text:
    [S. F. No. 16060.
    In Bank.
    October 19, 1938.]
    ERIC C. W. S. LYDERS, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.

      S. C. Wright and Robert Littler for Petitioner.
    Philbrick McCoy for Respondent.
   THE COURT.

This is a proceeding to review the recommendation of the board of governors of The State Bar that petitioner be suspended from the practice of law for a period of two years. In the order to show cause, issued by local administrative committee No. 2 of the city and county of San Francisco, petitioner was cited before said committee to show cause why he should not be disciplined for professional misconduct. (Violation of subdivisions 2 and 5 of section 287 of the Code of Civil Procedure, and with the violation of rule 4 of the Rules of Professional Conduct of The State Bar of California.) The specific charge brought against petitioner was that, as a trustee of an express trust, he violated his instructions and purchased property from himself with trust funds, failing to disclose to the beneficiary of the trust, or her agents, his self-interest in said transaction, and failing to convey the property so purchased to his beneficiary until required to do so by a judgment of a court in an action by the beneficiary to compel a conveyance by him and for an accounting. The local administrative committee before whom the hearing was held, found the charges to be true, and recommended to the board of bar governors that petitioner be suspended from the right and privilege to practice law for a period of ninety days. Upon a hearing before the board of bar governors, said board adopted the findings of the local administrative committee, but recommended that petitioner be suspended from the practice of law for a period of two years.

The facts found by the local administrative committee are amply supported by the record. Most of them are not disputed. Petitioner was a friend of the family of Katherine T. Bull and her husband, Commodore James H. Bull, for a number of years prior to 1932. In 1932, upon the death of Commodore Bull, it was deemed advisable by her children that arrangements should be made to assure their mother an adequate allowance for her living expenses. Formerly a very wealthy woman, she had lost her fortune, and was advanced in years and in ill health. Petitioner agreed to act as trustee without compensation to receive certain moneys for Mrs. Bull and disburse them. He received explicit instructions from Colonel Harry Bull, son of Mrs. Bull, that no investments were to be made but the money was to be deposited in a bank in order to take care of the living expenses of their mother. Petitioner received as such trustee $7,516.73 then on deposit with the bank, $1549.15 from insurance and the sum of $200 each month for six months as a contribution by Colonel Bull to the trust fund. Petitioner during this time held a general power of attorney previously executed by Mrs. Katherine Bull. Subsequent to petitioner’s assumption of the trust, he deemed it advisable to pay off a mortgage on some property belonging to Mrs. Bull in Santa Barbara to render the property more marketable, and upon receiving the sanction of Colonel Bull to this disbursement, made the necessary payment of $5,000. In September, 1932', petitioner took $1,000 from the trust fund belonging to Mrs. Bull and applied it to the purchase of his own interest in a contract of sale of certain property owned by him in Sacramento. This property consisted of a five-acre lot which had previously been sold by petitioner to one Mary Alder for the sum of $1750. She had subsequently assigned her interest to an attorney by the name of Needham of Sacramento, and in September, 1932, there was a balance of approximately $1,000 owing to petitioner under the contract of sale payable at the rate of about $10 per month. The contract had been recorded and a deed from petitioner to Mary Alder had been placed in escrow by petitioner with the real estate firm of Waters, Neideffer & Waters of Sacramento with instructions to deliver the deed to Mary Alder upon the payment of the final instalment of the purchase price. Petitioner by letter informed Colonel Bull, who was then in Washington, that he had “put $1,000 of the savings money into a land contract where it will be repaid in about three years with interest at 7%”. There is evidence that petitioner was in financial difficulties at this time and was involved in personal litigation. In February, 1933, the trust fund had become practically exhausted in payment of the expenses of Mrs. Bull, and an accounting was sought by Colonel Bull from the petitioner. This account was furnished by petitioner April 13, 1933, in wffiich the transaction was listed: ‘ ‘ Investment Needham Contract . . . $1,000.” Colonel Bull testified that petitioner did not at that time disclose to him the fact that he had any self-interest in the transaction, and did not comply with Colonel Bull’s request for documentary proof of Mrs. Bull’s ownership of the property. Petitioner stated, according to the testimony of Colonel' Bull, when pressed for the documentary proof of ownership in' Mrs. Bull, that “he would write for it”. The last payment to Mrs. Bull on the Needham contract was in June, 1933, and she' had placed the matter in the hands of Mr. Berger, a business man of Santa Barbara, to find out from the petitioner the nature of the transaction and the status of the contract. Numerous letters were written to petitioner by Berger in an endeavor to ascertain the nature of the investment made with Mrs. Bull’s money, and to secure some documentary evidence of the transaction, but no satisfaction could be obtained from him. In December, 1934, in a letter to Mr. Berger, petitioner stated that the property had been formerly owned by him and sold under contract to Mary Alder. According to the testimony of Colonel Bull this was the first time the fact was brought to his knowledge that petitioner had a personal interest in the Needham contract. Needham defaulted in the contract of purchase. Petitioner, instead of giving a deed of the property to Mrs. Bull, as he was importuned to do by Mr. Berger, wrote that he was entitled to reimbursement and compensation for his handling of the property. Although Mr. Berger wrote to the effect that if petitioner would straighten the matter out so that Mrs. Bull 'would have proof of the transaction, he would be remunerated, petitioner, instead of complying, made another sale of the property. This sale, after a couple of payments by the purchaser, which payments were absorbed by the real estate commission, fell through. Mrs. Bull finding it impossible to obtain any satisfaction from petitioner, in May, 1936, commenced an action in the superior court at Sacramento by filing a complaint entitled, “Complaint to declare a trust and for an accounting.” Petitioner by answer admitted that he held the property in trust for Mrs. Bull and alleged that he was willing to convey the property on being paid the reasonable value of his services in connection therewith. The court made its order requiring a conveyance by him to Mrs. Bull or a repayment by him of the amount due to Mrs. Bull with interest. From this judgment he appealed. Subsequently he delivered said deed and dismissed the appeal.

There can be little doubt that disciplinary action is warranted. Petitioner, as an attorney, was well aware that he was violating his duty as a trustee in using money belonging to the trust fund to purchase property owned by himself. His failure and neglect to furnish Mrs. Bull with documentary evidence of the transaction was inexcusable. Had he been dealing for her with third parties, he would as a matter of course have obtained such documentary proof. In using her money to deal with himself, he necessarily owed her at least the same duty to furpish documentary proof of the transaction. The fact that the beneficiary did not repudiate the purchase of said property, but continued friendly relations with petitioner for some time thereafter, and subsequently in suing him sought a conveyance from him of the property rather than a money judgment for the amount taken by him from the trust fund, does not exonerate petitioner. It is apparent from the record that the acceptance by the Bull family of the transaction was not voluntary, but that they, under the impression that the deal had been made with a third party, simply made the best of a bad situation. In seeking a conveyance of the property in the suit in Sacramento, the attorney for Mrs. Bull wisely deemed a conveyance of the property preferable to a money judgment. This conduct on the part of the Bull family cannot be deemed a ratification of the transaction.

We are of the opinion that the conduct of petitioner under the circumstances here involved fails to measure up to the high standard of conduct required of him by his oath as an attorney, and that his suspension from practice for the period of two years is not too severe a punishment for his offense.

It is, therefore, ordered that petitioner be suspended from the practice of law in this state for a period of two years, said suspension to become effective thirty days after this order becomes final.

Rehearing denied.


source: Caselaw Access Project

author: EDMONDS, J.

license: Public Domain

text:
    [S. F. No. 16059.
    In Bank.
    October 20, 1938.]
    REGINALD G. MOSS, Respondent, v. UNDERWRITERS’ REPORT, INC. (a Corporation), Appellant.

      William M. Abbott, Cyril Appel, Ivores R. Dains and Henry A. Plattner for Appellant.
    Augustin C. Keane and Edgar C. Levey for Respondent.
   EDMONDS, J.

