questions of both, law and fact.’ ” ’ (Sherer v. Superior Court, 94 Cal. 354 [29 Pac. 716].) ”

Prom the foregoing it follows that the respondent court exceeded its jurisdiction in ordering judgment to be entered in the superior court upon a reversal of the judgment of the justice’s court, and that the respondent court should have proceeded under the authority vested in it by section 980 of the Code of Civil Procedure.

It is suggested by the petitioners that the valid and invalid portions of the judgment of the respondent court are severable; that the portion which reverses the judgment of the justice’s court is valid and should be affirmed, and that the portion ordering judgment to be entered in the superior court in favor of the defendant grocery company is invalid and should be annulled. (See sec. 1075, Code Civ. Proc.) But acting under section 980 of the Code of Civil Procedure, the respondent court, upon further proceedings on said appeal, may deem it necessary or proper to include therein an order for new trial in the justice’s court in the event the judgment be reversed. We think the judgment of the respondent court should be annulled in its entirety.

It is so ordered.

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


author: THE COURT.

text:
    [L. A. No. 13908.
    In Bank.
    October 1, 1934.]
    BARD LIVINGSTONE, Appellant, v. R. W. MacGILLIVRAY et al., Respondents.

      Grant Holcomb for Petitioner.
    Fred A. Wilson for Respondents.
   THE COURT.

The petitioner sued to compel the payment of his salary as assistant superintendent and foreman, a position he had held in the classified civil service of the water department of the city of San Bernardino. He propounds the following question as the issue involved on his appeal from the order of the trial court denying his petition: “Does the civil service board under the San Bernardino city charter under the power to hear appeals of employees who have been discharged, suspended or reduced in rank, have the incidental power to find and determine that a purported order of abolition of the employment of petitioner was in fact a discharge of petitioner and was passed for political reasons, and that another continued to do his work?”

The resolution of the board of water commissioners on its face abolished for purposes of economy the position in said department held by the petitioner. No new position involving the same duties or otherwise was created, and the duties theretofore performed by the petitioner were assigned to another employee in the department. The petitioner claims that the civil service board had jurisdiction to determine that the action of the board of water commissioners was taken for political reasons and in bad faith and that the finding of the civil service board to that effect was binding on the trial court and is binding on this court of appeal. If the position occupied by the petitioner was in fact abolished he has no standing. If it was not abolished it was because of the bad faith amounting to fraud inherent in the action of the water board. The civil service board assumed to try and determine this issue of fraud. The city charter does not confer upon the board such jurisdiction. The power of the board being special and limited, no legal presumptions or intendments may be indulged to uphold its order. (Garvin v. Chambers, 195 Cal. 212, 223 [232 Pac. 696].) The issue attempted to be determined by the civil service board was a judicial question. It was not specifically tendered in the petition for the writ but was attempted to be presented at the trial in the superior court; consequently the court made findings thereon and in favor of the respondents. The findings are supported by sufficient evidence.

This is not a case such as Winslow v. Bull, 97 Cal. App. 516 [275 Pac. 974], in which the civil service employee was “laid off” and a subordinate assigned to discharge his duties. The position there was not abolished. Nor is it such a case as Powers v. Board of Public Works, 216 Cal. 546 [15 Pac. (2d) 156], in which practically the same situation existed. Nor is the case of Barry v. Jackson, 30 Cal. App. 165 [157 Pac. 828], in point. There the old positions were abolished and new positions created involving the same duties and it was held that the civil service board could determine whether the duties under the old and new ordinances were the same, and if so, protect the right of the employee to continue in service. The civil service board deals with positions in existence. Otherwise that board would have the power to determine the number of positions of employment which another co-ordinate board should create and maintain. The issue of whether the position of the petitioner was or was not abolished was submitted to a court having jurisdiction in the matter. The decision was against him on sufficient evidence and we perceive no error in the judgment.

For a more detailed discussion of the facts and the law we refer to and adopt the opinion of the District Court of Appeal, prepared by Mr. Justice Jennings, as the opinion of this court. It is as follows:

