text:
    [L. A. No. 16425.
    In Bank.
    March 24, 1939.]
    BERTHA LOEWENBERG, Appellant, v. EDWARD J. SCHNEIDER et al., Respondents.

      Arthur C. Arnold, Elias Mansfield, Anthony C. Kolda and Elon Gilbert Galusha for Appellant.
    Taylor, Kolliner, Bolton & Schwartz for Respondents.
   THE COURT.

The respondents have presented two motions: (1) A motion for diminution of record, and (2) a motion to strike a purported bill of exceptions from the record.

Plaintiff and appellant, desiring to perfect a record on appeal, notified the clerk of the Los Angeles superior court on July 15, 1937, to prepare a clerk’s transcript under section 953a of the Code of Civil Procedure. That transcript was filed in this court on July 30, 1937. Meanwhile appellant had also initiated proceedings to obtain a bill of exceptions. A purported bill was settled on December 2, 1937, and was filed in this court on December 8th. It consists of six typewritten pages, and a clerk’s certificate which recites that at the time the motion for settlement came on for hearing, appellant was represented by counsel, but respondents were not.

Respondents now move to strike this purported bill of exceptions from the record on the ground that the entire proceedings leading to its settlement were defective and void. They charge, among other things, that no proposed bill was filed, that they were not given due notice of the hearing of motion for order of settlement, that the purported bill does not set forth fairly or accurately the testimony adduced on the trial of the cause, and that they had no opportunity to file written, or any, objections to the purported bill as engrossed. They also move for diminution of the record on appeal herein by adding a certified copy of an order made by the trial court on February 14, 1938, granting a motion theretofore made by them to set aside the order settling the bill of exceptions, and striking the bill from the record, together with a transcript of the proceedings which resulted in the entry of the order.

Appellant opposes both motions, urging that the trial court was without authority to set aside the order of settlement and to strike the bill of exceptions from the record, and also that the certification of the bill cured all omissions in procedure.

No good reason appears why a transcript of all proceedings had in the court below with respect to settlement of the bill should not be brought up and made a part of the present record. This data will show whether or not the trial court exceeded its authority in making the alleged order, and it will also enable this court to determine whether the bill of exceptions should be stricken from the record.

The motion for diminution of record is granted. The motion to strike the bill of exceptions is denied, without prejudice.


source: Caselaw Access Project

author: THE COURT.

license: Public Domain

text:
    [S. F. No. 16061.

    In Bank.
    March 30, 1939.]
    KARL F. KENNEDY, Petitioner, v. THE STATE BAR, Respondent.

      Karl F. Kennedy, in pro. per., Prank Curran and Andrew J. Copp, Jr., for Petitioner.
    Philbrick McCoy for Respondent.
   THE COURT.

On January 12, 1938, the petitioner was served with a notice to show cause why he should not be disciplined for professional misconduct. The local administrative committee of The State Bar, for Fresno County, heard the charges, made its findings of fact, and recommended disbarment. Subsequently the Board of Governors adopted the findings of the committee and recommended to this court that the petitioner be disbarred from the practice of the law. The petitioner does not dispute the truth of the facts disclosed by the record, but he contends that under all the circumstances a reprimand is a sufficient disciplinary measure to accomplish the end .and object of the proceedings before The State Bar.

The petitioner was born in San Jose, California, and is now 59 years of age. It is represented that his family and his family’s associates have been prominent in the political and economic history of the state. The petitioner was admitted to practice law in this state in May, 1905, after completing his law studies at Stanford University. The record indicates that the petitioner practiced law in San Jose after his graduation until he enlisted in the World War. Prom 1918 to 1929 he was not engaged in the practice of the law. In 1928 he suffered personal injuries, including injuries to his head and brain, in an automobile accident. When he was deemed sufficiently recovered, he settled in Coalinga, California, with the intention of starting a law practice there.

In 1932 the petitioner received from Pacific Credit Association of San Francisco for collection the claim of Houbigant, Inc., against Flentge Drug Co. He collected $10 on the account and sent $5 thereof directly to Houbigant, Inc., instead of to the forwarder, retaining the same amount as his “minimum fee”, although it was questionable whether he was entitled to more than $3.72.

In the same year Credit Clearing House Adjustment Corporation of New Orleans, Louisiana, forwarded to the petitioner a small claim for collection. Within the year he collected $30.91 from the debtor, but failed to remit any amount to the corporation. Upon complaint being made to The State Bar soon thereafter he contended that he had “misplaced” his file; but thereupon he sent his check for $20.61 as the forwarder’s proportion of the collection. That check was dishonored but the petitioner later made good the amount.

In 1933 G. 0. Berry sent to the petitioner for collection a claim on a promissory note signed by Mrs. Gentry of Coalinga. The petitioner collected $10 on this claim, but failed to report or remit until 1934 and after complaint to The State Bar, whereupon he remitted $7.50 of the collection through the check of one of the members of the committee.

As to the above three matters the acting local administrative committee at that time (1933) determined that further proceedings were not then justified and declined to issue a notice to show cause.

In December, 1936, the Board of Governors at a meeting held in San Francisco decided that the proceedings in the above three matters should be reopened for further investigation. After the subsequent hearing on the old and the new charges against the petitioner, the local administrative committee for Fresno County determined that the foregoing three charges, because of the lapse of time intervening since the prior investigation, should be dismissed, but that each should be considered only “in the light of its value as evidence of a course of conduct pursued by petitioner”.

The following new charges, upon which the notice to show cause was based, were investigated by the committee:

In 1932 the petitioner was employed by Mrs. Arietta J. Enterline to collect money due her from an estate then in course of administration. In April, 1932, he collected $200 for the account of Mrs. Enterline in the form of a check drawn to her order. He sent the check to her requesting her to endorse the same and return it to him, representing that he would remit immediately the proportion due to her. He received the endorsed check and deposited it in his personal account in the bank at Coalinga, and at the same time sent to Mrs. Enterline his check for $157.50. At that time there were outstanding against his account checks aggregating a sum greater than the amount on deposit, so that when his check drawn to Mrs. Enterline was presented for payment it was dishonored. The petitioner, after some correspondence with Mrs. Enterline and in August, 1932, commenced to make small payments to her on account of his indebtedness, and between the latter date and February, 1937, succeeded in repaying to her $75 of the total amount due.

In 1931 the petitioner obtained a judgment for $62.50 against one Burleson on behalf of his client, G. G. Covington. In the same year the justice of the peace before whom the action was tried received the amount of the judgment and remitted the same by check to the petitioner. The petitioner cashed the check and apparently applied the proceeds to his own personal use. He made no report of this collection to Covington until 1936 after the latter learned from the justice of the peace that the judgment had been paid. In the meantime the petitioner had claimed that he did not recall the collection of the amount, and had attempted again in 1933 to locate the debtor and realize on the judgment. When confronted finally with the statement that he had endorsed the check, he contended that it must have been a forgery, as he had no recollection of receiving or endorsing it. Finally in January, 1938, the petitioner paid $36 on the account, claiming 50 per cent of the collection as his fee.

By his own admission to the committee, the petitioner had never read the rules of professional conduct, and had not known that it was improper for him to mingle clients’ funds with his own.

The petitioner contends that the committee and the board acted beyond their proper jurisdiction in reconsidering the early charges against him, as to which he claims to have been exonerated. It is not erroneous for the proper investigating committee or board to review any past conduct of an attorney, whether or not previously involved in investigation proceedings. The board is entitled to.consider the past conduct as well as that which is directly under investigation, for whatever weight it may have in determining the question whether the attorney is imbued with the essential qualities of integrity and honesty, or for any bearing it may have upon his motive or otherwise upon the question of the measure of discipline to be applied. (Marsh v. State Bar, 2 Cal. (2d) 75 [39 Pac. (2d) 403]; McCue v. State Bar, 4 Cal. (2d) 79 [47 Pac. (2d) 268].) The record before us contains sufficient evidence that experience alone apparently will not teach the petitioner the rudiments of proper professional conduct. Whatever might be the cause of the failings of the petitioner, whether due to lapses because of prior serious injury, or ignorance of the rules of conduct, or otherwise, such failings may not be condoned. Protection to the public requires that the rules of professional conduct be adhered to. Citation of prior decisions of this court is not necessary to support the conclusion, based on the facts here presented, that the petitioner must be subjected to some period of suspension within which to rehabilitate himself from his past sufferings and conduct. However, inasmuch as it also appears that before reinstatement of the petitioner in the practice of the law a reexamination into the progress made during such period of rehabilitation will become necessary, it is the opinion of the court that the present recommendation of the Board of Governors should be adopted.

In view of the foregoing we conclude that the petitioner has not shown that the decision and recommendation of the board is erroneous or unlawful. Other matters presented by the petitioner are extraneous to any showing sufficient to meet the burden devolving upon him in this proceeding, and we do not deem it necessary to discuss such matters specifically.

It is ordered that the petitioner be disbarred from the practice of the law in this state and that his name be stricken from the roll of attorneys.