This case presents, among other questions, the application of the statute of limitations to an action brought to recover upon a book account the balance which the plaintiff claims is due him for services rendered to the defendant over a period of many years. By a separate appeal from an order denying its motion to tax costs, the defendant challenges certain items of the cost bill. The District Court of Appeal affirmed the judgment and the following opinion written by Mr. Presiding Justice Nourse is adopted as the opinion of this court upon the appeal therefrom:

“The plaintiff sued upon three separate causes of action for compensation for extra services. The first count, or cause of action, was on an open book account for money claimed to be due up to December 31, 1934; the second was upon an account stated; the third was on an open book account for money claimed to have been earned after December 31, 1934. Prayer was made for $13,543.51. The action was tried without a jury, and plaintiff had judgment on the first and third causes of action in the sum of $12,422.07. The appeal from this judgment is presented on a typewritten transcript to which has been added, after a motion for diminution of the record, a number of the exhibits.
“Plaintiff rested his claim upon a contract with the defendant employing him to act as editor of three publications which the defendant ivas engaged in printing and circulating. The contract of employment began in 1922 and terminated on July 15, 1935. The original agreement called for a weekly salary of $75 and 3 per cent on the annual gross income from these publications, such percentage to be determined annually after an accounting extending over each calendar year. The parties agree that a 3 per cent bonus was to be paid, but disagree as to whether it should be based on the income of all three publications, or upon that derived from two only. Books of account were kept by the defendant from which the plaintiff claimed that he was entitled to recover the sum prayed for. At the trial the court found certain errors in these accounts which caused a reduction in the amount allowed in the judgment. As this situation gives rise to the principal attack upon the judgment, it is well to add these details: in his first count the plaintiff relied upon the balance shown to be due on these books of account up to December 31, 1934, which was $14,068.51, and allowing a credit of $525, asked judgment for $13,543.51. The third count, though pleaded on an open book account, did not fix the amount, because the income for that period was unknown to plaintiff, but asked the court to take an accounting to ascertain the amount due. Defendant’s bookkeeper estimated plaintiff’s bonus by taking 3 per cent of the gross income derived from three of defendant’s publications, whereas the defendant claims that plaintiff was not entitled to any bonus upon the income from one of them. Other errors were made by the bookkeeper, some favorable and others unfavorable to the plaintiff. From the balance shown on the books as of December 31, 1934, the trial court allowed deductions claimed as errors by the defendant amounting to $2,449.75, and a credit of $700 paid to plaintiff subsequent to December 31, 1934. The sum of $1503.31 was found due plaintiff upon his third count for services rendered after that date. When this was added to the balance of the principal claim, following the deductions noted, the full sum found to be due was $12,422.07, which is the amount of the judgment.

“Growing out of the situation just mentioned, appellant’s first question stated on this appeal is: ‘Is not an essentially erroneous book account insufficient to evade the bar of the statute of limitations 1 ’ There is sufficient evidentiary support for the trial court’s finding that a contract of employment was executed, as alleged in the complaint, calling for payment of a salary to plaintiff and, in addition thereto, a sum equal to 3 per cent of the annual gross income from two of the publications printed by the defendant; that the ‘ defendant caused the same (the money due plaintiff for such extra compensation) to be regularly computed by its bookkeeper and accountant’, and that such account was ‘ duly entered upon a record kept by said defendant corporation for that purpose’; that, in computing said sum of $14,068.51, ‘ there were by inadvertence and mutual mistake included therein certain sums of money equal to three per cent (3%) of the gross income of defendant corporation from sources other' than the two publications mentioned; and that these sums amounting to $2,449.75, should be deducted from said account. Upon these facts the appellant contends that the book account must be rejected as a whole, and that the first cause of action is therefore barred because it rests on an oral contract and was not brought within two years. Respondent replies that the book account was kept by appellant in the regular and usual course of its business, that it was proved by uncontradicted evidence that the only errors in the account were made by appellant, and that the respondent was not responsible for them. It cannot be denied that the entries were made in the regular and usual manner, that the account meets all the requirements for an ‘open book account’, and that appellant alone is accountable for the errors. None of the cases cited by the appellant gives any support for the position here taken. They hold generally that a book account must be proved before it will support a judgment. As to this there is no controversy. The point here is must it be wholly free from error before it will support a judgment for the amount found due.

“The cause of action is upon the account, not upon the separate items which enter into it. It is like an action on a written contract, or on a promissory note, neither of which is defeated by the appearance of errors which may be readily corrected. Here the appellant was responsible for the errors upon which it relies to defeat its own account. On principle it should be estopped to take advantage of its own errors when, throughout the period of employment, the respondent was led to believe that appellant was keeping a correct book account, and may have, for that reason, delayed bringing his action within the time limited for an action upon an oral contract.

‘ ‘ The failure of the trial court to specifically find that the action was not barred by the two-year statute of limitations was not prejudicial to the appellant. If a finding had been made, it must have been adverse to appellant. (Egan v. Bishop, 8 Cal. App. (2d) 119, 123 [47 Pac. (2d) 500]; Anderson v. Calaveras Min. Corp., 13 Cal. App. (2d) 338, 349 [57 Pac. (2d) 560].) When it thus appears from the facts found that the statute has not run, there is no prejudicial error in a failure to find separately on the alleged bar of the statute. (Woodham v. Cline, 130 Cal. 497, 498 [62 Pac. 822]; Scott v. Symons, 191 Cal. 441, 456 [216 Pac. 604]; Webster v. Mountain Monarch G. M. Co., 6 Cal. App. (2d) 450, 454 [44 Pac. (2d) 646]; 24 Cal. Jur., p. 944.)

“ It is urged that the original contract was abrogated, or so materially modified, as to defeat all rights of respondent founded upon it. It is appellant’s contention that the contract of employment made in 1922 called for a base salary of $75 a week and that the bonus claimed by respondent was to be allowed on that base; that subsequently the base salary was increased, and hence the trial court should have found that the agreement to pay a bonus fell with this change. This all rests upon the conflicting testimony of the respective parties as to what was said, and what arrangements were made, as to compensation at different stages of the period of employment. There is sufficient evidentiary support for the trial court’s finding that the appellant agreed to pay the respondent a bonus of 3 per cent of the gross annual income in addition to all fixed salaries throughout the period of employment, and the conduct of the parties during that period lends additional support to the finding.

“ The appellant argues that the respondent is es-topped from claiming any balance due because of these facts: at various times during the period of employment the respondent was paid by check drawn on the corporation which contained in a space provided thereon a notation of a certain amount for salary and a certain amount for bonus. Each check had printed thereon the words ‘Endorsement of this check evidences payment in full of items set forth in voucher. ’ Respondent answers that no plea of estoppel was made in the trial court, that the point was first raised on this appeal, and that there is no evidence of estoppel as the appellant did not alter its course of conduct in any respect, but that it continued to enter upon its books of account the balance remaining due. If the question had been raised in the trial court, that court would have necessarily found that there was no estoppel on this evidence. The checks were plainly payments on account of the bonus awards carried on the books which were not definitely ascertained at the time. Throughout the period the endorsements on the checks were treated as receipts for payment ‘on account’ of the bonus awards and in the amounts, or items, stated on the face of the check; the appellant continued to carry entries on its books of the amounts remaining due, notwithstanding these endorsements, and had better means of knowledge than the respondent of the condition of its own books, and of the manner in which these endorsements on the checks were treated. The evidence fails to show the essential elements of an estoppel. One relying on a plea of estoppel must have been ignorant of the true state of facts and must have been intentionally misled by the act of the other to his injury. (10 Cal. Jur., pp. 636, 637; 10 R. C. L., pp. 696, 697; Maggini v. West Coast Life Ins. Co., 136 Cal. App. 472 [29 Pac. (2d) 263].)

“Finally the appellant argues that the trial court went beyond the issues raised in the complaint and reached into equity when it reduced the award from the amount shown to be due on the books of account. The point rests on the finding that by ‘inadvertence and mutual mistake’ the sum of over $2,400 was included in the account as due the respondent. The judgment in favor of respondent was reduced to that extent. This, the appellant argues, was a reformation of the contract of employment which the court could order only through its equity jurisdiction. Then, it is argued, that, since the action is one strictly at law, equitable remedies could not be granted. For the purpose of determining the running of the statute of limitations, the cause of action is deemed to be one on the account, and the statute is said to run from the last entry in the account. But the basis of the right of recovery is the contract of employment, and for this purpose the book account is deemed evidence of the contract, but not the contract upon which the right is based. When errors are found in the account they are errors in the evidence, and not errors in the basic contract. Hence, a reduction in the amount allowed from that shown due in the account is not a reformation of the contract of employment, and it does not bring into play the exercise of any equity jurisdiction. But if we should accept appellant’s theory, we would have to restore to the judgment the amount deducted. Respondent argues that the trial court erred in making the reduction, but concedes that he cannot raise the point because he did not take an appeal. But he is not averse to accepting the advantages of appellant's position. Since the error complained of was favorable, rather than prejudicial, to the appellant, he is in no position to urge a reversal on that ground.”

The appeal from the order denying defendant’s motion to tax costs requires consideration of three items charged by the plaintiff. These are the premiums paid on bonds filed by the plaintiff to procure writs of attachment, the cost of a copy of a deposition of the plaintiff taken by the defendant, and the cost of depositions of certain witnesses taken by the plaintiff but not used upon the trial. The defendant contends that it cannot be required to pay any of them.

