author: HOUSER, J.

text:
    [S. F. No. 16226.
    In Bank.
    September 6, 1939.]
    HERBERT KLEIN et al., Appellants, v. DUCHESS SANDWICH COMPANY, LTD. (a Corporation), et al., Respondents.

      Elliott Johnson and D. W. Brobst for Appellants.
    O’Connor, Fitzgerald & Moran and Harold H. Cohn for Respondents.
    Macdonald, Schultheis & Pettit and Lee G. Paul as Amici Curiae, on Behalf of Respondents.
   HOUSER, J.

The action upon which the instant appeal is founded was for the recovery of a judgment for damages, which were alleged to have accrued to the plaintiffs by reason of the fact that one of them assertedly suffered an illness which resulted from the eating of a sandwich which was manufactured by one of the defendants and subsequently sold through the defendant restaurateur to one of the plaintiffs.

The following are among the essential facts which appear from the record that has been filed with the clerk of this court, to wit: The plaintiffs, respectively, are husband and wife; the defendant Duchess Sandwich Company is a limited corporation, engaged in the business of manufacturing various kinds of sandwiches and thereafter selling them in wholesale lots to retailers, who, in turn, sell them to consumers. The defendant Kilpatrick is the owner and operator of the defendant Happy Daze Buffet, which is engaged in a restaurant business, which includes the furnishing of sandwiches for consumption by the general public. On July 21, 1936, the two plaintiffs went in their automobile to the place of business that was then being conducted by defendant Kilpatrick, and then and there, at the direction of the wife, the husband purchased a ham and cheese sandwich, which was wrapped in waxed paper and sealed by two metal clamps, which had been placed thereon by the defendant Duchess Sandwich Company. The latter defendant had delivered and sold the said sandwich to defendant Kilpatrick about one hour before he sold the same to the plaintiffs. In that regard, it appears that the practice pursued by the said defendants was that—with the exception of cheese sandwiches—on the day which followed a sale and delivery of sandwiches, the sandwich company replaced with fresh ones all sandwiches which had not been sold to the public by defendant Kilpatrick. In other words, each day the unsold sandwiches, other than those made with cheese, were exchanged for fresh ones; and the unsold cheese sandwiches were replaced every second day following their sale to the retailer. After the husband had taken the ham and cheese sandwich to his wife, who had remained in the automobile in front of defendant Kilpatrick’s place of business, she removed the seals which secured the waxed paper within which the sandwich had been wrapped. Thereupon, she removed the wrapper from the sandwich and “took a bite” of the sandwich and swallowed it. According to her testimony, the sandwich had “a peculiar taste”. On immediate examination of the remainder of the sandwich, she discovered that it “was crawling with worms”, or “maggots”. She became ill and vomited. Shortly thereafter, she went to her home, where she again vomited. Immediately thereafter, and as a result of that incident, the plaintiff wife was confined to her bed for four days, following which and by direction of her doctor, she was sent to a rest sanitarium, where she continued ill for a period of about two weeks. After again returning to her home, she remained ill for an additional period of about six months. The husband and wife thereupon commenced the instant action for a recovery of a judgment for the damages which they thus had sustained. On the trial thereof, her attending physician testified that the wife’s condition was characterized by “a marked nervousness, with an obsession about eating”; that “she had an obsession against food . . . ”; and that at the time of trial, her condition was “a mental condition”, which, in his opinion, should be treated by a physician accordingly.

Predicated upon the foregoing facts, on motion made by the defendants, the trial court directed the jury to return a verdict in favor of the defendants. It is from the ensuing judgment that the instant appeal has been taken. No briefs have been filed by the respondents other than the Duchess Sandwich Company.

In their complaint herein, plaintiffs pleaded two separate causes of action: In substance, (1) that the defendants were guilty of negligence; and (2) that the defendants had breached an implied warranty that the sandwich was fit for human consumption.

However, without insisting that, in appropriate circumstances, an action for negligence would not lie against a manufacturer, the defendant Duchess Sandwich Company urges the point that on the trial of the action no evidence was adduced from which properly it might be deduced that the said defendant had been guilty of any negligence in the premises. But in that regard, notwithstanding undisputed evidence to the effect that in the manufacture of sandwiches, generally, care had been exercised by the said defendant to prevent the happening of such an incident as befell one of the plaintiffs in the instant case, nevertheless, from the admitted fact that cheese-worms or “maggots” were present on or in the sandwich that was prepared by the defendant Duchess Sandwich Company and thereafter sold by defendant Kilpatrick to one of the plaintiffs, it becomes undeniable that at some time or place some person had failed to exercise the proper degree of care to prevent houseflies or cheese-flies from depositing their eggs on some of the material from which the sandwiches were manufactured, or the subsequent infestation of the particular sandwich in question by cheese-worms or “maggots”. And evidence regarding the manner in which the respective businesses of the two defendants were conducted certainly admits of the inference that the negligence existed on the part of the defendant Duchess Sandwich Company rather than on the part of defendant Kilpatrick. To illustrate the possibility of negligence of the one, as well as to exculpate the other, it may be remembered that the evidence disclosed the fact that after the sandwiches had been prepared at the place of business of defendant sandwich company, they were wrapped in waxed paper, and that the ends of the wrapper were folded and then sealed with metal clamps. Apparently neither cheese-worms nor “maggots” are indigenuous to either cheese or ham; and, since the evidence discloses the fact that “maggots” are the larvae which in two days ordinarily develop from eggs which have been deposited by house-flies, or cheese-flies, it would seem likely that the filling of the sandwich had been thus exposed before the sandwich had been wrapped,—especially in view of evidence to the effect that the sandwich had been in the possession of defendant Kilpatrick for a period of approximately one hour only before it was sold to the plaintiffs. In such circumstances, the conclusion that the unfortunate incident was caused by the lack of proper care on the part of the defendant Duchess Sandwich Company is but natural and one which is deducible from the facts in the case. Its contention that the evidence was sufficient to justify the rendition of a directed verdict in favor of the defendants, and the judgment thereon, cannot be sustained.