Rehearing denied.


text:
    [L. A. No. 16926.
    In Bank.
    March 30, 1939.]
    ASSOCIATED CONSTRUCTORS, INC. (a Corporation), Plaintiff, v. ALFRED E. PAONESSA et al., Respondents; HAROLD FISCH et al., Appellants.

      Edward Flam for Appellants.
    Ralph D. Paonessa, Hal Hughes and G. Vernon Brumbaugh for Respondents.
   THE COURT.

On September 11, 1933, a judgment in the sum of $2,520 was entered in favor of the defendants upon their cross-complaint in the above-entitled action against the plaintiff, Associated Constructors, Inc.,, a corporation. Thereupon the plaintiff and cross-defendant appealed from the judgment, and at the instance of the appellant, Harold Fisch and Laura Fisch offered themselves as sureties upon an undertaking to stay execution of the judgment pending the appeal. On November 8, 1933, the respondents filed a notice of exception to the form of the undertaking on appeal, as well as to the sufficiency of the sureties therein, and on November 15, 1933, the objections to the sufficiency of the sureties and to the form of the undertaking were sustained. On the same date, the above-named sureties filed another undertaking, in proper form, which also was excepted to. by the respondents, and hearing thereon was had on November 22, 1933. Upon failure of the sureties again to qualify, a new undertaking to stay execution was filed by the appellant therein, in which the Coast Surety Company, a corporation, then qualified to execute surety bonds, was named as surety. The surety in the last-mentioned undertaking was justified, accepted by respondents and the said undertaking filed, staying execution pending the appeal.

' More than two years later, to wit, on December 16, 1935, under the provisions of section 954, Code of Civil Procedure, on the ground that said surety company had become insolvent, the respondents filed an affidavit and notice of motion for an order requiring a new undertaking to be given in the place and stead of that executed by the Coast Surety Corporation. No reference was made to the proposed undertakings theretofore offered by Harold and Laura Piseh, either in the motion or the affidavit with regard to the giving of a new bond following the asserted insolvency of the Coast Surety Company; and it appears that neither of them was made a party to those proceedings. However, the motion was allowed to go “off calendar”, and no further steps were taken by respondents looking to the acquisition of additional security pending the appeal. In due course, the judgment in favor of the respondents and cross-complainants was affirmed. A summary judgment against Harold and Laura Piseh, as well as against the surety company, was thereafter entered.

The instant appeal is presented by said Harold and Laura Piseh, and is from the denial of a motion filed on their behalf, under section 473, Code of Civil Procedure, to have the said summary judgment set aside as far as the said appellants Piseh were affected.

The question presented is whether the undertaking of'the surety company should be considered “cumulative”, that is, as additional security to that offered by the appellants Piseh, in which event the latter would become cosureties with the said surety company,—or whether the undertaking that was furnished by the surety company must be deemed to have superseded that which was offered by the said appellants and rejected by the respondents and the trial court.

In 50 Corpus Juris, page 281, it is said: ‘ Sureties on successive bonds for the same obligation are cosureties if the bonds remain in force and are merely cumulative, but not where the latter bond supersedes the former, and the liability of the surety on the first bond terminates as to the future when the second is given. ...” (Emphasis added.)

The appellants contend that under the provisions of section 948, Code of Civil Procedure, having failed to justify, they were superseded as sureties by the second undertaking, which they assert is deemed to relate to the time of the filing of the first undertaking and thus renders the first bond of no further avail to the respondents. On the other hand, the respondents contend that the rule is that sureties who fail to justify are not relieved from liability,—relying in particular upon the case entitled McColgan v. Scoble, 2 Cal. (2d) 285 [40 Pac. (2d) 483], In that case, the plaintiff in an ejectment action recovered judgment for possession of the property and for money damages. The defendants appealed and gave an undertaking staying execution on the judgment. The plaintiff excepted to the sufficiency of the sureties and a day was noticed for their justification. The time thus noticed was continued by stipulation of the attorneys on several occasions, the last continuance carrying the time beyond the statutory period of twenty days within which sureties might justify under the provisions of section 948, Code of Civil Procedure. No further attempt was made to have the sureties justify, and no undertaking was given in the place of that executed by said sureties. Thereafter, at the request of the defendants, the appeal was dismissed and, upon the going down of the remittitur, the plaintiff moved that judgment be entered in his-favor against the appellant sureties for the amount specified in the undertaking. It was contended that where the respondent on appeal had excepted to the sufficiency of the sureties on an undertaking to stay execution, and the sureties had failed to justify within twenty days after the appellant had been served with notice of such exception, the sureties were no longer bound; and that judgment entered against them on the undertaking was erroneous. It was there held, however, that the failure of the sureties to justify within the time allowed after notice of the respondent’s exception to the sufficiency of the sureties did not release the sureties from their undertaking, but merely operated to- “vacate the stay” of execution and that thereafter the respondent was entitled to proceed against the sureties on the undertaking, or to enforce the judgment by execution. The particular language in that decision relied on by respondents here is the statement that “Under the authority of Fried v. Rivkin [96 Misc. 697 (161 N. Y. Supp. 94)], . . . , we are of the opinion that the appellants as sureties on the undertaking which was the subject of this action were not released by their failure to justify after the respondent had excepted to their sufficiency, and that they are bound by the judgment herein, which was entered against them for the amount specified in said undertaking.” However, no question was presented in that case with regard to a substitution of “other” sureties, under section 948, Code of Civil Proeedure, in the place of those who theretofore had offered themselves and who had failed to justify within the time prescribed by that section, as is the situation in the instant case. What was said by the court in that ease necessarily was applicable only to the facts there presented. It will be noted that in making the statement relied on here, in part the court said: “ ... we are of the opinion that the appellants as sureties on the undertaking which was the subject of this action were not released, ...” (Emphasis added.) By its use of the emphasized words it is clear that in that case the court intended to limit the ruling to the facts there involved.

Counsel for respondents point to no decisions either in this jurisdiction or elsewhere which hold sureties liable where, pursuant to statutory provision therefor, they have filed an undertaking on appeal which, in effect, has been rejected by the court and the respondent for failure of the sureties to justify thereon, and which original undertaking, for that reason and in compliance with the statutory provisions, has been supplanted by another undertaking with different sureties, on which undertaking the sureties have succeeded in qualifying, and by reason whereof the execution of the judgment has been effectually stayed. Neither have the appellants cited any case which directly sustains their position. However, they rely upon the following statement found in the case entitled Lee Chuck v. Quan Wo Chong Co., 81 Cal. 222 [22 Pac. 594, 15 Am. St. Rep. 50], which they contend places the proper interpretation upon the provisions of section 948, Code of Civil Procedure:

“If the sureties are insufficient pecuniarily, the opposite party has his remedy under section 948 [Code Civ. Proe.] He may, as provided in that section, except to the sureties at any time within thirty days after the filing of the undertaking. And unless they or other sureties, justify as therein provided, within twenty days after the appellant has been served with notice of such exceptions, ‘ execution of the judgment, order, or decree appealed from is no longer stayed’. That is, the proceedings are stayed until the necessary exceptions are made, and time given for the sureties to justify, and no longer. It necessarily follows that if the same or other sureties do justify within the time allowed, the stay continues, and the liability of the new sureties relates back to the time of the first stay. ...”

Appellants also direct attention to a statement of the law found in 4 Corpus Juris, page 1289, wherein it is said that where the second bond “is not intended as additional security, but is given, in accordance with statutory requirement, to supersede the first, it discharges the first”.

The pertinent language of section 948, Code of Civil Procedure, is that upon exception to the proposed sureties “ . . . unless they or other sureties, within twenty days after the appellant has been served with notice of such exception, justify before a judge of the court below, . . . execution . . . is no longer stayed”. (Emphasis added.)

The apparent effect of the provisions of that section is that it is incumbent upon an appellant who may desire to stay execution of a judgment pending an appeal either, in the first instance, to provide sureties who can “justify”, or, upon their failure in that regard, to offer “other”, or different, sureties for the purpose of qualifying on an undertaking. Consequently, on failure of the first sureties to justify, the proposed sureties who are next offered and who may succeed in qualifying, must be deemed to have been intended to take the place of, or to have thereupon superseded, the former proposed sureties. It will be observed that on failure of the first sureties to justify, the statute does not provide for the justification of “further” or of “additional” sureties; it provides that “unless they or other sureties” justify, execution will not be stayed. (Emphasis added.) This language must mean that, upon failure of the first proposed sureties to qualify, an entirely new undertaking must be given in lieu of the original undertaking. Furthermore, if the first sureties have been found not to be financially responsible for the purposes of the bond, it would seem not only inconsistent, but also unjust, for the respondent, nevertheless, to seek to impose liability upon them as cosureties at a time subsequent to that on which they had been superseded by other sureties whose financial qualifications had been accepted by the respondent. We think that it was not intended by the legislature that the section here in question was to have the meaning contended for by respondents herein.