In the superior court costs are allowed as a matter of right to a plaintiff upon a judgment in his favor in an action for money. (Sec. 1032, Code Civ. Proc.) The right to recover costs is entirely statutory and “the measure of the statute is the measure of the right”. (Estate of Johnson, 198 Cal. 469 [245 Pac. 1089].) The code makes no mention of particular items which may be charged as costs, but it requires a litigant to furnish a memorandum “of the items of his costs and necessary disbursements in the action”. (Sec. 1033, Code Civ. Proc.)

The term “costs”, it has been said, means “those fees and charges which are required by law to be paid to the courts, or some of their officers, or the amount of which is expressly fixed by law”. (Blair v. Brownstone Oil & Refining Co., 20 Cal. App. 316 [128 Pac. 1022].) The words “necessary disbursements” should be similarly construed. Certainly the statute does not contemplate that a defendant must pay all of the successful plaintiff’s expenses in connection with the litigation. The code authorizes the allowance of costs only, and the inclusion of “necessary disbursements” in the section requiring one who claims costs to file a memorandum of them does not authorize a litigant to collect from his unsuccessful adversary the amount of any expense which is not allowable as an item of “costs”. (Bond v. United Railroads, 20 Cal. App. 124 [128 Pac. 786].)

In his cost bill the plaintiff included the premium paid to a surety company “on attachment undertaking” and a premium paid to the surety “on alias attachment”. The general rule is that in the absence of statutory authority the premium paid for a bond required of a litigant in connection with the issuance of process may not be taxed as costs. (15 C. J. 146; see, also, note to Williams v. Sawyer Bros., 81 A. L. R. 1532.) This rule was followed in Williams v. Atchison, Topeka etc. Ry. Co., 156 Cal. 140 [103 Pac. 885, 134 Am. St. Rep. 117, 19 Ann. Cas. 1260], and Christenson v. Cudahy Packing Co., 84 Cal. App. 237 [257 Pac. 906]. In the first case the court affirmed an order striking from a cost bill the premium paid for a surety bond in an action of claim and delivery upon the ground that the right to take into possession the personal property in dispute is a privilege and not necessary to the prosecution of a cause of action. In the later ease the premiums on a surety bond given to stay execution of the judgment were disallowed upon the ground that the filing of a bond is a privilege, and not a duty imposed upon the defendant. The court added that “the appellant was not required to filé a surety bond for this purpose, but might have filed a personal bond for which no premium would have been required”. For the same reasons the defendant in this ease is not chargeable with the bond premiums.

The next disputed item is the charge for a copy of the plaintiff’s deposition which was taken by the defendant in this state. The code provides that the officer taking such a deposition must deliver it to the clerk of the court either “through the mail or by some safe private opportunity”. (Sec. 2032, Code Civ. Proc.) Thereafter, under certain conditions, it may be used in evidence. There is no requirement for one who takes a deposition to make a copy of it for any person. However, the use of copies of depositions is as common, or more common, than the use of copies of the transcripts of testimony given in court. They are obtained for the convenience of counsel in preparing for a trial. But the right to reimbursement for expenses depends upon the statutory provisions concerning costs and not upon the necessity, in the mind of the litigant, or his counsel, for the outlay. Hence, it has been held, the cost of a copy of the transcript on appeal is not chargeable as an item of costs, there being no authority or requirement therefor. (Sime v. Hunter, 55 Cal. App. 157 [202 Pac. 967]; Kahn v. Kempner, 66 Cal. App. 64 [225 Pac. 24].) The code provisions allowing the recovery of costs in the superior court compel a similar conclusion concerning the expense of a copy of a deposition.

Other challenged items represent amounts paid by the plaintiff in taking depositions which were not used at the trial. The plaintiff made a full showing concerning the necessity for .these depositions and the fact that the plaintiff did not offer them as evidence upon the trial does not necessarily indicate that he could have safely proceeded to trial without them. The necessity for such expenditures is always a question for the trial judge. (Welch v. Alcott, 178 Cal. 530 [174 Pac. 34]; Simpson v. Gillis, 1 Cal. (2d) 42 [32 Pac. (2d) 1071] ), and the appellant has made no showing of any abuse of discretion in the determination of this question.

The order taxing costs is modified by striking therefrom the sum of $40 expended for premiums on the surety bonds and $24.20 for a copy of plaintiff’s deposition; in all other respects it is affirmed, the appellant to recover its costs on the appeal from the order. The judgment is affirmed, respondent to recover his costs upon that appeal.

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

Rehearing denied.


author: WASTE, C. J.

text:
    [Sac. No. 5245.
    In Bank.
    October 21, 1938.]
    PHILIP AMBROSE et al., Appellants, v. AMERICAN TOLL BRIDGE COMPANY (a Corporation) et al., Respondents.

      Clarence A. Henning, Sherman G. Blood and Morgan A. Sanborn for Appellants.
    Dunn, White & Aiken, Joseph M. Raines and Breed, Burpee & Robinson for Respondents.
   WASTE, C. J.

Motion to dismiss appeal for failure to file a record on appeal within the prescribed period. The motion is supported by a certificate of the county clerk, which shows the following facts: On December 9, 1936, the trial court rendered judgment in favor of defendants and against plaintiffs. This judgment was entered May 8, 1937. On July 10th motion for new trial was heard and denied, and on July 15th notice of the ruling was given to plaintiffs. On August 9th plaintiffs filed notice of appeal from the judgment and from the order denying a new trial. Thereafter they secured extensions of time to September 8th within which to prepare and file their proposed bill of exceptions. On the latter date they served defendants with a proposed bill consisting of one page and one-quarter of typewritten statements, which form merely referred to matters alleged to have taken place on trial of the action, and prior and subsequent thereto, without any description of or. reference by which the matters or proceedings could be ascertained or identified. Defendants gave notice of motion to strike this document from the files, and also notice of motion to terminate proceedings on appeal.

The motion to strike was heard on November 24, 1937. The court found that plaintiffs had not used diligence or attempted in good faith to file a proposed bill of exceptions or draft thereof as required by section 650 of the Code of Civil Procedure; it found that the skeleton form was not such a bill or draft, and struck it from the files.

The motion to terminate proceedings was heard on December 28, 1937. The court found that plaintiffs had taken no steps to procure and pay for a reporter’s transcript; that their time for preparing and filing a bill of exceptions had expired on September 8th; that no proceedings were pending with the clerk of the court for preparation of a record on appeal; that the time within which such record could be filed had expired; and that plaintiffs had not prosecuted their appeal with due diligence or good faith. The court therefore granted defendants’ motion and ordered that all proceedings for preparation of a record on appeal be terminated. This order was signed on January 11th and filed on January 14, 1938.

Meanwhile, and on January 3, 1938, plaintiffs had filed an affidavit in this court asking for an extension of time within which to file a transcript on appeal on the ground that they desired to apply for writ of mandate to compel settlement of bill of exceptions, or to apply for relief under section 473 of the Code of Civil Procedure. This court granted an extension of time to March 4th, and thereafter granted successive extensions to June 28th, when a request for still more time was denied. On June 24th defendants filed the present motion to dismiss the appeal. The motion was heard by this court on July 5th. At that time plaintiffs requested and were allowed ten days within which to file points and authorities in opposition to the motion and fifteen days within which to file a transcript. These documents have never been filed.

It is now impossible for plaintiffs to obtain a record on appeal. The time within which they might have obtained an original bill of exceptions (secs. 650 and 1054, Code of Civ. Proc.), or a record under the alternative method (sec. 953a, Code Civ. Proc.), has expired. Although plaintiffs averred in their affidavit filed in this court on January 3d that they desired to move for writ of mandate to require the trial court to settle the bill, or to apply for relief under section 473 of the Code of Civil Procedure, they failed to pursue either remedy. The period within which they might have applied for relief under section 473 of the Code of Civil Procedure expired in May, 1938, six months after entry of the order of November 24, 1937, striking the proposed bill. So far as mandamtis is concerned, it is the rule that where a proposed bill is lacking in the very essentials of a bill of exceptions, writ of mandate will not issue to compel its settlement. (Dainty Pretzel Co. v. Superior Court, 7 Cal. App. (2d) 437 [45 Pac. (2d) 817].) Plaintiffs took no appeal from the order of January 14, 1938, terminating proceedings in the trial court, and the time within which such appeal could have been taken has expired. (Howland v. Howland, 11 Cal. (2d) 20 [77 Pac. (2d) 475].) Where the statutory period within which a record on appeal may be prepared and filed under either of the methods provided by law for perfecting an appeal has expired, and proceedings for procuring a transcript on appeal have been terminated by the trial court, a motion for dismissal is proper and must-be granted. (Bank of America etc. Assn. v. Haddan, 23 Cal. App. (2d) 596 [73 Pac. (2d) 946]; Hunter v. Paxton, 136 Cal. App. 332 [28 Pac. (2d) 1075].)

The appeal is dismissed.