It is next urged by respondent Duchess Sandwich Company that no implied warranty as to the quality of the food existed in favor of the plaintiffs. In that regard, section 1735, Civil Code, supplies the basic law for a conclusion to the contrary. In effect, it is therein provided that such a warranty exists: “(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. ’ ’

However, the respondent Duchess Sandwich Company, in effect, contends that the implied warranty created by the statute contemplates the existence of a warranty running only from an immediate seller to an immediate buyer. It is clear that were this contention to be upheld in the instant case, the resultant ruling would be that no recovery could be had against the manufacturer on the warranty theory because there was no privity of contract between either of the plaintiffs on the one hand, and the manufacturer Duchess Sandwich Company on the other, by reason of the fact that defendant Kilpatrick—and not the defendant manufacturer— was the “immediate seller’’ in the transaction involved. The respondent sandwich company further contends, in effect, that, since by the language of the statute the warranty ran only in favor of the “buyer’’, and inasmuch as the husband was such immediate “buyer’’, no privity of contract existed between the wife and the “seller’’,—and that, consequently, no liability on the implied warranty theory was created in favor of the wife.

In view of the fact that the question concerning a manufacturer’s liability to an ultimate purchaser or consumer on a warranty as to the fitness of food manufactured by it heretofore has not been passed upon directly by this court, and because of the fact that in some of the other jurisdictions which also have adopted the Uniform Sales Act, of which section 1735, Civil Code, is a part, the several courts recently have given considerable attention to the problem, it is deemed expedient at this time, in the light of those authorities, to give consideration to the question thus presented.

In Rachlin v. Libby-Owens-Ford Glass Co., (C. C. A., 2d Dist.), 96 Fed. (2d) 597, 600, the court commented upon the fact that although the orthodox rule requires privity of contract between the parties in an action for breach of warranty, “Several courts . . . have recognized an exception to the general doctrine in the case of medicines and foodstuffs, and have held a manufacturer to warrant to the ultimate consumer that the article is fit for human consumption. ...”

In volume 1, Uniform Laws Annotated, pages 118, 119, it was said: “Because there is no privity of contract between the parties, no action will live [lie] for breach of an implied warranty on the sale of foodstuffs, except between the immediate parties to the sale [citing cases] ... It has, however, been declared that foodstuffs do not fall within the rule of want of privity between the manufacturer and ultimate consumer, with a retail dealer intermediate. Hertzler v. Manshum, (19-24) 228 Mich. 416 [200 N. W. 155], . . . Ward Baking Co. v. Trizzino, (1928) 27 Ohio App. 475 [161 N. E. 557], ...” (Emphasis added.)

Likewise, in Williston on Sales, volume 1, page 489, the author makes the following comment: “The general rule that warranties do not run in favor of any but an immediate purchaser has been held applicable in a number of cases where food has been sold to a subpurchaser. Several recent cases, however, have imposed the absolute liability of a warrantor on such a manufacturer in favor of the ultimate purchaser.” (Citing among other authorities the cases entitled Dothan Chero-Cola Bottling Co. v. Weeks, 16 Ala. App. 639 [80 So. 734]; Davis v. Van Camp Packing Co., 189 Iowa, 775 [176 N. W. 382, 17 A. L. R. 649]; Parks v. C. C. Yost Pie Co., 93 Kan. 334 [144 Pac. 202, L. R. A. 1915C, 179]; Ward v. Morehead City Seafood Co., 171 N. C. 33 [87 S. E. 958]; Catani v. Swift & Co., 251 Pa. 52 [95 Atl. 931, L. R. A. 1917B, 1272]; Mazetti v. Armour & Co., 75 Wash. 622 [135 Pac. 633, Ann. Cas. 19150, 140, 48 L. R. A. (N. S.) 213]; Flessher v. Carstens Packing Co., 93 Wash. 48 [160 Pac. 14].)

In the ease entitled Ward Baking Co. v. Trizzino, 27 Ohio App. 475 [161 N. E. 557, 559, 560], the plaintiff purchased a cake from a retail grocer. The cake was wrapped in waxed paper and bore the name of the baker (Ward Baking Co.) on the outside of the wrapper. As the plaintiff was eating some of the cake he swallowed a needle which had been imbedded in its texture, and an action thereafter was brought for injuries which allegedly had resulted to him from swallowing the needle. The complaint was predicated in part upon an implied warranty of the baking company as to “the wholesomeness and freedom from foreign and dangerous substances” of the cake. It was contended by the said company that there was no contractual liability—in that no privity existed between the plaintiff and the defendant baking company. After commenting on the fact that the authorities were conflicting on the question thus presented, the court said: “The groceryman, who is in effect merely a distributing medium for the articles of food furnished by the Baking Company, and the Baking Company, having full knowledge of that fact, dealt with each other and entered into a contractual relationship for -the benefit of the public, which is the ultimate consumer. In other words, this contract between the grocery-man and the Ward Baking Company to all intents and purposes was a contract entered into for the benefit of a third party, to wit, the ultimate consumer. . . . Considerations of public policy demand that the utmost care and caution be exacted from the manufacturer of articles of food, who not only manufactures the same, but causes the same to be delivered to grocerymen, bakeries, and so forth, for the purpose of general distribution and sale to members of the general public. The consumer has a right to rely upon the implied representation of the Baking Company that these articles bearing its name are not only free from injurious substances, but are fit for consumption as food.” (Emphasis added.)