Another reason suggests itself why sureties who may fail to qualify on a first undertaking were not intended to be held liable under the circumstances here presented, in that, under section 954, Code of Civil Procedure, the legislature has made provision for adequate protection of a respondent who, pending appeal, may have reason to believe that sureties on an undertaking which has been accepted as an appeal bond have become insufficient for that purpose. Under that section, it is provided that: “When it is made to appear to the satisfaction of the court or a judge thereof, from which the appeal was taken, that a surety or sureties upon an appeal bond from any cause has or have become insufficient, and the bond or undertaking inadequate as security for the payment of the judgment appealed from, . . . the last-named court, or a judge thereof, may order the giving of a new bond with sufficient sureties, as a condition to the maintenance of the appeal. ...”

As hereinbefore has been stated, pending the appeal, at a time when knowledge of the insolvency of the surety company was brought to their attention, the respondents availed themselves of the provisions of section 954, Code of Civil Procedure, by filing the motion relating thereto which was subsequently ordered “off calendar”. The fact that thereafter respondents failed to pursue their remedy in that regard cannot operate to impose liability upon the appellants, whose undertaking lost its force and effect at the time it was superseded by that of the surety company.

Prom that which has been said hereinbefore, it follows that the order appealed from should be, and is, reversed; and directions are hereby given to the trial court to enter an order in conformity with the views herein set forth.

Rehearing denied.


author: CURTIS, J. EDMONDS, J., Dissenting.

text:
    [L. A. No. 16923.
    In Bank.
    April 6, 1939.]
    MIKE ARELLANO et al., Respondents, v. CITY OF BURBANK (a Municipal Corporation), Appellant.

      Ralph W. Swagler, City Attorney, for Appellant.
    Ray L. Chesebro, City Attorney (Los Angeles), Frederick Von Schrader and Leon T. David, Assistants City Attorney, Bourke Jones, Deputy City Attorney, Ernest A. Wilson, City Attorney (San Mateo), Clyde Woodworth, City Attorney (Inglewood, South Gate, Manhattan Beach and Redondo), George W. Trammell, Jr., City Attorney (Long Beach), Albert Mansfield, City Attorney (Redwood City), Paul F. Garber, City Attorney (Monrovia), and Aubrey N. Irwin, City Attorney (Glendale), as Amici Curiae, on Behalf of Appellant.

      Mills, Hunter & Dunn, Paul J. Quigley, Edward C. Mills and Harold J. Hunter for Respondents.
   CURTIS, J.

This cause was transferred to this court

after decision by the District Court of Appeal to give further consideration to the contention of the appellant that the decision of the District Court of Appeal was in conflict with certain prior decisions of that court and particularly the decisions in the eases of Waldorf v. City of Alhambra, 6 Cal. App. (2d) 522 [45 Pac. (2d) 207], and Robertson v. City of Long Beach, 19 Cal. App. (2d) 676 [66 Pac. (2d) 167]. After a careful study of those decisions, we find no conflict between them and the decision of the District Court of Appeal in the present action. While the collision in each of these cases occurred upon a street in which there was a “jog” or “offset” at the intersection of said street, in the Waldorf and Robertson cases, the driver of the automobile after crossing over the intersection collided with the curb and sidewalk in front of the abutting property which extended beyond the property line on the opposite side of the cross street. In other words, he ran over and upon the curb and sidewalk along the property which formed the “jog” in the street. It was held that the curb, sidewalk, and the parkway with the trees growing in the parkway, in front of that portion of the property included within the jog or offset “constitute a barrier or warning sufficient to avert disaster and as readily visible to the alert driver as a sign informing him of the condition” in the street. In the present action the driver did not collide with the jog in the road, but drove across the intersection onto the unpaved right of way of the railway company, and there was no curb, sidewalk, or parkway, or other barrier to warn him of the changed condition in the highway. The curb referred to in the present action was not across the course which the automobile was traveling as it was in each of the two cases cited by appellant, but was parallel to said course and only a surface of some eight inches square was visible to the driver. Due to the fact that the street west of the crossing was only 40 feet wide, it was necessary for the driver to operate the automobile along or near the car track. This course when continued beyond the crossing brought him onto the unpaved portion of the railway right of way, and as we have just stated, there was no barrier of any kind whatever to inform bim of the changed condition in the street. As stated in the opinion of the District Court of Appeal, “when dealing with eases falling within the provisions of Public Liability Act of 1923, each of such cases must depend upon its own state of facts”. As the factual situations in the Waldorf and Robertson cases were fundamentally different from that in the instant case, the decision in those cases should not control the present decision. We, therefore, adopt the opinion of the District Court of Appeal, written by Presiding Justice York, as the opinion of this court. It is as follows:

“This is an appeal by the City of Burbank from a judgment in favor of respondents, Mike Arellano and Frances Arellano, father and mother of Valentina Alma Arellano, for her death, and in favor of respondent Tomasa Dorothy Arellano for personal injuries resulting from an automobile accident which occurred at the intersection of Glenoaks boulevard and Providencia avenue in the City of Burbank at 8:20 o’clock on the evening of October 5, 1935.
“At the intersection where the accident occurred, Glen-oaks boulevard and Providencia avenue cross at right angles, Providencia running northerly and southerly and Glenoaks easterly and westerly. Abutting the easterly side of the intersection is the westerly end of the Pacific Electric Railway Corporation’s forty-foot right of way extending easterly. For some distance west of the intersection, Glenoaks is fifty feet wide; at the east side of the intersection, Glenoaks divides and abuts the Pacific Electric right of way on the north and south thereof, being forty feet wide on the north side and forty feet wide on the south side of the said right of way. Pacific Electric Railway Corporation maintains an electric car track along Glenoaks west of and across said intersection, continuing on the said forty-foot right of way easterly of said intersection. The streets within the intersection, as well as Glenoaks to the west thereof, are paved with a surfacing of the same substance, color and appearance, and the top of the rails of the car track is flush with the surface of the pavement. The forty-foot right of way east of the intersection is not paved, and for about six feet immediately east of the intersection, the top of the ground is about level with the top of the rails and then drops off to about the top of the ties, or six inches below the rails. Westerly along Glenoaks from the intersection, the southerly rail of the car track is seventeen feet and three inches north of and parallel with the south curb of Glenoaks, and continues in a straight line across the intersection and upon the right of way.
“East of the intersection and dividing the right of way from the southerly portion of Glenoaks there is a concrete curb which abruptly ends at the east side of the intersection, presenting to the west a face eight inches wide at the bottom, eight inches high and reducing to six inches at the top. This curb does not extend across Glenoaks at the easterly side of the intersection, and the end of the said curb is about three feet and nine inches to the north of the projected line of the southerly curb line of Glenoaks west of the intersection. About three feet and nine inches to the north of this dead end curb is a pole sixteen inches in diameter painted dark for about eighteen inches from the ground and for ten or fifteen feet above that point has been painted with aluminum paint which has lost its lustre so that the pole appears drab or dull gray. To the east of this pole other poles and posts are located extending easterly in the direction of the car tracks. To the north of this pole, at the east side of the intersection, the car track extends into an open space free from posts or poles and across which there is no curb, thereby presenting to one approaching from the west an apparent unobstructed continuation of the boulevard and car track to the east of the intersection. In other words, the situation is such that a person driving easterly on Glenoaks with his left wheels ‘straddling’ the car track would collide with the unpaved right of way and drop down upon the railway ties, unless he turned either right or left around the end of the unpaved right of way and thereby reached the north or south lane of Glenoaks boulevard.
“At the intersection in question boulevard stop signs were maintained regulating traffic on Providencia avenue, but no such signs were maintained on Glenoaks and there were no speed signs on Glenoaks west of said intersection at the time the accident occurred.
“On the evening of October 5, 1935, the employees of a dehydrating plant located in Burbank had planned a surprise party at the home of Joe Suppon, one of their foremen. Urban Goebel, an employee of the plant, called for Howard Wills, another employee, and after driving around in Goebel’s car for about three-quarters of an hour, they proceeded to the Suppon home, where they met the two Arellano girls, who were also attending the party. Since it was early, i. e., around 8 o’clock, and the other guests had not arrived, the two boys asked the girls to take a ride with them around the block and return later to the party. Urban Goebel was driving the car, next to him sat Valentina Alma Arellano, and to her right sat Howard Wills with Tomasa Dorothy Arellano sitting on his lap. Some fifteen or twenty minutes later, as they traveled easterly on Glenoaks, the car ‘ straddling’ the southerly rail of the Pacific Electric Railway car track, they approached Providencia avenue, passed through the intersection and, as Goebel turned abruptly to the right to avoid the tall pole on the railway right of way, his left front wheel struck" the projecting end of the curb at the south side of the said right of way, causing him to lose control of his car. The car continued at an accelerated speed for a distance of two hundred thirty feet easterly on Glen-oaks boulevard, where it struck a pole in the parkway resulting in the death of Valentina Alma Arellano and Urban Goebel, and the serious injury of respondent Tomasa Dorothy Arellano.
“The instant action was instituted under the so-called Public Liability Act of 1923 (Stats. 1923, chap. 328, p. 675), section 2 of which provides that municipalities ‘shall be liable for injuries to persons and property resulting from dangerous or defective condition of public streets’. A directed verdict was rendered in favor of the Pacific Electric Railway Corporation, and from the judgment against the City of Burbank for $5,000 for the death of Valentina Alma Arellano, and $10,000 for the injuries sustained by Tomasa Dorothy Arellano, this appeal is prosecuted.
“Appellant urges (1) that bottleneck conditions of streets are not embraced within the. term ‘dangerous and defective condition of public streets’, as used in said Public Liability Act; (2) that the driver of the ear was guilty of negligence as a matter of law and such negligence was the sole proximate cause of the accident; (3) that the Public Liability Act does not authorize recovery for wrongful death, and that the damages awarded therefor were excessive; (4) that it was prejudicial error to charge the jury on general negligence and without regard to the limitation of duty imposed upon the City of Burbank under the Public Liability Act; (5) that the third amended complaint failed to state a cause of action and it was error to deny appellant’s motions for nonsuit and for directed verdict; (6) that the verdict is not supported by the law or the evidence.
“As is usual in eases of this character, the evidence respecting the circumstances surrounding the accident is conflicting. The jury having determined that the accident occurred through the negligence of appellant, the rule of law is well settled that all reasonable inferences are to be indulged in support of the conclusion reached by the jury; that when two or more inferences can be reasonably deduced from a certain set of facts or circumstances, a reviewing court is not permitted to substitute its deductions for those of the jury. (Gorman v. City of Sacramento, 92 Cal. App. 656, 660 [268 Pac. 1083].) '