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


author: THE COURT.

text:
    [L. A. No. 16650.
    In Bank.
    October 24, 1938.]
    BARBARA STANWYCK FAY, Appellant, v. FRANK FAY, Respondent.

      Charles W. Cradick, Dailey S. Stafford and Yerle N. Fry for Appellant.
    Hy Schwartz, Philip Stein and N. Stanley Levine for Respondent.
   THE COURT.

This proceeding concerns the custodial status of Dion Anthony Fay, born February 5, 1932, and adopted in December of the same year by these parties, plaintiff Barbara Stanwyck Fay and defendant Frank Fay. In the fall of 1935, after about seven years of marriage, plaintiff and defendant separated, and on December 30, 1935, plaintiff obtained an interlocutory decree of divorce from defendant. This decree gave plaintiff the custody of the minor, with the provision that defendant should have “the right to visit with said child at such reasonable times and places as the parties hereto may agree from time to time, and subject to the further order of this court upon proper application therefor”. The provision was carried into the final decree of divorce entered on January 2, 1937.

On December 3, 1937, defendant initiated the present proceeding by filing an affidavit wherein he averred that he had been denied his right to visit with the minor and prayed that the court fix definite dates and times for visitation when he might see and have the child. On the basis of this affidavit the court issued an order requiring plaintiff to show cause why the custodial provision of the divorce decree should not be modified. Later, as a precedural safeguard, defendant gave notice that he would move for modification of the decree. Thereafter the order to show cause and the motion came on for hearing together. Counsel for plaintiff objected to proceeding on the ground that the moving papers and affidavit of defendant failed to show any change of conditions subsequent to entry of the decree which, for the welfare of the child, would require that a different order be entered. This objection was overruled and a prolonged hearing was had. At the conclusion of the hearing, on January 14, 1938, the trial court ordered that plaintiff's custody be subject to the right of defendant to visit with the child every other Saturday, and on Tuesday and Thursday afternoons. The order provided, “On Tuesdays and Thursdays the defendant shall call for and visit with said minor child at its residence ancL if defendant on said days takes the child from its residence he shall bring the child back not later than 5:30 p. m. of said days. On Saturdays the plaintiff, or the child’s nurse, or other person directed by plaintiff, shall bring the child to the home of the defendant at 10:00 o’clock a. m. and at 5:00 p. m. of such days shall take the child back to its home; that on the days of visitation . . . during the hours as herein provided, the child shall be under the control of the defendant. The defendant shall at all times when with said child refrain from partaking of and shall not be under the influence of intoxicating liquors. The custody and right of visitation is subject to the further order of the court upon proper application therefor.” Plaintiff appealed from this order. Defendant has moved to dismiss the appeal or to affirm the order. The cause is also under submission on the merits.

No substantial question is presented by the appeal. The evidence shows that defendant’s efforts to exercise the right of visitation accorded him by the divorce decree were rendered futile by reason of the conduct of plaintiff. Plaintiff not only refused to agree to any reasonable time or place for visiting, but she denied defendant any opportunity at all to see the child, and even made it difficult for defendant to reach him by telephone. In fact, at the time of the hearing defendant had not seen the child for about a year and four months. In this situation it was proper for defendant to invoke the aid of the court to provide a working arrangement for enforcement of his right of visitation under harmonious conditions, and it was not necessary, in order to secure this modification of the custodial provision, to show a change of conditions subsequent to entry of the divorce decree. (Gury v. Gury, 219 Cal. 506 [27 Pac. (2d) 758].)

Upon the hearing plaintiff offered evidence of wrongful conduct on the part of defendant, of his addiction to the use of intoxicants, and of indiscretions committed by him when under that influence. This proof was not accepted by the trial court as establishing that defendant was not a fit person to visit with his child. Its only effect was to create a conflict of evidence which the trial court was warranted in resolving in defendant’s favor. Defendant himself testified that he had not had intoxicating liquor since November, 1936, nor, save for that one occasion, during a long period prior thereto. He stated that he did not drink; that he included beer as an intoxicating liquor; and that he did not even drink cider. Questioned by the court, he admitted that he had been in the habit of drinking intoxicating liquor, at times to excess, but he stated that in the year prior to the hearing he had not had a drop of liquor. Moreover, although defendant was using intoxicants during the period prior to his separation from plaintiff, she did not consider at that time that the habit rendered him unfit to visit with the child for on October 10, 1935, she entered into a property settlement agreement which provided that so long as defendant resided in the vicinity of Los Angeles the child would be taken to visit with him at least one day in each week. At the time of entry of the divorce decree on December 30, 1935, defendant was also adjudged to be a fit person to have custody of the child for periodical visits at reasonable times and places. If in plaintiff’s opinion conditions with respect to defendant’s fitness, or the demands of the child’s welfare, changed subsequent to entry of the divorce decree, then plaintiff’s remedy was to bring the matter before the court and secure a revocation of that portion of the custodial provision giving defendant the right of visitation. Plaintiff never sought this relief but contented herself with making it virtually impossible for defendant to exercise his right to see the child. Consequently in this proceeding by defendant to enforce his right under the existing custodial provision, plaintiff was in no position to complain that apparently the burden of proving that the right should be revoked was placed upon her.

There is no foundation for plaintiff’s assertion that the record indicates that the pleasure of defendant and not the welfare of the child prompted the court’s rulings. The following remarks, among others made by the court, indicate that the child’s welfare was uppermost in his thought: ‘‘The issue before the court is what the condition of this child is. . . . I am not concerned primarily with the individuals; it is the welfare of the child; where does the child live now; what kind of a life does he have, and what does the father do, what kind of a man is he; should he see the child and so forth; let us get right to the heart of the issue.” There is ample evidence to support the court's view that the welfare of the child will not be endangered by visits with defendant, particularly in view of the explicit limitations imposed by the order and its requirement that defendant be sober at all times when with the child. Then, too, the custody and right of visitation is subject to the further order of the court upon proper application therefor.

An application for modification of an award of custody is addressed to the sound legal discretion of the trial court. (Foster v. Foster, 8 Cal. (2d) 719 [68 Pac. (2d) 719].) The record here contains no showing of abuse of discretion.

The order is affirmed.


text:
    [L. A. No. 16803.
    In Bank.
    October 25, 1938.]
    D. JOSEPH COYNE, as Trustee, etc., Appellant, v. PETER E. SPELLACY et al., Defendants; M. A. SPELLACY, Respondent.

      D. Joseph Coyne, in pro. per., and J. E. Dalton for Appellant.
    Anne O’Keefe and Ralph C. Curren for Respondent.
   THE COURT.

Plaintiff, as trustee for the collection and disbursement of a fund in which defendants asserted respective interests, brought this action for declaratory relief. He alleged that he had collected and disbursed about $50,000, but that because of conflicting claims of some of the parties he had been unable to distribute the further sum of $1506.36. He prayed that defendants be required to set forth their claims to this sum so that the court might direct its disposal, and also that his own fees, costs, and charges against the fund be determined and ordered paid. Separate answers were filed by the several defendants. Issue was also joined on a cross-complaint filed by defendant M. A. Spellacy, and the cause proceeded to trial. Thereafter the trial court made findings and entered judgment wherein it decreed as follows: That at the commencement of this action plaintiff had in his possession $1506.36, from which fund he paid the shares due certain of the defendants, leaving a balance in hand of $828.50; that of the latter sum plaintiff was entitled to retain $82.85 as a commission, $19.50 for costs of suit, and $150 for attorney’s fees, and the remainder belonged $314.27 to defendant M. A. Spellacy, $235.70 to defendant J. D. Thomson, and $26.18 to defendant G. A. Alonzo. These defendants were given judgment against plaintiff for the respective amounts stated. Plaintiff appealed on the judgment roll. Defendant M. A. Spellacy now moves to dismiss the appeal or affirm the judgment.

Appellant argues two questions. First, he claims that as trustee he expended the sum of $258.46, for which he should have been allowed reimbursement from the trust fund. This expense, he states, was incurred in defending a certain cause of action instigated by defendant Spellacy, through his assignee Farrington, in the hope of securing, at the expense of the other parties in interest, a larger share of the trust fund than that to which he was entitled. On this issue the trial court found “that the cost and expense of the defense of the suit filed by said Farrington as such assignee plaintiff against the plaintiff herein as defendant, Los Angeles Superior Court File No. 379-597, in the sum of $258.46, is not a proper charge against, or a deduction charge by plaintiff against the funds in his possession, against said M. A. Spellacy”. This finding is conclusive. Inasmuch as appellant has presented his appeal on the judgment roll, the presumption is that there was sufficient evidence of a competent character to support the findings. The record contains no showing, in admitted allegations of the pleadings or elsewhere, to overcome the presumption. Neither do we find any inconsistency between the court’s general findings as to the truth of the allegations of certain pleadings and its specific findings.

