author: EDMONDS, J. SHENK, J., Dissenting.

text:
    [Crim. No. 4217.
    In Bank.
    July 25, 1939.]
    In the Matter of the Application of CARL PETERSON for a Writ of Habeas Corpus.

      Jerome L. Schiller for Petitioner.
    Earl Warren, Attorney-General, William F. Cleary, Deputy Attorney-General, and A. E. Bagshaw, District Attorney, for Respondent.
   EDMONDS, J.

Ordinarily, the purpose of a writ of habeas corpus is to procure one’s discharge from custody alleged to be illegal. In the present case, the petitioner, an inmate of the state prison at San Quentin, is demanding the right to reject a parole granted to him by the board of prison terms and paroles under the indeterminate sentence law. (Sec. 1168, Pen. Code.) Although petitioner claims the further right to an absolute discharge from custody, logically, his primary contention would require an order remanding him to the custody of the warden for the remainder of the sentence originally imposed upon him. That an extraordinary writ may be used by a convicted prisoner to compel the execution of his sentence was decided in In re Collins, 8 Cal. App. 367 [97 Pac. 188].

The petitioner’s unusual position is occasioned by the fact that before his difficulties in this state he was convicted of a felony in Texas for which he was sentenced to a term of 30 years. Later he escaped from the Texas prison to which he was committed and came to California where, in 1935, he was charged with the crime of burglary in the second degree after having been previously convicted of a felony. The State of Texas having waived extradition, he was tried, convicted, and sentenced to the state prison for the term prescribed by law. (Sec. 1168, Pen. Code.)

In due time the board of prison terms and paroles fixed his term of imprisonment at 7% years, the last two years of which were to be on parole “to the custody of the Texas authorities”. When he was eligible for parole, but still in custody at San Quentin prison, an agent of the State of Texas served a warrant of extradition, issued by the Governor of California, upon him. The return of the warden to the writ of habeas corpus by which it is sought to stay the execution of that warrant, states that unless otherwise ordered, by this court, he will deliver the petitioner to the agent of the State of Texas as directed by the governor.

The principal point urged by the petitioner challenges the right of the board of prison terms and paroles to terminate his imprisonment under parole conditions not accepted by him. He argues that as a parole is not a termination of the sentence imposed, but a continuance of that sentence under particular conditions fixed by the board and required to be fulfilled by the convict, it is only effective when accepted and cannot be forced upon him without his consent. In support of this contention, he relies by analogy upon pertinent rules which have been established in regard to executive pardons.

It has long been held that consent by the prisoner is a prerequisite to the validity of a conditional pardon because its terms may be more objectionable than the punishment fixed by the sentence. (United States v. Wilson, 7 Pet. 150 [8 L. Ed. 640] , and see cases cited in annotation, 52 A. L. R. 835.) The same conclusion has been reached in California. Many years ago this court held that to be effectual, a conditional pardon must be accepted by the prisoner. (Ex parte Marks, 64 Cal. 29 [28 Pac. 109, 49 Am. Rep. 684].)

The word' “parole” was originally a military term signifying the word of honor or promise of a prisoner of war that if he be released, he will comply with certain conditions, such as to refrain from bearing arms against his captors. As used in penology, the term has come to signify the release of a prisoner prior to expiration of his term of imprisonment conditioned upon his continuing good behavior during the remainder of the term. In its essential characteristics, therefore, a parole cannot be distinguished from a conditional pardon. Bach constitutes the release of a convict upon fixed conditions before the expiration of his term of imprisonment and many courts have drawn upon this analogy to hold that a proffered parole must likewise be accepted to be effective. (Ex parte Hawkins, 10 Okl. Cr. 396 [136 Pac. 991]; Ex parte Taggert, 12 Okl. Cr. 439 [158 Pac. 288]; Fuller v. State, 122 Ala. 32 [26 So. 146, 82 Am. St. Rep. 17, 45 L. R. A. 502] ; Re Patterson, 94 Kan. 439 [146 Pac. 1009, L. R. A. 1915F, 541]; Ex parte Colcord, 49 S. D. 416 [207 N. W. 213]; State v. Goddard, 69 Or. 73 [133 Pac. 90, 138 Pac. 243, Ann. Cas. 1916A, 146].) Section 1168 of the Penal Code, which defines the rights and duties of the board, and empowers it to parole prisoners upon such conditions as it may deem proper, does not authorize the board to require the prisoner to accept a parole ordered by it, and under the principles stated and applied in the authorities cited, the consent of the petitioner is a prerequisite to his release upon parole.

However, this conclusion does not entitle petitioner to an absolute discharge from custody at this time, for he cannot convert the board’s order into an unconditional parole merely by rejecting the condition attached. In rejecting the order of parole, he renders himself bound to serve the unexpired term of his sentence as now fixed or subsequently modified. It is, therefore, ordered that petitioner be discharged from custody by virtue of the warrant of extradition and remanded to the custody of the respondent warden.

Houser, J., Langdon, J., and Curtis, J., concurred.

SHENK, J., Dissenting.

I dissent.

As a part of his return herein, the warden of San Quentin prison has filed the original warrant of extradition signed -by the Governor of this state on January 17, 1939, and directing that the petitioner be delivered to the Texas authorities.

It is settled that the exercise of the executive discretion to issue the extradition warrant may be inquired into in habeas corpus proceedings. (Hyatt v. People, 188 U. S. 691, [23 Sup. Ct. 456, 47 L. Ed. 657]; 12 Cal. Jur., p. 406.) But it has been held many times that the prisoner may not be deemed to have a voice in the matter of his extradition. (Roberts v. Reilly, 116 U. S. 80 [6 Sup. Ct. 291, 29 L. Ed. 544]; People v. Hagan, 34 Misc. 85 [69 N. Y. Supp. 475] ; People v. Klinger, 319 Ill. 275 [149 N. E. 799, 42 A. L. R. 581] ; note, 42 A. L. R 585; State v. Saunders, 288 Mo. 640 [232 S. W. 973]. See, also, Carpenter v. Lord, 88 Or. 128 [171 Pac. 577, L. R A. 1918D, 674, 680, and note].) Consequently, there would seem to be no necessity in this case to invoke the inverse function of the writ of habeas corpus to investigate the question whether the petitioner may exercise his preference to remain in San Quentin prison.

The duty to extradite a fugitive from justice upon a legal requisition from a sister state is imposed by article IV, section 2, of the United States Constitution. (Taylor v. Taintor, 16 Wall (83 U. S.) 366 [21 L. Ed. 287]; State v. Hall, 40 Kan. 338 [19 Pac. 918, 10 Am. St. Rep. 200], and cases cited.) The leading ease of Taylor v. Taintor, supra, is to the effect that the duty is not, however, absolute, and that the laws of the asylum state may first be satisfied for any infraction of its penal provisions. The legislature of this state in 1937 (Stats. 1937, p. 1581), in adopting the Uniform Criminal Extradition Act, added section 1553.1 to the Penal Code providing that if a criminal prosecution has been instituted against the fugitive under the laws of this state and is still pending, the Governor, with the consent of the attorney-general, may surrender him on demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and served his sentence in this state. The Governor has duly issued the extradition warrant and the attorney-general is demanding in this proceeding that the order be carried out."

The foregoing cited cases tend to establish that the present weight of authority is to the effect that when the Governor has duly exercised the discretion so vested in him by statute, there is no question remaining for judicial investigation in a habeas corpus proceeding. They seem to leave little to be said to resolve the question adversely to the petitioner’s contentions when it is considered that the executive authorities have determined that the demands of this state on account of the prisoner’s infractions of its penal laws have been fully satisfied.

In my opinion the prisoner should be remanded subject to the warrant of extradition.


source: Caselaw Access Project

author: HOUSER, J.

license: Public Domain

text:
    [S. F. No. 16205.
    In Bank.
    July 26, 1939.]
    GERALD DeGRAF, Respondent, v. THE ANGLO CALIFORNIA NATIONAL BANK OF SAN FRANCISCO (a Corporation) et al., Appellants.

      Redman, Alexander & Bacon and Herbert Chamberlin for Appellants.
    Glensor & Schofield for Respondent.
    Philander B. Beadle and James Martin Maclnnis, as Amici Curiae, on Behalf of Respondent.
   HOUSER, J.

