author: WASTE, C. J.

text:
    [L. A. No. 13476.
    In Bank.
    October 2, 1934.]
    W. E. GREENZWEIGHT, as Administrator, etc., Respondent, v. TITLE GUARANTEE AND TRUST COMPANY (a Corporation) et al., Appellants.

      Charles I. Baker, Arch. H. Vernon, Gilbert E. Harris and Charles H. Brock for Appellants.
    Joseph P. Rank and Willard W. Wallace for Respondent.
   WASTE, C. J.

This is an action for declaratory relief, in which the plaintiff seeks to have canceled a trust deed reconveyance and the indorsement of payment upon the trust deed note, and also to have both instruments reinstated in full force and effect. From a judgment for plaintiff two of the defendants prosecute this appeal.

The transaction giving rise to this litigation involved the refinancing of a loan upon the dwelling of the defendant Levy. Plaintiff held the then existing encumbrance thereupon, a trust deed in which the defendant Title Guarantee and Trust Company was named as trustee. The plan was to pay off plaintiff’s encumbrance with the funds derived from a new loan to be made by the defendant Fidelity Savings and Loan Association and likewise secured by a trust deed. To consummate the refinancing, an escrow was opened at the Belvedere State Bank, into which plaintiff deposited his trust deed, his trust deed note and an executed request for re-conveyance by the Title Guarantee and Trust Company, all pursuant to a letter of instructions to said bank to which reference is hereinafter made. About the same time the defendant Fidelity Savings and Loan Association transmitted to said State Bank, as escrow agent, its instructions with reference to securing the new loan upon the said dwelling, and, on November 25, 1930, delivered to the escrow agent its check in the sum of $2,425.87 to be used in accordance with its instructions. The defendant Levy and his wife executed and delivered to the escrow holder a new trust deed and a trust deed note in favor of the defendant Fidelity Savings and Loan Association and also deposited therein a check for $161.98, being the excess amount required to make up the payment due the plaintiff. The Belvedere State Bank had a separate escrow department, which department carried a separate commercial checking account with the Belvedere -State Bank. The checks so received were credited to the escrow account in the commercial department of the Belvedere State Bank. This bank was not a member of the Los Angeles Clearing House Association, but it maintained a commercial account with the Bank of America through which it cleared its cheeks. The checks above mentioned were sent to the Bank of America for clearance. They were paid and credit was given by that institution to the Belvedere State Bank account on November 30, 1930. At about this time there was standing to the credit of Belvedere State Bank with Bank of America a deposit of over $18,000. On December 3, 1930, Belvedere State Bank delivered the reconveyance executed by plaintiff, and caused the trust deed note to be canceled and the reconveyance recorded'. It also caused to be recorded a deed of trust against said dwelling in favor of the defendant Fidelity Savings and Loan Association. Thereafter it transmitted to said defendant its new trust deed note secured by the deed of trust, and on December 13, 1930, mailed to the plaintiff the check of the escrow department drawn on said department’s account in the Belvedere State Bank for the amount due him under his instructions. December 13th was a Saturday. Plaintiff received the check on the evening of December 15th and deposited it with his bank for collection on the morning of December 16th. On the following day, before the check had cleared, the Belvedere State Bank was closed by order of the superintendent of banks. At the time of its closing the Belvedere State Bank had in its vaults the sum of $8,250.73. No part thereof, however, was held for plaintiff, but was subject to the use of the closed bank for its general business, including the payment of presented checks upon depositor’s accounts. On the same day the Bank of America exercised its banker’s lien on all the credits of the Belvedere State Bank on deposit with it.

It was plaintiff’s claim at the trial that the Belvedere State Bank did not hold for him the moneys, as required by his instructions, at the time it delivered the reconveyance and canceled the note and trust deed; that therefore such delivery and cancellation were void and of no effect and that his note therefore still remained in force and he retained his first lien upon the property as against the trust deed of the defendant Fidelity Savings and" Loan Association. As stated, judgment went in favor of the plaintiff and the defendants Title Guarantee and Trust Company and Fidelity Savings and Loan Association appealed.

Plaintiff presents the same argument here as he did below in support of the judgment. The argument is grounded upon the premise that plaintiff’s escrow instructions did not authorize the Belvedere State Bank to hold or accept checks in lieu of money, but, on the contrary, required that money alone was to be held. The law is well established that a delivery by an escrow agent contrary to the terms of a deposit in escrow is void and of no force or effect. (Los Angeles High School Dist. v. Quinn, 195 Cal. 377 [234 Pac. 313].) Defendants do not question this rule but contend that the escrow instructions permitted the escrow holder to accept checks for sums of money to be paid to it and that “after the check of the Fidelity Savings and Loan Association was cashed and the proceeds left with the Bank of America to the credit of Belvedere State Bank, subject to its check, the Belvedere State Bank ‘held’ that sum of money within the meaning of the escrow instructions of plaintiff, and the escrow holder was not required to draw out the actual coin or currency and keep it in its physical possession at all times until delivered to plaintiff”.

The sole issue therefore, as agreed by the parties, is, did the Belvedere State Bank violate the terms and conditions of the escrow agreement? Plaintiff’s instructions on this subject provided: “These documents you are authorized to use when you can hold for me the sum of $2,450.00, and interest on $3,218.84, from August 1st, 1930, to date money is received by me.”

It is a matter of common knowledge that checks and drafts are usual and ordinary means of transferring money in the transaction of business. (California Stearns Co. v. Treadwell, 82 Cal. App. 553, 559 [256 Pac. 242].) A credit given for the amount of a check by the bank upon which it is drawn is equivalent to, and will be treated as, a payment of the check. It is the same as if the money had been paid over the counter on the check, and then immediately paid back again to the account or for the use for which the credit is given. (Utah Con. Co. v. Western Pac. Ry. Co., 174 Cal. 156, 164 [162 Pac. 631].) In other words, the giving of credit is practically the same as paying the money to the depositor and receiving the cash again on deposit.

Therefore, when the check of the Fidelity Savings and Loan Association was cleared and the Bank of America deposited the proceeds thereof to the account of the escrow holder the situation for all practical purposes was the same as though the escrow holder had actually received from the Bank of America the cash payable on the check, which would satisfy the conditions of the escrow, and then for safekeeping had redeposited the money with the Bank of America. Had the escrow holder accepted the check, cashed it, and held the money, and then delivered the instruments, there would be no question as to compliance with the instructions. The mere acceptance of the check did not violate the instructions. In our opinion the terms of the escrow instructions were fully complied with when the check of the Fidelity Savings and Loan Association was cleared and its proceeds made available to the escrow holder by the credit given therefor by the Bank of America. The escrow holder then had control or dominion over such proceeds and “held” them for plaintiff within the meaning of the instructions. From that time on, the escrow holder became the agent of the plaintiff as to such money and any impropriety in its subsequent conduct with regard thereto must be borne by plaintiff and not by the defendants. In other words, if the escrow holder violated its duty in so “redepositing” the proceeds of the check with the Bank of America, or in permitting the credit therefor to stand until such time as conditions compelled its cessation of business, it did so as the agent of the plaintiff who, as against innocent third parties, should now bear the loss. In Shreeves v. Pearson, 194 Cal. 699, 707 [230 Pac. 448], we held that “whenever a deed is deposited in escrow by the grantor to be delivered to the grantee upon payment by him to the escrow holder of a sum of money to be "by the latter delivered to the grantor upon the production by the latter of a satisfactory certificate of title, the escrow holder is as to such deed and money the agent of both parties until such time as the said satisfactory certificate of title is produced, but he thereupon becomes the agent of- the purchaser as to such deed and of the seller as to such money”.

The judgment is reversed.

Curtis, J., Preston, J., S-henk, J., and Seawell, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    [L. A. No. 14714.
    In Bank.
    October 2, 1934.]
    O. P. GOODALL et al., Respondents, v. PERRY BRITE et al., Appellants.
    Borton & Petrini, Thomas Scott, District Attorney, and W. A. McGinn, Assistant District Attorney, for Appellants.
    Matthew S. Platz, Siemon, Claflin & Maas, Alfred Siemon and Finlayson, Bennett & Morrow for Respondents.
   WASTE, C. J.

Appellants, defendants in this action, constituting the Board of. Supervisors of Kern County, apply for a writ of supersedeas. More than ten years prior to the commencement of the action, Kern County, acting by and through a former board of supervisors, built, furnished and equipped a county hospital in said county, since its establishment, and now, generally known and designated as “Kern General Hospital”. At all times during its existence, the expense of the operation of the hospital has been, and now is, paid from county funds. It is contended by the plaintiffs, who are taxpayers in the county, that the defendants purpose and intend to use and emploj- their offices, and the control and authority which they have and hold by reason of their positions as members of the Board of Supervisors, to maintain, operate and conduct the hospital as a general hospital for the care, treatment and cure of persons who are residents of the County of Kern, without regard to whether such persons may be in any of the classes provided by law as being entitled to hospital treatment at public expense; that the defendants have, during the last ten years, conducted, and it is now their fixed and determined policy to conduct and operate the hospital at the cost and expense of Kern County for the general hospitalization, care and treatment of persons who are neither indigent sick persons, nor dependent poor persons, nor needy sick, dependent or partially dependent citizens in cases of emergency. The prayer of the complaint is that the defendants be perpetually enjoined from permitting admission into the hospital of persons other than those legally entitled, under the general law, to such care and treatment. Defendants answered the allegations contained in the complaint, and set out the conditions established by rules duly adopted by the board; the manner in which all persons needing treatment are admitted to the hospital; and further alleged that it was necessary, for the maintenance of the public health of the county, that a hospital be maintained therein equipped with complete and modern facilities, wherein, pursuant to the adopted rules, all persons having the financial capacity should pay for such care and treatment; and admitted that it was their intention and purpose to continue to conduct and manage the hospital in such manner unless restrained by order of the court.