Appellant’s second complaint is that the trial court erred in entering a personal judgment against him instead of merely directing him as trustee to make distribution of the funds in his possession according to the findings. Assuming that the judgment as entered constituted a personal judgment against appellant, still he has not, so far as the record shows, been prejudiced in any way by the form of the decree. He alleged in his complaint that he was unable to distribute money in his trust because of conflicting claims of the defendants thereto. He asked the court to determine their respective interests and to make an order directing him in the disposal of the fund. The decree as entered accords this relief. Appellant does not suggest that he no longer possesses the money. He could, of course, have deposited it in court, and thus discharged himself from further liability, but lie did not do so. All intendments are in support of the judgment where an appeal is taken on the judgment roll, and so far as the record shows the trial court did not err in its full .and complete determination of this controversy. Appellant’s contention that the court was without jurisdiction to render a judgment for money in a sum less than $2,000 is without merit. Having once obtained jurisdiction, the court properly retained the case and decided the whole controversy between the parties. (Silverman v. Greenberg, ante, p. 252 [83 Pac. (2d) 293], and cases therein cited.)

The judgment is affirmed.


text:
    [L. A. No. 16861.
    In Bank.
    October 25, 1938.]
    BURTHOLD WIDENER (H. PARK ARNOLD, Administrator, etc., Substituted Plaintiff), Respondent, v. TIMOTHY T. HARTNETT, Appellant.

      Dan M. Critchly and D. Joseph Coyne for Appellant.
    M. B. Towman and Holbrook & Tarr for Respondent.
   THE COURT.

This action was brought to set aside a conveyance and assignment of real and personal property made by defendant Timothy Hartnett to his wife, defendant Emma Hartnett, for the alleged purpose of defrauding his creditors. Plaintiff had judgment. Defendant Timothy Hartnett appealed. Plaintiff now moves to dismiss the appeal or affirm the judgment. No substantial question is presented by the appeal.

Appellant’s first contention is that plaintiff had no right to maintain this action because it was predicated upon a judgment which had not become final when the com-' plaint herein was filed. The following facts will reveal the basis for this claim: In a prior action plaintiff sued appellant and his alleged employer to recover for personal injuries and damage to property sustained as the result of an automobile collision. Plaintiff had judgment against appellant for the sum of $5,790.60, interest, and costs, but a nonsuit was entered in favor of appellant’s employer. Plaintiff appealed from the order granting the nonsuit and, in so doing, worded his notice of appeal in such manner that it might appear to also have included an appeal from the judgment in his favor and against appellant. That appeal, or purported appeal, was pending when the present action was commenced, but it was abandoned about a month after the complaint was filed and more than a year prior to entry of judgment herein. On two occasions prior to the filing of the present action, and on one later occasion, writs of execution were issued on the prior judgment against appellant, and were returned unsatisfied, without attempt by appellant at any time to quash the writs or to prevent plaintiff from endeavoring to collect on the prior judgment on the ground that a purported appeal therefrom was pending. These facts do not sustain appellant’s charge that the present action was premature.

It is not a prerequisite to a judgment creditor’s right to bring suit to set aside fraudulent conveyances that the judgment obtained by him against his debtor shall have become final by affirmance on appeal or by the lapse of time within which an appeal might have been taken. The creditor may attack the transfer as fraudulent when he has reduced his claim to judgment and has endeavored without avail to collect it by execution. (Kemp v. Lynch, 8 Cal. (2d) 457 [65 Pac. (2d) 1316]; Rossen v. Villanueva, 175 Cal. 632 [166 Pac. 1004]; Jenner v. Murphy, 6 Cal. App. 434 [92 Pac. 405]; 7 Cal. Jur., pp. 795, 796; 12 Cal. Jur., p. 1034.) Appellant concedes that this rule applies where an appeal from the judgment in favor of the creditor is taken by the judgment debtor and execution is not stayed by posting a supersedeas bond. But appellant urges that the rule does not apply in a situation like the present one where the appeal is by the prevailing party (referring to plaintiff’s purported appeal from the judgment in his favor and against appellant). In the ease of an appeal by the prevailing party, appellant urges no supersede as bond is required because the appeal itself operates as a stay suspending the judgment, and during the pendency of the appeal and until the judgment becomes final, the judgment creditor cannot maintain an action to set aside fraudulent conveyances. Appellant asserts this position in the face of the fact, already noted, that here proceedings were not stayed, but over the period from April, 1932, to April, 1938, three separate executions were issued on the judgment and returned unsatisfied, without effort on appellant’s part to recall or quash the writs or to prevent plaintiff from trying to collect on the judgment.

Appellant’s contention is without merit. It is completely answered by the trial court’s finding herein to the effect that the prior judgment against appellant was final and conclusive; that no appeal therefrom was pending; and that the appeal which had been taken against appellant’s codefendant had been duly abandoned. This finding is correct. The record shows that plaintiff’s appeal from the order of nonsuit was not intended to include, and did not include, an appeal from the judgment in his favor and against appellant. A party cannot appeal from a judgment in his favor. This is the general rule and although it may have exceptions, the present case does not fall within that category. (Maxwell Hardware Co. v. Foster, 207 Cal. 167, 170 [277 Pac. 327].)

The remaining contention of appellant concerns the sufficiency of the evidence to support the findings and judgment. The trial court found that about October 1, 1936, appellant attempted to transfer and convey to his wife by way of gift certain real property in Los Angeles, together with his interest in the estate, then in probate, of his deceased father. The court found that the sole consideration for the conveyance was, as expressed in the instrument, “love and affection”; that appellant had no other money or property out of which to satisfy plaintiff’s judgment; that both appellant and his wife knew that the conveyance would leave appellant insolvent; and that the conveyance was made by appellant, with the full knowledge of the wife, to hinder, delay, and defraud his creditors, particularly plaintiff. Further the court found that appellant has continued to occupy the real property and also that as a means of avoiding the writ of execution levied upon appellant’s interest in his father’s estate, the payments provided by the father’s will have been made to the wife.

These findings are fully supported by the evidence. Upon trial of the cause documentary proof was introduced, and in addition thereto both appellant and his wife were called to the witness stand by plaintiff under section 2055 of the Code of Civil Procedure. Although they pleaded the privilege accorded by their relationship of husband and wife, and this somewhat limited the scope of their examination, nevertheless the making of the gift conveyance was shown as well as the fact that it left appellant insolvent. Testimony was also admitted with respect to appellant’s continued residence upon the real property, and his continued interest in his father’s estate. This evidence clearly established that the conveyance was fraudulent and void as to appellant’s existing creditors. (Secs. 3439 and 3442, Civ. Code; see, also, Tobias v. Adams, 201 Cal. 689 [258 Pac. 588].)

The judgment is affirmed.


author: CURTIS, J.

text:
    [S. F. No. 16055.
    In Bank.
    October 28, 1938.]
    GIBSON PROPERTIES COMPANY (a Corporation) et al., Appellants, v. CITY OF OAKLAND (a Municipal Corporation), Respondent.

      Melville C. McDonough and Raymond C. Gericke for Appellants.

      F. Bert Fernhoff, City Attorney, and Hilton J. Melby, Assistant City Attorney, for Respondent.
   CURTIS, J.

The following statement of facts upon which this action is based is expressly approved by the appellants, and impliedly by the respondent. We, therefore, accept it as the true factual situation of the parties in this action.

This appeal was taken from a judgment for the defendant in an action at law for damages claimed because of changes in the design and construction of a building made in anticipation that street-opening proceedings, later abandoned, would be carried through to completion.