“Plaintiff instituted this action in mandamus in the Superior Court of San Bernardino County to compel the defendants, as members of the Board of Water Commissioners of the City of San Bernardino, to execute and deliver to him warrants drawn upon the city treasury in the amount of his monthly salary as an employee of the water department of said city for the months of November and December, 1930. Prom a judgment denying his petition for the writ of mandate plaintiff has prosecuted this appeal.
“The record presents the following facts pertinent to the questions here involved: On October 28, 1930, and for many years prior thereto petitioner was an employee of the water department of the city of San Bernardino. On the above-mentioned date he held the position of assistant superintendent and foreman of said department. This position was one that was included in the classified civil service of said city. At a meeting of the Board of Water Commissioners on October 28, 1930, the said board adopted the following resolution:
“ ‘As a preliminary economy measure, motion was made by Commr. Ham that the following classified civil service positions be abolished, effective immediately, and that communication be forwarded to the Civil Service Board, advising such action:
“ ‘ Sanitary Patrolmen, Lytle Creek,
“ ‘Meter Inspector,
“ ‘Pipe Line Foreman,
“ ‘Foreman,
“ ‘Plumbers and meter men,
“ ‘Plumbers and pipe fitter Gr. 1,
“ “ “ “ “ 2,
“ ‘ “ “ “ “ “ 3,
“ ‘Acetylene Welder,
“ ‘Assistant Superintendent and foreman,
“ ‘Assistant Superintendent.
“ ‘Motion seconded by Commr. MacGillivray. Unanimously carried. ’
“On October 29, 1930, the superintendent of the water department informed petitioner that his position as an employee of the department had been abolished and that he was no longer employed by said department. On October 30, 1930, petitioner filed an appeal with the civil service board of the city of San Bernardino wherein he set forth the adoption of the above-mentioned resolution abolishing certain positions and alleged that said resolution was in effect an order discharging him from further employment with the city and that his discharge had been effected without the presentation of any reasons therefor and that thereby he had been foreclosed of any opportunity to be heard in his own defense. Thereafter, the civil service board of said city fixed a date for hearing the appeal and notified petitioner and the Board of Water Commissioners of the time and place of such hearing. Subpoenas were thereupon issued by the civil service board directed to the three members of the Board of Water Commissioners requiring their attendance at such hearing. Two members of the Board of Water Commissioners ignored the subpoenas and did not attend the hearing. The third member was present. Upon the conclusion of the hearing the civil service board made an order in which it was declared that the order of the Board of Water Commissioners made on October 28, 1930, was not made in good faith and was in fact a mere pretext and subterfuge made with the intent and purpose of discharging petitioner from his employment with the water department of said city. It was accordingly ordered that petitioner be reinstated and restored to his former position and that he be compensated at his former rate of pay from November 1, 1930, until the date of his reinstatement. A copy of this order was served upon the three members of the Board of Water Commissioners. Thereafter the petitioner reported to the Board of Water Commissioners and to the superintendent of the water department that he was ready to perform the duties of an employee of said water department but was not permitted to resume his employment. Demand was then made by petitioner upon the Board of Water Commissioners that they execute and deliver to him warrants drawn upon the city treasurer for compensation at the rate of pay which he drew at the time the order of abolition of October 28, 1930, was made. This demand was refused. The proceeding in mandamus was thereupon instituted.
“The petition for the writ was evidently drawn on the theory that the civil service board of the city of San Bernardino had complete jurisdiction of the appeal which was taken from the order of the Board of Water Commissioners abolishing the position of foreman and assistant superintendent and that the order of the civil service board reinstating appellant in his former position was final and conclusive. This is likewise the chief contention advanced by appellant upon this appeal. The correctness or incorrectness of this contention depends in the final analysis upon the provisions of the freeholders’ charter under which the municipality operated. This must be true because it is settled in California that the tenure of office of officers and employees of municipalities whose scheme of government is established by such a charter is controlled exclusively by the provisions of the charter (Const, of Cal., art. XX, sec. 16; Craig v. Superior Court, 157 Cal. 481 [108 Pac. 310]; Binan v. Superior Court, 6 Cal. App. 221 [91 Pac. 806]). It becomes necessary, therefore, to examine those provisions of the charter of the city of San Bernardino which are pertinent to the problem under consideration.
“Such examination discloses that the original charter conferred upon the Board of Water Commissioners the power ‘to employ and discharge at will such help as the necessities of the water service may demand. ’ The section of the charter which enumerated the powers of the Board of Water Commissioners and from which the above-quoted language is taken was amended in 1925 to read as follows: ‘To employ such help as the necessity of the water service may demand.' In other words, the power to discharge employees at will was thereby taken from the Board of Water Commissioners. In the same year the charter of the municipality was further amended by the addition of new sections which established a system of civil service regulating the employment, promotion, and discharge of municipal employees. It will be necessary for the purposes of this opinion to set forth the provisions of only one of such sections. Section 255 is in the following language: ‘Any employee of any department in the city in the classified service who is suspended, reduced in rank, or dismissed from a department by the head of that department, may appeal from the decision of such officer to the civil service board, and such board shall define the manner, time, and place by which such appeal shall be heard. The judgment of such board shall be final; provided, that the provisions of this Section are at all times subject and subordinate to the provisions of Section 256.’ Section 256, to which reference is made in the preceding section, provides for dismissal by the mayor upon the vote of two-thirds of the council and has no application to the question under consideration. It is appellant’s contention that, so far as he is concerned, the order of the Board of Water Commissioners abolishing the position which he occupied constituted a discharge from employment entitling him to appeal to the civil service board and that having taken such appeal and the appeal having been heard, the order of reinstatement constituted a final adjudication of the matter. If it may fairly be declared that the order of the Board of Water Commissioners abolishing the position amounted to an order of discharge appellant’s contention is meritorious. However, in order to justify such a declaration it must appear that the order of the Board of Water Commissioners abolishing the position which appellant held was not what on its face it purports to be but that in fact it was a mere pretext adopted merely for the purpose of effecting appellant’s discharge from employment.