On the issues joined, the court' made its findings, substantially as alleged by the plaintiffs, and further found that the defendants have incurred, and are now. incurring, great expense in the operation of the hospital, and paying the same from county funds; that the amounts received from persons able to pay for such treatments at the hospital, when received, are paid into the general fund of the county for the purpose of reducing the general tax rate, and are not used to maintain the hospital. On these findings, the trial court entered its order restraining and enjoining the defendants from admitting or taking any person into the hospital or furnishing any medical, surgical or hospital care, treatment or service to any person in the hospital who is able himself or by others legally liable for his support to pay for or obtain proper or necessary medical or surgical hospital care for himself elsewhere than in the county hospital.

The findings, judgment and decree were duly given and made on December 4, 1933, and the decree was entered on December 5th. Notice of appeal was given on December 13th, on which date it appears the Board of Supervisors filed certain rules and regulations governing the management and control of the Kern General Hospital.

Since the issuance and service of the injunction, and the adoption of these rules, defendants have been charged in the court below with the violation of the terms of the injunction, and an order to show cause why defendants should not be punished for contempt of court has been issued thereon. Such proceeding in the matter of the alleged contempt is now pending for hearing and trial before the Superior Court of the County of Kern. Notwithstanding the fact that an appeal to this court from the order and decree of injunction has been taken, which will determine the merits of the matters on which said injunction has been granted, the defendants maintain that, in order to purge themselves of the pending charge of contempt, and to avoid similar future charges, it will be necessary for the defendants to change their plans, policies and methods of conducting the hospital in such manner as to disrupt the organization thereof, reduce the staff of physicians, nurses and other employees, permit extensive and costly installation of apparatus and machinery and appliances to remain idle, and deny the benefits of the hospital and its organization to many persons believed by petitioners to be entitled to such benefits, and who would be so entitled were this court to reverse the judgment of the lower court herein; that all of said results would bring irreparable injury to the hospital and to the people of Kern County and to patients and persons who would thus be denied the benefits of the hospital and its organization 'pending the appeal. On these grounds, the defendants prayed for an order to show cause, which has been duly issued, directing the plaintiffs and others to show cause why a stay of proceedings should not be granted and a writ of supersedeas issued by this court staying further proceedings in said cause pending the determination and adjudication of the appeal now on file, together with an order staying all proceedings in the lower court pending the final determination of this application.

We deem it unnecessary to determine whether the injunction granted by the trial court is prohibitory or mandatory. It appears to partake of the nature of both. Any of its provisions that are mandatory are stayed by the appeal. Other portions appear to be sufficiently prohibitory to warrant a stay of proceedings pending the final determination, on the appeal, of the question whether or not the Board of Supervisors possesses the power to conduct the hospital in the manner found by the trial court. The policy controlling the conduct of the institution appears to be one of long standing. No doubt, to literally obey the mandate of the injunction would cause interruption and perhaps confusion in the organization and conduct of the hospital. Prompt action on the part of the parties will lead to an early hearing of the appeal.

It is therefore ordered that a writ of supersedeas issue staying all proceedings in this cause in the court below until the final determination by this court of the cause on appeal.

Shenlr, J., Langdon, J., Curtis, J., Preston, J., and Spence, J., pro tein., concurred.


author: LANGDON, J.

text:
    [L. A. No. 14665.
    In Bank.
    October 2, 1934.]
    JULIUS BIERLICH, Respondent, v. WALTER L. UNGER et al., Defendants; SEABOARD SURETY CORPORATION OF AMERICA (a Corporation), Appellant.
    Arthur T. Stollmack and Samuel H. Weissberg for Appellant.
    William Schreier for Respondent.
   LANGDON, J.

This action is brought to recover on a surety bond executed by defendant Seaboard Surety Corporation.

Plaintiff, in response to an advertisement of a deed of trust for sale, agreed to lend money to General Finance Corporation. The corporation represented that it had several vacant lots upon which it intended to build. Plaintiff insisted upon a surety bond covering performance. Thereafter plaintiff paid into escrow the amount of his loan, $3,000, and received a note and deed of trust, together with a surety bond, the principals being General Finance Corporation and defendant Unger, the purported owner of the land. Unger was not in fact the owner, and the building was never constructed. Plaintiff was forced to sell the land under the deed of trust, and suffered a loss, for which he sued and recovered judgment against all defendants. The defendant Seaboard Surety Company appealed.

The only point which requires discussion is the claim of the surety company that it bound itself simply to hold plaintiff harmless and indemnify him against priority of mechanics’ liens, and that it did not guarantee that a building would be constructed. The terms of the bond are entirely clear on this issue. After reciting that the principals are about to construct a building, and plaintiff is about to purchase a trust deed, the funds to be available for construction provided a bond is furnished, it provides: “Now, therefore, if said Principals shall cause said buildings to be completed according to said plans and specifications, and shall fully indemnify the Obligee hereunder, and preserve the priority of said Trust Deed from and over any and all mechanics’ liens . . . then this obligation shall be null and void; otherwise to remain in full force and effect.” In explicit language the bond makes one of the conditions the completion of the construction according to the plans and specifications. There was testimony to show that this was in accord with the intentions of the parties, and the trial court correctly held the surety liable under these circumstances.

The judgment is affirmed.

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


author: CURTIS, J.

text:
    [L. A. No. 14688.
    In Bank.
    October 3, 1934.]
    CHARLES W. NICHOLS; Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.

      Sehauer, Ryon & Goux and Paul J. Fritz for Petitioner.
    Everett W. Mattoon, County Counsel, J. F. Moroney, Deputy County Counsel, and Wilton W. Webster for Respondents.
   CURTIS, J.

On April 18, 1931, Ida Mae Nichols instituted an action in the Superior Court of the County of Los Angeles for divorce against Charles W. Nichols, the petitioner herein (Nichols v. Nichols). For the sake of brevity we will refer to the said Charles W. Nichols as the defendant. In that action she also asked, in addition to a divorce, for a division of the community property and permanent alimony, alimony pendente lite, attorneys’ fees and costs, for a receiver to take charge of the community property of herself and husband, and for an injunction against certain persons made parties defendant in said action, restraining them from conveying, encumbering, disposing of or transferring or delivering to defendant Charles W. Nichols, or to his agents, any part of said community property in their possession. After setting forth a cause of action upon which she based her prayer for a divorce, plaintiff set forth in her complaint in said action a description of the community property belonging to herself and husband; that it was of great value; that the annual income therefrom was in excess of $10,000; that ever since the separation of herself and husband on July 26, 1930, he “has absented himself from the state of California and is remaining outside of the jurisdiction of the state of California for the purpose of eventually causing the disposition, transfer and liquidation of all of the community property of the parties, located within the state of California, and- of obtaining the proceeds thereof, and taking the same beyond the jurisdiction of the courts of this state for the purpose of defrauding plaintiff and preventing her from realizing any part or portion of her community rights”; that the community property consisted of two candy stores situated in the city o£ Pasadena, of the estimated value of $22,500; of the home of said parties situated in the city of San Marino, near the city of Pasadena, which with its furniture and furnishings was worth not less than $20,000, and a note for $12,000 secured by mortgage upon real property in the city of Glendale, said note and mortgage having been executed by Volney Ayers Spalding and Effie G. Spalding; and of stocks, bonds, real estate, bills and notes and other assets receivable, the exact nature, character and extent of which were to the plaintiff unknown, but were of great value, and that the reasonable value of said community property was in excess of $100,000. It is further alleged in the complaint that, for the purpose of defrauding the plaintiff, the title to said home place had been taken in the name of First Trust and Savings Bank of Pasadena, and that the title to said real property still stood in the name of said bank; that Volney Ayers and Effie G. Spalding were about to pay off said $12,000 note; that said defendant Charles W. Nichols was attempting to sell said home place and the two candy stores and collect said $12,000 note and obtain the entire proceeds thereof for himself and defraud the plaintiff of her community interest and rights therein, and that unless restrained by the court said Charles W. Nichols would collect the amount of said promissory note and cause said real property to be sold by said bank, and would remove the proceeds derived from the collection of said note and the sale of said real property from the state of California and thereby defraud plaintiff and prevent her from realizing any part or portion of her community interest therein. The complaint contains allegations to the effect that plaintiff had no means with which to support herself or to pay attorneys’ fees or costs in said action. The prayer of the complaint was, as indicated above, for a divorce from defendant, a division of the community property, permanent alimony, and alimony pendente lite, attorneys’ fees and costs of suit, for a receiver to take charge of defendant’s property, and for an injunction restraining the bank from disposing of said home place, and also restraining the Spaldings from paying to defendant any part or portion of the community property funds' or assets, as described in ' said complaint, until the further order of court. The bank and the Spaldings were, for the' reason stated above, made parties defendant in said action. On the filing of said complaint, verified by plaintiff, the court made an order to show cause why an order should not be made requiring said Charles W. Nichols to pay to plaintiff alimony during the pendency of said action, attorneys’ fees and costs of suit, and also why a receiver should not be appointed to take charge of said community property, and an injunction should not issue as prayed for in said complaint. Said order to show cause was served on the defendants in said action, other than defendant Charles W. Nichols. Said matter came on for hearing on April 27, 1931, at which time it was shown that said order to show cause was not served on defendant Nichols for the reason that the whereabouts of said defendant were unknown. Said defendant Nichols was not present at said hearing either in person or by attorney. On said motion being heard, the court on May 2, 1931, made the following order: (1) For the payment to plaintiff of alimony pendente lite, attorneys’ fees and costs, and that these amounts be made a charge and lien upon the community property, (2) That a receiver be appointed to take charge and possession of said community property and to pay out of the property in his possession said alimony, attorneys’ fees and costs, and (3) an injunction as prayed for in plaintiff’s complaint. The order for the payment of alimony, attorneys’ fees and costs made no direction that these amounts should be paid by defendant personally, but directed only that they should be a lien against the community property and should be paid by the receiver.