And in the case entitled Anderson v. Tyler, 223 Iowa, 1033 [274 N. W. 48, 50], it was held that the duty of a manufacturer is “to see to it that food products put out by him are wholesome”; that the implied warranty that such prod-nets were fit for use ran with the sale, and to the public, for the benefit of the consumer, rather than to the wholesaler or retailer; and that privity of contract was not controlling.

In Dow Drug Co. v. Nieman, 57 Ohio App. 190 [13 N. E. (2d) 130, 135], it was said, “That there is a liability upon a negligent manufacturer who sells articles knowing they are intended for resale to subpurehasers is clear from the trend of modern authorities. The only controversy is as to the basis of the liability, some holding that the implied warranties are made for the benefit of the subpurehasers and form the basis of liability, and others holding that there must be proof of negligence to impose a liability. [Citing cases.] ”

Likewise, in the case entitled Hertzler v. Manshum, 228 Mich. 416 [200 N. W. 155, 156], which was an action against both the miller and a retailer of flour, for death caused by the presence of arsenate of lead in the said flour, which had been used in the preparation of food eaten by the deceased, the court said: “Defendant Hanchett contends for nonliability under the general rule that the manufacturer of an article or commodity sold a retail dealer is not liable to a subsequent purchaser upon an implied warranty for injuries due to defects or impurities therein. This general rule is based on want of contractual relation. But foodstuffs do not fall within the rule of want of privity between the manufacturer and ultimate consumer, with a retail dealer intermediate. . . . The implied warranty, so called, reaching from the manufacturer of foodstuffs to the ultimate purchaser for immediate consumption is in the nature of a representation that the highest degree of care has been exercised, ... We are fully persuaded that the manufacturer of foodstuffs is liable to respond in damages to the purchaser thereof, for immediate consumption, injured by a foreign poisonous substance therein; that the retail dealer may be joined as a party defendant ; and the liability of both may be counted on in tort for negligence or breach of implied warranty as mentioned.” (Emphasis added.)

And in Davis v. Van Camp Packing Co., 189 Iowa, 775 [176 N. W. 382, 17 A. L. R. 649], it was held that one seeking damages from a food manufacturer for injuries caused by eating unwholesome food was not compelled to elect between implied warranty and negligence as a ground for recovery. In that case also it was contended by the defendant packing company that there could be no warranty, express or implied, because there was no privity of contract between the defendant and plaintiff. There the court said: “ ‘ The remedies of injured consumers ought not be made to depend upon the intricacies of the law of sales. The obligation of the manufacturer should not be based alone upon privity of contract. . . . every consideration of law and public policy require that the consumer should have a remedy. . . . ’ ... In the case of Parks v. C. C. Yost Pie Co., 93 Kan. 334 [144 Pac. 202, L. R. A. 1915C, 179], . . . the court says: ‘A manufacturer or dealer who puts human food upon the market for sale or for immediate consumption does so upon an implied representation that it is wholesome for human consumption. . . . ’ ... In Boyd v. Coca-Cola Bottling Works, 132 Tenn. 23 [177 S. W. 80] . . . the court said: 1 . . . Some of the eases place the liability on the grounds heretofore stated; others place it on pure food statutes; others say there is an implied warranty when goods are dispensed in original packages, which is available to all damaged by their use; and another case says that the liability rests upon the demands of social justice. . . . ’ ... We are of the opinion that the duty of a manufacturer to see to it that food products put out by him are wholesome, and the implied warranty that such products are fit for use runs with the sale, and to the public, for the benefit of the consumer, rather than to the wholesaler or retailer, and that the question of privity of contract in sales is not controlling, and does not apply in such a ease.” (Emphasis added.)