“ It must, we think, be conceded that abolition of an office or position is not synonymous with discharge from employment although the effect upon the individual who loses employment is precisely the same. In the former instance the duties of the position are either absorbed by other persons or they are entirely discontinued while in the latter case the duties remain unchanged but some individual other than the discharged employee is selected to perform them. It must also be conceded that the power to abolish a position may not be tortured into a mere instrumentality to effect the discharge of an employee protected by the salutary provisions of civil service regulations.
"Since abolition of position is not intrinsically equivalent to discharge from employment can it fairly be declared that, under the provisions of the charter of the city of San Bernardino, the civil serivce board had jurisdiction of the appeal taken by an employee whose position was abolished and has the order of the civil service board such conclusiveness that nothing remains except to carry it into effect?
“The charter does not by its terms confer upon the civil service board jurisdiction to entertain an appeal by a municipal employee whose position has been abolished. It does expressly confer upon it jurisdiction to hear appeals by employees who are suspended, reduced in rank, or dismissed from a department by the head of the department. It is settled that a civil service commission derives its power from the charter creating it and that it may not exercise any power which is not expressly conferred or necessarily implied from the prerogatives so conferred (Cook v. Civil Service Com., 160 Cal. 598 [117 Pac. 662]; Peterson v. Civil Service Board, 67 Cal. App. 70 [227 Pac. 238]; Haub v. Tuttle, 80 Cal. App. 561 [251 Pac. 925]). We entertain the opinion that the power to determine whether or not a position in the classified service has been properly abolished is not necessarily implied from the express grant of power to hear appeals by municipal employees who have been suspended, reduced in rank or discharged.
“Appellant places much reliance upon the decision in Barry v. Jackson, 30 Cal. App. 165 [157 Pac. 828], This was an appeal by the commissioner of public health and safety of the city of Oakland from a judgment ordering a writ of mandate to issue directing appellant to reinstate respondents to certain positions in the city health department in conformity with the findings and decision of the civil service board of said city. The city of Oakland was governed by a freeholders’ charter which contained provisions establishing a civil service system. Following a municipal election at which appellant was selected as one of the new city commissioners, the city council adopted a new ordinance which repealed a former ordinance and abolished many former positions in the health department and created new ones, the final result being a reduction in the number of employees in the health department from 34 to 33 and accomplishing a saving in expense to the city of' $600 per annum. The new ordinance created two positions of deputy sanitary and plumbing inspectors at a salary of $1,500 per year and two positions of deputy sanitary and plumbing inspectors at a salary of $1,200 per year. Prior to the passage of the new ordinance two of the respondents were deputy plumbing inspectors and the third respondent was an assistant sanitary inspector. These were positions in the classified civil service. Immediately after the passage of the new ordinance appellant notified respondents that their positions were abolished and that their employment had terminated. He then advised the civil service board of the passage of the new ordinance and of the notice given to respondents terminating their employment and acting upon the theory that there was no eligible list for positions created by the new ordinance requested approval of the civil service board of temporary appointments made by him of three men without civil service standing. For the purpose of determining whether there was any eligible list applicable to the places of employment provided for in the new ordinance and further to determine whether the temporary appointees were qualified, the civil service board conducted an investigation and determined that the duties attached to the positions created by the new ordinance were identical with those of the positions held by respondents under the former ordinance. Thereupon respondents availing themselves of a charter provision prosecuted an appeal before the civil service board claiming to have been wrongfully discharged. The board again found that the duties under both ordinances were identical and that the respondents were entitled to reinstatement. In its opinion affirming the judgment ordering the issuance of the writ, the appellate court pointed out that no evidence was introduced at the trial which showed that the conclusions reached by the civil service board were not sustained by sufficient evidence and that therefore the reviewing court as well as the trial court was bound by the conclusions of the civil service board. The opinion concludes with the following language:
“ ‘The appellant also claims that under the provisions of the charter the civil service board has authority to hear an appeal only when an employee has been discharged, and not in a case where his position has been abolished. The board, on the investigation made by it for the purpose of classifying the places provided for by the new ordinance, found that the positions of the petitioners had not been abolished. But even if it can be said that in repealing the old ordinance the old positions were, technically, at least, abolished, and hence that the board had no jurisdiction to hear the appeal, still it is not questioned that the civil service board, when it made its investigation for the purpose of classification, determined that the places of employment were the same under the new ordinance as under the old, from which it follows that the petitioners were entitled to be restored to the positions from which they were removed. ’
“It is apparent from the above-quoted language that the decision is not authority for the proposition that the civil service board of a city operating under a freeholders’ charter which confers upon such board jurisdiction to entertain appeals by municipal employees who have been discharged from their positions possesses jurisdiction to entertain similar appeals by employees whose positions have been abolished. Still less is it authority for appellant’s contention that the order of such a board reinstating municipal employees whose positions have been abolished possesses a finality which renders it conclusive upon a court which is considering the propriety of issuing a writ of mandate sought by a municipal employee whose position has been abolished.