“ To warrant a recovery under the Public Liability Act (Stats. 1923, p. 675), the following conditions must exist: ‘ (1) The injury to the plaintiff must have resulted from a dangerous or defective condition of a public highway, street, ... ; (2) the city council or other governing board or some officer or person having authority to remedy the condition must have had notice or knowledge thereof; (3) it, or he, must have failed or neglected to remedy the dangerous or defective condition within a reasonable time after acquiring knowledge or receiving notice; or (4) must have failed to take such action as might be reasonably necessary to protect the public against the dangerous or defective condition within a reasonable time after knowledge or notice. ’ (9 Cal. Jur. Supp. 627, citing Bosqui v. City of San Bernardino, 2 Cal. (2d) 747, 759 [43 Pac. (2d) 547]; Nicholson v. City of Los Angeles, 5 Cal. (2d) 361 [54 Pac. (2d) 725].) The theory of the act seems to be that liability is imposed not alone for the dangerous condition, but for the failure to remedy it, upon knowledge or notice thereof. (Watson v. City of Alameda, 219 Cal. 331 [26 Pac. (2d) 286].) Whether or not the requisite conditions are present should usually be determined from the facts of the particular ease; the factors which contribute to produce a result are so varying that no hard and fast rule may find practical application to the great majority of cases. (Waldorf v. City of Alhambra, 6 Cal. App. (2d) 522 [45 Pac. (2d) 207].)

“ In connection with its first point, appellant urges that ‘ the case at bar is analogous in principle to the physical conditions that prevail as described by the court in the cases of Waldorf v. City of Alhambra, 6 Cal. App. (2d) 522 [45 Pac. (2d) 207]; Robertson v. City of Long Beach, 19 Cal. App. (2d) 676 [66 Pac. (2d) 167]. These two cases are analyzed by the Supreme Court in the recent decision in the case of George v. City of Los Angeles, 11 Cal. (2d) 303 [79 Pac. (2d) 723, 726], where it was said: ‘In each of these cases the injury was caused by a collision of an automobile with a “jog” or “offset” in the street along which the automobile was being operated. It was held in the Waldorf case, and followed in the other cited case, that there is no law of this state which requires a municipality to maintain barriers or warning devices at “jogs” or “offsets” in the streets of a municipality; that in almost every city of size in the state some streets are laid out and improved without uniformity as to width or direction, resulting in “jogs” or “offsets” and that where there is nothing in the construction of such a street to conceal its real condition, no liability attaches to the municipality for injuries arising out of such construction.

“ ‘The factual situation in each of these two eases differs materially from that existing in the present action. It is well settled in this state that when dealing with cases falling under the provisions of the Public Liability Act of 1923, each of such eases must depend upon its own state of facts and that no hard and fast rule can be applied in the great majority of eases. (Rafferty v. City of Marysville, 207 Cal. 657, at page 660 [280 Pac. 118, 119]; Waldorf v. City of Alhambra, 6 Cal. App. (2d) 522, at page 526 [45 Pac. (2d) 207] ; Hook v. Gity of Sacramento, 118 Cal. App. 547 [5 Pac. (2d) 643].) In each of the Waldorf and Robertson cases, as we have seen, the claimed dangerous condition .was a “jog” or “offset” in the street at its intersection with a cross-street, where the abutting property extended beyond the property line on the opposite side of the cross-street. The abutting property was surrounded by a curb some six inches in height, and there was also a sidewalk and parkway within the curb line. These, the court held, constituted barriers or warnings sufficient to avert disaster and readily visible to the driver of an approaching automobile. ... By reason of the marked difference in the factual situation in the present ease from those shown to have existed in the case of Waldorf v. City of Alhambra, and Robertson v. City of Long Beach, supra, we are unable to agree with the respondent city that the decisions in those cases are determinative of the issues involved in the instant ease. As the complaint in this ease set forth facts showing the existence of a dangerous and defective condition in Aliesandro street, together with notice of such condition by the officers of the city and their failure to remedy such condition, it met all requirements of the statute, and was not vulnerable to a general demurrer. The court, therefore, erred in sustaining said demurrer. ’

“The intersection of Glenoaks boulevard and Providencia avenue reveals a much more complicated situation than a mere ‘jog’ or ‘offset’ in the street. Admittedly, there is a jog in Glenoaks boulevard, but added to that is the unpaved railway right of way commencing at the easterly side of the intersection, as well as the fact that the northerly curb of the paved portion of Glenoaks lying southerly of and adjoining the unpaved right of way came to an abrupt stop presenting at a point within the intersection a face eight by eight inches which any driver, even though using ordinary care, might easily overlook because of its inconspicuous aspect to one approaching the intersection from the west. There is evidence in the record that the driver turned abruptly to the right to avoid hitting the tall pole on the railway right of way and in so doing he struck the unprotected and inconspicuous end of the curb and thereby lost control of his car. There is no ‘jog’ or ‘offset’ in the car track at this point; continuing from the west, it traverses the intersection and then passes in a straight line over the unpaved right of way to the east of the intersection. There is also evidence in the record that at the time of the accident there was no visible warning to the driver of a machine traveling easterly into the intersection, ‘straddling’ the car track, that he could not continue to drive his automobile along the car track and upon the right of way, but that he must turn either to right or left to avoid disaster. Because of the lack of visibility at the time of day when the accident occurred, the small projecting end of the curb would appear to one approaching from the west to be a part of the unpaved right of way.

“Minutes of the city council of Burbank introduced in evidence disclose that on February 20,1934, Howard I. Stites, city manager and city engineer in charge of repair and maintenance of streets and highways, knew and recognized the hazard to traffic which existed at this intersection and had then reported ‘that deeds for right of way are being secured to widen the roadway there and lessen the traffic hazard at that corner’. Called as a witness Mr. Stites was asked if ‘on February 20, 1934, when you appeared before the council as the city manager and as the city engineer and discussed the obtaining of an easement over the right of way of the Pacific Electric Railway Corporation, it was for the purpose of widening or setting back those curb lines, was it not í ’ He replied: ‘ It was. ’ In September, 1934, appellant acquired an easement over two triangular strips of land embraced within the railway right of way and lying along the northerly and southerly sides of said right of way at its junction with the easterly line of the intersection. Mr. Stites testified that this deed was secured from the railway company for the purpose of widening the street, doing away with the bottleneck condition and setting back the curbs. The minutes of October 23,1934, reveal that the traffic hazard which then existed at this intersection would be removed upon completion of the contemplated improvement. However, the matter was allowed to rest and nothing was ever done to warn the motoring public that a dangerous condition existed at this corner. It was a year after the deed had been secured that the accident which is the basis of this action occurred. Having been fully cognizant of the hazard there existing, it was the legal duty of the appellant to take proper steps to eliminate such hazardous condition. Its failure ‘to take such action as may be reasonably necessary to protect the public against such dangerous and defective condition’ (Stats. 1923, p. 675), constituted negligence as contemplated by said Public Liability Act.

“ The contributory negligence of the driver of the car involved herein was pleaded as a defense by appellant. The jury having found to the contrary, it is beyond the power of this court to interfere, taking into consideration all of the facts and circumstances disclosed by the record. ‘It is only where the inference of negligence is irresistible that it becomes the duty of the court to decide upon it as a matter of law, and, where the facts or the inferences to be drawn from them are in any degree doubtful, the only proper rule is to submit the whole matter to the jury under proper instructions. ’ (Van Praag v. Gale, 107 Cal. 438 [40 Pac. 555].)