The essential facts upon which the action herein was predicated, in substance, appear to be that at the time here involved plaintiff was the manager of the business of a tenant who occupied offices in a three-story office building which was owned by the defendants; that on November 14, 1936, a parade was to take place at night on the street on which the building faced, and although, ordinarily, the building was kept open during daytime office hours only, the manager of the building “invited” the tenants thereof to view the parade therefrom. Solely for that purpose, plaintiff, who was accompanied by some guests, arrived at the building at “dusk”, which was at about 6:30 o’clock P. M. However, he decided that instead of using any portion of the building for the purpose of viewing the parade, he and the members of his party would occupy a portion of the sidewalk in front of the building. The ground floor of the building was divided into two main parts, namely, a front, or “display” room, and a rear, or shipping room. Adjoining the “display” room was a passenger elevator; and opening off the shipping room was a freight elevator, which was customarily used by tenants of the building, not only for the purpose of conveying freight, but also occasionally for the carriage of passengers. During the daytime, the defendants furnished an operator for the passenger elevator, but none for the freight elevator,—the latter service being performed by each tenant for himself. On the night when the parade occurred, the front or “display” room of the building was lighted, as also was a stairway from the first to the third floor, upon the latter of which was located the office of plaintiff’s employer. Other than such light as “filtered” from the front or “display” room, over its transoms, the shipping room was unlighted; nor was the “cage” of the freight elevator otherwise illuminated. In order that he and the several members of his party might be made more comfortable while occupied in viewing the parade from the sidewalk, plaintiff procured from his office some chairs and empty boxes upon which his guests might be seated. In doing so, he used the freight elevator for the purpose of transporting himself, his younger son, and the chairs and boxes. A possible means of illuminating the freight elevator was available through the use of an electric light globe which was inconspicuously placed among the beams which composed the support for the incomplete roof of the said elevator. Three of the sides or walls, built up from a platform to form the enclosure or “cage” of the elevator, were of wooden construction and, on each floor, the entrance to the “cage” was afforded through the use of two wooden glass-paneled doors, which, except by the use of force, ordinarily could not be opened at any designated floor of the building unless at a time when the floor of the elevator 1 ‘ cage ’ ’ was on a level therewith. Neither could such doors be opened on any specified floor of the building if at the same time the freight elevator was stationed with the entrance doors open at any other floor thereof. Nor could the elevator be operated in a normal manner unless the doors of the elevator shaft at all floors were closed. However, as to the operation of the freight elevator, each of such conditions was subject to control by the application of an electrical contrivance, or emergency release switch, which was made to operate by the use of a push-button, which was located in a (supposedly) glass-covered box within the “cage” of the elevator,—at least such was the substance of a requirement of a safety order that theretofore had been issued by the industrial accident commission, as follows: “ ‘The emergency release shall be so arranged that to operate the car under emergency conditions it shall be necessary for the operator to break a glass cover protecting the emergency release and to hold the emergency release in operating condition. The emergency release shall be so constructed and installed that it cannot be readily tampered with or plugged into the operating position. ’ ” However, it appears that neither on the night when the said parade occurred, nor at any time within several months immediately preceding that occasion, had a glass cover been provided for the box within which was contained the emergency release. By some means, the glass had been broken and, although that fact was known to the defendants, the broken glass had never been replaced by a new one, or otherwise restored. The elevator was operated by the pulling of a rope or cable. By reason of the design of the elevator and the use for which it was intended, it was customary, when it was not in use, to keep it stationed at the first floor of the building, with the entrance doors thereof open. That such condition might be maintained, the defendants kept posted within the “cage” a large sign which read, “Elevator Must Be Returned To First Floor When Empty.”

Shortly after the time when plaintiff arrived at the building on the evening hereinbefore indicated, and following his determination to secure chairs and boxes from his office to be used by the members of his party on the sidewalk in front of the building, he went through the front or “display” room,—thence, through the dimly-lighted shipping room to the freight elevator, the doors of which were open. On entering the freight elevator, he struck several matches in an endeavor to locate an electric light globe which he thought was located therein, but was unsuccessful in his search in that regard. Thereupon, he operated the unlighted freight elevator to the third floor of the building, where his office was located, procured the desired chairs and boxes and returned with them to the freight elevator, which he then operated to the first floor of the building; after which, he took the chairs and boxes to the sidewalk, where he and his guests used them in viewing the parade, which occupied a period of about three hours,—at the expiration of which time the lighting conditions within the building were identical with those which prevailed at the time when plaintiff procured the chairs and boxes as aforesaid. With regard to other pertinent conditions concerning the use of the freight elevator on that evening,—in accordance with the custom and the directions posted inside the “cage”, to which reference hereinbefore has been had,—at the time when plaintiff took the chairs and boxes from the freight elevator, he left the elevator at the first floor, with its doors remaining open. However, it appears from the evidence that thereafter certain other tenants of the building had used the freight elevator; that they had left the doors of the shaft on the first floor open; and that, designedly, and by other than normal means had operated the elevator and had succeeded in “parking” the “cage” at the third floor. In that connection, notwithstanding denials by such tenants of the assumed fact that they had operated the emergency switch, the inference is dedueible that in bringing about the results to which reference just ha.s been had, the emergency switch within the elevator “cage” had been operated,—whether by the designated tenants, or by some other tenant, being immaterial as far as the issue regarding that matter is herein concerned. After the parade was ended, plaintiff endeavored to return the chairs and boxes to his office and, in so doing, as he approached the freight elevator, he had an ordinary straight-backed office chair in each hand, one held under each arm—“one was in front of . . . [him] and one was behind. . . . [him]”. His “eyes were open”; he was “facing towards the open elevator door”; and he was “looking through the elevator shaft from the door, to the back of the elevator”. He did not light any matches, nor “put . . . [his] foot down to feel if the elevator—if the car was there”. He did not put down “one of the chairs and feel anything”. Plaintiff could see the “outline of the elevator door; . . . saw the open door . . . [but] could not see whether the elevator was there or not”. Inside, it was “very dark”. He “knew there was an emergency button there, but up to that time . . . did not know it [the elevator] would operate with the doors open”. However, the “cage” was not there and plaintiff stepped into the open shaft, fell into the basement, and by reason thereof sustained injuries which constituted the basis for an action against the defendants for the recovery of a judgment for the damages thus sustained by him. From a judgment that was rendered pursuant to a verdict in favor of plaintiff, the defendants have prosecuted the instant appeal.

The first point that has been presented by the appellants is that the evidence establishes the fact that at the time when the accident occurred, plaintiff was “a mere licensee”, with the result that unless he was wilfully or wantonly injured by the defendants, no cause of action existed in favor of plaintiff. In that connection the respondent asserts not only that he went upon the premises of the defendants on the invitation extended to him by the defendants’ building manager and for the purpose of viewing the parade, but also, as a matter of legal right derived from the relationship of landlord and tenant that existed between the defendants and plaintiff’s employer. With respect thereto, as far as an assumed invitation having been extended by the defendants to plaintiff was concerned, the fact appears to be that although other tenants of the building had keys thereto, plaintiff—theretofore not having had any use for one—-had never requested that such a key be furnished to him,—with the consequence that on inquiry by him directed to the manager of the building as to whether the building would be kept open on the night of the parade, plaintiff received the assurance that it would be kept open on that night. It is clear that if those facts were the only ones which were shown to be present in that connection, a question with respect to the relationship that existed between the parties might become one for serious consideration; but considering the fact that plaintiff, as manager of the business of a tenant of the building, stood in a position equal to that of an actual tenant thereof and had a legal right to be in the building at any time during either the day or night, and that he therefore needed no “invitation” from the management of the building to occupy either the rented offices of his employer or any part of the building that ordinarily was used by the tenants thereof,—the tendered issue must be determined against the contention of the defendants in that regard. Furthermore, the additional circumstance that at the time when the accident occurred plaintiff was not engaged in the enjoyment of any “hospitality” which possibly might have been extended to him on the part of the defendants’ building manager,—but, to the contrary, that he was exercising an implied right of a tenant of the building, not only in the occupation of the rented office of his employer, but also in an attempt to return to such office, as freight, certain personal property of which his employer was the owner, to wit, the chairs and boxes which theretofore had been used by plaintiff and his guests in viewing the parade from the sidewalk, as aforesaid,—lends weight to the reasonableness of such conclusion.