Also, the ease entitled Mazetti v. Armour & Co., 75 Wash. 622 [135 Pac. 633, Ann. Cas. 1915C, 140, 48 L. R. A. (N. S.) 213], although decided prior to the time the Uniform Sales Act became a part of the law of the state of Washington, frequently has been cited in the later cases dealing with the question here being considered. (See Baxter v. Ford Motor Co., 168 Wash. 456 [12 Pac. (2d) 409, 411, 15 Pac. (2d) 1118, 88 A. L. R. 521]; Stanfield v. F. W. Woolworth Co., 143 Kan. 117 [53 Pac. (2d) 878, 881].) In the Mazetti case the defendant meat packing company was sought to be held liable in an action brought by a middleman who had purchased canned tongue from the former, some of which the plaintiff had sold to a patron. It was alleged that the tongue was foul and poisonous. In discussing the question of liability of the meat packer, the court said: “It has been accepted as a general rule that a manufacturer is not liable to any person other than his immediate vendee; that the action is necessarily one upon an implied or express warranty, and that without privity of contract no suit can be maintained; that each purchaser must resort to his immediate vendor. To this rule certain exceptions have been recognized: (1) Where the thing causing the injury is of a noxious or dangerous kind. (2) Where the defendant has been guilty of fraud or deceit in passing off the article. (3) Where the defendant has been negligent in some respect with reference to the sale or construction of a thing not imminently dangerous. . . . Another exception—the doctrine is comparatively recent—is referable to the modern method of preparing food for use by the consumer, and the more general and ever-increasing use of prepared food products. The following are among the more recent cases holding that the ultimate consumer may bring his action direct against the manufacturer: Meshbesher v. Channellene Oil & Mfg. Co., 107 Minn. 104 [119 N. W. 428, 131 Am. St. Rep. 441]; Tomlinson v. Armour & Co., 75 N. J. L. 748 [70 Atl. 314, 19 L. R .A. (N. S.) 923]; Salmon v. Libby, McNeill & Libby, 219 Ill. 421 [76 N. E. 573] ; Haley v. Swift & Co., 152 Wis. 570 [140 N. W. 292]; Watson v. Augusta Brewing Co., 124 Ga. 121 [52 S. E. 152, 1 L. R. A. (N. S.) 1178, 110 Am. St. Rep. 157] ; Ketterer v. Armour & Co., (D. C.) 200 Fed. 322. . . . Although the cases differ in their reasoning, all agree that there is a liability in such cases irrespective of any privity of contract in the sense of immediate contract between the parties. . . . Our holding is that, in the absence of an express warranty of quality, a manufacturer of food products under modern conditions impliedly warrants his goods when dispensed in original packages, and that such warranty is available to all who may be damaged by reason of their use in the legitimate chmnels of trade.” (Emphasis added.)

And in the case entitled Menaker v. Supplee-Wills-Jones Milk Co., 125 Pa. Super. 76 [189 Atl. 714, 715], it was held that: “A manufacturer who puts upon the market food intended for human consumption in a sealed bottle or original package is held to represent to each purchaser, even though the purchase is made through a dealer, that the contents thereof are wholesome and suitable for the purpose for which they are sold. Nock v. Coca Cola Bottling Works, 102 Pa. Super. 515, 521 [156 Atl. 537]; Rozumailski v. Philadelphia Coca-Cola B. Co., 296 Pa. 114 [145 Atl. 700]; Catani v. Swift & Co., 251 Pa. 52 [95 Atl. 391, L. R. A. 1917B, 1272].” (Emphasis added.)

The question here under consideration also has been the subject of review in the various law journals. For comments, see: 42 Harvard Law Review, 417; 46 Harvard Law Review, 162; 52 Harvard Law Review, 328; 23 California Law Review, 621. (See generally: 17 A. L. R. 709; 105 A. L. R. 1511; 111 A. L. R. 1251.)

It will be seen from a reading of the foregoing authorities that they are not in entire accord, one with the other, as to the exact reasoning employed in holding a manufacturer liable on a warranty theory, where an action has been brought by an ultimate purchaser or consumer—with a retail dealer intermediate—for injuries resulting from the eating of unwholesome food. Manifestly, however, the factor of public policy affords a background for these decisions. Many statutes have been enacted in recent years which have had for their purpose the safeguarding of the public health, such as the pure food and drug acts, the regulation of milk and dairy products, etc., the aim and purpose of which enactments are that, in the interest of the public welfare, only wholesome food may be sold for human consumption. (Stanfield v. F. W. Woolworth Co., 143 Kan. 117 [53 Pac. (2d) 878, 881].) As hereinbefore has been said, the remedies of an injured consumer of unwholesome food ought not to be made to depend “upon the intricacies of the law of sales”, and the warranty of the manufacturer to such consumer should not be made to rest solely on “privity” of contract. (Ketterer v. Armour & Co., (S. D., N. Y. 1912) 200 Fed. 322, 323.)

It should at once be apparent that food which is covered with “maggots” is not wholesome, nor fit for human consumption; and if, as the evidence in this case discloses to be the fact, one of the plaintiffs partook of a sandwich which was thus infested, and for that reason became ill, the general provisions of the statute, together with the adjudicated cases with reference thereto, supply abundant authority for the affirmation of a judgment for damages in their favor arising from such a cause, either on a theory of negligence or on that of the implied warranty referred to in section 1735, Civil Code. In adopting the statute here concerned as a part of the Uniform Sales Act, it was the clear intent of the legislature that, with respect to foodstuffs, the implied warranty provision therein contained should inure to the benefit of any ultimate purchaser or consumer of food; and that it was not intended that a strict “privity of contract” would be essential for the bringing of an action by such ultimate consumer for an asserted breach of the implied warranty.

Although authorities to the contrary of the conclusion herein reached have imposed a strict privity of contract on a purchaser or consumer of assertedly unwholesome food as an essential requisite for the bringing of an action on the implied warranty theory, nevertheless, the rulings made in the authorities herein cited are based on sound principles,— affording as they do an adequate remedy for injuries which may result from the eating of unwholesome food by an ultimate consumer who, under modern economic conditions, almost of necessity, must purchase many items of food prepared in original packages by the manufacturer and intended for the consuming public, although marketed through an intermediate dealer.