“It is our opinion that the case of O’Neill v. Williams, 53 Cal. App. 1 [199 Pac. 870], is much more in point upon the problem which is here under consideration. In this case the petitioner for the writ of mandate was a corporal in the police department in the city of Oakland. The city council of said city, proceeding in accordance with charter provisions, had created 14 positions of corporal of police, one of which was held by the petitioner. He was suspended from the police department for alleged cause. The suspension continued until it was annulled by the civil service board on an appeal to that body by the suspended employee. Pending the appeal to the civil service board the city council enacted ordinances whose effect was to reduce the number of corporals in the police department from 14 to 7. In his application for a writ of mandate to compel the city auditor to issue his warrant for salary which was claimed to be due for his services as corporal, petitioner contended that the effect of the resolution of the civil service board was. not only to restore him to membership in the police department but also to reinstate him as a corporal in said department and to entitle him to receive the salary attached to that position during the period of suspension. This contention did not prevail in the trial court, which rendered judgment in defendant’s favor, denying the issuance of the writ. The judgment was affirmed on appeal. The appellate court held that an office or position created by ordinance may be abolished by ordinance, in which case the incumbent ceases to be an officer and that ‘even when the officer, by reason of having been appointed for a definite term, or by special statutory provision, cannot be lawfully removed except for cause after a full hearing, his office may be summarily abolished whenever the municipal authorities deem it advisable’. It is also said that ‘it is equally well established by the decisions of the courts of many states that provisions restricting the power of removal, similar to those found in the civil service provision of the Oakland City Charter, refer to removals for lapse of duty and the like, and are not a restriction upon the power of the Council to abolish as many of the places or offices provided for as it chooses, by abolishing the offices or places themselves, provided such action be taken in good faith. ’
“It is our opinion that the latter of the two cases above discussed correctly states the legal principles which are here applicable. We understand that it is not disputed by appellant in the present action that the Board of Water Commissioners of the City of San Bernardino had the power under the city charter to abolish the position held by appellant provided that its action in so doing was in good faith. It was pointed out in the O’Neill case that bad faith on the part of the city council was not pleaded and that it did not appear in the record that the council’s action in abolishing the position was a mere pretext or device adopted to effect the plaintiff's discharge from employment. It is likewise true in the instant action that bad faith on the part of the Board of Water Commissioners was not pleaded. It must be conceded that evidence was presented to the trial court which tended to show that the abolition of the position which appellant held in the water department was a mere subterfuge to effect his discharge. On the other hand, ample evidence was presented tending to show that the action of the water board in abolishing the position was taken in good faith. Unless, therefore, it can be said that the findings and order of the civil service board which declare that the abolition of the position was a mere pretext and therefore actuated by bad faith were final and conclusive upon the trial court the general rule binding upon a reviewing court that the judgment must be affirmed if the record contains any evidence to support it is applicable. We have heretofore indicated that it is our opinion that the findings and order of the civil service board are not, in this instance, conclusive upon the question of whether or not the action of the Board of Water Commissioners in abolishing appellant’s position was taken in good faith. It follows, therefore, that we are impelled to declare that appellant’s principal contention is unsound.
“Complaint is voiced that the trial court excluded certain evidence offered by appellant which it is said related to the motives actuating the Board of Water Commissioners in abolishing appellant’s position and to the political nature of the controversy. Three specifications of such alleged errors are noted. The first specification relates to the testimony of a witness who was asked to relate a conversation which he had with respondent 'MacGillivray in the spring of 1929, some two weeks prior to a municipal election. It was declared that the purpose of introducing this evidence was to show motive. The trial court sustained an objection to the question, remarking that he considered that it was not pleaded with sufficient certainty in the petition to constitute an issue. Inasmuch as bad faith of the Board of Water Commissioners in abolishing appellant’s position was not pleaded, the court’s action in sustaining the objection was manifestly correct. Furthermore, even if bad faith had been pleaded, proof of extraneous facts for the purpose of showing motive was not allowable in the absence of some showing on the face of the resolution of abolition that it was adopted from improper motives (Odd Fellows’ Cemetery Association v. San Francisco, 140 Cal. 226, 235 [73 Pac. 987]).
“ A second specification is noted in the court’s action in sustaining an objection to a question propounded of respondent, A. M. Ham. This witness, who was a member of the Board of Water Commissioners when appellant’s position was abolished, was asked if he had not included something in his motion to abolish the position which was not included in the minutes of the Board of Water Commissioners. The court’s action in sustaining the objection to the question was correct. There was no showing that the records inadvertently failed to include the matter to which reference was made in the inquiry. Furthermore, if the question had been permitted to be answered and the witness had given the reply which was apparently sought to the effect that appellant was to remain as a laborer in the water department and was not to be discharged no different result could have been attained. The action of the Board of Water Commissionérs is evidenced by the motion which was adopted and this motion contained no reference to the retention of appellant as a laborer.
“ The third specification of error in rejection of evidence consists of the court’s action in sustaining an objection to the following question propounded to the witness A. M. Ham: ‘Is there any other reason, or is there any reason outside of the reason set up as a defense in the pleadings by the defendants in this proceeding, for refusing to pay the salary of Mr. Bard Livingstone? ’ The court’s action in sustaining the objection was correct. The inquiry called for the expression of a pure conclusion on the part of the witness and was therefore clearly improper.”