The next general criticism of the judgment is that it is lacking in evidentiary support of the implied conclusion that is contained in the verdict of the jury to the effect that “any negligence of the defendants proximately caused plaintiff's injuries”. In that connection, obviously two questions are involved: First, whether the defendants were guilty of negligence; and, secondly, assuming that the first question should be answered in the affirmative, whether such negligence was a proximate cause of the accident. But as a foundation for a determination of the question whether the defendants were guilty of negligence, it is at least advisable to recall what general duty was owing by the defendants to the plaintiff. In that regard, the authorities uniformly appear to be to the effect that the defendants were required to use ordinary care. (See Reuter v. Hill, 136 Cal. App. 67, 72 [28 Pac. (2d) 390]; Hamilton v. Union Public Market, 15 Cal. App. (2d) 340, 342 [59 Pac. (2d) 459] ; Brown v. Pepperdine, 53 Cal. App. 334 [200 Pac. 36]; Spore v. Washington, 96 Cal. App. 345 [274 Pac. 407] ; Gulley v. Traders Oil Corp., 102 Cal. App. 557 [283 Pac. 97] ; Bellon v. Silver Gate Theatres, Inc., 4 Cal. (2d) 1 [47 Pac. (2d) 462]; 15 Cal. Jur., p. 741.) In the ease entitled Spore v. Washington, 96 Cal. App. 345, at page 350 [274 Pac. 407], the rule was set forth as follows: “Where a building is let in fiats or offices, or otherwise leased to individual tenants between whom no privity exists, the hallways, entrances, stairways, or other fixtures not being demised to the tenants or any particular tenant, but used in common by all, the landlord owes a duty to those visiting the premises and entering such passageways to visit a tenant or at his invitation, express or implied, to use ordinary care to avoid injuring them as they are invitees of both landlord and tenant.” Consequently, the question whether the defendants were guilty of negligence is determinable by a solution of its eorrollary, that is, whether the defendants failed to exercise ordinary care for the protection and safety of plaintiff. The answer to that question, like that to most others, is not capable of demonstration; nor may it be declared with confidence in the exactness of such statement that because, in a given set of circumstances, specified conduct would amount to negligence, the same conclusion should be reached in all circumstances where the same act or conduct of the defendants may be shown to have been present. It becomes of some importance to bear in mind such preliminary and thoroughly understood observations, for the reason that the instant ease does not deal with an ordinary situation that would or might arise with respect to a landlord and a tenant of an “up-to-date” office building, located in the heart of a large city; but, to the contrary, it has to do with a comparatively small building of a special type, located on the fringe of “big business”. It is quite obvious that conveniences which might be furnished to tenants in the former type of building, and the attendant care for their safety and protection while in the enjoyment of such tenancy, would materially differ from those which would or might be expected or required by tenants in a building of the latter class. For example, one might reasonably assume that a first-class office building would maintain day and night passenger elevator service; that at all times the building would be kept well and thoroughly lighted and air-conditioned; and that watchman and janitor service would be furnished, which would include such inspection of halls and corridors that comparative safety in their use might be reasonably assured. But in a building such as was the one in which plaintiff’s employer was a tenant, none of the conveniences such as those just enumerated would or might reasonably be expected to be furnished. To illustrate the existent situation in the instant case: At night, the building was not lighted; there was no passenger elevator service; the front doors of the building were locked; and, excepting at times when delivery of freight to a tenant was delayed beyond the usual business hours, the back door of the building was likewise barred. Such conditions ordinarily obtaining, no tenant of the building who sought to visit his offices at night would have a right to expect the same degree of care on the part of his landlord which otherwise might be required of him. But on the night of the parade, the conditions were somewhat changed. In effect, the defendants had “invited” plaintiff to view the parade from the building. To use the language of the defendants’ building manager, he was “entertaining”; he was engaged in fostering “good will” between the defendants and the tenants of the building. He and one of his office assistants were present to receive the so-called guests, and to insure their privacy by not permitting “outsiders” to enter the building. To that end, he had gone to the extent of lighting not only the front or “display” room of the building, but also the entire stairway and the lavatory adjoining the shipping room thereof. Having lighted the stairway, it becomes manifest that he had anticipated that the tenants, or some of them, might prefer to use their own front windows for the purpose of viewing the parade. But, especially after a day’s work, travel by way of stairs is not always deemed- the most desirable method or means of arriving at upper floors of a building. Most people prefer to make use of an elevator for that purpose. The defendants’ building manager knew that on occasions the tenants of the building used the freight elevator for passenger service. In reason, in the absence of the operation of the passenger elevator, it would seem that he well might have anticipated that the freight elevator would be pressed into service. In that connection, a separate situation requires consideration: Assuming that on the occasion in question the defendants’ agent, or building manager, should have foreseen the likelihood that the freight elevator would be used for the purpose of carrying tenants to and from their respective offices,-—in the exercise of ordinary care, what means should the building manager have adopted and employed for the safety and protection of such tenants? It would seem not unreasonable, as a measure of the degree of care to be required of the defendants, that both the freight elevator, and the approach thereto through the shipping room, should have been adequately lighted. But, as a matter of law, it may not be declared that, even though such lighting was furnished, the entire duty of the defendants necessarily ended. It may be remembered that, ordinarily, (and without the use of force) the entrance doors to the freight elevator shaft could not be opened at any floor of the building, other than the basement, if the floor of the elevator “cage” were not on a level with the floor at which an attempt might be made to open such doors. Nor could the elevator be operated if the entrance doors to the shaft were open at any other floor; but that each of such conditions was controllable by means of an emergency release which could be set in operation by pressure on a button that, in accordance with the requirements of a safety order of the industrial accident commission, was located within a glass-covered box within the “cage”. The manager of the building had undertaken the task of “entertaining” the tenants thereof; and he personally knew, or should have known, not only that the freight elevator might be used by them, but also of the conditions under which such operation might be made. He knew, or should have known, that neither the shipping room nor the freight elevator was lighted; and, had he given the freight elevator proper inspection, he would have discovered the fact that the emergency release was not protected from indiscriminate and untimely use by a tenant, or any other person, with the almost certain result that the entrance doors to the elevator shaft on any floor of the building might be left open without the “cage” of the elevator being at the floor at which such doors were open. Considering all the "facts hereinbefore set forth, including the further facts that neither the shipping room nor the freight elevator was lighted, and that defendants' building manager had knowledge of the fact that the glass covering of the emergency release button had been broken, and, as a consequence thereof, there was nothing to prevent the possible use of the emergency release, and thus remove from effective operation the devices and appliances with respect to the proper opening and closing of the doors of the freight elevator which theretofore had been provided for the safety and protection of the tenants of the building,—it would seem clear that an appropriate question had arisen as to whether the defendants had failed in their duty to exercise ordinary care in the premises.

With respect to the contention of the appellants that, assuming (without conceding) they had been guilty of negligence, it did not- appear that such negligence was the proximate cause of the accident, it need only be said that, aside from the possibility of the contributory negligence of plaintiff, the happening of the accident properly may be attributed to no other cause. It is inconceivable that, in the absence of some negligence on the part of the defendants, the accident would have occurred. In other words, had the building been adequately lighted; had the emergency release switch been properly protected from unwarranted use; or had the first floor of the building been timely inspected for the purpose of determining that the entrance doors to the freight elevator shaft were not left open at a time when the “cage” was not on a level with the floor thereof,—the likelihood of the happening of the accident would have been most improbable and remote. But, after all, the question whether the admitted conduct on the part of the defendants constituted negligence was one of fact to be determined, in the first instance at least, by the jury. (McKeon v. Lissner, 193 Cal. 297 [223 Pac. 965] ; Williamson v. Hardy, 47 Cal. App. 377 [190 Pac. 646]; Roach v. Wells Fargo Bank & Union Trust Co., 102 Cal. App. 380 [282 Pac. 967]; Long v. John Breuner Co., 36 Cal. App. 630, 636 [172 Pac. 1132]; 19 Cal. Jur., p. 719.) Its finding thereon and its implied decision that such lack of reasonable care, including inspection of the premises, was the proximate cause of the accident, are conclusive on this court.

Likewise, the question of the asserted contributory negligence of plaintiff was for the jury. (McKeon v. Lissner, 193 Cal. 297, 304 [223 Pac. 965] ; Jacobi v. Builders’ Realty Co., 174 Cal. 708, 711, [164 Pac. 394, L. R. A. 1917E, 696] ; Muller v. Hale, 138 Cal. 163, 167 [71 Pac. 81] ; 19 Cal. Jur., p. 735; Oles v. Kahn Bros., 81 Cal. App. 76, 81, 82 [253 Pac. 158]; Roach v. Wells Fargo Bank & Union Trust Co., 102 Cal. App. 380 [282 Pac. 967].) In the case entitled Jacobi v. Builders’ Realty Co., supra, the action was brought to recover damages for the death of a person which occurred while she was attempting to use an automatic elevator in an apartment building. The defendants contended the deceased herself was guilty of negligence in not looking to see if the cage was in place when she opened the door of the elevator. The court in that ease said that “ . . . persons intending to use the elevator came to rely, and to a certain extent were entitled to rely, upon the fact that if they could open the door at all it would be because the cage was there”. The court further observed that, “Since knowledge of the defects in construction or in operation, or both, was not only chargeable against this defendant, but was actually possessed by it, it is too plain for discussion that,' in inviting tenants and’ their guests to use such a contrivance, it was sheer negligence not at the same time to have adequately warned and protected them against dangers necessarily attendant upon the use of the elevator under this defective faulty construction or lack of repair. . . . The deceased unquestionably opened this door or found it open. In either case (there being no attendant to warn or any other kind of warning given) it was not at least unnatural that she should have placed reliance upon the conditions which she found. Whether, under these circumstances, she should also have looked or be convicted of negligence, presents a question of reasonable argument before a jury, but one which cannot be resolved against plaintiff as matter of law. ...” So, in the instant case, the question whether plaintiff’s conduct in the premises might fairly be said to have shown that he had been negligent in the sense that he had failed to use that degree of care which would have been used by an ordinarily prudent person was submitted for the consideration of the jury, and by its verdict, the pronouncement of the jury in effect was that plaintiff was “not guilty”. Unless, as a matter of law, this court may properly declare that his acts and conduct were such that an ordinarily prudent and careful person would not have done the things that plaintiff did,-—-the conclusion that was reached by the jury is final. In that regard, the rule is stated in the ease entitled Olcese v. Hardy, 40 Cal. App. 323, 329 [180 Pac. 666], that: “There is no fixed standard for the sufficiency of evidence to induce belief, and unless the evidence so clearly preponderates against the verdict that the court cannot conclude that the verdict was the result of a due consideration of the evidence, the verdict will not be disturbed.” Again, in the recent case entitled Parker v. Manchester Hotel Co., 29 Cal. App. (2d) 446, at page 455, [85 Pac. (2d) 152], the court quoted the rule as follows: “ ‘ Contributory negligence is a question of law only when the court is impelled to say that from the facts reasonable men can draw but one inference, and that an inference pointing unerringly to the negligence of the plaintiff contributing to the injury ... in all other cases the question of contributory negligence is a question of fact for the jury. ’ ” (See, also, Norton v. Central Surety & Ins. Co., 9 Cal. App. (2d) 598 [51 Pac. (2d) 113] ; Smellie v. Southern Pac. Co., 212 Cal. 540 [299 Pac. 529].) Without again reciting the evidence regarding plaintiff’s acts, including the inferences that might have arisen therefrom,— in the light of all the circumstances shown to have existed in the case—from a legal standpoint, this court is unable to reach a conclusion with reference to plaintiff’s conduct which would be in opposition to that which impliedly was declared by the jury.