“ With respect to appellant’s third point: In both Bennett v. Kings County, 124 Cal. App. 147 [12 Pac. (2d) 47], and Edwards v. San Diego, 126 Cal. App. 1 [14 Pac. (2d) 119], which were actions brought under the provisions of the Public Liability Act, damages for wrongful death were allowed. In the Bennett case, referring to said act, the court at page 150 said: ‘The first point raised is that the demurrer to the complaint should have been sustained. It is contended that the statute upon which this action is based (Stats. 1923, p. 675, sec. 2) is in derogation of the common law and must be strictly construed, and that since it does not specifically give a right of action to the heirs of a deceased person, such an action cannot be maintained. It is argued that those cases where such an action has been permitted or which have been treated as if such right existed, are not in point, since this particular question was not therein raised (see Gorman v. County of Sacramento, 92 Cal. App. 656 [268 Pac. 1083]; Brooks v. City of Monterey, 106 Cal. App. 649 [290 Pac. 540].) A part of the act in question reads: “Counties . . . shall be liable for injuries to persons and property, resulting from the dangerous or defective condition of public streets, highways ...”

“ ‘Aside from the consideration of any other statutes, we are unable to see why the “injuries to persons”, referred to in this statute, do not include such injuries as may be caused to persons by reason of the death of others as well as injuries to persons directly involved not resulting in death. We think the injury suffered by these plaintiffs is covered by the statute and that the demurrer was properly overruled. ’

“ As to appellant’s complaint that the damages awarded for the wrongful death are excessive, the amount of damages in this kind of an action is committed first to the sound discretion of the jury, and next to the discretion of the judge of the trial court, who, in ruling upon the motion for a new trial, may consider the evidence anew, determine anew the facts and set aside the verdict if it is not just. ‘Upon appeal, the decision of the trial court and the jury on the subject cannot be set aside unless the verdict is so plainly and outrageously excessive as to suggest at first blush passion, prejudice or corruption on the part of the jury. ’ ” (Gorman v. County of Sacramento, 92 Cal. App. 656, 667 [268 Pac. 1083], and cases there cited.) There is nothing in the record presented here which even suggests passion, prejudice or corruption on the part of the jury.

“Appellant in its supplemental opening brief claims error by the trial court in giving three certain instructions to the jury on the question of general negligence. In its closing brief, appellant admits that some of these individual instructions were proposed by it, and then calls attention to a fourth instruction which it also proposed but which it now claims was erroneously modified by the trial court. Taken as a whole, the instructions which were given fully and fairly presented the issues to the jury, and if any such error existed, it was so slight as to be entirely harmless and resulted in no prejudice to appellant’s cause.

“From what has heretofore been said, it is apparent that there is not merit in appellant’s fifth point. The third amended complaint was sufficient as against a general demurrer, and there was no error on the part of the trial court in denying appellant’s motion for nonsuit and for directed verdict.

“The verdict is amply supported by both the law and the evidence.”

The judgment is affirmed; the appeal from the order denying motion for a new trial is dismissed.

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

EDMONDS, J., Dissenting.

In my opinion the facts of the present case are not essentially different from those which were shown in the eases of Waldorf v. City of Alhambra, 6 Cal. App. (2d) 522 [45 Pac. (2d) 207], and Robertson v. City of Long Beach, 19 Cal. App. (2d) 676 [66 Pac. (2d) 167]. In each of those cases the appeal challenged a determination of the trial court that the plaintiff’s complaint failed to state a cause of action. The facts alleged in each complaint were substantially the same. An accident had occurred at night when an automobile collided with and overran a curb on the far side of an intersection at which point there was a “jog” or “offset” in the course of the street. It was held in each case that the facts alleged were not sufficient to state a cause of action against the defendant city under the Public Liability Act. (Stats. 1923, chap. 328, p. 675; Deering’s Gen. Laws, Act 5619, p. 3052.) The reasoning of the court in the Waldorf case, which was quoted and relied upon in the Robertson case, is as follows: “Nor do we think that the city is chargeable with liability in failing to maintain barriers, lights or warning signs or notices at the point of ‘offset’ or ‘jog’ in the street. In almost every city of size in this state some streets are laid out and improved without uniformity as to width or direction, resulting in so-called ‘jogs’, ‘offsets’ or ‘goose-necks’, some ending at cross-streets and some even forming cul-de-sacs. We are convinced that the law does not require a municipality to maintain either barriers or warning devices at ‘jogs’ or ‘offsets’ of the construction, nature and appearance of that described in the complaint herein. To the prudent operator of a motor vehicle, acting within the scope of the law governing his own conduct in traversing a public street in the night-time, the pavement, curb, sidewalk and the parkway with the trees or poles therein constitute a barrier or warning sufficient to avert disaster and as readily visible to the alert driver as a sign informing him of the condition, there being nothing to conceal the real condition nor to deceive the operator of an approaching automobile while driving at a lawful rate of speed and with due caution. ” (6 Cal. App. (2d), pp. 526, 527 [45 Pac. (2d) 207, 209].)

The physical facts in the present ease come within this description of an ordinary street in any city. At the time the accident occurred, the course of Glenoaks Boulevard jogged to the right (instead of to the left as in the Waldorf and Robertson cases) at its intersection with Providencia Avenue, and beyond the intersection it is divided by the Pacific Electric’s unpaved right of way. The commencement of the right of way on the far side of Providencia Avenue was made plainly apparent by numerous poles and posts and by the dark surface which continued beyond the white concrete pavement. One large pole (16"xl6") which stood on the right of way beyond the end of the pavement and almost directly in the path of the automobile which Urban Goebel was driving, had been painted with aluminum paint and appeared “drab or dull gray.” On this pole was suspended a railway crossing wig-wag signal facing Providencia Avenue. Directly opposite, three posts marked the line between the pavement and right of way on the north side of the railroad track. One of these posts was painted white. Approximately in the center of the intersection and 25 feet above the street, a 600 candlepower street light was suspended. On the northwest corner of the intersection was a service station illuminated by lights totaling 1100 candlepower.

The four occupants of the car were riding in the front seat. The night was clear and the street was dry. Each of the two survivors of the accident lived two and one-half blocks from the scene and were well aware of the jog in the street. The driver of the automobile, who was killed, lived approximately a mile from the scene of the accident. In crossing the intersection the automobile swerved to the right, striking the end of a curb which formed the southern boundary of the right of way, and then, out of control, continued 232 feet, where it collided with a pole on the sidewalk.

The opinion of my associates distinguishes the two previous decisions upon the ground that “the curb referred to in the present action was not across the course which the automobile was traveling as it was in each of the two cases cited by appellant, but was parallel to said course and only a surface of some eight inches square was visible to the driver.” It is also said that “there was no curb, sidewalk, or parkway, or other barrier to warn him [the driver] of the changed condition in the highway”. This distinction overlooks the existence of physical conditions which constituted just as visible a warning to the oncoming motorist as did the “curb, sidewalk, and parkway” in the Waldorf case or the curb, sidewalk and empty lot in the Robertson ease. Certainly a group of posts and poles, some of which were painted a light color, at an intersection illuminated by a powerful street light, are as plainly visible as a concrete curb and sidewalk of approximately the same color as the street pavement.

The opinion of the District Court of Appeal which is now adopted by this court, suggests that the west end of the curb which marked the southern boundary of the right of way might be easily overlooked by a motorist approaching from the west. But this curb, although small in itself, was a part of the physical conditions which were made apparent by other objects plainly indicating that the street did not continue beyond them. There was, therefore, no dangerous or defective condition of streets within the meaning of the statute upon which the plaintiffs rely and, as I read the record, the defendant’s motion for a directed verdict should have been granted by the trial judge.

For these reasons, according to my view of the case, the judgment should be reversed with directions to the trial court to enter judgment for the defendant.

Houser, J., and Shenk, J., concurred.

Rehearing denied. Edmonds, J., Shenk, J., and Houser, J., voted for a rehearing.


author: HOUSER, J.

text:
    [Sac. No. 5269.
    In Bank.
    April 7, 1939.]
    ELI RODMAN, Petitioner, v. THE SUPERIOR COURT OF NEVADA COUNTY et al., Respondents.

      George R. Andersen for Petitioner.
    Vernon Stoll, District Attorney, for Respondents.
   HOUSER, J.