Defendant Nichols was not personally served with summons in said action, nor did he appear in said action prior to the date when said order was made. An order for the publication of summons on said defendant was made on December 10, 1931, and thereafter said summons was published as provided by said order, said publication being completed on February 17, 1932. Thereafter, said defendant appeared in said action and on December 6, 1932, filed his answer and a cross-complaint for divorce against the plaintiff. On May 17; 1933, the defendant Nichols served and filed a notice of motion to vacate and set aside the order of May 2; 1931, allowing plaintiff alimony, attorneys’ fees and costs and granting an injunction and appointing a receiver to take charge of the community property of the parties hereto. Said motion was predicated upon the ground that the order of May 2, 1931, was void for the reason that the court was without authority to allow alimony, attorneys’ fees or costs in said action or to appoint a receiver to take charge of defendant’s property, as no service of the summons or complaint in said action, or of said order to show cause had been made on defendant prior to the making of said order, nor had defendant at that time made any appearance in said action. This motion was denied by the court, whereupon the defendant Nichols instituted this proceeding before the District Court of Appeal for a writ of mandate or such other writ to which he might be entitled for the purpose of determining the validity of said order of court of May 2, 1931, and of the later order of said court refusing to vacate and set aside the order of May 2, 1931.

Petitioner makes practically the same contention here as he made before the trial court at the hearing of his motion to vacate and set aside said order of May 2, 1931. His contention then and now is that the trial court was without any jurisdiction to make an order for alimony pendente lite, attorneys' fees and costs, or for the appointment of a receiver to take charge of defendant’s property for the reason that at the time said order was made defendant had not appeared in said action, nor had summons been served on him, nor had any notice been given him of said motion, at the hearing of which the court made its order of May 2, 1931, granting plaintiff alimony, attorneys’ fees and costs and appointing such receiver.

The facts as alleged in plaintiff’s complaint presented a situation wherein the husband and wife, after accumulating a considerable amount of community property yielding an income sufficient in amount to comfortably maintain each of them, had domestic differences resulting in the disruption of the home, the separation of the parties, and the departure of the husband from the jurisdiction of the courts of the state, after the commission by him of several marital offenses, which would entitle the wife to a legal separation, permanent alimony, a division of the community property, and such incidental relief as the law gives to the wife in actions brought to dissolve the marriage relation and to establish her property rights. It appeared also from the allegations of the complaint that the husband’s departure and continued absence from the state were for the purpose of enabling him the better to resist his wife’s efforts to enforce her rights to a divorce, and to obtain a division of the community property, and furthermore from his position of vantage without the state, where he was immune from the process of the courts of this state, he was endeavoring by fraudulent means to dispose of, if not all, at least the greater part of the community property and thus defeat the right of the wife to her interest therein. These facts, together with the further showing that the wife was in indigent circumstances and was without the necessary funds either to provide for herself the necessaries of life, or to prosecute an action against her husband to protect her rights, were before the court at the time the court made the order of May 2, 1931, appointing a receiver to take charge of the community property of the parties and directing him to pay from the proceeds of said property, alimony during the pendency of said action, attorneys’ fees and costs. Confronted with the situation indicated by the foregoing statement of facts, did the trial court have jurisdiction to make the order of May 2, 1931? Petitioner, the husband, upon the theory that the court had no jurisdiction to make any order whatever granting his wife temporary relief in said action without notice to him of the hearing at which said order was made, has brought this proceeding to determine the validity of said order of May 2, 1931, and the subsequent order of said court refusing to set aside the order of May 2, 1931.

Petitioner’s principal reliance in support of his present petition is upon the cases of Baker v. Baker, 136 Cal. 302 [68 Pac. 971], and Chaplin v. Superior Court, 81 Cal. App. 367 [253 Pac. 954]. In the former of these two cases it was held, speaking of the order appealed from that, “The ex parte order was unauthorized and void, as the court had not acquired jurisdiction over the person of the defendant at the time it was made, as there had been no service of process in the action or notice of the application for the order.” That action was one for divorce and the order involved therein was for temporary alimony, attorneys’ fees and costs and the same was made by the trial court before any process had been served on defendant, and without notice of the application for said order. The facts in that case, however, differ from those in the present action in that the entire property of the defendant therein was his own separate property, it was limited in amount, and in value only slightly exceeded the amount of the alimony and counsel fees ordered by the court to be paid to plaintiff in said order. Furthermore, there was no showing that the defendant was absent from the state at the time said order was made, and could not have been served with notice of said proceeding. In fact, the inference from the statement of facts set out in the opinion is to the contrary. Neither was there any claim that the defendant was acting in fraud of the wife’s right to support and maintenance or that he was attempting unjustly or fraudulently to deprive'his wife of any of her rights whatever. In fact, in that case, the plaintiff in an ordinary action for divorce, in which she asked for alimony pendente lite, counsel fees and costs, was granted an ex parte order allowing the same as a personal judgment against the defendant without any showing whatever as to the whereabouts of the defendant or that he was attempting in any way to conceal his property from the plaintiff or that he could not be personally served with notice. We are not inclined to hold that the principle of law enunciated in the opinion in that case covers cases like the instant one, where it is apparent that the defendant had purposely left the jurisdiction of the court and was endeavoring to defraud his wife out of her share of the community property, and the order for alimony, attorneys’ fees and costs was simply made a lien on the community property of the parties situated in this state.

The other case relied upon by the petitioner, Chaplin v. Superior Court, supra, presents a state of facts in many respects similar to those in the instant case. It was decided principally upon the authority of Baker v. Baker, supra. No petition for a transfer of said cause to this court was ever made, and accordingly no opportunity was given this court to review the decision therein.

The facts in the case of Murray v. Murray, 115 Cal. 266 [47 Pac. 37, 56 Am. St. Rep. 97, 37 L. R. A. 626] , are more like those in the instant case than are those in the case of Baker v. Baker, supra. In Murray■ v. Murray, the wife sued for separate maintenance, while in the present action she seeks maintenance during the pendency of the action, attorneys ’ fees and costs, and also a divorce and a division of community property and permanent alimony. In the Murray case, the wife sought to have a fraudulent conveyance of property by her husband set aside, while in the present action, the wife seeks equitable relief regarding the community property, which she alleges the husband is endeavoring to dispose of and by fraudulent means to deprive her of her rights therein. In each case, a receiver was appointed at the commencement of the action without notice to the husband, who was absent from the state, and substituted service was thereafter obtained upon him by publication. In holding against the contention of the defendant in that case that the trial court had no jurisdiction to appoint a receiver to take charge of defendant's property, this court said: “By section 140 of the Civil Code, the court in an action such as this, or for divorce, may require the husband to give reasonable security for providing maintenance, and may enforce the same by appointing a receiver. This court has said recently that the only authority for the appointment of a receiver in a divorce suit is to be found in that section (Petaluma Sav. Bank v. Superior Court, 111 Cal. 488 [44 Pac. 177]) ; if this be true also of an action for maintenance without divorce, it would seem that the language of the section is yet sufficient to justify the appointment of the receiver made in this case at the commencement of the suit. But assuming that the statute does not reach so far, still, in our opinion, the action is by reason of the inadequacy of purely legal remedies so much a subject of equitable cognizance that it carries "with it the right to have a receiver appointed under the general provision for such an officer in all cases ‘where receivers have been heretofore appointed by the usages of courts of equity.’ (Code Civ. Proc., sec. 564.) That the relief sought is within the general powers of a court of equity to grant, and is not dependent upon statute, has been decided by this court, and the principle has found quite general acceptance. (Citing authorities.) ‘The wife’s claim to alimony is an equitable demand against the husband, and there can -be no doubt of her. right to attack, for fraud, any transfers of property made by him with intent to defeat her claim, and that such fraudulent grantees may properly be made defendants to the suit for alimony. ’ (Hinds v. Hinds, 80 Ala. 225.) The wife having such a demand, and her position being assimilated to that of a creditor of her husband (citing authorities), it would appear that a receiver in aid of the enforcement of the demand should be appointed, when the occasion arises, for reasons like those in which a creditor, seeking to avoid fraudulent conveyances of a debtor, is permitted to employ the same instrumentality. The rule in equity is that a receiver may be appointed before answer, provided the plaintiff can satisfy the court that he has an equitable claim to the property in controversy, and that a receiver is necessary to preserve the same from loss. (Citing authorities.) As shown, the plaintiff here has a demand enforceable in equity, and it may be charged specifically upon the property described in the complaint. (Citing authorities.) It seems necessarily to follow that the court had power to appoint the receiver at the beginning of the action. Of course, such a power should be very cautiously exercised, but there is nothing in the present record to show that the court was indiscreet in that behalf.”