In addition to the foregoing considerations, the appellants present the point that, notwithstanding the possible existence of negligence on their part, by his use of the shipping room and the freight elevator, plaintiff assumed the risk of injury to himself; and that, as a consequence thereof, the judgment should be reversed. As hereinbefore has been stated, it reasonably could have been anticipated by the manager of the building that on the occasion in question both the shipping room and the freight elevator would be used by the tenants and their guests. But, even conceding the applicability of the doctrine of “assumed risk” to the instant case, it is clear, with reference thereto that the determinative question was whether, in consideration of all the circumstances, plaintiff conducted himself as a reasonable and prudent person. (Pope v. Halpern, 193 Cal. 168, 175 [223 Pac. 470] ; Peccolo v. City of Los Angeles, 8 Cal. (2d) 532, 538 [66 Pac. (2d) 651].) “ . . . One who knows," or as a reasonably prudent person ought to know, of a danger, may not place himself in its way, or proceed in spite of the danger, and yet recover from the one responsible for the dangerous condition. . . . But one is required to act in such circumstances only as a reasonable and prudent person, and, it is said, owing to the conditions of modern life, is required to incur a certain amount of risk in almost every act committed.” (19 Cal. Jur., pp. 583, 585.) Furthermore, it has been said, in effect that ‘ ‘ 1 The fact that one voluntarily assumes a certain degree of risk is not conclusive of negligence. ’ ” (Rasic v. Schultheiss, 121 Cal. App. 560, 570 [9 Pac. (2d) 550]; Commonwealth Bonding & Casualty Ins. Co. v. Pacific Elec. Ry. Co., 42 Cal. App. 573 [184 Pac. 29].) And before it can be said that one has “assumed the risk” of a specified hazard, it must be shown that he had knowledge of the condition creating the hazard. One does not assume the risks of danger which he has no reason to anticipate. (Williamson v. Fitzgerald, 116 Cal. App. 19 [2 Pac. (2d) 201].) In the instant ease the plaintiff testified he did not know that the elevator could be moved from the first floor if or when the doors thereto were open. The evidence showed that the normal position of the elevator, when it was not in use, was at the first floor, with the doors to the shaft left open. The plaintiff also knew of the sign posted by the defendants inside the “cage”, directing that it be returned to the first floor when not in use, and he knew that normally it could not be stationed at any floor other than the first floor when the doors to the shaft on that floor were open. On the occasion in question plaintiff left the elevator at the first floor with the doors open and returned later to find the conditions apparently the same. The question of knowledge and appreciation of a danger or the lack thereof in an action of this nature is ordinarily one to be determined by the jury from the facts of the case. (Meindersee v. Meyers, 188 Cal. 498 [205 Pac. 1078]; 19 Cal. Jur., p. 585.) In the case of a freight elevator, the question whether an employee had assumed the risk of injury from falling was held to be for the jury, where there was a rule against riding on the elevator, but it was customarily disregarded by the manager and the employees. (10 Cal. Jur., p. 220; Goggin v. D. M. Osborne & Co., 115 Cal. 437 [47 Pac. 248].) Likewise, the knowledge of an employee that the elevator which it was necessary for her to use was frequently in disrepair was held not to be sufficient of itself to charge her with an assumption of risk in traveling on it, where it had never exhibited a condition known to be dangerous. (10 Cal. Jur., p. 220; Rogers v. Ponet, 21 Cal. App. 577 [132 Pac. 851].) Under appropriate instructions which were given by the court to the jury in the instant case, the question of the alleged assumption of risk by the plaintiff was submitted to the jury, and its implied answer thereto was in favor of the plaintiff. As a matter of law, this court is unauthorized to disturb that conclusion.

Although the appellants complain of the failure on the part of the trial court to give to the jury certain instructions which were offered by the defendants,—also, because at the request of plaintiff the trial court gave to the jury certain other instructions which the appellants assert were erroneous, this court is unable to discern that either by the giving of the latter instructions, or by the refusal to give the former, to the jury, the defendants were prejudicially affected. The instructions that were given to the jury were fair and the jury could not have been misled by them in any respect.

.The judgment is affirmed.

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

Rehearing denied.


author: THE COURT.

text:
    [L. A. No. 16595.
    In Bank.
    July 27, 1939.]
    CHARLES McALLISTER et al., Respondents, v. LOUIS C. DRAPEAU, as Building and Loan Commissioner, etc., Appellant.

      Robert Lee Collins and Britton Bowker for Appellant.
    A. J. Coogan, James M. McGrath, Ewell D. Moore, Clarence M. Condon and Dudley J. Scholten, as Amici Curiae, on Behalf of Appellant.
    Felix M. Cunningham, Lawrence F. Edmisten, Jr., and John Henry Peckham for Respondents.
    Allard, Holbrook & Whyte, Roland J. Brownsberger, 0 ’Melveny, Tuller & Myers, Walter K. Tuller, Louis W. Myers and ■Pierce Works, as Amici Curiae, on Behalf of Respondents.
   THE COURT.

Defendant appeals from a judgment cancelling a promissory note and deed of trust executed by plaintiffs, and from a money judgment in favor of plaintiffs for the sums paid by them on the note.

The facts are not in dispute, and are as follows:

In 1929 plaintiffs borrowed from the California Security Loan Corporation, appellant’s predecessor in interest, the sum of $11,050, which debt was secured by a first deed of trust on plaintiffs’ home property. By the year 1934 this indebtedness had been reduced to $8,271.26. In that year plaintiffs defaulted on their payments on the note, and, as a result, were in imminent danger of losing their home property by sale under or foreclosure of the deed of trust. On or about July 1, 1934, plaintiffs applied to the Home Owners’ Loan Corporation for a loan to refinance the indebtedness owed to the California Security Loan Corporation. The H. O. L. C. appraised the property at $8,650, and informed the plaintiffs it was willing to lend them, in cash and bonds of the corporation, the sum of $5,984.38, of which $5,850 was to be used to pay off the California Security Loan Corporation, the balance to be used to pay taxes, escrow fees and title charges. Plaintiffs notified California Security Loan Corporation of the offer. That company informed the plaintiffs, as found by the trial court, that it11 would only consent to take said bonds of H. 0. L. C. on the condition that plaintiffs execute a note for $1,300, secured by a second trust deed” on their home property. The California Security Loan Corporation also informed plaintiffs that unless the plaintiffs executed such note and trust deed they would go ahead with foreclosure proceedings under the original trust deed held by them. Under such circumstances, on or about July 16, 1934, the plaintiffs executed the $1300 note secured by a second deed of trust on the property, and delivered the documents to the California Security Loan Corporation. The trial court found that such execution and delivery was made “under threat of foreclosure”, and that “the plaintiffs acted as any reasonable and prudent man would act in order to preserve his home property”. It was also found that neither plaintiffs nor California Security Loan Corporation informed H. O. L. C. of the fact the $1300 note and second deed of trust had been executed, and that the H. O. L. C. had no notice or knowledge of their existence until shortly before January of 1937 when this present action was instituted.

On August 1, 1934, after securing the $1300 note and second deed of trust from plaintiffs, the California Security Loan Corporation entered into an agreement in writing with the H. O. L. C. to accept H. O. L. C. bonds in the amount of $5,850 in full settlement of its claim against the property. This agreement is entitled “Mortgagees Consent to Take Bonds”, is addressed to the H. O. L. C., and reads as follows:

“The undersigned is a holder of a first mortgage or other obligation, which constitutes a lien or claim on the title to the home property of—Charles and Elnora McAllister located at 1171-73% E. 49th Street Los Angeles California the sum of $...., including unpaid balance of principal and interest, to date.
“Being informed that said owner has made application to Home Owners’ Loan Corporation to refund his said indebtedness, the undersigned has considered the method of refunding mortgages provided in Home Owners’ Loan Act of 1933, as passed by Congress and approved by the President, and the undersigned hereby consents, if said refunding can be consummated, to accept in full settlement of the claim of the undersigned the sum of $5,850.00, face value of the bonds of Home Owners’ Loan Corporation, to be adjusted with not exceeding $25 cash and thereupon to release all the claim of the undersigned against said property. We agree to accept Bonds in conformance with Home Owners’ Act Amendment of April 28, 1934.
“It is understood that the Home Owners’ Loan Corporation will incur trouble and expense in connection with its efforts to refund the indebtedness of said home owner, and this consent is executed in consideration of the same and shall be binding for a period of 30 days from date, and thereafter until 10 days written notice shall have been given the State manager of the Corporation.”

On August 1, 1934, the H. O. L. C. issued its bonds in the sum of $5,850, and delivered the same to the California Security Loan Corporation. That company released its first deed of trust, and after the H. O. L. C. had recorded its deed of trust, it recorded its second deed of trust. Over a period of time the plaintiffs paid to California Security Loan Corporation $275 on the $1300 note, and then commenced this action against the building and loan commissioner (he having taken over California Security Loan Corporation for purposes of liquidation) to cancel the note and deed of trust, and to recover the amounts paid thereunder.

There are three main questions involved on the appeal. First, does the statute under which H. O. L. C. was organized, or do the rules and regulations adopted pursuant to such statute, expressly or by necessary implication prohibit the creditor from taking secret second liens, when such secret second liens are to secure a part of the very indebtedness refunded by the H. O. L. C. ? Second, what is the legal effect of the document entitled “Mortgagees Consent to Take Bonds”, above quoted? Third, if the transaction is illegal, should affirmative relief be granted to plaintiffs, participants in the illegal transaction?