The second contention made by the respondent Duchess Sandwich Company,—that recovery was precluded by the plaintiff wife because she was not the “buyer” within the meaning of the statute and that, consequently, there was no “privity of contract” between the “seller” and the wife—in effect, has been answered by the ruling hereinbefore made. However, on analyzing the question,—in the light of the construction placed upon the statute by the respondent sandwich company—it is evident that, should such contention be upheld, the result would be that should a father or a mother of an infant child purchase from a grocer a bottle of unwholesome milk, or other deterious food, for consumption by the child and, ensuing from its consumption thereof, the child become ill,—-no damages therefor by reason of a breach of an implied warranty would be recoverable. It would seem improbable that, in adopting the act, the legislature ever intended or even contemplated that such a construction wTould or could be placed upon the language of the section referred to herein. Moreover, in the instant case, the evidence shows that the wife “sent” her husband into the restaurant for the express purpose of purchasing for her the sandwich of which she thereafter partook, and thus, in effect, she was the “buyer” within the terms of the statute. Furthermore in the case of Jensen v.Berris, 31 Cal. App. (2d) 537 [88 Pac. (2d) 220], the plaintiff, who allegedly sustained injuries from the eating of unwholesome food in a restaurant—in company with other members of a card club—was allowed a recovery as against the restaurateur on the warranty of the fitness of the food, although she did not pay for the food herself,—the court holding that there was sufficient privity of contract to support the warranty. And in the ease entitled Dryden v. Continental Baking Co., 11 Cal. (2d) 33 [77 Pac. (2d) 833], the plaintiff wife was injured by the eating of bread purchased by her husband through a retail dealer, and although it was held that her recovery was in tort, where negligence on the part of the baking company was proven,—nevertheless, in answer to the contention of the defendant baking company that no recovery should have been allowed on the implied warranty theory because there was lack of privity of contract, the court observed that, “assuming that privity is an essential element of such an action, it might well be urged that the wife . . . was a third party beneficiary of the contract”.

However, as hereinbefore has been held, the warranty as to the fitness of foodstuffs intended for human consumption was not intended to be solely for the benefit of the immediate “buyer”, but was intended to be for the benefit of the ultimate consumer,—the existence of privity of contract not being essential in an action brought by such consumer on the warranty theory. To allow a recovery by such third person, who may have consumed unwholesome food purchased by another, would not impose a greater burden on the manufacturer or on the immediate seller of the food than would be thus imposed if the original purchaser had been injured by reason of the consumption thereof—since the warranty extended to every consumer is that the food is fit for the purpose for which it was intended, namely, for human consumption.

In the instant case, it follows that the jury should not have been directed to return its verdict in favor of the defendants.

The judgment is reversed.

Shenk, J., Curtis, J., Pullen, J., pro tem., and Spence, J., pro tem., concurred.

Rehearing denied.


source: Caselaw Access Project

author: SHENK, J.

license: Public Domain

text:
    [L. A. No. 17126.
    In Bank.
    September 6, 1939.]
    MARIE HEROUX, Respondent and Petitioner, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY (a Corporation) et al., Appellants.
    Robert Brennan, Leo E. Sievert, H. K. Lockwood for Appellants.
    Russell H. Pray, Mason & Windham, Henry F. Walker and Roy J. Brown for Respondent.
   SHENK, J.

Plaintiff brought this action to recover damages for personal injuries suffered in a collision between an automobile and a locomotive. From a judgment on a verdict the defendants appealed. The judgment was reversed by the District Court of Appeal on September 8, 1938. (Heroux v. Atchison, Topeka & S. F. Ry. Co., 28 Cal. App. (2d) 401 [82 Pac. (2d) 620].) No application for a rehearing in that court was made. A petition for a hearing in this court was denied November 7, and on November 9, 1938, the remittitur went down from the District Court of Appeal. On December 24, 1938, a notice of motion was filed in that court to recall the remittitur. The grounds of the motion were stated to be, (1) that the judgment of reversal was improvidently ordered upon false suggestion and under a mistake as to the facts in the case, and (2) that fraud and imposition had been practiced' upon the court in procuring its judgment and upon counsel representing the respondent.

After hearing on the motion to recall, the District Court of Appeal found that the respondent was fully cognizant of the facts constituting the alleged fraud and mistake on and prior to that date of the judgment of reversal, to wit, September 8, 1938; that notwithstanding such knowledge no petition for a rehearing was filed in that court. The court concluded' that when the aggrieved party was cognizant or claimed the existence of fraud or mistake affecting the appellate court’s decision, it was the duty of the litigant promptly and at his first opportunity to call the court’s attention to the alleged fraud or mistake; that the respondent had the opportunity thus to call the same to the attention of the court by petition for a rehearing in that court; that failing to do so the respondent should not be permitted to delay this necessary and appropriate step until after the remittitur had gone down, and that the respondent was therefore guilty of laches in presenting the belated motion. (See, Heroux v. Atchison, Topeka & S. F. Ry. Co., (Cal. App.) 86 Pac. (2d) 841, January 24, 1939.) The court based its conclusion in part on the case of Haydel v. Morton, 28 Cal. App. (2d) 383 [82 Pac. (2d) 623], where on motion to recall the remittitur under a situation very similar to the present one it was plainly indicated that it was the duty of the aggrieved party, having full knowledge prior to the reversal of all the facts on which the claim of improvidence and mistake on the part of the appellate court in reversing the judgment for the plaintiff was based, to acquaint the court with such facts in its briefs before judgment and by petition for rehearing after the judgment was rendered.

The respondent’s petition for hearing after the decision by the District Court of Appeal of her motion to recall was granted. The effect of our order was to transfer the motion to this court. The respondent insists that our order had the effect of transferring the entire cause on the merits of the appeal. Such of course was not the case. The appeal on its merits was disposed of by the judgment of the District Court of Appeal reported in 28 Cal. App. (2d) 401, supra, and by the order of this court denying the respondent’s petition for a hearing on November 7, 1938. The only matter transferred to this court by its order was the motion to recall the remittitur. The appellants contend that this court was without power to transfer the motion for the reason that the District Court of Appeal has exclusive control of its own process.