The case of Murray v. Murray is direct and convincing authority that in an action for separate maintenance, in order to preserve the rights of the wife, the court has the power to appoint a receiver to take charge and possession of the separate property of the husband situated -in this state when it appears that the husband is without the state and is endeavoring by fraudulent means to deprive her of her right to support. If the court has such power in an action by the wife against her husband for separate maintenance, we can perceive of no reason why this same power should not be exercised by the court in an action for divorce brought by the wife against her husband in which she seeks not only for permanent maintenance, but for a division of the community property. In fact it seems to us that the reason for the exercise of such power is accentuated in the latter .case over that existing in an action for separate maintenance only. In the case of a wife, suing for separate maintenance payable out of the separate property of her husband, the wife stands in the relation merely of a creditor, but where community property is involved, she is seeking to recover her own property. If, therefore, the husband’s attempt to fraudulently defeat the wife’s claim against his separate property for support and maintenance appeals to a court of equity, how much stronger should this appeal be when by like fraudulent acts the wife’s right to her portion of the community property is in danger of being lost to her. Every equitable consideration favors the application of the same rule in each of the two cases. Besides in the instant case, the plaintiff is asking for permanent support and maintenance, and in that respect her demand is practically the same as was that of the plaintiff in Murray v. Murray, supra. There is no rational basis for making a distinction between an action in which separate maintenance is the sole relief asked, and one in which permanent maintenance is asked for in connection with a final decree of divorce.

The further question remains to be answered and that is the jurisdiction of the court to make such an order without previous notice to the defendant. This question was given attention by the court in Murray v. Murray, supra, and answered in the following manner: “We have dwelt somewhat upon the matter of the receivership because of the influence of that proceeding on the question of the jurisdiction of the court to render any judgment at all. Service of summons by publication, or other form of substituted service of process for notifying an absentee or nonresident defendant of an action against him, is allowed to be effectual ‘where,-in connection with process against the person for commencing the action, property within the state is brought under the control of the court, and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such property, or affecting some interest therein’. (Citing authorities.) Perhaps the jurisdiction in this case is maintainable on the ground that the judgment is sought as a means of affecting an interest in the property described in the complaint; however that may be, we have no doubt that by means of the receiver’s possession of the property, and the due publication, etc., of the summons, the court acquired jurisdiction to subject the property seized to the satisfaction of its lawful judgment. According to the common experience of mankind, the owner of property keeps some oversight of it, wherever situated, and will probably be apprised of the seizure thereof and so warned of the purpose of the seizure; to accomplish this object the taking of property into the possession of a receiver is at least as well adapted as the similar taking by process of attachment, and it is common practice to apply property which has been attached in the course of an action in personam, against a nonresident to the satisfaction of the judgment obtained, although no personal service of summons has been effected. Attachment is not the only means by which the court may acquire control of the property of the absentee defendant, so as to impress the action, as to such property, with the jurisdictional characteristics of a proceeding in rem.”

While this language was used in reference to the jurisdiction of the court to render a final judgment in that case, we think it is equally applicable when considered in reference to the preliminary order made in the instant case. In that case it was held that the action in effect was one in rem against the property of the husband within the state and that after sequestering the property by means of the appointment of a receiver, the court acquired jurisdiction to thereafter proceed upon substituted service by publication to subject the property thus seized to the satisfaction of its lawful judgment. If the court had jurisdiction to appoint a receiver and to subject the property in the hands of the receiver to the satisfaction of a final judgment in the action, we see no reason why it should not have the equal right to order payment from the same source of the preliminary expenses and charges of such action. In fact, if the court had jurisdiction to appoint a receiver to preserve the property for the protection of the wife’s rights therein, and we think it clear that the court had such power, these preliminary costs and charges and temporary support for the wife were simply incidental to the main purpose of the action which was to establish the wife’s right to a divorce, and to a division of the community property. It will be noticed that the order of May 2, 1931, for alimony, attorneys’ fees and costs did not require the defendant to pay said amounts personally. The order simply fixed the amounts which should be paid for those purposes, and then directed that these should be paid by the receiver from the proceeds of the community property in his possession and control. It was in all its essential features simply an action in rem and as such personal service on the defendant was not required.

Defendant makes the further objection that the power of the court to direct payment of alimony pendente lite, attorneys’ fees and costs in a divorce action is limited to a direction to the husband alone to make such payments, and cannot run against any other person, such as in the present case, the receiver. Practically this same question was before the court in the case of Murray v. Murray, supra, where the court directed the receiver, not only to pay these incidental expenses of the action, but the bill of a physician incurred by the wife. On that subject the court said (page 278) : “So far as the facts are disclosed by the record, we see no error in the direction that the receiver pay a physician’s bill incurred by the plaintiff; it must be assumed that this was found to be part of the maintenance of plaintiff which was the very purpose for which the funds were in the hands of the receiver. ” (Citing authorities.) The theory upon which the defendant advances the contention that the court has no authority to direct these preliminary charges to be made by the receiver, or by any other person, is based upon a very technical and strained construction of section 137 of the Civil Code. The contention is, in our opinion, without merit.

Defendant places much reliance upon the case of Petaluma Savings Bank v. Superior Court, 111 Cal. 488 [44 Pac. 177], which contained a statement to the effect that, “the only authority for the appointment of a receiver in a divorce suit is to be found in section 140 of the Civil Code”. This case, as we have seen, was considered by the court in its opinion in Murray v. Murray, supra, and the court’s conclusion as to the effect of that decision upon the power of the court to appoint a receiver in cases of divorce and for separate maintenance is fully set forth in that portion of the opinion hereinbefore quoted. It was there held that the decision in the Petaluma Savings Bank case was not a barrier to the court’s power to appoint a receiver in such eases. Section 140 of the Civil Code applies to actions for separate maintenance as well as to actions for divorce. If this section of the code, therefore, does not control the power of the court to appoint a receiver in one case, it does not in the other. Such is the only conclusion to be drawn from the decision of this court in the case of Murray v. Murray, supra, and it completely answers the contention of defendant that the case of Petaluma Savings Bank v. Superior Court, supra, is a controlling authority upon the power of the court to appoint a receiver under the facts before the trial court at the time it made its order of May 2, 1931.

Our conclusion, therefore, is that under the facts and circumstances existing in the action of Nichols v. Nichols, the trial court did not exceed its jurisdiction in appointing a receiver to take charge of the community property of the parties to said action, and that the order of May 2, 1931, is valid and binding upon the defendant in so far as it affects his interest in the said community property. These views render it unnecessary to pass upon the other reasons advanced by respondent in support of said order of May 2, 1931.

It is therefore ordered that the alternative writ be discharged, and the petition is denied.

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

Rehearing denied.


text:
    [L. A. No. 14677.

      In Bank.

    October 3, 1934.]
    NELLIE A. CONKLIN, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.

      Silverberg & Gilford for Petitioner.
    Everett W. Mattoon, County Counsel, and Fred M. Cross, Deputy County Counsel, for Respondents.
   CURTIS, J.

Petition for a writ of mandate directed to the Superior Court of the County of Los Angeles' commanding said court to appoint a receiver to take charge of the community property belonging to petitioner and her husband in an action for divorce (No. D117014) brought by petitioner against her husband and for the division of said community property. In said divorce action, upon the filing of the complaint, the court made an order ex parte appointing a receiver to take charge of said community property. The court thereafter vacated said order, and at a still later date the plaintiff made a second application for the appointment of such a receiver for the same purposes for which' such an officer had been originally appointed, and upon the same being presented to the respondent court, the judge thereof refused to entertain the same on the ground that said court had no jurisdiction to appoint a receiver in eases of that character. This proceeding was thereupon commenced in this court for the purpose of obtaining a writ of mandate directed to said trial court commanding said court to appoint a receiver as prayed for by petitioner in her said application. It does not appear that the defendant in said divorce action had ever appeared" therein, nor was any notice of said application ever made upon defendant. It is alleged in the petition herein that an order for the publication of summons was made in said divorce action on the ground that the defendant “has departed from the state of California, conceals himself to avoid service of summons, and cannot after due diligence be found within this state”, and that publication of service was completed prior to the date of the making of said application for the appointment of a receiver. This court issued an alternative writ directed to the trial court commanding that court to appoint a receiver in said action as prayed for by petitioner, or to show cause before this court why it had not done so. The respondent court has appeared, and as a return to said writ has filed a general demurrer to said petition.

It is alleged in the petition herein that the respondent judge refused to make the order appointing a receiver on the ground that he had no jurisdiction to make such order. The general demurrer admits this as well as all other allegations of the petition. We have just held in the case of Nichols v. Superior Court, L. A. No. 14688 (ante, p. 589 [36 Pac. (2d) 380], this day filed, that the superior court has jurisdiction to appoint a receiver under a state of facts somewhat similar to those set forth in the petition herein. In view of our holding in that case, the present proceeding appears to present a clear case where the court having jurisdiction of a matter then before it refused to act upon said matter upon the mistaken belief that it was without authority so to do. In such a case, mandamus will lie to compel the court to act, but as the appointment of a receiver rests largely in the discretion of the trial court (Lowe v. Copeland, 125 Cal. App. 315 [13 Pac. (2d) 522] ; Dabney Oil Co. v. Providence Oil Co., 22 Cal. App. 233 [133 Pac. 1155]), it will not, of course, be compelled to act in a particular manner. (Hilmer v. Superior Court, 220 Cal. 71 [29 Pac. (2d) 175].) This principle is clearly enunciated in the ease just cited, at page 73, as follows: “The principal point of dispute herein is whether the respondent court in the exercise of its jurisdiction has acted upon and denied petitioner’s motion for security or whether it has refused to exercise its jurisdiction in the premises. If the former be the fact, then, under the rule above stated, mandamus will not lie for a court may act as efficiently by denying as by granting a motion or request. On the other hand, should it be determined that the respondent court has refused to act, mandamus will, and should, issue to put it in motion, but not, of course, to compel it to act in a particular manner, inasmuch as the situation here presented is not one, within the exception, in which the court can exercise its discretion in but one way.”