The Home Owners’ Loan Act of 1933 (48 U. S. Stats, at Large, 128; Title 12 U. S. C. A., sec. 1461 et seq.) declares that the act was passed “to provide emergency relief with respect to home mortgage indebtedness, to refinance home mortgages, to extend relief to the owners of homes occupied by them and who are unable to amortize their debt elsewhere. ...” Briefly, the act provides that the Federal Home Loan Bank Board is authorized to create a corporation to be known as the Home Owners’ Loan Corporation as an instrumentality of the United States. To refinance existing mortgages the corporation was authorized to issue 4 per cent tax exempt bonds in an aggregate amount not to exceed $2,000,000,000 (later increased to over $4,000,000,000). Originally these bonds were guaranteed by the United States only as to interest, but later the principal was also guaranteed. During the period 1933 to 1936 the corporation was authorized to exchange its bonds for home mortgages in amounts not to exceed $14,000 in any one ease, and in any event not to exceed 80 per cent of the appraised value of the real property. The act contemplated that the creditor would, in many cases, accept bonds in an amount less than the indebtedness due him. In that connection the act provides: “In any ease in which the amount of the face value of the bonds exchanged plus accrued interest thereon and the cash advanced is less than the amount the home owner owes with respect to the home mortgage ... so acquired by the Corporation, the Corporation shall credit the difference between such amounts to the home owner and shall reduce the amount owed by the home owner to the Corporation to that extent.” The corporation was authorized to amortize its loans to home owners over a fifteen-year period at an interest rate of not to exceed 5 per cent. It was authorized, not only to refinance loans of home owners who were faced with foreclosure, but also to make loans to home owners for the purpose of redeeming or repurchasing home properties already foreclosed or sold under a deed of trust or power of sale. Section 8a of the act provides that every person who “makes any statement, knowing it to be false, or whoever willfully overvalues any security, for the purpose of influencing in any way the action of the Home Owners’ Loan Corporation . . . upon any application, advance, discount, purchase, or repurchase agreement, or loan, under this Act” shall be guilty of a criminal offense. The act also empowered the board to “make such by laws, rules and regulations, not inconsistent with the provisions of this section, as may be necessary for the proper conduct of the affairs of the Corporation”. Acting pursuant to this power, the board adopted several resolutions outlining the policy to be adopted towards the making of loans when the creditor insisted on a second mortgage to secure part of the refunded debt. On September 8, 1933, the following resolution was adopted:

“The Corporation may take up second mortgages or other inferior liens, provided the same is done along with the first mortgage and the total is within the Act. The Corporation has no means of preventing the home owner from undertaking to pay any indebtedness he may owe over and above that refunded by the Corporation and has no means of preventing his giving a second mortgage or other security for any such indebtedness. However, State Managers are directed, as a matter of policy in dealing with home owners, to decline to conclude a refunding of a portion of the indebtedness against the home where the home owner is proposing to give a second mortgage for any excess indebtedness he may owe unless such second mortgage financing is so arranged that the home owner will have a reasonable probability of being able to carry his first mortgage to the Corporation and the second mortgage indebtedness.”

On November 3, 1933, the following resolution was adopted:

“In the case of bond exchange loans, if the home owner owes more than 80 per cent of the value of his premises he may remain indebted for that portion that the Corporation cannot refund, provided the Corporation secures a first lien, and he may secure the excess indebtedness with a second lien. However, such refunding will not be carried through unless such excess indebtedness is placed on a payment basis so that the home owner will have a reasonable opportunity to pay the same and meet his obligations to this Corporation. The Corporation will not proceed to refund indebtedness for mortgagees who insist upon more in face value of bonds or who insist upon any other consideration (such as second mortgage, cash or other consideration) than the net amount owing to such mortgagee, together with accrued (sic) interest to date of exchange. ’ ’

On January 9, 1934, the following resolution was adopted:

“WHEREAS it is the policy of Home Owners’ Loan Corporation to endeavor to make complete settlement in the refunding home mortgage indebtedness in all cases where such is possible, and
“WHEREAS second mortgages for excess indebtedness over and above that which the Corporation can refund are permitted only in limited cases and then only on a basis so that the Home Owner will have reasonable probability of be ing able to pay his full obligation to the Corporation and meet the terms of such second mortgage indebtedness, and
“WHEREAS it is necessary for each case to be considered on its merits and in the light of all the circumstances of the property involved and the applicant, therefore
“BE IT RESOLVED by the Board of Directors of Home Owners’ Loan Corporation that the following principles be followed in all cases where the Corporation can refund only a portion of the indebtedness against a home:
“ (1) If the home owner’s income is so reduced that he is unable to meet full amortization payments from the beginning on his obligations to the Corporation, the second mortgage shall not require any principal payments prior to June 13, 1936, and payments thereafter shall be on a schedule which the home owner may reasonably be able to meet.
“ (2) In all cases where the home owner is able to meet his full amortization payments to the Corporation from the beginning and is able to make additional payments from the beginning on the second mortgage, then the second mortgage may be amortized from the beginning, provided the payments thereon are not in excess of what the home owner may be reasonably able to pay and at the same time keep his obligation to the Corporation, making full amortization payments.
“ (3) In cases where the home owner is a man of substantial means or is a man with substantial prospective income but is temporarily distressed so that it is proper for the Corporation to refund his indebtedness, any second mortgage indebtedness may be placed on any reasonable basis. ’ ’

It is obvious, from a reading of the statute and the rules and regulations above quoted, that the main and controlling purpose of the act was to assist small home owners who, because of the then existing financial conditions, faced loss of their homes through inability to meet the charges due on mortgages on their home property. It is to be noted that the act places no compulsion, direct or indirect, on the creditor. The creditor had complete liberty of action. If he refused to accept the offer of the H. O. L. C. as to the amount of bonds and cash it would advance to refund the debt, there was nothing the H. O. L. C. or the debtor could do about it. It was contemplated, however, that many creditors would, and experience under the act proved that many did, accept a reduction in the amount of the existing loan in order to secure liquid assets such as bonds of the H. O. L. C. rather than foreclose on the property and have to hold it until conditions in the real estate market improved. The act provides that such reduction should be passed on to the home owner, the debtor. The rules and regulations contemplated that under some circumstances it would be to the interest of the home owner to give a second mortgage to the creditor to secure a part of the refunded debt, but such rules and regulations provided that the H. O. L. C. would not refund the first mortgage if the creditor demanded a second unless the financial ability of the debtor and the financial arrangements were such that the debtor would have a reasonable opportunity to pay off both mortgages. Obviously, before these facts could be ascertained, a full disclosure of the amount and the terms of the proposed second lien would have to be made to the H. 0. L. C. The securing of a second lien by the creditor without such disclosure is clearly in violation of the letter and spirit of the statute and regulations. This is demonstrated not only by the terms of the statute and the regulations, but also by the language of the agreement above quoted which all creditors were required to sign wherein the creditor represented and agreed that he was accepting the bonds “in full settlement of the claim of the undersigned”.

The obtaining of secret second liens by the creditor violates the basic public policy expressed in the act. The act was intended solely for the benefit of home owners who were in financial difficulties—no one else was eligible for its benefits. Any benefit to creditors was merely incidental. But if a creditor could lawfully exact a secret second lien from his debtor, in many cases this would confer the benefits of the act on the creditor rather than on the debtor. Thus, in every case where the terms of the secret second lien were such that the debtor was financially unable to pay off both the first and second, the holder of the second, upon default by the debtor, could foreclose his second lien, and the holder of the second would obtain the property subject to the mortgage of the H. 0. L. C.—a fifteen-year amortized mortgage at a low rate of interest—a very favorable type of mortgage which at that time was not generally available. In this way the creditor could and would circumvent the policy of the act and would obtain benefits never intended for him. This is not an unlikely possibility when it is considered that the benefits of the act were only available to home owners who were already in default on their first mortgage.

The above views have been expressed by many courts which have been called upon to decide the validity of secret second liens exacted by the creditor from his debtor as a condition to acceptance of the bonds of the H. O. L. C. Our examination of the authorities has failed to disclose a single case upholding the validity of such secret second mortgage. The various appellate courts which have been called .upon to decide the issue have uniformly held that such secret second liens are void and unenforceable. (Jessewich v. Abbene, 154 Misc. 768 [277 N. Y. Supp. 599]; First Citizens Bank & Trust Co. v. Speaker, 159 Misc. 427 [287 N. Y. Supp. 831]; Id. 250 App. Div. 824 [294 N. Y. Supp. 737] ; Anderson v. Horst, 132 Pa. 140 [200 Atl. 721] ; Stager v. Junker, 14 N. J. Misc, 913 [188 Atl. 440]; Chaves County Building & Loan Assn. v. Hodges, 40 N. M. 326 [59 Pac. (2d) 671]; Cook v. Donner, 145 Kan. 674 [66 Pac. (2d) 587, 110 A. L. R. 244]; Pye v. Grunert, 201 Minn. 191 [275 N. W. 615, 276 N. W. 221]; Meek v. Wilson, 283 Mich. 679 [278 N. W. 731]; United States v. Kreidler, 11 Fed. Supp. 402; see, also, United States v. Kay, 89 Fed. (2d) 19, decided by United States Supreme Court on other grounds, Kay v. United States, 303 U. S. 1 [58 Sup. Ct. 468, 82 L. Ed. 607]; Daniel H. Council v. Samuel Cohen, decided June 26, 1939, by the Supreme Judicial Court of Massachusetts, (Mass.) [21 N. E. (2d) 967]; Dayton Mortgage & Investment Co. v. Theis, decided May 18, 1939, in the Court of Appeals of Montgomery County, Ohio, (Ohio) [23 N. E. (2d) 511].) In Bay City Bank v. White, 283 Mich. 267 [277 N. W. 888], and in Ridge Investment Corp. v. Nicolosi, 15 N. J. Misc. 569 [193 Atl. 710], it was held that second liens taken by the creditor with the full knowledge of the H. O. L. C. are valid. (See, also, Sirman v. Sloss Realty Co., Inc., (Ark.) [129 S. W. (2d) 602].) These cases are not in conflict with those first above cited. In Bay City Bank v. White, supra, and Ridge Investment Corp. v. Nicolosi, supra, the H. O. L. C. refunded the debt with full knowledge of the existence of the second lien and, presumably, after first ascertaining, in accordance with its regulations, that the debtor could carry both mortgages. The weakness of the instant case is that the existence of the second lien was kept secret from the H. O. L. C. so that it was induced to make the loan in the belief its mortgage was the only lien against the property. The cases first above cited hold that such secrecy is tantamount to a fraud on the H. O. L. C. The case of Bank of America v. Glick, decided by the appellate department of the Superior Court of Los Angeles (case No. 470), certiorari denied, Glick v. Bank of America Nat. T. & S. Assn., 305 U. S. 657 [59 Sup. Ct. 357, 83 L. Ed. 426], is in no way contrary to the conclusions herein stated. Prom the memorandum opinion rendered by the appellate department of the superior court in that case, it definitely appears that the creditor informed the H. O. L. C., by letter, at the time of signing its consent to take the bonds, that ‘1 The amount we are to receive as mentioned in our amended consent, is less than the total amount of the indebtedness, and the borrowers have agreed to make a satisfactory adjustment of the deficiency.” This case falls -within the rule of the two cases last above referred to.