In March of 1926 the appellant Gibson Properties Company had acquired title to an irregularly shaped piece of land in Oakland within the block bounded on the west by Franklin Street, on the south by Water Street, on the east by Webster Street and on the north by First Street, upon which it proposed to erect a three-story concrete warehouse for the appellant Lawrence Warehouse Company. On March 15, 1926, the Properties Company made a lease to the Warehouse Company of the proposed warehouse, according to plans and specifications then prepared, for a term ending October 15, 1946, for a total rental of $900,000. About this time the Properties Company was granted a building permit, and on April 2, 1926, it made a contract for the construction of the warehouse for $296,000, which was to cover the entire area owned by the Properties Company, the northerly line of which, extending for 100 feet was the southerly line of First Street. On April 15, 1926, a letter was written by the commissioner of public works, referring to the fact that a building permit had been issued, indicating that street-widening proceedings were going to be started and that the street to be opened would impinge upon the Properties Company lot and suggesting “that before definite plans are made for any construction it would be advantageous to yourselves and the City if a conference could be arranged”. Work was, nevertheless, started on the warehouse. On June 17, 1926, the respondent by ordinance, declared its intention to widen First Street for the two blocks from Broadway to Webster Street, under the Street Opening Act of 1903, which opening, the ordinance showed, would add to the width of First Street by taking 20 feet off the northerly side of the two blocks in question. The Properties Company had designed on the northerly 20 feet of its lot and within the walls a spur track so depressed that the floor of a railroad ear would be level with the floor of the warehouse. As soon as the ordinance of intention was passed, the respondent’s commissioner of public works notified the Properties Company in writing of the passage, and ordered it to cease and desist from any building operations upon the 2'0-foot strip, which order was at once obeyed. Before the ordinance had been passed the foundation of the north wall of the building had been laid along the south line of First Street, forms for the pouring of the concrete for the entire height of the building’s north wall had been made, the excavation for the depressed track had been dug, and certain other work had been done. Appellants then had their plans redrawn, setting the north wall back, or southerly, 20 feet from its original location, setting the elevator pit, likewise, 20 feet back, and eliminating the depressed track. The cost of these changes and the redesigning of the building was $5,696.60, which the court found was the reasonable value of that work. As reconstructed the building occupied 98.4 per cent of the ground area and contained 95.35 per cent of the floor space originally planned. On September 16,1926, an ordinance was adopted ordering the widening of First Street, in the manner already indicated, and directing condemnation proceedings. A condemnation suit was filed on October 29, 1926, and eventually went to trial, resulting in an interlocutory judgment on July 9, 1929, awarding the appellants $33,997.

On September 15, 1931, the respondent adopted an ordinance repealing the ordinance of intention and all proceedings thereunder, and on December 11, 1931, filed in the condemnation proceedings a notice of abandonment and request for dismissal. On December 16, 1931, the court dismissed the condemnation suit.

May 12, 1933, the complaint was filed in the instant case alleging most of the facts just stated, and claiming general damages in the sum of $55,392, and special damages of $5,696.60 for the Properties Company and $24,608.93 for the Warehouse Company.

These facts were in all material respects embodied in the findings of the court. In addition thereto, the court found that plaintiffs’ allegation as to damages contained in paragraph XX of their second amended complaint was untrue. Paragraph XX of said complaint was as follows:

“That on the 22nd day of June, 1926, the date of the first publication of the notice of intention to condemn, the market value of said parcel of land described in paragraph IV hereof with the completed improvements contemplated by said plaintiff was $450,000; that the market value of said land and of said improvement as constructed by the plaintiff after the acts hereinbefore in this complaint alleged, was and is $370,000; that the acts and conduct of the defendant as hereinbefore alleged damaged plaintiff Gibson Properties Company in the sum of $80,000. Plaintiffs are informed and believe and therefore allege the fact to be that the expense of restoring said building to its original condition as planned would reasonably cost in excess of the sum of $80,000. ’ ’

It further made the following explicit finding (finding 9) :

“It is true that in June, 1926, the fair market value of said property described in said Second Amended Complaint, improved as it was originally contemplated, was the sum of $335,000.00; that it is true that in June, 1926, the fair market value of said property improved pursuant to its altered plan was the sum of $335,000.00.”

Plaintiffs contend that the mere finding of the court that paragraph XX of the amended complaint is untrue is a typical case of a negative pregnant, and establishes nothing. Conceding this statement to be true, it must be admitted that the facts found by the court, and expressly set forth in finding 9 are utterly inconsistent with the allegations of paragraph XX of said amended complaint. Plaintiffs alleged that the market value of said property with the completed improvements contemplated by the plaintiffs was the sum of $450,000. The court found that the value of said property improved as originally contemplated was $335,000. Plaintiffs alleged that the market value of said property as constructed was the sum of $370,000. The court found that said property improved pursuant to its altered plan was the sum of $335,000. The court by these findings as to the market value of said property if improved as contemplated, and as improved pursuant to the altered plan, impliedly found that the allegations in paragraph XX of plaintiffs’ second amended complaint as to the market value of said property under the two conditions mentioned therein were not true. If these findings are supported by the evidence, they in turn support the conclusion of the trial court that the plaintiffs sustained no damage by an;*- action of the defendant whereby they were induced or compelled to alter their original plans for the construction of the building upon said real property.

Plaintiffs concede that defendant has offered evidence which at first appearance seems to support said finding, but they contend that this evidence is incompatible with the physical facts, which the evidence without conflict shows existed at all times in reference to said property. In this connection, plaintiffs call to our attention that the building as originally planned covered the entire lot, which of course would include the 20-foot strip which the city sought to condemn, and that the original plans contemplated a depressed railway track extending along said 20-foot strip, while the building as constructed under the altered plans did not extend over the 20-foot strip and did not include the depressed railway track. Furthermore, in omitting the railway track, it was necessary to construct ramps to be used in the loading and unloading of cars. These ramps occupied some 2,800 square feet of space in the building which otherwise could have been used for general warehouse purposes. There was also an additional cost of operating the ramp, which would not have been necessary had the building been constructed with a depressed railway track. The 20-foot strip of land was 100 feet long. It, therefore, contained 2,000 square feet. The building was three stories in height. There was therefore 6,000 square feet more in the building as planned than in the building as constructed, but as the depressed railway track would, of course, have occupied the first floor, this would leave the other two floors each containing 2,000 square feet, or a total of 4,000 square feet more in the building as originally planned than were in the building as actually constructed. These physical facts, the plaintiffs rely upon, and contend that the evidence in behalf of the defendant in support of finding No. 9 is incompatible with these physical facts which are shown to exist by evidence without conflict. In addition to these physical facts which the plaintiffs rely upon to overcome the findings of the court, the plaintiffs produced expert witnesses whose testimony was in direct conflict with said finding of the court. As opposed to this evidence on behalf of plaintiffs, defendant produced two experienced real estate men who testified that the market value of the building as originally planned, and its market value as finally constructed, was the same. One of these witnesses, Mr. Kittrelle, was subjected to a most rigid cross-examination by counsel for the plaintiffs. He explained that the depressed track along one frontage of a building did not increase the market value of the property where it takes away the street frontage, and, where it makes it impossible to have ingress to and egress from the adjoining street, the presence of the depressed or sunken track impairs the marketability of the property. He further testified on cross-examination that the building as constructed was too big for the purpose for which it was constructed, and the overhead cost of operating the large building doomed the enterprise to failure. In other particulars, this witness explained and fortified his opinion that the market value of the property, had the building been constructed as planned, did not exceed the market value of the property after the building had been constructed according to the altered plans. In addition to the testimony of these two expert witnesses in support of the findings of the court, the trial judge upon the application of the plaintiffs, viewed the premises and inspected the building thereon upon the express stipulation that the observations made by him might be considered as testimony in the ease. Information so obtained by the court “is independent evidence that can be taken into consideration in determining the issue of the case”. (Hatton v. Gregg, 4 Cal. App. 537, 540 [88 Pac. 592]; Otey v. Carmel Sanitary Dist., 219 Cal. 310, 312 [26 Pac. (2d) 308]; Ethel D. Co. v. Industrial Acc. Com., 219 Cal. 699 [28 Pac. (2d) 919].) While it must be conceded that the physical facts as developed at the trial of the ease might be held to be strong proof of the contention of the plaintiffs that the building as contemplated was of greater value than the building which was actually constructed, yet in view of the evidence as set forth above, we cannot say that these physical facts are so incompatible with the other evidence as to compel the conclusion that such evidence is unworthy of belief. The reasons given upon cross-examination by defendant’s witness, Kittrelle, supporting his opinion as to the market value of said property under the two different situations apparently did not appear unreasonable to the trial judge whose duty it was to weigh the testimony of this and all other witnesses in the case, and their testimony taken in connection with the knowledge of the court gained by an inspection of the premises was without doubt sufficient to constitute a substantial conflict in the evidence upon the question of the market value of said property. The court resolved this conflict in favor of the defendant under the two proven conditions and as set forth in finding 9. In these circumstances, it must be held that this finding is supported by the evidence in the ease. If then the market value of said property was the same after the construction of the building pursuant to the altered plans as it would have been, if it had been constructed as originally planned, then the plaintiffs sustained no damage by reason of the change in said plans, and the' construction of said building in pursuance of the altered plans. The conclusion of the trial court that plaintiffs sustained no damage by reason of the change in the plans of said building must be sustained.

Plaintiffs contend, however, that the case was tried not only on the theory of the diminution of the market value of their property by reason of the change in the plans pursuant to which the building was constructed, but also upon the theory that plaintiffs were damaged in the amount that it would cost to reconstruct or restore the building to the condition in which it would have been had no alteration been made in its plan of construction. In support of their latter theory, the plaintiffs have cited a number of authorities where it was held, in actions to recover on policies of fire insurance for the loss of buildings destroyed by fire, that the cost of restoring the destroyed building is frequently used as a basis of determining the extent of the loss, rather than the market value of said property. We question whether any of these authorities are applicable to the facts in the present action. We are not able to agree with the plaintiffs in their contention that the case was tried upon the double theory of damages, that is, upon the theory that the damages are measured by the depreciation of the market value due to the construction of the building according to the altered plans, and upon the theory that the measure of damages is the cost of reconstructing the building to make it conform to the original plans.