It follows that it was the duty of the respondent court to entertain jurisdiction of said petition and. in its discretion to either grant or deny the same, or make such order as to it appeared proper under the facts then before it.

Let a writ of mandate issue directed to the respondent court commanding it to assume jurisdiction of petitioner’s application for a receiver in the case of Conklin v. Conklin, No. D117014, heretofore presented to said court, and to make such order disposing of said application and petition as to it may seem meet and proper.

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

Rehearing denied.


author: SHENK, J.

text:
    [L. A. No. 14978.
    In Bank.
    October 4, 1934.]
    TIMOTHY SHEA, Plaintiff, v. WILLIAM KERR, as Registrar of Voters, etc., Respondent; DANIEL S. SOREY, Intervener.

      Mott, Vallee & Grant for Petitioner.
    Everett W. Mattoon, County Counsel, and Fred M. Cross, Deputy County Counsel, for Respondent Kerr.
    J. Vincent Hannon and J. W. Faulkner for Intervener.
   SHENK, J.

Mandamus to compel the respondent Registrar of Voters to omit from the ballot to be used at the ensuing general election the name of Daniel S. Sorey as a candidate for justice of the peace of El Monte Township in Los Angeles County.

At the primary election held August 28, 1934, Sorey and eleven others were candidates for said office. Sorey received the highest number of votes, but did not receive a majority of all votes east for the office. It is alleged in the petition that El Monte Township contains a population of over 30,000; that Sorey has not been admitted to the practice of law in this state; that he was not holding the office of justice of the peace of said township at any time during the year 1929; and that, if elected, he would not be eligible to hold said office under the provisions of section 4185a of the Political Code, and section 159a of the Code of Civil Procedure, and under the authority of Felt v. Waughop, 193 Cal. 498 [225 Pac. 862], and other eases to like effect.

The respondent has interposed a general demurrer to the petition and an answer in which it is alleged, and is not disputed, that according to the federal census of 1930 the population of said township is 26,334. At the hearing it was stipulated that the population of the township, by reason of its recent consolidation with two other townships, is in fact in excess of 30,000.

In 1929 section 112 of the Code of Civil Procedure was amended to increase the jurisdiction of justices’ courts in townships of over 30,000 population. No method was prescribed by the legislature for the ascertainment of such population. This court, in October, 1929, exercising its original jurisdiction in a mandamus proceeding and by a reference determined the fact as to certain townships in Los Angeles County. (County of Los Angeles v. Justice’s Court, 208 Cal. 429 [281 Pac. 611]; see, also, Shipp v. Superior Court, 209 Cal. 671 [289 Pac. 825].)

In 1933 section 81 (the second of the same number; see Stats. 1933, pp. 1810, 2476) of the Code of Civil Procedure directed that judicial townships having a population of 30,000 or more should' be known and designated as justices’ courts of class A, and that judicial townships having a population of less than 30,000 should be known and designated as justices’ courts of class B. The section then provided: “For the purpose of determining the jurisdiction of any justices’ court therein, the population of a judicial township shall be deemed to be above or below thirty thousand as may have been» found by the supreme court of this state to be the fact in any proceeding in mandamus, prior to January 1, 1931, to compel the justices of such townships to exercise original jurisdiction in certain causes; otherwise such population shall be deemed to be as shown by the last preceding census taken under the direction of the Congress of the United States.” No determination of the population of El Monte Township as heretofore or as now constituted was made by this court prior to January 1, 1931, or at all. As stated the 1930 federal census shows the population of the three townships now comprising El Monte Township to be 26,334. This is the only authoritative determination of the population of said township and under it the justice’s court therein is of class B. Any concession or stipulation of counsel as to actual population is of no controlling significance when, as here, jurisdiction of a court is involved and has been established in the manner provided by law.

There is no legal requirement that a justice of the peace of a class B justice’s, court shall be admitted to practice law in this state, and therefore the claimed ineligibility of Daniel S. Sorey does not exist. This conclusion is determinative of the present proceeding and other points need not be discussed.

The alternative writ is discharged and the peremptory writ is denied.

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


author: LANGDON, J. WASTE, C. J., Dissenting.

text:
    [S. F. No. 15171.
    In Bank.
    October 8, 1934.]
    L. M. ALLEN, Petitioner, v. H. A. PAYNE, as County Auditor, etc., Respondent.
    Louis AY. Myers, Allen AY. Ashburn, James L. Beebe and Laurence AY. Beilenson for Petitioner.
    Everett AY. Mattoon, County Counsel, and J. H. 0 ’Connor, Assistant County Counsel, for Respondent.
   LANGDON, J.

This is a petition for a writ of mandate to compel respondent, Auditor of the County of Los Angeles, to approve a claim for compensation for services. The board of supervisors of said county appropriated a sum of money for the specific purpose of employment of special investigators by the grand jury. Acting on information given by one of its members, the grand jury employed petitioner at ten dollars a day for one day, to investigate the alleged commission of a certain crime. Petitioner performed the services and presented his claim to the board of supervisors. This body approved it, but respondent auditor did not.

The facts are undisputed, and the only question is one of law, whether the grand jury has the power to employ persons to investigate crime, and make the compensation of the investigators a charge upon the county. Petitioner contends that the power exists by implication from the character of our grand jury, as provided for in the Constitution. It is argued that since the nature of the grand jury is not specifically defined in the Constitution, it is the body as known to the common law, with the same powers, including the power to institute its own investigations. (See Hale v. Henkel, 201 U. S. 43 [26 Sup. Ct. 370, 50 L. Ed. 652].) Section 922 of the Penal Code, also relied upon, provides: “If a member of the grand jury knows, or has reason to believe, that a public offense, triable within the county, has been committed, he must declare the same to his fellow-jurors, who must thereupon investigate the same.”

From the time of the adoption of our Constitution to the present, the accepted practice has been to leave the detection of crime in the hands of sheriffs and district attorneys, and in our opinion the departure from that practice finds no support in authority or legislative policy. The ferreting out of evidence of crime is a statutory duty expressly imposed upon certain officers, having the equipment and qualified personnel to perform it. This being so, there is no reason to resort to the very vague justification of “inherent” or “implied” powers. The existence of the power in other competent agencies tends to negative an implied power in the grand jury, which is obviously not equipped to exercise it. The grand jury’s function of “investigating” crime may be readily distinguished from detection.

This conclusion is reinforced by an examination of the legislative history of the grand jury in this state, in the light of established rules of statutory construction. That examination reveals a practice of defining and delimiting its powers in relation to employment, by express statutory grant. In the Statutes of 1871-72, page 540, is found an express grant of power to the grand jury to employ and compensate interpreters; in 1880, Penal Code section 928 first authorized the employment of auditors; in 1897, section 925 of said code was amended to provide for a stenographic reporter when requested by the district attorney; and in 1927, section 925 was amended to permit the attorney-general, upon request by the grand jury, to employ special counsel and investigators. It seems clear from these instances that the legislature has considered the employment of • persons by the grand jury a matter to be governed by statute. In none of these cases would there have been any necessity for a grant of authority if there existed the implied power which is claimed for the body by petitioner.

There seems to be no case directly in point, but several expressions in the decisions support the views above stated. (Woody v. Peairs, 35 Cal. App. 553 [170 Pac. 660] ; Burns Int. Detective Agency v. Doyle, 46 Nev. 91 [208 Pac. 427, 26 A. L. R. 600]; see Dession & Cohen, The Inquisitorial Functions of Grand Juries, 41 Yale L. J. 686.)

It follows that petitioner’s claim is improper, and that respondent was justified in refusing to approve the same.

The alternative writ is discharged and the peremptory writ denied.

Seawell, J., Curtis, J., Shenk, J., and Spence, J., pro tern., concurred.

WASTE, C. J., Dissenting.

I dissent.

The grand jury is a body of citizens provided for and created by the Constitution (art. I, sec. 8), impaneled and sworn to inquire of public offenses, committed or triable within the county. (Code Civ. Proc., sec. 192.) It was imported into California jurisprudence by the Constitution of 1849 (art. I, sec. 8). There is in the section no definition of the term “grand jury”. Therefore, it follows that the reference necessarily recognized an existing institution with certain accepted characteristics and prerogatives—-in other words, the grand jury known to the common law. At common law,-and at the time of the adoption of the Constitution of the United States, the grand jury was a body with power of investigation, independent of the prosecuting officers. (Hale v. Henkel, 201 U. S. 43 [26 Sup. Ct. 370, 50 L. Ed. 652] ; Blaney v. State, 74 Md. 153 [21 Atl. 547].) The legislature could not take this power away from the constitutionally created body having such common-law prerogatives. In fact, it has bestowed upon it greater inquisitorial power than has ever been bestowed upon it in those states which proceed with it according to the common law. (Pen. Code, secs. 915 et seq., relating to the .powers and duties of a grand jury. In this connection, see Edwards on The Grand Jury, page 44, and the charge of Mr. Justice Field in “Case No. 18,255,” 30 Fed. Cas. 992, 2 Sawy. 667.)

As our code sections on the subject of the power of the grand jury are, in some instances, copied from, and in other instances similar to, the provisions in the New York Criminal Code, it may be here noted that the courts of that state adhere to the doctrine of the independence of the grand jury in making investigations other than those instigated by prosecuting officers. (See People ex rel. v. Wyatt, 186 N. Y. 383 [79 N. E. 330, 9 Ann. Cas. 972, 10 L. R. A. (N. S.) 159], and People v. Davy, 105 App. Div. 598 [94 N. Y. Supp. 1037].)