The judgment is affirmed.


author: CURTIS, J.

text:
    [Crim. No. 3735.
    In Bank.
    October 1, 1934.]
    THE PEOPLE, Respondent, v. JUSTO RAMERIZ, Appellant.

      Edward L. Davin for Appellant.
    U. S. Webb, Attorney-General, and James S. Howie, Deputy Attorney-General, for Respondent.
   CURTIS, J.

The defendant, Justo Rameriz, was convicted in the Superior Court of the County of Los Angeles of first degree murder. The verdict being without recommendation, the court below entered judgment imposing the death penalty. Defendant appeals from the judgment and from the order denying his motion for a new trial.

The first ground urged for a reversal is that the homicide was committed in self-defense and that the verdict of the jury that the homicide was not justifiable is contrary to the evidence. In order to uphold this contention, it would be necessary for this court to wholly ignore the testimony of five witnesses for the prosecution who were eyewitnesses to the shooting of the deceased by defendant, and accept as true the testimony of the defendant, which in many of its details was. inherently improbable.

The facts of the case, as shown by the evidence adduced by the prosecution, are substantially as follows: Luis Flores, a young man of Mexican nationality, married and the father of two small children, was living with his family near Van Nuys in the San Fernando Valley in the community known as Canoga Park. On May 5, 1931, which was a Mexican national holiday, defendant and deceased had had a fight. Two months thereafter, and on July 5, 1931, which fell on Monday and was a holiday because the 4th of July fell on Sunday, between the hours of 1 and 2 o’clock in the afternoon, a fist fight was in progress in the alley near the vicinity of the Flores home. Some fifteen or more Mexicans were spectators, and there was considerable excitement and confusion in the neighborhood. The combatants were Manuel Ybarra and Manuel Bracamonte. These participants had no connection with either the deceased or the defendant. The brother of Manuel Ybarra was endeavoring to separate the combatants, and "there is some evidence that the deceased Flores was also endeavoring to separate them. During the progress of the fight and during the confusion and commotion, the defendant arrived on the scene in an automobile accompanied by one or more of his brothers and another person. The defendant parked his car some distance up the alley and proceeded to the scene of the fight. There, according to the testimony of five eyewitnesses, he shot Flores with a pistol without any warning. The first shot took effect in Flores’ arm near the elbow. Flores grabbed his elbow and turned toward the defendant, who then fired a second shot, which struck Flores in the neck passing through the right carotid artery and severing the spinal cord. Flores died an hour later in the Van Nuys receiving hospital. Immediately after firing the second shot, defendant walked over to the automobile and drove away and immediately fled from Los Angeles County. He was apprehended two years later at Sacramento. When arrested he denied that he was Justo Rameriz, the defendant wanted for murder, and insisted that he was his brother. Later, upon being positively identified by the wife of the deceased and by another person as Justo Rameriz, he admitted his identity.

The account of the homicide, as testified to by defendant, is as follows: He testified that he was driving around on the day in question when his attention was attracted by the fight; that he and Flores, despite their former bad blood, had become friends, and that he tried to induce Flores to leave the scene of the fight because he was afraid Flores might get hurt; that Flores resented his interference and pulled an empty whisky bottle from his right hip pocket and hit him, the defendant, on the forehead, breaking the bottle and causing his head to bleed slightly; that Flores then pulled out of the same hip pocket a gun and tried to shoot defendant; that defendant struggled with Flores for possession of the gun; that he managed to gain possession of the gun and started to run away but was pursued by Flores who had pulled an open knife out of his left hip pocket and started to pursue him; that then, in self-defense, he turned and shot Flores with Flores’ own gun. It should be noted in connection with defendant’s testimony that the testimony of the police officer who investigated the homicide, and who arrived at the scene very soon after the shooting, was to the effect that there was no blood other than at the place where Flores’ body lay, that Flores had nothing in his hands, and that no knife was found at or about his body or on the premises; that there were no fragments of a broken whisky bottle; and that when they searched Flores’ body as they placed him on the stretcher, they found no weapons of any kind or character upon him.