When the subject matter of a motion is peculiarly within the province of the District Court of Appeal finally to decide and it appears that said court has regularly pursued its authority, its action should be deemed final. Certain it is that this court would not entertain originally a motion to recall a remittitur issued in due course by the District Court of Appeal. That court has control of its own process and is in best position to determine whether on such a motion originally addressed to that court it has been subjected to fraudulent imposition, or has acted improvidently or by mistake, or has been otherwise imposed upon.

The order of transfer was made because of what was deemed at the time to be an erroneous statement of law on the face of the opinion. Later examination disclosed that there were no exceptional circumstances which would require the granting of the petition and that the denial of the motion by the District Court of Appeal was regular and should have been permitted to stand. It is the rule that the order of transfer has the effect of setting aside the judgment of the District Court of Appeal and of lodging the cause in this court and placing it in the same situation as a cause originally commenced here. We are, therefore, confronted with a motion pending here which should properly be disposed of by the District Court of Appeal. It is deemed inappropriate for this court either to rule on the motion or to dismiss the same. Said motion is, therefore, transferred to the District Court of Appeal, Second Appellate District, Division Two, for its further dispostion.

Curtis, J., Houser, J., Edmonds, J., and Pullen, J., pro tem., concurred.

Rehearing denied.


author: THE COURT.

text:
    [S. F. No. 16296.
    In Bank.
    September 14, 1939.]
    BLAIR HART, Jr., Petitioner, v. FRANK C. JORDAN, as Secretary of State, etc., et al., Respondents.

      Gregory, Hunt & Melvin, Darwin Bryan and Hanna & Morton for Petitioner.
    Earl Warren, Attorney-General, Robert W. Harrison, Chief Deputy Attorney-General, and Grant B. Cooper for Respondents.
   THE COURT.

By this proceeding in mandamus the petitioner seeks to compel the respondents, as Secretary of State and State Printer, respectively, to desist from taking any further steps in the matter of preparing for the ballot and submitting to the voters at the special election to be held on November 7, 1939, a proposed referendum on “The California Oil and Gas Control Act’’ enacted at the last session of the legislature (Stats. 1939, ch. 811). The question presented for determination is whether a referendum which has qualified for submission to the voters must be presented at a special election called for the purpose of presenting a particular initiative measure.

On July 1st the Governor of California by proclamation fixed November 7th as the date of a special election at which there shall be submitted to the voters for adoption or rejection an initiative constitutional amendment entitled “Retirement Warrants”. It appears that on July 27th the attorney-general prepared a title and summary of the chief purpose and points of a referendum petition against “The California Oil and Gas Control Act”, supra, and since that time this petition has been signed by approximately twice the number of persons required by the Constitution to submit the measure to the electors. If on or before September 18th this petition, certified as having been signed by “qualified electors equal in number to five per cent of all the votes cast for all candidates for Governor at the last preceding general election”, is presented to the Secretary of State, the challenged enactment of the legislature shall be submitted to the electors “at the next succeeding general election occurring at any time subsequent to thirty days after the filing of said petition or at any special election which may be called by the Governor, in his discretion, prior to such regular election ... ”. (Const., art. IV, sec. 1.) As the petitioner asserts that there are now on file the names of sufficient electors to qualify the referendum petition, the question for decision primarily concerns the construction of the constitutional provision in connection with certain statutes relating to elections.

Article IV, section 1, of the Constitution relates not only to referendums but also to initiative petitions. It specifies with particularity the requirements of each of such classes of petitions, and also the elections at which proposed or challenged laws are to be submitted to the voters. An act proposed by an initiative petition for submission directly to the electors must be presented “at the next succeeding general election occurring subsequent to 130 days after the presentation aforesaid of said petition, or at any special election called by the Governor in his discretion prior to such general election”. This differs from the provision concerning initiative measures to be first submitted to the legislature, in that the general election must occur ninety days after the presentation of the petition and the special election need not be one “called for such purpose.” Issues raised by a referendum petition must be submitted to the People at the next succeeding general election occurring at any time subsequent to thirty days, after the filing of the petition or at any special election called by the Governor in his discretion.

In considering these different provisions, the petitioner contends that because the Constitution provides that “no law or amendment to the Constitution, proposed by the Legislature, shall be submitted at any election unless at the same election there shall be submitted all measures proposed by petition of the electors, if any be so proposed”, in all other cases it is discretionary with the Governor which qualified initiative or referendum measures shall be submitted at a special election called for a particular purpose. There are two answers to this contention. In the first place, the Constitution, for obvious reasons, provides that in the particular situation specified, all qualified measures must be submitted to the People at one time. This requirement does not apply when initiatives to be submitted directly to the People and referendums are the only measures which have qualified for submission to the People. In the second place, the legislature in providing that a special election may be called by the Governor, left it within his power, as a matter of discretion, whether to call such an election. But when he has acted in the exercise of discretion, all measures which are qualified to go before the People by the constitutional provisions must be placed upon the ballot. This is the plain mandate of the Constitution and a court has no authority to change the requirements which the People have imposed.

The petitioner places considerable reliance upon the provision of the Constitution that the failure to submit any referendum measure ‘ ‘ at the election specified in this section ’ ’ shall not prevent its submission at a succeeding general election. This can only mean that if for any reason a referendum measure is not submitted to the voters as required by the Constitution, it shall not thereby fail but must be placed before them at a succeeding general election. This provision safeguards the power reserved by the People.