The respondent takes the position that it has been the generally accepted practice in this state to leave the duty of detecting crime in the hands of sheriffs and district attorneys, and that because the legislature has from time to time enacted certain express statutes charging those officers with the duty of detecting crime in their counties, such granting of express powers to one set of officials denies the existence of an implied power in others. Such a rule has been applied to cases of employment of special counsel in instances where it was the official duty of district attorneys to perform specified services (Merriam v. Barnum, 116 Cal. 619, 622 [48 Pac. 727]); and to cases where the services of the city attorney were available to a city commission (Rafael v. Boyle, 31 Cal. App. 623 [161 Pac. 126]). But we have been cited to no case, and I have found none, in which it has been held that such rule applies to a grand jury with the inherent powers vested by the Constitution and with the authority of the scope expressly delegated by the legislature by enactment of section 192 of the Code of Civil Procedure, supra, and the pertinent sections of the Penal Code. (On the point of inherent powers vested by the Constitution see Millholen v. Riley, 211 Cal. 29 [293 Pac. 69]; and as to implied powers necessary for the due and efficient exercise of the powers expressly granted, see Lewis v. Colgan, 115 Cal. 529 [47 Pac. 357].)

None of the cases relied on by respondent sustain him on this point. In Burns, etc., v. Holt, 138 Minn. 165 [164 N. W. 590], the court held that the grand jurors should not in their private capacities agree to pay detectives for making investigations. In Burns, etc., v. Doyle, 46 Nev. 91 [208 Pac. 427, 26 A. L. R. 600], a contract to the same effect was held to be against public policy. Stone v. Bell, 35 Nev. 240 [129 Pac. 458], seems to definitely imply that in certain cases requiring an investigation the grand jury may employ assistance and order the payment for the amount of the services. The decisions of California courts cited by respondent concern boards created by statute, and officers having no duties except through the means provided by statute, and require no special reference thereto.

Section 4307, subdivision 3, of the Political Code, provides that the “expenses necessarily incurred . . . for . . . services in relation to which no specific compensation is prescribed by law” are county charges. The employment of investigators is a necessary and important step in any criminal investigation or proceeding. Such investigation may be conducted, and usually is, through the district attorney’s office. I know of no reason why the grand jury should not have the same power. To hold otherwise would be to seriously impair the efficiency of the inquisitorial body and, in some instances, to destroy its usefulness to the community.

I am of the view that the petitioner is legally entitled to be paid for the services rendered.

Preston, J., concurred.


text:
    [Crim. No. 3686.
    In Bank.
    October 8, 1934.]
    THE PEOPLE, Respondent, v. JOHN McGEE, Appellant.

      W. C. Dorris and R. W. Henderson for Appellant.
    U. S. Webb, Attorney-General, and Frank Richards, Deputy Attorney-General, for Respondent.
   LANGDON, J.

On November 3, 1930, an information was filed charging defendant with the crime of rape, and alleging the commission of the offense on or about March 30, 1926. A prior conviction of second degree burglary was also charged. Defendant appeared without counsel, pleaded guilty and was Sentenced to imprisonment in the state prison. On March 18, 1933, defendant filed a motion to set aside the judgment, which was denied. This appeal is from the order denying the motion.

Section 800 of the Penal Code provides: “An indictment for any other felony than murder, the embezzlement of public money, or the falsification of public records, must be found, or an information filed, within three years after its commission.” Section 802 of the same code provides: “If, when the offense is committed, the defendant is out of the state, indictment may be found or an information filed within the term herein limited after his coming within the state, and no time during which the defendant is not an inhabitant of, or usually resident within this state, is part of the limitation.” On the face of the information herein it clearly appears that it was not filed within the period of the statute of limitations, and no allegations setting forth an exception to the running of the statute are made. If defendant had set up the bar of limitation, he would, so far as the record shows, have been entitled to a dismissal. But he failed to do so and raises the defense now for the first time after conviction and sentence. His contention is that the court lacked jurisdiction after the expiration of the three-year period, and that the judgment was therefore void.

Whether the statute of limitations in criminal cases is jurisdictional, or a matter of defense to be affirmatively pleaded by the defendant, is a question upon which there exists some diversity of opinion. In California the law is in a most confused state. This court, in Ex parte Blake, 155 Cal. 586 [102 Pac. 269, 18 Ann. Cas. 815], declared that the statute was a mere matter of defense, and not ground for discharge on habeas corpus. The District Court of Appeal, in Ex parte Vice, 5 Cal. App. 153 [89 Pac. 983], came to the opposite conclusion; and in People v. Hoffman, 132 Cal. App. 60 [22 Pac. (2d) 229], the court held that a motion to set aside a judgment would lie where the information showed on its face that the statute had run. A hearing in the Hoffman ease was denied by this court. The early case of People v. Miller, 12 Cal. 291, also lends support to this conclusion.

It is necessary that this confusion be eliminated, and that the rule which shall govern prosecutions in this state be declared. In our view, the more desirable rule is that the statute is jurisdictional, and that an indictment or information which shows on its face'that the prosecution is barred by limitations fails to state a public offense. The point may therefore be raised at any time, before or after judgment.

This is, of course, a rule essentially different from that governing civil actions, and it results from the different 'character of the statute in the two kinds of proceedings. In civil actions the statute is a privilege which may be waived by the party. In criminal eases, the state, through its legislature, has declared that it will not prosecute crimes after the period has run, and hence has limited the power of the courts to proceed in the matter. (See People v. Hoffman, supra; State v. Bilboa, 38 Idaho, 92 [213 Pac. 1025, 222 Pac. 785].) It follows that where the pleading of the state shows that the period of the statute of limitations has run, and nothing is alleged to take the case out of the statute, for example, that the defendant has been absent from the state, the power to proceed in the case is gone.

Even if this issue were not determinative, the judgment would still be improper, for the alleged prior conviction, as charged in the information, took place on October 17, 1927, and hence subsequent to the offense for which defendant was prosecuted herein. Section 969 of the Penal Code provides that in charging a previous conviction, it is sufficient to state that “the defendant, before the commission of the offense charged in this indictment or information”, was convicted of a felony. The burglary conviction of defendant was not a “prior conviction” under this section. The attorney-general points to section 1168 of the Penal Code, which, in subdivision (2), states that the minimum term of sentence and' imprisonment for persons “previously convicted of a felony” shall be five years, “notwithstanding any other provisions of this code, or any provision of law specifying a lesser sentence”. The difficulty with section 1168 is that it would appear to impose a punishment where there has been no pleading and proof to justify it. In other words, section 969 provides for charging a prior conviction, and an information such as the one involved herein does not fulfill the statutory requirement. Hence the defendant, though not validly charged with a prior conviction, is nevertheless subjected to an additional penalty by reason of a prior conviction. This nullifies the provisions of section 969, and we think that there is no justification for doing so.

The order appealed from is reversed.

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


author: SEAWELL, J.

text:
    [Crim. No. 3752.
    In Bank.
    October 9, 1934.]
    THE PEOPLE, Respondent, v. JAMES SYDNEY ROGAN, Appellant.

      Vincent W. Hallinan and William F. Herron for Appellant.
    U. S. Webb, Attorney-General, and John D. Richer, Deputy Attorney-General, for Respondent.
   SEAWELL, J.

The defendant was accused by an indictment returned against him by the grand jury of the county of Los Angeles with the commission of four separate crimes, to wit, murder of the first degree, robbery and two separate assaults with a deadly weapon with the intent to commit murder. Said accusations were set out in four counts, numbered 1, 2, 3 and 4, in the order above named. During the course of the trial, upon motion of the defendant, the two counts charging assault with a deadly weapon with intent to commit murder were dismissed. The jury returned a verdict of guilty of murder, without recommendation that the defendant be relieved of the death penalty, and it also found him guilty of first degree robbery, under the robbery count. The court thereupon pronounced its judgment, which imposed the death penalty upon said defendant, and also entered judgment upon the conviction of robbery, as provided by law. Defendant has appealed from both judgments of conviction.

In his statement of questions involved on the appeal, appellant presents and argues three, to wit: prejudicial misconduct on the part of the district attorney and the trial judge; insufficiency of the evidence to justify the verdict, and the refusal of the court to permit appellant’s counsel to cross-examine certain witnesses called by the prosecution upon subjects which counsel characterizes as the most vital points in the testimony. The refusal of the court to rebuke opposing counsel upon each breach of orderly procedure committed by him, and the alleged indulgence of the trial court in adverse comment upon the procedure of counsel for the appellant, are also assigned and urged as grounds upon which a new trial should have been ordered, but which the trial court denied.

The crime was committed at an early hour on the morning of November 11, 1932, in a resort variously referred to in the testimony as a “night club”, “gambling place” or “speak-easy”, located at 2610% West Seventh Street, city of Los Angeles. The place was conducted by Harvey Loren Crosby. Glen Fullmer was employed as a piano player; Homer Washburn was the bartender, and Mrs. Evelyn Daughney was the entertainer. Henry B. Minstrot, who had left the premises before the homicide was committed conducted a black-jack game in a room of the establishment and divided the proceeds with the proprietor, Crosby.