In substance, the essential facts which appear in a petition that has been presented to this court for the issuance by it of a writ of certiorari are that in a criminal action that was pending against one Yuen, and others, in the Superior Court of this State, in and for the County of Nevada, in accordance with an order theretofore made by said court, the petitioner herein deposited with the sheriff of that county the sum of $500 cash bail for the sole purpose of insuring the appearance in court of one Circle, who was one of the defendants in the action. Circle did appear at the trial of the action and was convicted of the commission of the offense of which he had been charged. Thereafter, in due course, on his appearance before the court for the special purpose of having sentence pronounced against him, and before judgment was so rendered, in part the following colloquy occurred in open court between the judge of the court and Mr. Andersen, who was counsel for defendant Circle, and who also represented the several bondsmen:

“Mr. Andersen: Before the Court formally pronounces judgment, I desire to have the bail exonerated, your Honor. The Court: Mr. Circle,— Mr. Andersen: Will the Court direct a minute order to that effect? The Court: Tour motion is not made in the proper form. Mr. Andersen: Representing the bondsmen, I desire, on their behalf, to have the bail exonerated. The Court: That is not a proper motion, not in the proper form. . . •. ”

After pronouncing judgment in the action, the judge continued as follows: “It is further ordered, that the County Clerk, in respect to each defendant, apply the money on deposit as bail in satisfaction of each of said fines, and refund the surplus, if any, to the defendants or other person who made such deposit, as provided in Section 1297 of the Penal Code of California. The defendants are ordered into custody.”

Thereupon the following respective statements and conduct occurred in open court:

“Mr. Andersen: May I direct the Court’s attention to the order of the Court made with respect to the bail in this of People v. Yuen case? Tour Honor is probably not familiar with the amendment to section 1297 of the Penal Code, under which the Court would probably want to amend its own order. The Court: With respect to Tuen? Mr. Andersen: With respect to Tuen and all of the defendants. The bail receipts here are not in the name of any of the defendants. The Code provides that in any such case the bail may not be forfeited. The Court: I have the latest Code in there (indicating the Judge's chambers). Mr. Andersen: I think if the Court would look at it, the Court would change the order. The Court: I believe it provides that the surplus is to be returned. Mr. Andersen: None of the bail will be forfeited, your Honor. The Court: I will look at that. Mr. Andersen: May we do that now? The Court: Very well, we will take a recess. [Thereupon, the Court, the District Attorney and Mr. Andersen retired to the Judge’s chambers, thereafter returned and the following proceedings ensued:] The Court: There may be some merit in your contention with reference to the amendment of Section 1297, Mr. Andersen, but I will not decide that at this time; that is, with reference to the forfeiture of the money. ’ ’

The lawfulness of the order, by which the fine that was imposed upon the defendants in the criminal action was directed to be paid out of the money that had been deposited by third persons as bail for the appearance in court of the said defendants, is the subject of these proceedings.

However, preceding a determination of the question of whether the trial court was possessed of authority to direct the disposition of the money that had been deposited by a bondsman as bail for the appearance of Circle, it would seem advisable that attention should be directed to each of several minor points which has been advanced by the respondents :

It may be remembered that at the time when the petitioner herein presented to. the trial court his request or motion that the bail be “exonerated”, the response which was made thereto by the trial judge was that the “motion is not made in the proper form”. That was the sole reason assigned by the trial court for its refusal to “exonerate” the bail; and, in this proceeding, the respondents re-assert that position, and urge that it should prevail as a sufficient reason for a refusal of this court to make an order by which an annulment of the order here in question would result. In that connection, it first may be not inappropriate to again suggest the application of the rule that in the administration of justice, substance, rather than mere form, should be regarded. In this state, the common-law forms of procedure have been either abandoned or, at least, have suffered a considerable modification in their strictness, with the consequence that their importance even in matters of pleading has been greatly decreased; and, with reference to statutory procedure, by constitutional provision, ordinarily no error “as to any matter of pleading, or . . . procedure” constitutes a sufficient ground even for the granting of a new trial. (See. 4%, art. VI, Const.) Other than that the request or the motion should have been preceded by an offer on the part of the bondsman to surrender the defendant into court, no suggestion is here made as to the “form” which should have been observed. (Mundell v. Wells, 181 Cal. 398 [184 Pac. 666, 7 A. L. R. 383]. See sec. 1300, Pen. Code.) But, obviously, the fact that the defendant already had been brought to trial, had been convicted of the offense of which he had been charged, and at the instant when the motion was made was before the court for the very purpose of having judgment pronounced against him, should have been considered the equivalent of a surrender by the bondsman of the person of the defendant. Besides, it would seem apparent that, other than the implied requirements which may be indicated by the provisions of section 1300 of the Penal Code, had any particular “form” ever been prescribed, either by statute or by judicial direction, a fair regard for the rights of the applicant for “exoneration” should have prompted an indication of its existence, together with the giving of a reasonable opportunity to the bondsman to amend his application, or otherwise to avail himself of the use of the required procedure. It is manifest that to permit a mere failure on the part of the bondsman to perform that which either might or would have been readily done by him, or that which, in substance, might have been regarded as an idle act, to defeat his asserted rights in the premises, would give rise to a sad commentary on the vaunted procedure respecting the administration of substantial justice. At any rate, this court cannot knowingly lend its official sanction in such a cause.

On the part of the respondents, it also is urged that at the time when the order here in question was made, no evidence was introduced in behalf of the bondsman “showing that the bail money had actually been deposited by third parties”, and that as a consequence thereof, “the court could do nothing other than order the forfeiture”. In that regard, it need only be said that such contention is lacking in substantial merit. Prior to the institution of the instant proceeding, the record of the proceedings herein discloses the undeniable fact that no question with respect to the facts was ever suggested either by the judge of the trial court or by any interested person. Apparently everyone that was at all connected with the matter was thoroughly conversant with all the facts; and, as hereinbefore has been stated, the only ground upon which reliance was placed by the trial judge for his refusal to make the requested order was that the motion was “not made in the proper form”.

Regarding the merits of the motion, it appears that in criminal cases, with respect to “deposit instead of bail”, section 1297 of the Penal Code provides as follows:

“When money has been deposited, a receipt shall be issued in the name of the depositor. If the money remains on deposit at the time of a judgment for the payment of a fine, the county clerk must, under the direction of the court, apply the money in satisfaction thereof, and after satisfying the fine and costs, must refund the surplus, if any, to the defendant. If the person to whom the receipt for the deposit was issued was not the defendant, the deposit after judgment shall, upon surrender of the receipt, he returned to the holder thereof.” (Emphasis added.) The italicized portion of the law just quoted constitutes a part of an amendment that was enacted by the legislature in 1937. Furthermore, section 1302 of the Penal Code provides as follows:
“If money has been deposited instead of bail, and the defendant, at any time before the forfeiture thereof, surrenders himself to the officer to whom the commitment was directed, in the manner provided in the last two sections, the court must order a return of the deposit to the defendant or to the person or persons found by the court to have deposited said money on behalf of said defendant upon the production of the certificate of the officer showing the surrender, and upon a notice of five days to the district attorney, with a copy of the certificate.”

From a casual reading of those statutes, it would seem manifest, considering the facts of the instant case, that the deposit not having been made by the defendant, but by a bondsman, eventually the latter was entitled to have his money returned to him. However, it is contended by the respondents that the provisions of section 1295 of the Penal Code qualify that which would seem to be the plain language of section 1297. But this court is unable to agree with the respondents in that regard. All that the pertinent language of section 1295 purports to provide is that after a defendant has been admitted to bail, either he or any other person may deposit the required amount of the cash bond with the clerk of the court; thereupon “upon delivering to the officer in whose custody defendant is a certificate of the deposit, defendant must be discharged from custody”.

The decision in the case of Mundell v. Wells, 181 Cal. 398 [184 Pac. 666, 7 A. L. R. 383], which is relied upon by the respondents in support of their position, was rendered long before the amendment was made to section 1297, and has application to the particular facts of that case and the law as it existed at the time when the said decision was rendered. In the face of the plain provisions of the statute as amended, it is clear that any declaration of the law contained in the cited case that ordinarily might be appropriate to the situation here disclosed, but which declaration of the law is in conflict with the express terms of the amended statute, has no controlling force in the present controversy.

Finally, as an objection to a determination of the legality of the order in question, the respondents herein urge the point that a “writ of review is not a proper proceeding in this case”. In that regard, the respondents contend that, even if it be admitted that section 1297 of the Penal Code requires the trial court to pay the deposited bail to the person holding the receipt therefor, certiorari will not lie to review the action of the trial court in erroneously ordering it applied in satisfaction of a fine, for the asserted reason that at most the action of the trial court was simply an error in the exercise of jurisdiction and was not in excess of its jurisdiction. In other words, the respondents rely on the well-settled rule that before a writ of certiorari may be granted, it must be shown that the inferior court acted in excess of its jurisdiction, and that the writ may never be granted where the inferior court merely commits error in the exercise of its jurisdiction (see cases collected 4 Cal. Jur., sec. 4, p. 1022). However, an examination of the facts of the instant case leads to the conclusion that a proper situation is presented which will justify the issuance of the writ.