It is true that evidence in behalf of the prosecution is not free from some uncertainties and particularly in regard to the discrepancies between the testimony of the wife of Flores and that of the surgeon who performed the autopsy. The latter testified that the shot in the deceased’s arm entered the fore part of the arm, and that the exit wound was at the back of the arm, indicating that the deceased was facing the defendant at the time the first shot was fired. Mrs. Flores testified that the defendant shot the deceased while the deceased’s back was toward hint. While this discrepancy might indicate that the defendant shot the deceased while the deceased was facing him, it does not lessen to any extent the fact that five eyewitnesses all testified that defendant, without any provocation whatever, approached the deceased firing upon him with fatal result.

The defendant’s testimony was corroborated by a witness for the defense, but it is quite apparent that the jury entirely discredited the testimony of both the defendant and his corroborating witness. The jury accepted as true the testimony of the five eyewitnesses for the prosecution, and in view of the fact that the defendant’s explanation was wholly discredited by a failure on the part of the police officer to find any knife, broken glass or weapon of any kind at the scene of the homicide, we feel that the jury was amply justified in reaching the verdict which it did. “The credibility of the witnesses was, in the first instance, a matter solely for the jury to determine; and finally, upon the hearing of the defendant’s motion for a new trial, it was the right and duty of the trial judge, in weighing the sufficiency of the evidence upon which the verdict was had, to consider the credibility of the witnesses. The trial judge’s determination of the question of such credibility is conclusive upon us.” (People v. Martin, 19 Cal. App. 295, 299 [125 Pac. 919]; People v. Kawamoto, 216 Cal. 531, 534 [15 Pac. (2d) 153].) There is an abundance of substantial evidence justifying the verdict of the jury in the instant case. All conflicts in the evidence having been resolved against the defendant by the jury in the first instance, and by the trial court upon its denial of the motion for a new trial, and such evidence being sufficient to support the verdict, it is not the province or the privilege of this court to weigh the evidence, nor to pass upon the credibility of the witnesses. (People v. Tom Woo, 181 Cal. 315, 326 [184 Pac. 389] ; People v. Kawamoto, supra.)

The second ground urged for reversal, that as a matter of law the facts proved do not support a verdict of murder in the first degree, is, we think, completely answered by a mere recital of the facts testified to by the five witnesses for the prosecution. Their testimony shows that the defendant deliberately drew his gun and shot the deceased without warning, and that after the first shot took effect in the elbow of deceased, defendant fired the second shot which was fatal. The facts and circumstances surrounding the shooting indicated a deliberate and malicious intent to take human life. If defendant was guilty at all, he was guilty of murder in the first degree.

There is no merit in the third objection that the substantial rights of the defendant were prejudiced by the failure of the court to instruct the jury on murder in the second degree. It appears that the jury was instructed on the question of second degree murder in the language of section 189 of the Penal Code. This instruction must be accepted as correct. The following instruction was also given: “In dividing murder into degrees the test may be stated: Is the killing willful (that is to say, intentional), deliberate and premeditated? If it is the case falls within the first; if not, within the second degree.” Complaint is made by appellant that another instruction defining second degree murder was erroneous in that it ignored the elements of premeditation and deliberation which were necessary elements of murder of the first degree, and instructed the jury that if a specific intent existed in the mind of the slayer to take life, the offense committed would be murder in the first degree. This same identical instruction was given in People v. Leddy, 95 Cal. App. 659, 670, 671 [273 Pac. 110], and the same objections thereto were made. The court there held that, “the court in its other instructions fully defines murder of the first and second degree, and manslaughter, and the elements constituting those offenses. Therefore, read in connection with the other instructions, the instruction complained of constituted a correct statement of the law. ’ ’ In view of the other instructions in this ease, we are satisfied that the defendant’s rights were not prejudicially affected by the instruction complained of.

The most serious objection made by appellant is that the district attorney was guilty of prejudicial misconduct in his address to the jury when in his plea for a verdict of guilty of first degree murder without recommendation, he stated that, “It is a matter of common knowledge as to what length of time this life imprisonment is in California.” He further stated, “It is a matter of common knowledge, and there are statistics compiled which show the appalling few years that the average man spends in the penitentiary for first degree murder when life in the penitentiary is recommended.” This was cited as misconduct by counsel for the defense but the court refused to instruct the jury to disregard the statements saying, “I will not so instruct the jury, that matter has been discussed in a case by the Supreme Court. ” It is indeed unfortunate if the language of any decision heretofore rendered by this court erroneously gave the impression that such statement was permissible, or that the district attorney was within his right in making such statement. In both cases of People v. Reilly, 208 Cal. 385 [281 Pac. 606], and People v. La Verne, 212 Cal. 29, 31 [297 Pac. 561], it was pointed out that expressions of this kind should be avoided by overzealous prosecuting officers. In view of the record in both of those eases, it was held by the court that the verdict would have undoubtedly been the same, and such statement was, therefore, held not to be reversible error. Because of the record here, we are constrained to hold likewise that such statement is not reversible error. In so holding, however, we feel that it should be definitely understood that such statements are not approved by this court, and that under a different state of facts serious error may be predicated upon such misconduct.

The judgment and the order denying a new trial are affirmed.

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


text:
    [Crim. No. 3769.
    In Bank.
    October 2, 1934.]
    THE PEOPLE, Respondent, v. GIOVANNINA GRANA, Appellant.

      Harold A. Pendler, Frank L. Kostlan and Le Roy Anderson for Appellant.
    U. S. Webb, Attorney-General, Frank Richards, Deputy Attorney-General, Buron Fitts, District Attorney, Frank W.

      Stafford, Deputy District Attorney, and A. H. Van Cott, Deputy District Attorney, for Respondent.
   THE COURT.