At about the hour of 10 o’clock, on the night of November 10th, one R. D. McAllister, who was engaged in the illicit sale of liquor, and the defendant, Bogan, his companion, appeared at the door and sought admission into said club-rooms. Admission, in case the visitor was not personally known to the habitues of the club, seems to have been by card, which assured the man at the door that the party seeking admission was a person acceptable to the proprietor of the gaming house. Some slight delay was caused by investigating the identity of said McAllister and Bogan, but the matter was soon cleared up by the use of the ’phone and both were duly admitted. Rudolph G-. Vejar, a deputy sheriff of the county of Los Angeles, was also among the persons present when the defendant and his companion, neither wearing coats, entered. McAllister immediately went into the gaming room and began gambling. Bogan played but a few hands, spending some time at the bar, where he consumed a number of drinks, principally beer. They left between 12 and 1 o’clock and returned at about 2 o’clock, wearing coats. At the time they entered Crosby and Wash-burn were seated at a card table in the gambling room, while Vejar, the deputy sheriff, was watching them play. Mrs. Daughney, who, a short time before the defendant and McAllister entered the second time, had returned to the club to regain her purse, which she had forgotten, was also present. As the two men entered the second time, one of them asked, “Where has the game gone?” They were informed that the game had closed but that the bar was open. It is a fact that the dealer of the black-jack game, Minstrot, had prior thereto left the club and taken the proceeds of the game with him. Upon being told that the game had' closed, two shots were fired and McAllister and Bogan, with drawn weapons, entered the card room, giving the command: “Stick them up; we mean business.” Vejar, Washburn and Crosby immediately obeyed the command. McAllister walked over to Crosby and, uttering an abusive term, struck him upon the face. He walked over to Vejar, whom he evidently knew to be an officer, and struck him on the chin, and said: “You bastard, I know you, how do you like being on the other end of it?” Everyone was then made to stand with his back to the vull, searched, and all the money taken from their persons by McAllister was thrown on the poker table, defendant Kogan holding the company at bay with a drawn pistol in each hand, while the search was conducted by his companion. Having taken some $65 from his victims, McAllister asked Crosby where the rest of the money was and, upon being told that his partner (Minstrot) had taken the money and that the only money he had left was a dollar which he carried in his shoe for luck, Crosby was ordered to lie down on the floor and take off his shoes and socks, which he did. Thereupon McAllister placed Crosby’s leg under his arm and proceeded to apply lighted matches to the bottoms of his feet, at the same time saying, ‘ ‘ Come through with the money. ’ ’ Crosby cried out in great pain and protested that he had no other money in his custody or under his control. McAllister then struck him on the jaw with his gun. He then commanded the other occupants to lie down and take off their shoes. After he had burned the feet of Crosby, he approached Vejar and said, “You are next.” Vejar then drew a gun from his shoulder holster and simultaneously several shots were fired by McAllister, Kogan and Vejar. When the shooting ceased, McAllister lay dead, with six bullet wounds in his body, and Vejar, who had received a mortal wound, from a bullet which entered near the corner of his mouth and plowed its way through the neck and finally lodged in his right shoulder, lay near him. Vejar was upon his back and requested that someone turn him over, so that the blood would flow from his mouth. Washburn asked permission of Kogan to comply with this request, but Kogan, with drawn revolver, refused the request. Mrs. Daughney attempted to place a pillow under his head, but was halted by defendant Kogan and ordered by him to sit down. Vejar died soon thereafter. Kogan received a minor bullet wound in one of his legs. During the time the occupants of the clubroom were being searched by McAllister, Kogan held a pistol in a threatening manner in each hand, commanding obedience to the orders given by McAllister or himself. The .45 automatic in the possession of Kogan was given over to Mc-Allister before the firing commenced. McAllister, shortly before the shooting, had taunted Vejar, as he lay upon the floor, with questions as to how a deputy sheriff liked being “on the other end of it”. He had struck him with his fists before ordering Mm to the floor. A number of tantalizing terms were applied by McAllister both to Vejar and Crosby. Vejar, while on the floor shortly before death, said: “You got me, you bastards, but I got you both.”

After the shooting, defendant Kogan gathered up the loot that he' had taken from the persons whom he had assisted in robbing, took his companion’s automatic .45 pistol, and entered a taxicab, which he had ordered Washburn to call, admomshing him at the time to be “God damned careful to call a taxicab and not the police department”. Kogan, according to his own story, made his way to San Francisco and remained at his mother’s home in that city for two days, and then went to the mines located in the Siskiyou Mountains, northern California. Some six months thereafter he boarded a tuna fishing boat bound for Lower California. He next shipped on a boat plying off the coast of Mazatlan, Mexico, which was engaged in the rum running trade. When in San Francisco on a visit to his mother’s home, approximately one year after the homicide, he was apprehended and placed under arrest. The bullet which killed Vejar was undoubtedly fired from the revolver held in the hands of Kogan. The ballistic expert testified that it was of .38 caliber, which fitted the revolver that he used, while the weapon used by McAllister was a .45 automatic pistol. Besides, there is direct evidence that Kogan fired the shot which took Vejar’s life. But, if it be a fact that McAllister fired the fatal shot, that circumstance would not relieve the appellant of his responsibility for the homicide if he, together with his associate,- was engaged in the perpetration of robbery. The evidence is amply sufficient to sustain the jury’s verdict upon the theory that the defendant and McAllister were confederates in the commission of a robbery at the time the homicide was committed and, under that state of facts, it would matter not which one fired the fatal shot, as each would be equally guilty under the provisions of section 189, Penal Code.

Appellant has very earnestly attacked the conduct of the district attorney and the trial judge, which he claims prejudiced his right to a fair and impartial trial. Many of the assignments are very similar in substance to complaints which are frequently presented to this court for review in death penalty eases. By affidavit, appellant sets out the greater part of the district attorney’s opening argument to the jury and vitalizes, as well as written words are capable of doing so, the vehement manner and the vociferousness of voice in which it was delivered. While we cannot approve all the alleged acts of misconduct complained against by appellant, and feel that the prosecuting officer went beyond the limits of legitimate argument in two or three instances, we cannot say that his utterances in that respect acted so powerfully upon the minds of the jury as to have held its reason and its inherent sense of justice captive during the balance of the proceeding, to the extent that the admonition of the court to disregard all improper allusions of counsel, as set forth in the final charge, fell upon minds rendered incapable of giving full effect and consideration to the evidence and legal regard to the rights of the defendant, by reason of said improper utterances. While many of the specifications of misconduct were, strictly speaking, properly taken, such matters were, nevertheless, matters of common knowledge or notoriety and were, beyond doubt, within the minds of all persons of average intelligence. The recent hangings in this state of two young men, without trial, to which reference was made by the prosecuting officer, furnish an apt. example of the references made by counsel from which the inference was drawn that the laxity of juries in returning verdicts which prevent the law from imposing penalties in criminal cases adequate to the enormity of the offenses committed, was responsible for the upheaval of public indignation as illustrated by said lynchings. The .prosecuting officer, being no doubt convinced that the instant case properly called for the imposition of the death penalty, in his effort to awaken in the minds of the jurors the importance of maintaining a proper respect and regard for law enforcement, earnestly called upon members of the jury who should be likewise convinced, not to surrender their convictions by way of compromise and agree to a verdict carrying a lesser penalty, merely for the sake of reaching an agreement. The prosecuting officer, in his zeal to secure a verdict imposing the extreme penalty of the law, stated in argument that the average man spends but a few years in the penitentiary under a sentence for life and that the system of parole offers an easy way for guilty persons to escape adequate and just punishment. Such expressions should be avoided, but in view of the record of this case, such error cannot be held to be reversible error. (People v. Reilly, 208 Cal. 385 [281 Pac. 606]; People v. La Verne, 212 Cal. 29 [297 Pac. 561]; People v. Rameriz, ante, p. 559 [36 Pac. (2d) 628], decided by this court October 1, 1934.) Said officer also improperly made reference in the argument to his personal knowledge of the good qualities of the deceased, notwithstanding the fact that there was no evidence in the record bearing upon his character, and which appellant assigns as reversible error.

It is true that the assistant district attorney was rather vehement and at times indulged in verbal thrusts and, upon one or two occasions, characterized the defendant as a “racketeer” and an associate of the underworld gentry. The habits and character of the defendant, as revealed by his own admissions, showed that he had led a checkered life, which was by no means free from lawless tendencies. We cannot say that the prosecution’s characterization of the defendant was entirely unwarranted.

Other instances of misconduct are assigned as prejudicial error, but we have examined all of the assignments and are of the opinion that none separately or all considered together would justify a reversal. Upon occasions the court did, at the moment objection was made to conduct which the court deemed improper, admonish counsel and instruct the jury to disregard the same. Upon two or more occasions, it remained silent. But, upon the final eliarge, the jury was instructed in proper form and language to disregard all expressions or remarks which tended to prejudice the defendant, and which had no support in the evidence. We have also examined the assignment of the court’s alleged misconduct, which arose in a discussion between the court and counsel for the defendant, and we cannot believe that the subject matter was of sufficient gravity to have impressed. the jury. We feel that there is no merit in the assignment that the court refused to permit what counsel terms an impeachment question asked witness Mrs. Daughney. It appears that after the witness (Mrs. Daughney) had been cross-examined for some time, a recess was taken, during which E. B. Vejar, a brother of the deceased officer, and a third person, whose identity was not disclosed, had a short conversation with witness Daughney. It was claimed that this conversation was overheard by Ruth Rogan, a sister of the defendant. Appellant offered to show that said conversation was in substance that witness Daughney, who had been addressed during recess by Vejar, replied to whatever remark Vejar made to her as follows: “I am scared but I am not afraid.” Whereupon Vejar advised her not to say that he had told her to say anything and it did not matter what she said so long as she would say that Rogan killed Vejar. This question was objected to on the ground that the proper foundation was not laid by failure to name or identify the third person in whose hearing and presence the above remark was alleged to have been made. The witness Daughney had made answer to a previous question that she had not discussed her testimony with Vejar. The third party was not produced or identified and neither Ruth Rogan nor anyone else was called to prove the alleged conversation. At most, nothing appears which tends to show more than that an improper remark was made in the presence of the witness by Vejar. No claim is made that the witness assented to or was influenced by the alleged suggestion made by Vejar. It may have been a proper matter to have brought to the court’s attention in a contempt proceeding. The mere remark of Vejar could not be regarded as an impeachment of the witness, who made no assent to the suggestion of Vejar. Besides, the witness had already testified fully as to the shooting of Vejar by Rogan.