In the course of the trial one of the attorneys for the plaintiffs stated their position as to the proper measure of damages as follows: “Here is the theory, if the court please. The eases seem to be in this line as quoted in the brief, that your primary measure of damages is the difference in cost or the difference in market value of the property contemplated and as it actually is. That is your primary measure of damage, but the cases go further and hold that if it is cheaper to reconstruct or repair the building, that whichever is the least, is your measure of damages. We propose to show first that it would be impracticable to reconstruct the building from the business standpoint and to shut down, and secondly, that by actual figures it would cost as much as our other damages are in that measure of damage.”

Plaintiffs then produced evidence which tended to support their allegations that the difference in the market value of the property if the building had been constructed according to the original plans and as constructed pursuant to the altered plans was the sum of $80,000. They also attempted to show that the cost of reconstructing the building to make it conform to the original plans was the same amount. This latter evidence ivas apparently introduced upon the theory that they were entitled to recover the lesser of the two amounts of damages. No claim was made during the trial that they were entitled to recover any greater amount than that which represented the diminution in the market value of the property due to the change in the construction of said building.

It is well settled that the theory upon which a case was tried in the court below must be followed on appeal. (Story v. Nidiffer, 146 Cal. 549, 552 [80 Pac. 692]; Durkee v. Chino Land & Water Co., 151 Cal. 561 [91 Pac. 389]; Kaufman v. Tomich, 208 Cal. 19 [280 Pac. 130].)

Plaintiffs predicated their action solely upon the theory that the market value of their property had been diminished and that the amount of such diminution in value was not more than it would cost to reconstruct the building pursuant to the original plans. In order to show that such amount did not exceed the cost of reconstruction of the building, it was necessary for them to establish such cost of reconstruction, but they at no time contended that the cost of such reconstruction was less than the amount in value which the property had been diminished, or that they were entitled to recover such cost of reconstruction if it exceeded the amount of the diminution in the market value of said property due to the construction of the building pursuant to the changed plans.

However, this does not dispose of the entire ease before us; but only that part of plaintiffs ’ claim for damages which they contend'they sustained by reason of their having constructed their building pursuant to said altered plans. It does not dispose of their claim for $5,696.60, representing the cost expended by the plaintiff, Gibson Properties Company, prior to the enactment of the ordinance of intention by the city council and prior to the notice to said plaintiff to cease and desist from the construction of any building upon said 20-foot strip. As shown by the statement of facts set forth above, a building covering the whole of said property, including said 20-foot strip, was in the course of construction at the time of the passage of said ordinance of intention, and, upon receiving said notice to cease and desist, said plaintiffs then had their plans redrawn setting back the north wall southerly 20 feet from its original position, changing the location of the elevator pit, and eliminating the depressed railway track. This was done at a cost of $5,696.60.

As noted in the statement of facts, the proceedings to condemn the plaintiffs’ property were instituted and conducted under the Street Opening Act of 1903 (Stats. 1903, p. 376), and amendments thereto in force at the time of the commencement of said proceedings and during their pendency. The case of James v. City of Toledo, 24 Ohio App. 268 [157 N. E. 309, 310], is very closely in point with the instant case as will appear from the following excerpt from the opinion therein: “We have no doubt that the contention that the city could abandon the proceedings to appropriate this property for street purposes without being liable for damages is correct, but that does not determine the sufficiency of the averments of the petition. It is apparent from the averments that a lawful permit had been issued to the plaintiff, authorizing her to proceed with the construction of a dwelling house on her lot, and that, acting on such permit, she had in good faith expended large sums of money in proceeding with the excavation, drainage, and other work looking toward the construction of a dwelling house authorized by the permit, and the purpose of this action is to recover damages thus suffered. Is the city liable for such damages? If the city in what it did in the premises was acting in a governmental capacity, such liability would not arise. This nonliability in damages for governmental acts of municipalities has long been established and is a fundamental principle of the law. ’ ’

That the city in the improvement of its highways is acting in a governmental capacity is held in McNeil v. City of South Pasadena, 166 Cal. 153 [135 Pac. 32., 48 L. R A. (N. S.) 138], and Municipal Bond Co. v. City of Riverside, 138 Cal. App. 267, 274 [32 Pac. (2d) 661], Plaintiff, Gibson Properties Company, concedes this general rule and admits that if it is controlling in the instant case they have no right of recovery. It contends, however, that the facts in this case bring it within the exception recognized in the cases of City of Los Angeles v. Cohn, 101 Cal. 373 [35 Pac. 1002]; Times-Mirror Co. v. Superior Court, 3 Cal. (2d) 309 [44 Pac. (2d) 547], and McGee v. City of Los Angeles, 6 Cal. (2d) 390 [57 Pac. (2d) 925]. No useful purpose would be gained by a detailed analysis of these cases showing that the rule announced therein is inapplicable to the instant case. In those eases it was held that an exceptional situation existed therein which exempted them from the general rule relieving the municipality from liability for dámages upon a dismissal of a proceeding in condemnation. There was nothing exceptional in the instant case in so far as the claim of the Gibson Properties Company for $5,696.60 is concerned. It is, therefore, governed by the general rule which holds that by a dismissal of a condemnation proceeding after judgment fixing the value of the property sought to be condemned, a municipality is not liable for damages in the absence of statute authorizing such recovery. No contention is made that any such statutory authority exists in this state which would justify a recovery on the claim here involved.

The judgment is affirmed.

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


text:
    [L. A. No. 16765.
    In Bank.
    October 31, 1938.]
    L. P. FELDMEIER et al., Petitioners, v. THE SUPERIOR COURT OF SANTA BARBARA COUNTY et al., Respondents.

      Morin, Newell, Brown & Hamill for Petitioners.
    Heaney, Price, Postel & Parma for Respondents.
   EDMONDS, J.

By this proceeding the petitioners seek a writ of mandate directed to the respondent court requiring the issuance of a writ of execution upon a judgment in their favor. They also ask that a writ of prohibition issue to prevent the superior court from making an order dispensing with a bond on the appeal of Security Title Insurance and Guarantee Company from the judgment.

The petitioners are the plaintiffs in an action brought in the superior court against the Security corporation and others. They recovered a judgment and applied to the clerk of the court for a writ of execution thereon. The clerk refused to issue the writ, whereupon petitioners moved the court for an order requiring the clerk to do so. The motion was denied. At the same time the Security corporation made a motion for an order dispensing with an undertaking for the purpose of staying the execution of the judgment pending its appeal upon the ground that it is a trustee acting in another’s right. (Sec. 946, Code Civ. Proc.) The court took this motion under advisement and a decision upon it is now pending.

The controversy concerns certain money and property held by the Security corporation as the depositary under an indenture providing for the issuance by Mortgage Securities, Incorporated, of mortgage participation certificates against securities deposited with it. The petitioners, as owners of some of these certificates, after default, sued to recover the amounts due thereon, demanding, among other things, that the assets held by the Security company be charged with a lien therefor and that they have a personal judgment against the depositary on account of an alleged breach by it of the provisions of the trust indenture. They also challenged the validity of certificates issued to Jane V. Reinert.

The judgment in this action went in favor of the plaintiffs. It determines that they are the owners of certificates of a total par value of $77,833.74; that the certificates of Jane V. Reinert of a par value of $52,150 are void; that Mortgage Securities, Incorporated, and Security Title Insurance and Guarantee Company are “charged in favor of plaintiffs with the sum of $77,833.74 . . . and that this sum is due and owing ... ”. The judgment also gives the plaintiffs a lien upon all the trust assets in the possession of the depositary, “which liens are . . . prior and superior to any and all liens, interests or title which any other party or parties to this action may have or claim ...” and that these liens shall be enforced by the application forthwith of $20,007.36 in the hands of the depositary, and that in case of refusal or failure of Security Title Insurance and Guarantee Company to pay this amount within ten days after the filing and entry of the judgment, any of the plaintiffs “may have execution against” it.