As against this construction, however, are certain statutory provisions fixing times for the doing of acts in connection with an election on a referendum measure greater than the constitutional period of thirty days. For example, the Constitution provides that “all measures submitted to a vote of the electors, under the provisions of this section, shall be printed, and together with arguments for and against each such measure by those in favor of, and those opposed to, it shall be mailed to each elector in the same manner as now provided by law as to amendments to the Constitution, proposed by the Legislature; and the persons to prepare and present such arguments shall, until otherwise provided by law, be selected by the presiding officer of the Senate”. (Art. IV, sec. 1.) Under section 1195 of the Political Code, arguments for or against a proposed constitutional amendment or other proposition to be submitted to the People “shall be submitted to the secretary of state within ninety days after the adjournment of the legislature”. A succeeding section authorizes the Secretary of State, in the event the argument for or against a referendum measure is not filed as required by the Constitution, to make a general press release eighty-five days prior to the date of the election, inviting electors to submit such arguments within sixty-five days prior to the election. (Sec. 1195c, Pol. Code.)

Another requirement laid upon the Secretary of State is that not less than forty-five days before the election he shall furnish each county clerk and registrar of voters a stated number of pamphlets containing the text of the measures to be submitted at such election, with the ballot titles and arguments thereon. The pamphlets are to be mailed to the voters not more than forty days nor less than fifteen days prior to the election. (Sec. 1195b, Pol. Code.)

The essential purpose of these provisions is to give the voters information concerning the measures on the ballot. It does not appear that the statutory requirements cannot be cither fully or substantially complied with by the respondents in preparing material for the coming election, but wherever they conflict with constitutional provisions, the latter must prevail.

The alternative writ of mandate heretofore issued herein is discharged and a peremptory writ is denied.


text:
    [L. A. No. 16936.
    In Bank.
    September 14, 1939.]
    IDA LILIENKAMP et al., Petitioners, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent.

      Preston & Piles and Edgar G. Smith for Petitioners.
    Cruiekshank, Brooke & Dunlap and Emrys J. Ross for Respondent.
   SHENK, J.

This is a proceeding to review an order of the Superior Court in Los Angeles County, sitting in probate, vacating an order for partial distribution. The respondent made its return of the proceedings had before it relating to the order of partial distribution and the granting of the motion to vacate said order.

Louie E. Raymond died intestate on July 28, 1937, leaving a sister, Grace Raymond Peters, and two brothers, Howard D. Raymond and Gordon B. Raymond. The return shows the following facts subsequently occurring:

One of the brothers, Howard D. Raymond, accompanied the body of the decedent to Chicago for burial. Before his return, Grace Raymond Peters, in the presence of the decedent’s housekeeper, Ida Lilienkamp, opened a tin box belonging to the decedent. She extracted therefrom a writing in the hand of the decedent and effected its destruction by burning it. She thereupon prepared and substituted therefor a typewritten unsigned memorandum which purported to be in form and substance a draft of a will naming the decedent as the testatrix. Upon the return of the brother from Chicago, Grace Raymond Peters, in the presence of both brothers, purported to open the tin box for the first time. She exhibited to them the typewritten memorandum reposing therein and represented to them that to her personal knowledge it expressed the last wishes of the decedent. Upon such representation the brothers consented to sign an agreement that the portions of the estate which would have constituted legacies had the writing been executed, should be distributed accordingly. The papers filed with the return herein indicate that the destroyed writing (which it is stated has since been adjudicated not to constitute a will) purported to provide a legacy of $10,000 each to the surviving brothers and sister, certain other legacies, including one of $3,000 to Ida Lilienkamp, and the residue to nieces and nephews of the decedent.

The agreement executed by the sister and brothers quit-claimed their interest in certain of the decedent’s property and requested distribution in accordance with said typewritten memorandum, as follows: To each of Hope Raymond Anderson and Morton Hull Raymond (children of Howard D. Raymond), Donald G. Raymond (son of Gordon B. Raymond) and Frederick R. Ahlborn (son of Grace Raymond Peters) the sum of $1,000 and certain personal possessions of the decedent; to Immanuel Presbyterian Church of Los Angeles, the sum of $1,000; to Ida Lilienkamp, the sum of $15,000 and the decedent’s Buick car; and to Grace Raymond Peters, in addition to her right as a direct heir, all household furniture, rugs, clothing and jewelry, not otherwise mentioned, located at the home occupied by decedent in her lifetime.

Subsequently Grace Raymond Peters, as administratrix of the estate of Louie E. Raymond, deceased, presented her petition for an order approving the agreement and for partial distribution in accordance therewith. In that petition she represented to the court that prior to her death the decedent “expressed a written request that a certain portion'of her estate should be disbursed and given to certain persons, and a certain sum of money to the Immanuel Presbyterian Church of Los Angeles, and that pursuant to the express wish of the decedent that certain persons and the Immanuel Presbyterian Church be given certain personal property, as enumerated and set forth in the original Memorandum of agreement . . . ’’ filed with the court, the heirs had so assigned and quitclaimed their interests in and to said property for distribution accordingly. The court, on May 5, 1938, made its order approving the agreement and for partial distribution in' accordance therewith. Its order shows that notice of the hearing of said petition was given by posting, as required by section 1200 of the Probate Code, and that no one appeared to contest the granting of the order.