Appellant contends that he was intoxicated to the degree that he was incapable of forming a criminal intent and that he, therefore, is not guilty of first degree murder. It is true that there was evidence that he did partake of intoxicating liquor prior to the homicide, but, on the other hand, there is evidence that he held himself sufficiently in hand to have successfully carried out a robbery, made away with the loot, and escaped from the scene. He certainly gave evidence of co-ordination in the execution of the crime.

Appellant makes the further defense that McAllister, who had lost a sum of money at the gaming table, had been cheated by the employment of trick and device by the dealer of the game and, therefore, it was not robbery for him to retake, by force of arms, the money he had thus lost. Appellant, of course, claims to have been -acting with MeAllister in the recapture of his lost stakes'. That McAllister and defendant Bogan armed themselves preparatory to making a return visit to the club, with the intent to take by force moneys found in the possession of any and all the occupants of said clubrooms is fully supported by their subsequent acts. They did not confine or limit their demands for money to the proprietor of the club, but robbed all persons present in said establishment, several of whom had no connection with Minstrot, the dealer, who had previously left the premises with the proceeds of the gambling table. The question as to whether or not McAllister and Bogan had the intent to limit their lawless act to the retaking of the amount lost by McAllister in the manner above referred to was indisputably a question of fact for the jury’s determination, and there is an abundance of evidence to support their finding. The robbery was, in fact, general and without discrimination as to persons present. Vejar was undoubtedly killed in its perpetration by a pistol shot fired by defendant Bogan. This is shown by the testimony of several eye-witnesses. The only evidence that in any way tends to mitigate the killing is given by the defendant, which is highly, if not inherently, improbable. This being the state of the record, wé are unable to grant the appellant any relief from the judgments appealed from.

The judgments and orders appealed from are, therefore, affirmed.

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

Behearing denied.


author: PRESTON, J. SHENK, J., Concurring. LANGDON, J., Concurring.

text:
    [L. A. No. 13205.
    In Bank.
    October 10, 1934.]
    HARRY A. SPECK et al., Respondents, v. OLIVER WYLIE et al., Defendants; SARAH E. WYLIE, as Executrix, etc., et al., Appellants.

      Gibson, Dunn & Crutcher, H. F. Prince and Robert F. Schwarz for Appellants.
    Meserve, Mumper, Hughes & Robertson and Timón E. Owens for Respondents.
   PRESTON, J.

This suit is by purchasers of certain real property in Los Angeles County under an installment contract to recover from the sellers thereof the several amounts paid thereon, following timely notice of rescission and offer of restoration. Under the findings it must be taken as proved that the purchase was induced by material misrepresentations fraudulently made by the agent of the sellers who was in charge of the negotiations. Plaintiffs had judgment as prayed and defendants have appealed therefrom.

The contract was in writing and contained the following clause: “It is understood and agreed that this contract contains all the covenants, stipulations and provisions agreed upon by the parties hereto and no agent of either party to this contract has authority to alter or change the terms hereof and neither party is or shall be bound by any statement or representation not in conformity herewith. It is understood and agreed that said property above described has been inspected by said purchaser, or the purchaser’s duly authorized agent; that the same is and has been purchased by the purchaser as a result of said inspection and not upon representations made by the sellers or any selling agent, and that the purchaser hereby expressly waives any and all claims for damages or for cancellation of this contract because of any representation made by any selling agent or person whatsoever other than as contained in this agreement; and the sellers will not be responsible for or liable on account of any inducements, promises, representations, or agreements not set forth herein. ’ ’

The appeal thus presents anew the vexing question as to what rights, if’ any, should be accorded a purchaser who has been defrauded, against a seller who is innocent, where such purchaser knows that the negotiating agent of the seller has been acting in excess of his authority in making the representations complained of.

It is due the learned District Court of Appeal to say that we transferred this cause to this court for decision, not because of any misinterpretation as to the existing rule governing the subject, but rather to give consideration to the question of relaxing to some extent the rule heretofore laid down in the case of Gridley v. Tilson, 202 Cal. 748 [262 Pac. 322], where, after restating the general rule that fraud inducing the execution of a contract may be shown by parol testimony, it was further said: “A well-settled exception, however, is the case where the party seeking to rely on fraudulent representations of an agent had notice of the limitation on the agent’s authority to make representations. Therefore a principal is bound only by the representations embodied in the written contract where a provision in the contract notified the prospective purchaser that the agent’s authority went no further (citing cases).” (Gridley v. Tilson, supra, p. 751.)

We feel warranted in taking this step for at least two reasons. First, the principal, though innocent, should not be allowed to retain a consideration which the purchaser has parted with by reason of the fraud where such defrauded party rescinds promptly and the partiés can be restored without substantial injury to their former status; second, because this subject has had thorough consideration by law collaborators as shown by the recent product of the American Law Institute, styled: “Restatement of the Law — Agency”, where the rule suggested is as follows:

Sec. 259. “A transaction into which one is induced to enter by reliance upon untrue and material representations as to the subject-matter, made by an agent entrusted with its preliminary or final negotiations, is subject to rescission at the election of the person deceived. . . . Comment: b. . . . The rule stated in this section applies although the other party knows or has reason to know that the agent is not authorized to make the statement. By contract with the principal, however, he may agree that the principal is not to be liable because of unauthorized statements of an agent, as stated in section 260. . . . Sec. 260. ... (1) A principal may, by contract with another, relieve himself of liability in deceit for prior or subsequent frauds of an agent to such other. (2) A contract obtained by an agent through fraudulent misrepresentations of facts may be rescinded by the other party although it provides that it shall not be affected by representations not contained therein.”

Without attempting further elaboration we therefore announce that we are in accord with the above statements of the rule which will, all other things being favorable to the complaining party, allow him to rescind and to pursue the principal far enough to secure a return of the consideration paid. But an action for fraud and deceit will not be allowed him under such conditions. The doctrine of Gridley v. Tilson, supra, and such appellate court cases as may have followed it, should be limited in its application by the exception hereinabove set forth.

The judgment is affirmed.

Curtis, J., Waste, C. J., Seawell, J., and Thompson, J., concurred.

SHENK, J., Concurring.

I concur. The general rule that fraud in the inducement of a contract may be shown is recognized in Gridley v. Tilson, 202 Cal. 748 [262 Pac. 322]. An exception to the general rule is also noted therein and is still effective, subject to the limitation stated in section 260 of the restatement of the law of agency, now approved. As I understand this rule, it is that an innocent principal so contracting with another may relieve himself from liability for the fraud of his agent, but he is nevertheless subject to rescission on the part of the defrauded party. The rule proceeds upon the theory that an innocent principal so contracting may not be permitted to enrich himself by reason of his agent’s fraud, and that any property received by such principal is held by him as a constructive trustee for the person defrauded. I am satisfied that the restatement of the law of agency as contained in sections 256 to 264, inclusive, of the final draft, should be followed.

LANGDON, J., Concurring.

I concur in the judgment reached, and am fully in accord with the sound and reasonable rule laid down in the ¡Restatement of the Law of Agency, and established by the foregoing opinion as the law in this jurisdiction. I think it is desirable, however, to mention briefly, some of the cases which are followed, overruled or disapproved by it.

The so-called "doctrine of Gridley v. Tilson.” was expressed in a case wherein the point might well have been considered dictum, for a separate and sufficient ground for the holding appears therein. (See 16 Cal. L. Rev. 234.) Assuming, however, as subsequent cases have done, that Gridley v. Tilson constitutes a direct holding on the point, the prior decision of this court in Mooney v. Cyriaks, 185 Cal. 70 [195 Pac. 922], was directly contrary thereto. The case of Munn v. Earle C. Anthony, Inc., 36 Cal. App. 312 [171 Pac. 1082], which was cited with approval in Gridley v. Tilson, was disapproved in Mooney v. Cyriaks, supra. The Mooney case was followed in Whiting v. Squeglia, 70 Cal. App. 108 [232 Pac. 986], in which case this court denied a hearing. Nevertheless, a great many eases were decided in the District Courts of Appeal in the last few years, which follow the principle supposed to have been adopted in Gridley v. Tilson. Among these are Warner v. Taft Land & Dev. Co., 113 Cal. App. 71 [297 Pac. 969]; Campbell v. Title Guarantee & Trust Co., 121 Cal. App. 374 [9 Pac. (2d) 264] ; W. J. Latchford Co. v. Southern Cal. Gas Co., 1251 Cal. App. 112 [13 Pac. (2d) 871] ; Clancy v. BeckerArbuckle-Wright Corp., 137 Cal. App. 43 [29 Pac. (2d) 868] ; Curby v. Title Guarantee & Trust Co., 138 Cal. App. 241 [32 Pac. (2d) 151]. In the recent case of Simmons v. Ratterree Land Co., 217 Cal. 201 [17 Pac. (2d) 727], though we held that under the peculiar circumstances the rule of Gridley v. Tilson was inapplicable, we approved it as a correct statement of the law. Also, in Humphrey v. Harry H. Culver & Co., 220 Cal. 765 [32 Pac. (2d) 630], we merely distinguished and did not disapprove Gridley v. Tilson.

It is now clear that this rule is unsound in principle, and that it is contrary to the better authorities, as evidenced by the Restatement on Agency. (See, also, 16 Cal. L. Rev. 234, supra.) In refusing to follow it further, we are now overruling the many decisions set forth above, and are returning to the position formerly taken by us in Mooney v. Cyriaks, supra.

Rehearing denied.