Upon defendant’s appeal the District Court of Appeal, Second Appellate District, Division Two, reversed the judgment of conviction of grand theft entered against the appellant. The People, through the attorney-general, petitioned this court for a hearing, which was granted. Upon examination of the record and the authorities we are satisfied that the opinion prepared by Mr. Presiding Justice Stephens correctly disposes of the cause and we therefore adopt that opinion as and for the decision of this court. It reads:

“Mrs. Giovannina Grana was charged in eleven counts with the crime of grand theft by a grand jury indictment filed December 22, 1932. A jury was waived and convictions were had on six counts. The others have been dismissed. The dates of the thefts and the sums involved in the former counts are as follows: Count I, December 11, 1928, $260; count II, December 11, 1928, $700; count IV, March 16, 1929, $962.50; count V, April 25, 1929, $540; count VIII, April 5, 1929, $2,000; count X, September 20, 1929, $928. After the denial of a motion for new trial the court sentenced defendant to state’s prison on each count upon which there had been a verdict of conviction, and provided that the sentences should run concurrently. The defendant appeals from the judgments.
“Appellant, Mrs. Grana, and Mrs. Maria Vitagliano first met at their church in 1923. The latter was the owner of several valuable real estate properties. The foundation of the fortune was the profit from a small store in which Mrs. Vitagliano invested a small sum. Both she and her husband ‘kept store’. Mrs. Vitagliano could neither read nor write. She knew the separate numerals, but did not, she testified understand any combinations thereof. She knew that two five-dollar bills equaled ten dollars, and could make change. She could write her name, but that was all. Some time prior to this first meeting the husband had disappeared and a daughter, Christine, had assumed the responsibility of handling the funds and properties. The acquaintance between the elder women grew into friendship, and eventually, after advising Mrs. Vitagliano that the daughter was not properly handling her affairs, appellant assumed this duty through the years 1926 to 1929, inclusive. In the course of time dissension between the friends broke the arrangement. During the latter part of 1929 the two had words, and Mrs. Vitagliano brought a civil suit for accounting against appellant. The suit was not tried, but on December 16, 1929, a document called ‘release’ was signed by both parties which on its face purports to settle their financial troubles. A' will dated January 24, 1929, was signed by Mrs. Vitagliano in which appellant is spoken of in warm terms of affection and appreciation. It mentions that appellant had loaned the maker money on various occasions. And although these documents speak of peace, there was, in fact, no peace between the erstwhile friends, and the difficulty reached a climax in the indictment by the grand jury already mentioned.
“In the grand jury proceedings and later during the trial Mrs. Vitagliano was the complaining witness and is referred to generally in all of the proceedings as the ‘prosecutrix’. This term may not be accurate, but for brevity we shall adopt it herein.
“The People’s case rests upon the theory that appellant collected rentals and deposited them in prosecutrix’s bank account; that in the course of this business appellant presented certain checks to prosecutrix for signature which were not drawn to cover any payment for or advance to the latter, but, unknown to prosecutrix, were drawn to appellant, and that they, or the money for which they were drawn, reached appellant’s own bank account.
“Appellant argues her appeal under three separate points, but says in her opening statement of facts that the primary point for consideration is that ‘there is no substantial evidence to support her conviction’. We think the case must be disposed of by treatment of this subject alone.
“ From the evidence, and we have read the whole of the transcript, it would appear that the arrangement between prosecutrix and appellant whereby the latter should assume some part of the management of the properties was very loose. In practice it would appear that the money coming into the estate was collected by appellant and deposited in bank to prosecutrix’s account, and that the bills received for operation of the estate were handled by appellant, who would make out checks drawn upon prosecutrix’s account for their payment which, after signature by the latter, would be dispatched. There is sharp conflict as to whether the signatures were generally affixed to blank checks or to cheeks with the payees’ names and the sums written in. For this responsible service the compensation, if any was to be paid appellant, is one of the unexplained items of the case. There is an indirect mention of $150 per month, and there is the testimony of the prosecutrix that appellant said it was for the Lord’s sake. There do not seem to have been any books of account, though appellant says and prosecutrix denies that the two would sit down and go over the bills and that prosecutrix always knew the condition of her account and of her affairs. A view of the whole case shows a confused condition of affairs and inconsistent actions on the part of prosecutrix. In the will hereinbefore referred to is written a statement of great affection from prosecutrix to appellant and a statement that appellant had loaned prosecutrix money. A civil suit for accounting was then pending, although there had been a document signed by both parties whereby the total sum of $2,122.50 had been paid to prosecutrix by appellant and each party released from all further financial liability each to the other. Prosecutrix testifies that she had no understanding of this document and did not know it purported to be a mutual release, and that she knew nothing of the contents of the will except that the names of her children were read to her from the document. Appellant was with prosecutrix at a bank when some conversation about a release was had, and the two went to an attorney’s office where the document was prepared and signed. In the instances of both the will and the release there is positive testimony by responsible lawyers and other third parties that the documents were carefully read and explained to prosecutrix. She insists, however, that she does not remember this and that she did not suggest, approve or know that appellant was mentioned in the will, and that she did not know of or intend to sign a release or settlement of the financial troubles of the two. Mrs. Vitagliano was 67. years old, not well and was highly nervous at the time of the trial.
“There was no attempt at an accounting in the trial, although ledger sheets of bank accounts of both prosecutrix and appellant are in evidence. The withdrawals from prosecutrix’s bank and the ledger sheets of appellant show that the latter checked from prosecutrix’s bank to her own in the sums mentioned in the six counts upon which conviction was had. It is true there were payments by appellant from her account covering very nearly if not all of such sums. In the matter of payment of taxes this is substantiated by canceled checks; and prosecutrix admits that she requested appellant to pay them, but explains that she merely asked that this be done in the regular course out of her own funds.
“Prosecutrix’s testimony shows numerous inconsistencies, contradictions and palpable misstatements. She does not accuse appellant of taking any specific sum or sums of money from her, and does not say that appellant converted any funds to her own use. In fact, a statement made by one of appellant’s attorneys during the trial is almost literally true: ‘You can go through all of her [prosecutrix’s] testimony and it is negative. ’ All of the alleged embezzlements antedate the ‘release’.
“ The trial of criminal cases before a judge without a jury has given rise to novel theories, one of which is advanced herein by appellant. In civil nonjury cases the judgment is based upon findings of fact and conclusions of law, and in civil and criminal jury eases the jury considers the facts and applies the law as given it by the court. But where the judge alone decides a criminal case nothing of this nature intervenes between the evidence and the judgment. Appellant here scans the case for remarks of the court during trial and quotes from the court’s written reasons for adjudging her guilty. Her counsel argue, in effect, that such remarks and such written reasons may be considered as though the judge had made them to the jury, since the judge is the trier of facts. It seems clear to us that neither the court’s remarks during trial nor his concluding ‘opinion’ can be resorted to on appeal in any way as findings, conclusions of law, instructions or remarks as though to a jury. When a defendant in a criminal case waives a jury he agrees that the judge shall try both law and fact according to the legal machinery at hand therefor. Any appeal therefrom is based upon the record. The judge’s opinion may be of use to the appellate court as an aid to a proper understanding of the case, but it is not, strictly speaking, a part of the record. In the course of the trial the court may entertain an erroneous opinion as to the law and tentative but wrong opinion as to fact, and give expression thereto. None of these matters have any place upon appeal. In a criminal case tried by a judge alone an appellate tribunal will affirm or reverse the judgment of conviction upon errors of law alone. If errors of law in admitting or rejecting evidence have prevented a fair trial, or if the evidence does not support it, the judgment of conviction will be reversed. The court will not examine the trial court’s remarks to discover whether or not it mentally applied the correct law as the case unfolded itself, or whether after completion of the evidence and argument it applied the correct law or reasoning in arriving at a judgment. The case of People v. Tapia, 131 Cal. 647 [63 Pac. 1001], is authority for the several points made in this paragraph. In the course of its opinion the trial court used the following language: ‘I begin by quoting the following statement made by Mr. Justice Cardoza in a New York case (Meinhard v. Salmon, 249 N. Y. 459 [164 N. E. 545, 62 A. L. R. 1]) : "Many forms of conduct permissible in a work-a-day world for those acting at arm’s length are forbidden to those bound by fiduciary ties. . . . Not honesty alone, but the punctilio of an honor most sensitive is then the standard of conduct.” ’ It is clear, therefore, that notwithstanding the above was, as argued by appellant, a correct rule as to a civil procedure and not as to a criminal procedure, it in nowise affects the consideration of the appeal. We do not mean to intimate that the trial judge intended or did apply the principle of the Cardoza quotation to the decision of the instant case. He used the quotation merely as an illustration of the strict conduct required of a fiduciary.
"The proven unreliability of prosecutrix’s testimony, together with its negative nature, renders it practically of no value whatever. (See People v. Tapia, supra.) We think the evidence shows that there was some, we do not know how much, commingling of accounts; that appellant, in the instances mentioned, checked from prosecutrix’s account to her own, and that while there is evidence that much of said money was for the repayment of advances theretofore made for the prosecutrix, there is no evidence that any thereof was ever converted to the use of appellant. ‘It is sometimes held in civil cases that the deposit by a trustee of trust funds to his personal account is sufficient cause for charging him with interest; but such fact alone is not sufficient evidence to convict a man of felony. ’ (People v. Royce, 106 Cal. 173 [37 Pac. 630, 39 Pac. 524].)
“In conclusion, we desire to refer to the fact that there is some evidence in the case that the title to one of prosecutrix’s properties was transferred to appellant and later transferred back to prosecutrix. No details of or reasons for this are given, nor is the relevancy shown in any way. Certainly there is no evidence that there was anything improper in the transaction. There is much vague and unrelated evidence in the case, and this conclusively establishes the fact that the .trial judge was not given the advantage of a full disclosure as to the actual relations between prosecutrix and appellant. It would seem very possible that the working arrangement between the two women friends was not as simple as the mere collection of rentals and the drawing of checks incident to upkeep of the properties. In justice to the district attorney we may assert our appreciation of the fact that the difficulties besetting the prosecution of this case are much more apparent in retrospection than before the trial. ’ ’