Primarily, it should be noted that courts possess no inherent power to appropriate to the payment of a fine that has been imposed on a defendant, any money that theretofore may have been deposited by a bondsman for the purpose of insuring appearance of the defendant for trial in the action in which such fine has been imposed. Such authority is of purely statutory origin, and necessarily is limited by the terms of the enabling statute. (Isbell v. Bay Circuit Judge, 215 Mich. 364 [183 N. W. 721, 16 A. L. R. 971].) In that connection, it also may be observed that: “In the absence of a statute permitting it, the authorities have no power to receive or order a deposit of money by a prisoner in lieu of bail”; (44 L. R. A. (N. S.) 1150) and that: “In the absence of express statutory authorization a judicial officer, or other officer empowered to admit to bail, persons accused of crime, has no right to accept a deposit of money in lieu of bail or as a substitute for a recognizance ’ ’ (29 A. & E. Ann. Cas. 1913D, 194; see, also, Snyder v. Gross, 69 Neb. 340 [95 N. W. 636, 5 Ann. Cas. 152].)

If it be assumed that the statute—section 1297 of the Penal Code—limited the court’s authority to paying the deposited bail to the petitioner, it is obvious that such statute limits the jurisdiction of the court, as that term is used in the rule hereinbefore stated, and that the court’s action in ordering the bail applied in satisfaction of the fine was in “excess” of jurisdiction, and was not merely an error in the exercise thereof. An examination of the numerous cases which deal with this problem impels the conclusion that some confusion exists with reference to what constitutes an excess, and what constitutes an error, in the exercise of jurisdiction. However, it seems well settled (and there appears to be no case holding to the contrary) that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction, and certiorari will lie to correct such excess. In Spreckels S. Co. v. Industrial Acc. Com., 186 Cal. 256 [199 Pac. 8], the point is discussed at some length. There the statute specifically designated what award the commission should make to partial dependents in the event of the death of an employee. The commission made an award larger than that permitted by the statute. This court held that such action could be corrected by certiorari. At page 260 it is stated: “The difficulty arises from the different shades of meaning which the word ‘jurisdiction’ has. As sometimes used, it means simply authority over the subject matter or question presented. In this sense the commission undoubtedly had jurisdiction in this ease and its award was not without jurisdiction on its part. But the word is frequently used as meaning authority to do the particular thing done, or, putting it conversely, a want of jurisdiction frequently means a want of authority to exercise in a particular manner a power which the board or tribunal has, the doing of something in excess of the authority possessed. A good illustration of a want of jurisdiction of this latter sort is the imposing by a court upon a person convicted of crime of a sentence in excess of that permitted by the statute. The court had jurisdiction to sentence the convicted person, but it did not have jurisdiction to impose a sentence not permitted by law, that is, it acted in excess of its power in so doing. Such excesses of jurisdiction can be reviewed on certiorari. The code section so provides (Code Civ. Proc., sec. 1068) . . . Upon the facts found the statute prescribed the amount to be allowed as a death benefit, and the commission in allowing a different amount rendered an unlawful award and one in excess of its authority.”

Substantially the same rule was announced in Baker v. Superior Court, 71 Cal. 583 [12 Pac. 685], In that ease a trial court purported to extend a litigant’s time to plead for a period in excess of the time authorized by the code. With reference thereto this court stated (p. 584) : “It is clear that the order, so far as it attempted to extend the time to plead more than thirty days, was an excess of jurisdiction.” It was held that certiorari was the proper remedy to correct the action of the trial court. (This rule was also reiterated in Gibson v. Superior Court, 83 Cal. 643 [24 Pac. 152]; see, also, Carpenter v. Superior Court, 75 Cal. 596 [19 Pac. 174]; Zierath v. Superior Court, 35 Cal. App. 788 [171 Pac. 112].)

The very point involved in the instant case was considered by the District Court of Appeal in Hudson v. Police Court of Oakland, 39 Cal. App. 149 [178 Pac. 172], a case arising, incidentally, before the recent amendments had been made to Penal Code, section 1297. In that ease, after bail deposited by a third person had been ordered applied to the satisfaction of a fine, the third person sought to have the action of the trial court reviewed by certiorari. It was held (p. 150) : “that that part of the judgment of the judge of the police court which we are asked to annul was beyond its jurisdiction, and it is therefore ordered that it be annulled as prayed in the petition.”

Prom the foregoing it follows that, since the statute herein involved limits the power of the trial court, the action of that court contrary to such limitation was in excess of its jurisdiction, and that certiorari is the proper remedy to secure a review of such action.

The order in question is annulled.

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


author: WASTE, C. J.

text:
    [L. A. No. 16770.
    In Bank.
    April 10, 1939.]
    BLOSSOM GRAY MacPHERSON, Respondent, v. CAMERON O’DAY MacPHERSON, Appellant.

      Bettin, Painter & Wait, D. Howard Painter and Ray H. Kinnison for Appellant.
    Gibson, Dunn & Crutcher, Thomas H. Joyce, George D. Jagels and Van C. Niven for Respondent.
   WASTE, C. J.

In this proceeding, which pertains to the custody of two minor children, defendant has appealed from that portion of a judgment which orders him to pay attorneys’ fees, expenses, and costs incurred in furtherance of the efforts of plaintiff, his former wife, to locate the children and have them returned to her. Plaintiff moves to dismiss the appeal.

It is urged, as ground for the motion to dismiss, that appellant is not entitled to seek the aid of an appellate tribunal because of his wilful and continuing contempt of court, in that he has contumaciously removed the children from the jurisdiction of California, in direct violation of the judgments and orders of the courts of this state, and is having them reside in the Republic of Mexico, solely for the purpose of thwarting and defeating said judgments and orders, in obdurate defiance of legal processes, and in disregard of the provisions made by law for the protection of minors, for safeguarding their welfare, and for controlling their custody. The facts establish the truth of this charge.

On October 17, 1930, plaintiff and appellant, then living separate and apart, executed a property settlement agreement which set forth a detailed plan for the custody of their two minor children, then aged seven and five and one-half years, respectively. Among other things, it was provided that custody and control of the children (subject at all times to modification by any court of competent jurisdiction upon application of either party) should remain in plaintiff, but that appellant should have the right to have them with him during a two months’ summer vacation period each year, and should have the right to see them at other reasonable times. It was expressly agreed that “the said children shall, at no time, be taken outside of the borders of the United States of America, except with the mutual consent of the parties hereto, or upon application to and order of a court of competent jurisdiction”, and “that either party may apply to the court, by stipulation or notice, to the effect that this agreement may be embodied and become a part of a court order in any action for divorce that might hereafter be maintained by either party to this agreement”.

On October 22, 1930, plaintiff sued appellant for divorce. He was duly served but did not appear in the action, and his default was regularly entered. On November 21, 1930, plaintiff was awarded an interlocutory decree of divorce, which by reference incorporated the terms of the property settlement agreement and which also expressly provided that she should have custody and control of the minors.

Until the fall of 1936, apparently no difficulty was encountered by the parties in giving effect to 'the custody provision. Except for a vacation spent with appellant during two months or more of each summer, the children remained with plaintiff. She remarried and established a family home in Greenwich, Connecticut. Appellant also remarried and continued to reside in southern California. On July 1, 1936, plaintiff brought the children from Connecticut to appellant in Santa Monica for their annual vacation visit. She returned to Connecticut in the latter part of August, having arranged with appellant to deliver the children to her in New York on September 14th. Appellant failed to conform to this plan. On September 15th, and again on September 30th, plaintiff made demands upon him for the children, which demands were unheeded. Plaintiff then employed counsel in Los Angeles and with their assistance sought and obtained an order to show cause (1) why appellant should not be adjudged in contempt of court for his refusal to yield custody of the children pursuant to the court order entered as a part of the interlocutory decree of divorce; (2) why appellant should not be compelled forthwith to deliver both children and custody thereof to plaintiff; (3) why the interlocutory decree of divorce, and property settlement agreement forming a part thereof, should not be modified to give plaintiff exclusive custody of the children during their minority, with a limited right only in appellant to visit them at their home; (4) why appellant should not be compelled to pay the full amount of costs incurred in bringing legal proceedings, and for transportation of plaintiff and the children between Connecticut and California, together with other expenses of recovering custody; and (5) why such further order as the court might deem equitable should not be made.

This order to show cause was set for hearing on October 29, 1936. Plaintiff came from Connecticut to testify, and prior to the hearing was permitted by appellant to visit the children at his residence for a period of about ten minutes. But when the matter was called in Court, appellant made only an alleged special appearance, solely for the purpose of moving to quash, dismiss, or strike the order to show cause, and the petition and affidavit upon which it was based. His motion to quash was granted. Plaintiff thereupon attempted to secure service upon him of a new order to show cause, but without success. Neither private process servers nor the sheriff of Los Angeles County could locate him, and they were informed that he and the children no longer resided in Santa Monica. During succeeding weeks plaintiff, although worried and severely ill, exhausted every means at her command to find the children. She procured an order for taking them, and appellant, into custody under sections 1497 and 1498 of the Penal Code, and employed a firm of private investigators to search for them. She obtained a warrant charging appellant with child stealing, and also conferred with the United States attorney at Los Angeles concerning the possibility of obtaining a federal warrant for his arrest. In all of these efforts she was unsuccessful. Finally she returned to her home in Connecticut. There, in December, 1936, a young friend of the children received a letter from one of them, the envelope of which bore an illegible postmark. This postmark was identified by an expert as “Mexico D. F.”