Several of the courts to which the problem here involved has been presented, in addition to holding the secret second mortgage illegal, have held that in signing the “Mortgagee’s Consent to Take Bonds”, above quoted, the creditor agreed to accept such bonds “in full settlement” of his claim, and that such agreement constitutes an accord and satisfaction, a release or a novation. (Cook v. Donner, supra; Chaves County Building & Loan Assn. v. Hodges, supra.) The holding of these courts is sound. The agreement signed by the creditor was to accept the bonds “in full settlement of the claim of the undersigned . . . and thereupon to release all the claim of the undersigned against said property”. The argument of amici curiae that this broad language only constitutes an agreement by the creditor to release his security and does not constitute an agreement to release the debt secured is unsound. In the instant case, at the time California Security Loan Corporation signed the consent, the debtor owed it but one debt, which was secured by the recorded first mortgage, and partially secured by the secret unrecorded second mortgage. By signing the consent, that company agreed to release its entire “claim”. This could have no reasonable meaning other than that it was an unqualified agreement in writing to. release the existing debt for the amount of bonds offered. This constitutes a valid release, and an accord and satisfaction. (Secs. 1524, 1541, Civ. Code.)

The last point urged by appellant is that, admitting the note and second mortgage are void and illegal, the plaintiffs were participants in the illegal transaction, were therefore in pari delicto, and cannot, for that reason, secure affirmative relief. It is, of course, true that where parties are in pari delicto neither can secure affirmative relief at law or equity. But it is equally true that where one party is involved to some extent in the illegality, but where the second party is grievously at fault and the first party only slightly at fault the court will allow recovery of moneys paid by the first party under the executory contract. (Smith v. Bach, 183 Cal. 259 [191 Pac. 14] ; Woodham v. Allen, 130 Cal. 194 [62 Pac. 398] ; Daniels v. Tearney, 102 U. S. 415 [26 L. Ed. 187].) This exception to the rule has obvious application to the facts of the instant case. The Home Owners’ Loan Act was passed solely and exclusively for the benefit of small home owners. The plaintiffs are of that class. In executing the secret second lien they did so under threat of foreclosure. They were not entirely free agents. They faced the loss of their home and were in desperate circumstances. In executing the secret second lien they acted, as found by the trial court, as any reasonable and prudent man would have acted under the circumstances. They were, therefore, not in pari delicto with the California Security Loan Corporation. The exception and limitation to the main rule is stated in 1 Pomeroy’s Equity Jurisprudence, section 403, page 756, as follows:

“The first of these limitations may be given in the following general formula, and all the others may be regarded as merely particular deductions or corollaries from it. Assuming that a contract is fraudulent, or against public policy, or illegal, still, where the parties to it are not in pari delicto, and where public policy is considered as advanced by allowing either, or at least the most excusable of the two, to sue for relief, relief may be given to him, either against the transaction by setting it aside and restoring him to his original position, or even, in some cases, by enforcing the contract, if executory. ’ ’

The instant case, for reasons already stated, clearly presents a situation where the general rule should not be applied. It should also be mentioned that this illegality argument has no application to the second ground set forth in this opinion, namely that the “Mortgagee’s Consent” constituted a release, and an accord and satisfaction.

It is also urged that the H. 0. L. C. is not a party to this appeal, and that it is the only one that can raise the question of illegality. The corporation has presented its views in the action as an amicus curiae, and vigorously assails the legality of the transaction.

The judgment appealed from should be and hereby is affirmed.

Rehearing denied.


text:
    [S. F. No. 16248.
    In Bank.
    July 31, 1939.]
    EDWARD SULLIVAN, Respondent, v. HOWARD M. McKINLEY et al., Appellants.

      John J. O’Toole, City Attorney, and Thomas P. Slevin, Deputy City Attorney, for Appellants.
    Allen G. Wright and Wright & Wright & Larson, as Amici Curiae, on Behalf of Appellants.
    John J. Dailey for Respondent.
   THE COURT.

This court, recognizing the importance this case might have upon the budgetary and fiscal procedure of the city and county of San Francisco under its charter provisions, took over the cause for further consideration, and now, after reargument, we are satisfied to adopt the opinion of the late Mr. Presiding Justice Tyler as follows:

“Petition for writ of mandate on behalf of certain auto and car painters of the Municipal Railway Department. After issue joined, a trial was had which resulted in a judgment directing the issuance of a peremptory writ of mandate against the defendants granting the demands of petitioner. From the ruling in the court below, this appeal is prosecuted. The record reveals the following facts:
“Petitioner, together with eight other individuals, is employed as an auto and car painter in the Municipal Railway Department, which is a division of the Public Utilities Commission of the city and county of San Francisco. During the fiscal year 1936-37, the wage of petitioner and his eight coworkers as auto and car painters in said department was fixed and established at $9 per day. Pursuing the steps necessary to provide the funds needed to carry on the various functions under the control of the Public Utilities Commission for the fiscal year 1937-38, that body prepared budget estimates for the different utilities under its jurisdiction, one of which was that of the Municipal Railway. The budget estimate recommended by the Public Utilities Commission for the class of car and auto painters carried the rate of $9 per day, and the estimated amount necessary to pay for such number of employees at the indicated rate was $22,599. This budget estimate originating with the Public Utilities Commission was joined with the budget estimates coming from other departments and offices of the city government by the Controller, and formed the consolidated budget estimate of all municipal divisions for transmission to the Mayor. The Mayor then gave consideration to the consolidated budget estimate, in which was that of the Municipal Railway. When he came to the item of ‘car and auto painter’, he accepted the recommendation concerning the number of employees, their daily rate of wage, and the amount necessary to be appropriated in order to satisfy the same, as theretofore set forth by the Public Utilities Commission, and ordered his recommendation to be entered in the proper sheet. The Mayor, after completion of the numerous budget estimates as contained in the consolidated budget estimate, transmitted his recommendations thereon to the Board of Supervisors for its consideration and action. With the consolidated budget, as recommended by the Mayor, went a proposed appropriation ordinance to the said Board of Supervisors. The legislative division then reviewed the recommendations of the Public Utilities Commission and the Mayor. This resulted in the board adopting the figures set out by the Commission and the Mayor in reference to car and auto-painters. On Monday, May 24, 1937, the budget for the fiscal year 1937-38 was adopted by the Board of Supervisors. Shortly thereafter, to wit, on June 2, 1937, the annual appropriation ordinance for the fiscal year 1937-38 was adopted by the Board of Supervisors and approved by the Mayor.
“Under date of June 15, 1937, E. G. Cahill, the manager of utilities, Public Utilities Commission, addressed a letter to the Mayor requesting that the daily rate of wage of car and auto painters be fixed at $10 instead of $9 a day. The Mayor and the Board of Supervisors in the annual salary ordinance 1937-38, which was adopted on the 28th day of June, 1937, provided for nine car and auto painters, Municipal Railway, at $10 per day instead of the $9 rate theretofore established in the budget and appropriation ordinance. The question to be determined is whether the Board of Supervisors and the Mayor, in fixing in the annual salary ordinance a rate of wage for auto and car painters different from that in the budget estimate of the employing department, and in the recommendation of the Mayor, and in the budget of said Board and Mayor, violate the terms of the organic law. The trial court found that the adoption of the budget estimate of expenditures for the year 1937-38, incorporating the wage rate to be paid petitioner and his associates did not control, and they recovered the amount contained in the salary ordinance.
‘ ‘ Two questions are raised on the appeal. The first concerns the admissibility into evidence of the letter dated June 15, 1937, whereby E. G. Cahill requested a change in the rate of pay of petitioner and his coworkers, it being the claim of appellants that there were no provisions under the charter permitting Mr. Cahill to send the communication; the second, that the legal effect of the evidence adduced before the trial court does not justify its findings.
“The city and county of San Francisco as a municipal corporation operates under a freeholders’ charter. Section 69 of said instrument reads as follows: ‘ . . . The budget estimate for every department and office of the city and county, whether under an elective or an appointive officer or a board or commission, and separately for each utility under the control of the Public Utilities Commission, shall be filed by the executive of such department with, and shall be acted upon by, such board or commission. All budget estimates shall be compiled in such detail as shall be required on uniform blanks furnished by the controller. The Public Utilities Commission and the board of education must hold public hearings on their respective budget proposals. Each such elective and appointive officer, board or commission shall, not later than the 15th day of February of each year, file with the controller for check as to form and completeness two copies of the budget estimate as approved . . . ’
“Section 70 of the charter, among other things, provides: ‘ (4) A schedule of positions and compensations showing any increases or decreases requested in the number of positions or rates of pay.’
“The budget estimate for the fiscal year 1937-38 for the Municipal Railway did not show any increase in the rate of pay for the position of car and auto painter. The evidence shows without conflict that the budget estimate for the Municipal Railway, as prepared in conformity with the terms of section 70 of the Charter and as approved by the Public Utilities Commission for submission to the Mayor, stated the amount to be paid was $9 a day out of a fund of $22,599. No ordinance is valid unless and until the mandatory prerequisites to its enactment and performance are substantially observed. The evidence adduced before the trial court shows a failure of the responsible authorities to do the things essential within the time prescribed by the basic municipal law for the creation of an increase in wages, and establishes without conflict a wage rate of only $9 a day for the indicated positions.
“ Section 71 of the Charter provides: ‘All increases in salaries or wages of officers and employees shall be determined at the time of the preparation of the annual budget estimates and the adoption of the annual budget and appropriation ordinances, and no such increase shall be effective prior to the fiscal year for which the budget is adopted. . . . ’ ,
“The time for establishing an increase in wage rate of municipal employees, such as the petitioner and his eight companions, is before the passage of the annual salary ordinance. And the instruments within which the increase of the rate of wage is to be expressed are (1) annual budget estimates, (2) annual budget, and (3) appropriation ordinance. Once the budget is approved by the Board of Supervisors, the fiscal terms of the annual appropriation ordinance and the annual salary ordinance are automatically fixed beyond the power of change by any amendment. Any effort of the Board of Supervisors to increase a wage scale in the annual salary ordinance over the amount provided in the approved budget is void. The Mayor must submit his proposed budget to the Board of Supervisors each year not later than the 1st day in May. ('Charter, sec. 72.) After public hearing and not earlier than the 15th day of May, nor later than the 1st day of June, the Board shall adopt the proposed budget as submitted or as amended, and shall pass the necessary appropriation ordinance. If in that period the Mayor should request the Board to increase any salary or wage schedule, the Board could provide for such increase by amending the proposed budget accordingly, provided the Mayor’s request was made on the proper recommendation of the department or office concerned. But each increase though so requested could not be made in the annual salary ordinance unless previously made in the proposed budget, for the reason that the annual salary ordinance is limited by the provisions of the approved budget.
“It must be remembered that the budget found on the estimates submitted by the Public Utilities Commission, approved and recommended by the Mayor, and adopted by the Board of Supervisors, was finally approved on May' 24, 1937; that the appropriation ordinance providing the funds to meet the items in the aforesaid budget was adopted by the Board of Supervisors on June 1, 1937, and approved by the Mayor on the 2d day of June, 1937; that these instruments, together with the estimates furnished by the commission did in no instance provide a daily wage rate of $10 for the petitioner and his associates, but did on the contrary provide a rate of $9 a day. It must also be remembered that the annual salary ordinance which carried the wage rate of $10 a day for the interested persons was passed twenty-six days later, on June 28, 1937, and represented an increase in wage rate of $1 a day, together with shorter hours. Prom what we have said it is obvious that the payment of an increase in the wage rate of petitioner and the other car and auto painters is a direct and positive disregard of the terms of section 71 of the charter.
“Our conclusion renders unnecessary a disposition of the question of the authority of Mr. Cahill to send to the Mayor his request for the increase in pay. Respondent claims that the increase in the wage rate of himself and his associates did not necessitate an increased appropriation. The fact remains, however, that it is an increase in rate of wage in a manner not authorized by the city charter, and the mere fact that the appropriation made available to the Municipal Railway Department was sufficient to pay the wages of petitioner and his associates is unimportant. ’ ’