The judgment as to each count upon which a conviction was obtained is reversed.


text:
    [L. A. No. 14730.
    In Bank.
    October 2, 1934.]
    THE CITY OF LOS ANGELES (a Municipal Corporation), Respondent, v. WALTER ALLEN et al., Defendants; HAROLD LLOYD CORPORATION (a Corporation), Appellant.

      R. C. Gortner for Appellant.
    Ray L. Chesebro and Erwin P. Werner, City Attorneys, Frederick von Schrader, Assistant City Attorney, and Arthur W. Nordstrom, Deputy City Attorney, for Respondent.
   SHENK, J.

A petition for hearing in this case was granted in order that further consideration be given to the appellant’s contention that the referees, in fixing the amount of damages to be awarded to the appellant, incorrectly computed the value of the strip of land to be taken for the purpose of widening Santa Monica Boulevard. Upon such further consideration of the facts and the arguments of counsel, we are satisfied that the opinion of the District Court of Appeal, Second Appellate District, Division One, prepared by Mr. Presiding Justice Conrey, correctly disposes of the main questions presented on the appeal, and we adopt the same as a portion of the opinion of this court as follows:

“This is a condemnation proceeding in which plaintiff proposes to take from appellant a strip of land for the purpose of widening Santa Monica boulevard, under the Street Opening Act of 1903. The court approved the award of the referees to appellant of $8,614.00, and entered interlocutory judgment accordingly. Defendant appeals from said interlocutory judgment upon the ground that the amount of the award was not in conformity with the statute, which requires that the court shall find separately, ‘the value of each parcel of property sought to be condemned’, and that the law entitles the owner to that value.
“Appellant owns approximately 38.6 acres of land, bounded on the south by Santa Monica boulevard, and extending about 800 feet in length along that highway, and about 2,000 feet to the north. The width of the strip of land which is to be taken varies from 33.50 feet at the west end to 33.58 at the east end of the strip. There appears to be no direct evidence of the value which this parcel would have if separately owned, and thus unconnected with the remainder of the tract. This results from the tacit assumption on both sides that a piece of land of such slight depth could not be put to any very valuable use. It seems to be conceded that since the strip to be taken is part of a larger tract under a single ownership, the market value of the strip in question must be ascertained under the operation of some reasonable process whereby its value when considered as part of the entire tract may be ascertained. According to the testimony of witnesses, the tract does not derive its value equally from all parts thereof. The acreage remote from Santa Monica boulevard is of less value than that which is nearer to the boulevard frontage. The land west of this tract (separated therefrom by Selby avenue) has been subdivided into lots having a depth of about 107 feet and running to an alley. Appellant’s tract of land is susceptible of similar subdivision. Taking these facts into consideration, and as an aid toward establishment of a valuation for the entire tract, the witnesses, duly qualified as experts on value, gave to the area included in the 800-foot frontage with a depth of 107 feet an estimated value of '$1.64 per square foot. To the remainder of the tract they gave a value of $11,000 per acre, or approximately 25c per square foot. Apparently the referees added together the values thus estimated, and thus determined the value of the entire tract, - reduced first to a valuation per acre and then to a valuation per square foot. In this manner their valuation of the strip to be taken was made by considering it as part of the entire 38-acre tract, without giving a controlling force to the value given to the strip when considered as part of the imagined separate parcel having a depth of only 107 feet, and likewise without considering it as an independent, wholly separate parcel. Having arrived at their conclusion in the manner above indicated, the witnesses Butterworth and Crippen (who were two of the three referees) testified that the amount of the award as recommended by them is the fair and reasonable value of the property taken.
“ When private property is taken by condemnation for a public use, the owner is entitled to receive ‘just compensation’. The statute requires that there be found, separately, -‘the value of each parcel of property sought to be condemned’. (Street Opening Act of 1903, sec. 10; Deering’s Gen. Laws, 1931 ed., Act 8198.) It is contended by appellant that the method adopted by the referees and by the court for ascertaining the value of the parcel to be taken is unsound, and that the value thereof has not been ascertained in accordance with the requirements of the law. The gist of the argument seems to be that, as an element of their computation, the referees have charged against the owner the increased value of the new frontage of appellant’s property, on the street when widened. This, appellant claims, was an assessment of benefits, which the law does not authorize. But we think that this argument is itself unsound. The -line between the two portions of the tract was arbitrarily chosen. This was a purely mental operation, used by the witnesses for the purpose of analysis of their problem. The ultimate question before them, and the only question which they were authorized to answer was: What is the value of this parcel of land, as it lies before us, being part of an undivided tract under single ownership? We have their answer, which was accepted by the trial court. It does not appear that any rule or principle of law has been violated by the finding of the court, or by the referees and witnesses in the method by which they made their estimate and formed their judgment concerning the value of the property.”

It is the contention of the appellant that the referees applied a different rule of valuation in the case of the strip taken from the appellant’s 38-acre tract than was applied in the ease of the lots of 107-foot depth on the other side of Selby Avenue. This, however, is not the case.

Severance damage was not claimed by the appellant. On the contrary, it is conceded that there is no damage to the remaining portion of the 38-acre tract by reason of the taking of the 33-foot strip, and that the portion remaining will have the same value that it had before the severance. It is not shown that lots 107 feet deep could not be subdivided and sold from the tract after the severance as well as before. No showing is made that any natural barrier or obstacle exists to shorten the depth available for city lots after the severance. Under the facts, as well as from the concession, no severance damage could be claimed.

The appellant relies upon evidence, the admissibility of which is not attacked, that the potential value of the 107-foot depth fronting on Santa Monica Boulevard, if considered separately as city lots, is $1.64 per square foot. It does not question the evidence that the value of the area back of the front 107 feet, if considered alone, is 25 cents per square foot, and that the value of the portion remaining, after the severance, averaged 32 cents per square foot, which is the average value of the entire tract found by the referees and applied by the court in the award of compensation. But the appellant does contend that it is entitled to be awarded the potential value of the strip taken, that is, its value for city lot purposes and not as part of the entire acreage. To comply with the appellant’s • request would be to award indirectly to it severance damage when in fact no severance damage exists. Pursuant to the concession and the fact that no severance damage resulted, the portion of the property retained after the severance has the same value that it had before the taking. The appellant after the severance possesses that value. Assume the aggregate value of the land as an entire tract before the taking computed at 32 cents per square foot to be $500,000, after the taking the appellant retains acreage of the value of $491,386, plus $8,614, the damages awarded, which together make it whole. That is, after the taking the appellant still has the equivalent of $500,000. Should the appellant prevail in its contention that it is entitled to $43,952, instead of $8,614, it would have the value of the retained portion, or $491,386, plus $43,952, which would leave it in possession of $35,338 more than it had originally. Its receipt of the additional sum of $35,338 could be justified only if damage resulting to the remaining portion by the severance reduced its value to that extent. Inasmuch as no damage occurred by reason of the severance, the result would then be unduly to enrich the appellant at the expense of the other property owners in the district.

The appellant presents no case in this state approving the requested method of computing the value of a portion of a larger tract. In condemnation proceedings in other jurisdictions the method advocated has been rejected. (In re Westchester Ave. in City of New York, 126 App. Div. 839 [111 N. Y. Supp. 351, 353] ; In re Fourth Ave. in Borough of Manhattan, City of New York, 221 App. Div. 458 [223 N. Y. Supp. 525], affirmed 247 N. Y. 569 [161 N. E. 186] ; City of Grand Rapids v. Barth, 248 Mich. 13 [226 N. W. 690, 64 A. L. R. 1507].)

By the award of compensation made herein the appellant has received all the benefit to which it is entitled on account of the element of value arising from the potential use of the 33-foot strip as part of city lots fronting on Santa Monica Boulevard.

The judgment is affirmed.

Curtis, J., Preston, J., Waste, C. J., Langdon, J., and Seawell, J., concurred.