With this clue to appellant’s whereabouts, plaintiff resumed her endeavors to regain the children. She petitioned the District Court of Appeal for a writ of mandate to compel the Los Angeles superior court to hear the original order to show cause, with respect to which that court had previously granted appellant’s motion to quash. The District Court of Appeal concluded that the order to quash was erroneous because appellant’s purported special appearance had in fact constituted a general appearance. It further concluded that inasmuch as appellant had avoided the service of a second order to show cause, thereby rendering that remedy merely nominal, plaintiff was entitled to writ of mandate to compel the superior court to proceed with the hearing upon the original order. (MacPherson v. Superior Court, 22 Cal. App. (2d) 425 [71 Pac. (2d) 91].)

The writ issued on August 25, 1937, and the matter was set for hearing in December. Plaintiff again journeyed to California to appear as a witness, and after reaching this state she made one more attempt to reach appellant and negotiate with him. She asked the telephone operator to connect her with his residence in Cuernavaca, Mexico. Appellant himself answered the telephone. Although he permitted her to talk to both of the children, he refused unconditionally to return to the United States, or to discuss the matter of their custody.

The hearing was commenced on December 6th, and at its conclusion the trial court found the facts to be substantially as above set forth. It found also that appellant was a man of wealth, whereas plaintiff was without means or property with which to finance her efforts to recover the children, to compensate her attorneys, or to reimburse them for costs which they had advanced in reliance upon appellant’s ability to pay. It was for the best interests and welfare of the children, so the court found, that plaintiff should pursue them and obtain custody. Pursuant to these findings, and on January 5, 1938, the court (1) ordered that appellant immediately deliver the children to plaintiff; (2) adjudged appellant guilty of contempt of court and imposed upon him the maximum penalty provided by section 1218 of the Code of Civil Procedure of five days imprisonment and $500 fine; '(3) modified the interlocutory and final decrees of divorce to provide that from date until July 1, 1940, appellant should not have the children during the summer vacation period, although he might visit them at plaintiff’s residence at reasonable times, and upon reasonable notice; (4) ordered appellant to pay to plaintiff for her expenditures and obligations incurred in endeavoring to obtain possession of the children, the sum of $7,500 ($5,000 for attorneys’ fees, $1,000 to cover expenditures made on behalf of plaintiff, and $1500 for other costs and expenses incurred by plaintiff) ; (5) ordered appellant to pay. to plaintiff on January 13, 1938, an additional $10,000 ($7,500 for attorneys’ fees and $2,500 for costs), to be used by plaintiff in pursuance of the custody proceedings, provided that appellant might be relieved of this obligation by proving to the satisfaction of the court on or prior to January 12th, that he had delivered the children to plaintiff; (6) ordered issuance of a bench warrant for appellant’s apprehension, with bail thereon fixed at $5,000; and (7) ordered issuance of a commitment, committing appellant to the custody of the Los Angeles County sheriff, to be imprisoned in execution of the contempt judgment and sentence pronounced thereon.

On February 11, 1938, appellant filed a notice of appeal from that portion of the order which awarded plaintiff attorneys’ fees and costs in the respective sums of $7,500 and $10,000. Plaintiff asks that the appeal be dismissed because of appellant’s continuing contempt. So far as the present record shows the children are still domiciled in the Republic of Mexico. They have now attained the ages of 15 and 14 years, respectively. They have been told, so plaintiff avers, that she wished to have them arrested, and to some degree at least their affections have been alienated. Plaintiff fears, as well she may, that unless she soon regains their custody, she will never be able again to win their love and understanding.

In secluding the children in a foreign country and alienating them, appellant violated not only his agreement with plaintiff and the provisions of the interlocutory and final decrees of divorce, but he has also wilfully and purposely evaded legal processes and contumaciously defied and nullified every attempt to enforce the judgments and orders of the California courts, including the very order from which he seeks relief by this appeal. Such flagrant disobedience and contempt effectually bar him from receiving the assistance of an appellate tribunal. A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state. (O’Neill v. Thomas Day Co., 152 Cal. 357 [92 Pac. 856, 14 Ann. Cas. 970] ; Schubert v. Superior Court, 109 Cal. App. 633 [293 Pac. 814]; Weeks v. Superior Court, 187 Cal. 620 [203 Pac. 93] ; Funfar v. Superior Court, 107 Cal. App. 488 [290 Pac. 626]; Soderberg v. Soderberg, 63 Cal. App. 492 [219 Pac. 82].)

In Weeks v. Superior Court, supra, the petitioner, having removed a minor, and while contumaciously keeping the child outside of the state in order to prevent the husband from gaining possession and custody in accordance with the terms of an interlocutory decree of divorce, applied to this court for writ of mandate to compel the superior court to enter a final decree. This court, citing the above rule, held that petitioner should not be allowed to make application for a final decree of divorce until she had submitted to the lawful order of the superior court in relation to the custody of the child, or otherwise purged herself of the contempt.

Again, in Knoob v. Knoob, 192 Cal. 95 [218 Pac. 568], while counsel for appellant were prosecuting her appeal from a modified decree of custody, appellant removed both herself and the minor to the Republic of Guatemala in violation of the terms of the decree appealed from. The respondent thereupon moved to dismiss the appeal upon the ground that “the appellant was a fugitive from justice and in contempt of court, and for that reason not entitled to invoke the aid of the court”. Granting the motion to dismiss, this court said: “But one conclusion can be reached from the foregoing facts. It is very clear that the appellant has determined to set at naught the due process and orders of the courts of California, and does not intend to obey their mandate respecting the custody of the minor child. Under such circumstances she is not entitled to press her appeal in this court. By her appeal she is seeking the court’s aid, and it is manifestly just and proper that in invoking that aid she should submit herself to all legitimate orders and processes. . . . Her past actions indicate that not only is she determined to set at naught the authority of the trial court, but that her attitude will be the same toward any judgment or order made by this court in disposing of her appeal. The appeal is dismissed.”

Appellant here contends that the court lacked jurisdiction to adjudge him guilty of contempt because there is no evidence that he received notice or had actual knowledge of the terms of any order or judgment which he is charged with violating, or of the granting of the interlocutory decree of divorce (entered upon his default), or of the terms of the final decree. For this reason, appellant asserts, the alleged contempt cannot serve as a basis for depriving him of his right of appeal. There are several answers to this contention. The one most obvious is that the portions of the order adjudging appellant guilty of contempt are not here under review. The present appeal is only from those provisions of the order which relate to allowance of attorneys’ fees and costs, and the bill of exceptions is limited to evidence bearing on that subject. As certified, the bill only purports to correctly set forth “all of the proceedings had during the trial of said cause and all of the evidence offered therein in so far as the same applies to attorneys’ fees and costs of expenses. . . . ”. It does not purport to include the evidence relating to the issue of contempt. On this appeal, therefore, it must be presumed that there was sufficient proof of all facts necessary to support the contempt adjudication. But we may also observe that the evidence which is contained in the present record clearly indicates that appellant had full knowledge of the custody provisions of the divorce decrees. That he had “actual notice and knowledge” of the terms and conditions of the interlocutory decree of divorce, including the custody provision thereof, is averred by plaintiff in her affidavit filed in support of the order to show cause upon which the contempt adjudication was based. The affidavit is a part of the present bill of exceptions. Moreover, in view of the conduct of the parties with respect to custody of the minors over the period from 1930 to 1936, it would test credulity to believe that appellant was without actual knowledge of the terms of the custody provision. Actual notice or knowledge is all that is required. (4 Cal. Jur. Supp., p. 12, sec. 21, cases cited.)

Appellant complains that the court had no jurisdiction to make an allowance of attorneys’ fees after the services had been rendered, or an allowance of costs after the expenditures had been made. Therefore, he argues, a portion at least of the order appealed from is void, and an appeal will lie even though he may be in contempt of court. This argument overlooks the fact that even though a portion of the order appealed from may be void, or erroneous, or unsupported by sufficient evidence, nevertheless the adjudication of contempt is presumably valid, and until that contempt is purged appellant is not entitled to a hearing before an appellate tribunal. The merits of the claims urged by him in support of his appeal will not be determined, nor will the appeal be heard while he persists in his contumacious attitude.

Lastly, appellant asserts that inasmuch as he has already been sentenced to the maximum punishment for contempt prescribed by section 1218 of the Code of Civil Procedure ($500 fine and 5 days imprisonment), no further penalty by way of refusing to hear his appeal can be imposed upon him. The contention is without merit. There is no language in section 1218 which in any way places a limitation upon the power of the courts to refuse a hearing to contumacious litigants. The section merely states that where a person is adjudged guilty of contempt “a fine may be imposed on him not exceeding five hundred dollars, or he may be imprisoned not exceeding five days, or both”. This statute will not be construed to infringe upon the courts’ inherent power to ignore the demands of litigants who persist in defying the legal orders and processes of this state.

No other questions merit discussion. The appeal is dismissed.

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

Rehearing denied.