To the foregoing it might be added that, under the charter, salaries and wages are not fixed by the salary ordinance alone. The principal purpose of that document seems to be to bring the salaries and wages as finally determined into one ordinance for more convenient reference.

Section 71 of the charter provides that “all increases in salaries or wages of officers and employees shall be determined at the time of the preparation of the annual budget estimates and the adoption of the annual budget and appropriation ordinances ...” These ordinances must be adopted not later than June 1st of each year.

It is significant that here the annual budget estimates as submitted by the Mayor fixed the wage scale for auto and car painters at $9 a day, and no change in that amount was indicated in the appropriation ordinance. On June 1st, in accordance with the charter, the Board, without amendment and after public hearing, adopted the budget and passed the appropriation ordinance. On June 14th the annual salary ordinance was passed to second reading and then provided for $9 as the wage scale of car and auto painters. On June 15th a request was filed by Mr. E. G. Cahill, Manager of Public Utilities, approved by the Mayor, requesting that the daily rate of wages of the car and auto painters be fixed at $10 instead of $9. On June 28th the salary ordinance was adopted and for the first time the rate of $10, rather than $9, per day for these employees was accepted.

The wage scale of these car and auto painters had not been fixed at the rate of '$10 per day “by the budget and annual salary ordinance ’ ’, as required by section 71, and clearly, from this language, the salary ordinance must find its support in the items of the budget.

The judgment directing the issuance of a peremptory writ of mandate is reversed.


text:
    [Sac. No. 5264.
    In Bank.
    August 1, 1939.]
    J. T. HAMES et al., Respondents, v. JOHN A. RUST et al., Defendants; DEER CREEK UNION MINING COMPANY (a Corporation), Appellant.

      Busick & Busick for Appellant.
    H. Ward Sheldon for Respondents.
   THE COURT.

Defendant Deer Creek Union Mining Company appeals from an order granting a new trial to the plaintiffs on the ground of insufficiency of the evidence.

The action is one to quiet title in and to certain mining property. It appears that the plaintiffs claim an interest in the property by reason of a contract of purchase entered into with the owner Nihell on October 29, 1937, which contract amended or superseded an earlier contract substantially to the same effect and bearing date June 21, 1937. The interest of the defendant mining company in the property arises under a lease with option to purchase also executed by Nihell as owner on or about October 27, 1934, and thereafter assigned by the lessees therein named to the defendant mining company. As shall later appear, plaintiffs’ contract made reference thereto. Inasmuch as the instrument under which the defendant mining company asserts its adverse claim antedates by several years the plaintiffs’ interest in the property, the former would take priority unless, as alleged and contended by the plaintiffs, the defendant has defaulted in the performance of the conditions specified in its agreement and has lost and forfeited all rights thereunder. At the conclusion of the trial, the court below found that the defendant mining company had defaulted in the performance of its obligations under its lease in that it had ceased to operate the property for a continuous period in excess of thirty days and also had failed to make the instalment payments required of it. But, the court went on to find that the owner Nihell had thereafter granted to the defaulting defendant an extension of time within which to perform the terms and conditions of its contract and that its rights in and to the property had not therefore been forfeited or terminated. However, as already indicated, the court below subsequently granted the plaintiffs’ motion for a new trial on the ground of insufficiency of the evidence, the propriety of such order being challenged upon this appeal by the defendant mining company.

Examination of the entire record, including the evidence, definitely indicates that default had occurred in the defendant’s performance under its agreement. Therefore the rights of the litigants in and to the property must turn ultimately upon the issue whether the owner Nihell had waived and excused the defendant’s default by granting an extension of time. The evidence addressed to this point is decidedly unsatisfactory and in many instances conflicting which fact undoubtedly prompted the court below, in the exercise of its discretion, to grant the plaintiffs’ motion for a new trial. As shall presently appear, the attitude of the owner Nihell is difficult to comprehend for after he had entered into agreements covering the same property with both sides to this controversy he undertook to and did collect moneys from each when he must have known that the interests of one were necessarily adverse to the other and that collections could only properly be made from one.

Illustrative of the unsatisfactory and conflicting nature of the evidence touching the waiver issue, is the unequivocal declaration by the owner Nihell in the plaintiffs’ contract of purchase to the effect that the defendant mining company was “in default” under its agreement and that as owner he had given “written notice of such default and believes that said contract is of no further force and effect ... ”.

While on the witness stand the plaintiff Hames testified that written notice of default signed by the plaintiffs and Nihell had been served on the defendant mining company and its assignors between the dates of July 8 and 10, 1937, and that when plaintiffs' contract was executed he knew that the owner Nihell had theretofore executed a contract with the defendant’s assignors but that “Nihell said the contract was in default”.

The witness Nihell, called by the plaintiffs under section 2055 of the Code of Civil Procedure, testified that in October, 1934, he entered into a contract with the defendant’s assignors for the sale of the land; that all of the stipulated payments were not made as therein specified but “a settlement was made” and at that time he “excused” further payments; that when he entered into the contract with plaintiffs in 1937, “an arrangement had been made” with the defendant settling all payments due under its contract; and that when so contracting with the plaintiffs he knew the defendant’s contract “was still good and still valid”. At this point, the trial court interrupted to state that “It looks like he sold it twice, to both parties; it is a funny proposition. This thing certainly would bear some investigation. I don’t understand this.” A little earlier in the trial the court below had directed the attention of counsel for the defendant herein to the fact that upon a prior occasion when said counsel had represented Nihell in other litigation, the court had “understood from Mr. Nihell that the other [defendant’s] contract was not in force” which contract “you [counsel for defendant] now tell me is valid”. The court thereupon observed that counsel’s “position is rather inconsistent” in view of the fact that his former client, Nihell the owner, “at the other trial . . . took the position that the contract that the other party [defendant herein] had was void”. The court expressed surprise at Nihell’s “about face” in the matter and concluded by stating that “Now he [Nihell] comes in and says that the other contract [defendant’s contract] is in good standing. I have a notion to throw the whole thing out. I am disgusted with the whole thing.”