By other provisions of the judgment the plaintiffs’ lien against the remainder of the cash, property or assets in the hands of the depositary may be enforced either by writ of execution and order of sale or by conversion into cash under the direction of the court, “payments out of said proceeds to be made from time to time as may be ordered by this court”. Securities, real property and assets other than money are to be liquidated by the depositary within four years from the date upon which the judgment was filed, “or in such other time as the court may hereafter on due notice prescribe If upon liquidation of the assets, the proceeds are insufficient to pay the several amounts found due and owing to the plaintiffs respectively, they are and each of them is entitled to have and recover from Mortgage Securities, Incorporated, and Security Title Insurance and Guarantee Company, jointly and severally, “the amount of such deficiency and balance that may remain due and unpaid to each of them respectively”, and judgment shall be made and entered therefor. “It is decreed by the court that execution shall issue only upon and pursuant to the order, or orders of this court. And that no such order or orders for execution shall be made by this court except upon noncompliance with any of the terms or provisions of this judgment for the period of twenty days or unless the security . . . deposited with the Depositary is insufficient to satisfy the judgment. ’ ’

It thus appears that the judgment orders the depositary to pay to the plaintiffs immediately $20,007.36 of the trust fund held by it, and holds it personally liable for a possible deficiency, the amount of which, if any, cannot now be determined. Security Title Insurance and Guarantee Company and Jane V. Reinert have each appealed from this judgment and the question for decision in the present proceeding concerns the rights of the parties pending the determination of these appeals.

Although an appeal from a judgment directing the payment of money does not stay the execution of the judgment or order unless an undertaking be filed in the form and amount required by the Code of Civil Procedure, “the court below may in its discretion dispense with or limit the security required by this chapter, when the appellant is an executor, administrator, trustee or other person acting in another’s right”. (Sec. 946.) Clearly, in appealing from the judgment requiring it to pay to the plaintiffs $20,007.36 from the trust funds held by it, the Security company is acting in another’s right. Conflicting claims to all of the trust assets, including this money, are now pending and undetermined. The depositary asserts no interest in these assets except for certain amounts claimed by it as fees earned in the administration of the trust and expenses of administration. It is not concerned with the conflicting claims of the petitioners and Jane V. Reinert.

In this situation an order pursuant to the provisions of section 946 of the Code of Civil Procedure would be a proper one for the respondent judge to make. Ordinarily a trustee should not be required to pay out trust funds to which conflicting claims are pending and undetermined. (Bank of America Nat. T. & S. Assn. v. Standard Oil Co., 10 Cal. (2d) 90 [73 Pac. (2d) 903]; Kentfield v. Kentfield, 4 Cal. (2d) 585 [51 Pac. (2d) 94].) There is sound reason for such a rule. If the depositary in the present case now paid to the plaintiffs the $20,007.36 allowed them by the judgment and it is later reversed or modified on appeal, the depositary might be confronted with many practical difficulties in distributing the trust assets as the court might later require in a final determination of the controversy. It is the duty of a court to preserve the status quo, and in the absence of any showing that a trustee is financially unsound or that trust assets may be dissipated before the final judgment, the trial court may well exercise the discretion given it by section 946 of the Code of Civil Procedure in favor of dispensing with a bond.

The case of Halsted v. First Sav. Bank, 173 Cal. 605 [160 Pac. 1075], is not at variance with the conclusions here reached. In that case a judgment was entered in favor of one of two conflicting claimants to a sum of money on deposit in the First Savings Bank. The unsuccessful claimant appealed and applied for a writ of supersedeas to restrain enforcement of the judgment pending appeal. The bank did not appeal, and this court granted a writ of supersedeas conditioned upon the filing of a bond by the appellant in twice the amount of the judgment. It is true that the opinion states: “If the bank had appealed therefrom, it could have stayed enforcement of the judgment against it pending such appeal only by giving the stay bond provided by section 942 of the Code of Civil Procedure." However, that pronouncement is dictum, and the court appears to have overlooked the right of the lower court, under section 946 of the Code of Civil Procedure, to dispense with a bond in such a situation.

The personal judgment against the trustee stands in a different category and the trial court has no authority to dispense with a bond to stay execution upon it. However, this judgment is one for an undetermined amount. The court ordered the trustee to liquidate the non-cash assets of the trust over a period of four years. The petitioners are given a first lien upon this fund, and in the event that it is insufficient to satisfy their claims in full, they are entitled to have recourse against the trustee personally for any deficiency. Obviously no execution can be issued upon that portion of the judgment at this time. An execution must refer to the judgment and state “if it be for money the amount thereof, and the amount actually due thereon”. (Sec. 682, Code Civ. Proc.; Bank of America Nat. T. & S. Assn. v. Standard Oil Co., supra.) Only after the liquidation plan has been carried out and the court makes a further order fixing a deficiency for which the depositary is liable will the plaintiffs have a judgment upon which a writ of execution may issue.

It is, therefore, ordered that a writ of mandate issue commanding the respondent clerk to issue execution in favor of the plaintiffs and against Security Title Insurance and Guarantee Company in the amount of $20,007.36 unless prior to the service thereof the respondent judge has made an order dispensing with an undertaking on behalf of said corporation upon its appeal from said judgment. The petition for a writ of prohibition is denied.

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

Rehearing denied.


author: WASTE C. J.

text:
    [Crim. No. 4171.
    In Bank.
    October 31, 1938.]
    THE PEOPLE, Respondent, v. BENNIE BONIFACIO ARANDA, Appellant.

      Willard W. Shea, Public Defender, for Appellant.
    U. S. Webb, Attorney-General, and William F. Cleary, Deputy Attorney-General, for Respondent.
   WASTE C. J.

In an information filed by the district attorney of Alameda County the defendant was charged with the murder of three human beings. He entered pleas of not guilty and not guilty by reason of insanity. Thereafter defendant withdrew his plea on the general issue and entered a plea of guilty to each charge. Upon waiver of a jury, defendant went to trial before the court on the sanity issue alone. Upon overwhelming evidence the court below found the defendant to be sane. The degree of the respective homicides was thereupon fixed as of the first and defendant was sentenced to pay the extreme penalty.

Upon this “automatic” or statutory appeal he does not challenge the sufficiency of the evidence on the sanity issue. As already indicated, it points unmistakably to his sanity. Defendant’s first contention has to do with the asserted error of the trial court in refusing to permit the witness Applebaum to express an opinion as to his sanity at the time of the commission of the homicides. No error or prejudice resulted therefrom. It appears that the witness had not seen the defendant for several months prior to the homicides. Any question of remoteness was for the trial court’s determination in the exercise of a sound discretion. (People v. Boggs, ante, p. 27 [82 Pac. (2d) 368]; People v. Overacker, 15 Cal. App. 620, 630 [115 Pac. 756].) Moreover, following objection to the question, defense counsel stated “as that time was not involved, the question would not be relevant”. The district attorney stated he had “no objection to the witness giving his opinion on the defendant’s sanity at the last occasion he saw him” and on cross-examination the witness declared that “we always found (defendant) perfectly normal and sane at all times”. Under all of the circumstances, no error or prejudice resulted from the ruling of which complaint is made.

Defendant’s second and final contention is that the court below erred “in finding the defendant guilty of murder in the first degree, as it is our belief that no sufficient motive for the murder was shown to make it other than murder of the second degree”. We pause here to give a narrative of the facts and circumstances underlying and surrounding the commission of the three homicides of which defendant stands convicted. Defendant, a native of the Philippine Islands, though married and a father, started living with a Mexican girl several months prior to the homicides. Apparently because of defendant’s failure to take the necessary steps looking to their marriage, the girl left the defendant. Several days later defendant sought out the girl in the restaurant where she worked as a waitress. For approximately one-half hour they discussed the girl’s return to defendant. Upon her refusal to again live with him, defendant produced a pistol and fired at her. The shot missed its mark but struck and wounded a third person. As a fourth person approached defendant, undoubtedly with a view to disarming him, the defendant fired at him and inflicted two wounds. Defendant then assaulted the girl with whom he had been living by striking her over the head with the gun. She fled into a nearby barber shop. In the meantime defendant scuffled with others in the restaurant and shortly thereafter followed the girl into the barber shop. There he seized a pair of shears with which he stabbed the girl who then escaped his murderous onslaught. As a result of an ensuing scuffle with others, three Filipino boys were ultimately stabbed to death by defendant. This prosecution followed. There can be no doubt that the three unlawful and deliberate killings by defendant constituted murders of the first degree. The fact that prior to the occasion of the assaults the defendant entertained no ill-will toward his victims and no “motive” theretofore existed for the murderous assaults upon them, is immaterial. Motive is not an indispensable element of murder. Nor to constitute murder of the first degree is it essential that there should be any appreciable space of time between the intent to kill and the act of killing. They may be as instantaneous as successive thoughts of the mind. Whether the three killings were the result of the victims obtruding themselves between the defendant and the object of his vengeance or were the result of “mistake” in defendant’s effort to kill the girl, they would, nevertheless, be murders of the first degree. (Sec. 189, Pen. Code; People v. Suesser, 142 Cal. 354, 362-367 [75 Pac. 1093]; People v. Trebilcox, 149 Cal. 307, 309 [86 Pac. 684].)

The judgments are, and each is, affirmed.

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