Counsel for plaintiffs thereupon undertook to examine Nihell with regard to the “Notice of Default” (plaintiffs’ exhibit No. 4) to which his signature admittedly was appended and the witness stated that he “didn’t understand” the instrument when he signed it. This caused the court below to declare: “How can you get any place with testimony of that kind? He doesn’t remember, doesn’t understand, doesn’t know anything about it. It is useless to proceed with a witness of that stamp and that kind of recollection. He doesn’t know anything about his contract or anything, although it is his property and he makes the contracts. ’ ’

In his effort to impeach the witness Nihell, counsel for plaintiffs called to his attention his answers given upon the taking of a deposition in another action between plaintiffs and Nihell as owner wherein he stated that when he entered into the contract with plaintiffs he did so believing “the property was clear”. When pressed for an explanation as to why he had entered into a contract of purchase with plaintiffs when his testimony here was to the effect that the prior contract under which defendant claims was still in good standing, he replied “I can’t answer now, because I don’t know”, adding that “whatever I testified to in the examination [deposition] was what my mind was at that time ’ ’. He also stated that he could not ‘ ‘ remember ’ ’ whether he kept the defendant’s contract alive by granting an extension of time for performance. In attempted explanation of his express representation in plaintiffs’ contract that the contract of defendant was then “in default” and that “written notice of such default” had been given, he declared that he had not read that part of plaintiffs’ contract andr that if he had he “didn’t understand it”. Thereupon he testified that he thought defendant’s contract “was in effect” but he was unable to explain why he had accepted payments from both sides to this litigation under contracts that were necessarily antagonistic, one to the other.

Sufficient has been said to indicate the unsatisfactory and in many respects contradictory nature of the evidence addressed to the issue having to do with the owner Nihell's waiver, or lack of waiver, of the default that admittedly occurred in the defendant’s performance under its contract. The state of the record is such that we cannot say that the trial court erred or abused its discretion in granting the plaintiffs’ motion for a new trial on the ground of insufficiency of the evidence. The rules of law applicable to an appeal from such an order are well settled. A trial court in considering a motion for new trial is not bound by the rule of conflicting evidence. (Weringer v. Rutledge, 180 Cal. 566, 569 [182 Pac. 31].) When the motion is granted, as here, for insufficiency of the evidence, it is only in rare eases showing abuse of discretion that an appellate court will interfere because the trial judge must weigh all the evidence and determine the just conclusion to be drawn therefrom. (Hanlon Dry Dock & Ship. Co. v. Southern Pac. Co., 92 Cal. App. 230, 232 [268 Pac. 385].) It cannot be held that a trial court has abused its discretion where there is a conflict in the evidence or where there is any evidence which would support a judgment in favor of the moving party. (Wendling Lbr. Co. v. Glenwood Lbr. Co., 153 Cal. 411 [95 Pac. 1029]; Roma Wine Co. v. Hardware Mutual Fire Ins. Co., 31 Cal. App. (2d) 455 [88 Pac. (2d) 260] ; Prout v. Perkins, 21 Cal. App. (2d) 343 [69 Pac. (2d) 194] ; Taylor v. Rodriquez, 10 Cal. App. (2d) 608 [52 Pac. (2d) 494] ; Peri v. Culley, 119 Cal. App. 117 [6 Pac. (2d) 86].) In view of the witness Nihell’s many inconsistent statements on the issue of waiver of the defendant’s default under its contract, in view of his short and at times vacillating memory of many details in connection therewith and in view of his inability to satisfactorily explain his execution of a later contract of purchase with the plaintiffs and the collection of payments thereunder, we are satisfied that the trial court upon motion for new trial might well conclude, in the exercise of its discretion, that those portions of Nihell’s testimony tending to indicate that he had excused and waived any default in the defendant’s performance under its contract, were unworthy of credence. A new trial is warranted under such circumstances.

The order appealed from is affirmed.


author: SHENK, J.

text:
    [L. A. No. 17185.
    In Bank.
    August 3, 1939.]
    E. W. CULLIN, Respondent, v. C. E. FOXLEY, Appellant.
    C. E. Foxley, in pro. per., for Appellant.
    W. E. Schreyer for Respondent.
   SHENK, J.

Motion to dismiss the appeal on the ground that it was taken too late.

The moving papers show that the action was brought to foreclose a mortgage on real property executed by the defendant Foxley. Judgment of foreclosure was entered on May 28, 1938, and written notice of entry of judgment was served on June 4, 1938, and filed on June 6, 1938. On June 14, 1938, the defendant filed a notice of intention to move for a new trial as to which no decision has ever been made by the trial court. The defendant filed a notice of appeal from the judgment on April 6, 1939.

The certificate of the clerk of the trial court, dated May 10, 1939, attached to the moving papers states that no proposed bill of exceptions had been filed, that there had been no request to prepare transcript pursuant to section 953a of the Code of Civil Procedure, and that no proceedings were pending for the settlement of any transcript or bill.

The motion was heard on June 6,1939. It was then brought to the attention of this court that the clerk’s transcript (since filed herein on June 10, 1939), showed that on July 2, 1938, there was directed to and served on the plaintiff and her attorney, and on the commissioner appointed by the superior court in the foreclosure proceedings, an “Order staying proceeding in State Court”, issued by the conciliation commissioner of the United States District Court for the Southern District of California, Central Division. That order recites that on the first day of July the defendant herein deposited with the conciliation commissioner a petition under section 75 of the federal Bankruptcy Act (U. S. C. A., tit. 11, sec. 203). The order conveyed notice that thereupon said District Court acquired exclusive jurisdiction of the debtor and the debtor’s property, and enjoined and restrained the plaintiff, her attorneys and agents, and said commissioner, from further proceeding with the pending case of Cullin v. Foxley, and from “in any other manner interfering or attempting to interfere by judicial sale or otherwise with the debtor’s property or debtor until the further order of this court”.

On February 6, 1939, upon the petition of the conciliation commissioner the judge of said United States District Court dismissed the proceeding pending in said court.

Subsequently and on April 6, 1939, as noted, the defendant herein filed the notice of appeal. On the oral argument it was the contention of the defendant that because of the service of the stay order on the plaintiff, her attorneys, and the commissioner, the sixty-day period denoting the automatic termination of the new trial proceedings, as provided by section 660 of the Code of Civil Procedure, did not expire until March 9, 1939; therefore that the appeal was taken within the thirty days prescribed by section 939 of the same code.

Whether this contention may be accepted as correct depends on the effect to be given to the stay order pursuant to the pertinent provisions of the Bankruptcy Act.

Section 75 of the Bankruptcy Act, in subdivision (n), provides that the filing of the petition “shall immediately subject the farmer and all his property, wherever located, for all the purposes of this section, to the exclusive jurisdiction of the court ... ”. Subdivision (o) following provides: “Except upon petition made to and granted by the judge after hearing and report by the conciliation commissioner, the following proceedings shall not be instituted, or if instituted at any time prior to the filing of a petition under this section, shall not be maintained, in any court or otherwise, against the farmer or his property, at any time after the filing of the petition under this section, and prior to the confirmation or other disposition of the composition or extension proposed by the court: ...” Then follows a list of various proceedings, amongst which appears “Proceedings for foreclosure of a mortgage on land” and “ . . . sale or other proceedings under an execution or under any . . . Mortgage”. Subsection (p) reads: “The prohibitions of subsection (o) shall apply to all judicial or official proceedings in any court or under the direction of any official and shall apply to all creditors, public or private, and to all of the debtor’s property wherever located. All such property shall be under the sole jurisdiction and control of "the court in bankruptcy, and subject to the payment of the debtor farmer's creditors, as provided for in this section.”

A question of the state court’s jurisdiction arising under the foregoing sections was considered in the ease of Lehmer v. Scott & Borden, 28 Cal. App. (2d) 128 [82 Pac. (2d) 41]. In that case the debtor farmer had filed a petition under section 75 of the Bankruptcy Act. Subsequently and while that proceeding was pending, he commenced an action in the state court to recover damages for failure to discharge of record an allegedly fully satisfied crop mortgage, and similar relief. The court dismissed the action on the ground of lack of jurisdiction by reason of the pendency of the bankruptcy proceedings. On appeal it was held that the dismissal was erroneous. The consideration there given to the foregoing sections of the Bankruptcy Act led to the conclusion that the prohibitions therein had reference to the administrative control of the debtor’s property and to proceedings against the farmer or his property, and did not include proceedings brought for relief on his behalf or to collect assets or enforce obligations due to him.

Similarly, in the present case, the prohibitory language in the sections referred to and in the injunctive or stay order could be directed only to the further steps the objective of which would be to deprive the bankrupt or his estate of the title to or possession of the property involved. There is no direction in the language of the sections nor in the stay order which could be interpreted as a restriction upon the bankrupt to pursue any remedy in the state courts, by appeal or otherwise, looking to a recovery or conservation of his property. In fact the stay order laid no injunction upon the defendant. It was directed only to the plaintiff, her attorneys, and to the commissioner appointed to sell the mortgaged property, and enjoined the sale or other disposition of the mortgaged property and any interference with the debtor or bis property. There was nothing, either in the language of the Bankruptcy Act or in the order served herein, to prevent the defendant from diligently pursuing what was thus to his advantage, namely, the prosecution of the appeal from the judgment of foreclosure. Had he done so, it could not have been said that the provisions of the act or of the order would have been violated. It follows that the appeal herein was not taken within the time provided by the pertinent code sections.

The motion is granted and the appeal is dismissed.

Houser, J., Edmonds, J., and Curtis, J.> concurred.

Rehearing denied.