Thereafter, the two brothers discovered that their sister had practiced a deception upon them. They gave written notice of rescission of the agreement to the special administrator of the estate succeeding Grace Raymond Peters. Within the six months’ period prescribed by section 473 of the Code of Civil Procedure they noticed a motion for relief pursuant thereto and for an order vacating the order of partial distribution on the grounds stated in said section. That motion was addressed to and served upon said special administrator and Grace Raymond Peters, former administratrix, and her attorneys. Notice was not served on any of the distributees named in the order of partial distribution and none of them had entered an appearance in the probate proceeding. No objection was made to the granting of the motion and, on June 30, 1938, on the evidence before it, the court vacated the decree of May 5, 1938. Thereupon it also denied the petition for approval of the agreement and for partial distribution. The order vacating the order of partial distribution does not recite that notice was given to the petitioners herein. The contention on this review is that in the absence of any such notice and in the absence of any recital in the court’s order precluding investigation therein on this proceeding, the order vacating the order of partial distribution is void.

The proceeding for the review herein was initiated by Ida Lilienkamp and the Immanuel Presbyterian Church of Los Angeles, two of the distributees named in the order of partial distribution.

The order of June 30, 1938, setting aside the decree of partial distribution, was not an appealable order. (Estate of Calahan, 60 Cal. 232; Estate of Dean, 62 Cal. 613; In re Grussing’s Estate, 15 Cal. App. (2d) 11 [59 Pac. (2d) 152] ; Linstead v. Superior Court, 17 Cal. App. (2d) 9 [61 Pac. (2d) 355].)

It is the petitioners’ view that the court did not regularly pursue its authority for the reason that notice of the motion to set aside the decree was not personally served upon them; that, being' distributees named in the order of partial distribution, they were entitled to be served personally with notice in order to give the court jurisdiction to make the order pursuant to section 473 of the Code of Civil Procedure. On the other hand the respondent contends that any notice which may be prescribed by said section 473 is required to be served only upon persons interested who have appeared in the probate proceeding.

On the record before us we are of the opinion that the court did not act in excess of its jurisdiction in making the order setting aside the decree of partial distribution.

Jurisdiction of the probate court is a jurisdiction in rem. The res is the decedent’s estate, and the object of the probate and administration proceedings is to secure distribution to the persons entitled to share in the estate. (Edlund v. Superior Court, 209 Cal. 690, 695 [289 Pac. 841].) Jurisdiction is established when the appropriate petition has been filed and the notice required by the statute has been given. The usual method is by publication, or posting, as in the partial distribution proceeding here involved, or by both. By such method notice is deemed to have been given to all persons interested that the proceeding is pending. Where there is no statutory requirement therefor, personal notice to persons interested, although their interest appears, is not essential to give the probate court jurisdiction to distribute the estate to those entitled. Absence of a requirement for personal notice in probate proceedings does not deprive an interested person of any of his constitutional rights. (Security-First Nat. Bank v. Superior Court, 1 Cal. (2d) 749 [37 Pac. (2d) 69] ; Estate of Davis, 136 Cal. 590 [69 Pac. 412].) In truth such a requirement in many cases would prevent or render well-nigh impossible the discharge of the duty and authority devolving upon the probate court to make distribution of the estate. The subject of the necessity of personal notice to confer jurisdiction in the probate court was considered in Estate of McDougald, 143 Cal. 476 [77 Pac. 443]. At that time the Code of Civil Procedure provided that notice of appeal must be served on adverse parties. Notice of appeal from an order settling an account of the administratrix was not served on non-appearing creditors. They moved to dismiss the appeal on the ground that they were persons interested in the estate and, therefore, adverse parties who should have been served with notice. In disposing of the question adversely to that contention, the court said:

“If these contentions prevail, it is obvious that difficulties will arise in many cases. If a non-appearing creditor is an adverse party, so also would be a non-appearing heir or legatee, and if one must be served with notice of appeal, so must the other. ... If all the parties thus interested in the fund are to be deemed adverse parties within the meaning of that term as used in section 940 of the Code of Civil Procedure, requiring service of notice of appeal on the adverse party, then in every appeal from a probate proceeding all such interested parties must be served with notice in order to give this court jurisdiction. Creditors and heirs are not required to appear by attorney in the administration of an estate, and indeed they may never appear at all, either in person or by attorney. They may be out of the jurisdiction, or their names and residences may be unknown. The statute provides no method of constructive service of notice of appeal upon nonresidents who have not appeared, or unknown parties. The time for taking the appeal from the orders of this character is limited to sixty days. In such eases the right of appeal secured by the statute would often prove unavailing, and it would be effectual only in those cases where the deceased left no heirs, legatees, or creditors residing out of the state, and none residing in the state whose names and residences were unknown. The construction contended for would defeat the purpose of the statute giving the right of appeal.
“The word ‘party’ should not be given so broad a meaning. That a person interested in an estate, although his name and his interest is disclosed on the face of the record, is not necessarily a party to the cause or proceeding is manifest from a consideration of the different cases where persons interested may or may not appear, at their option. . . . The names of these persons generally appear upon the face of the account, or upon some of the documents referred to therein, but the giving of the notice and the statement of their rights or claims does not, ipso facto, make them parties to the proceeding. The only effect of such a notice, so far as this question is concerned, is to give them an opportunity to become parties, so that, if they desire, they may appear and make themselves parties in some appropriate manner.”

The court in that ease concluded that although the order provided for payment in favor of the moving creditors, nevertheless, they did not thereby become parties to the proceedings entitled to notice of the appeal in the absence of an appearance filed by them. It reviewed prior decisions of this court as being in harmony with its conclusion.

In Estate of Kent, 6 Cal. (2d) 154 [57 Pac. (2d) 901], the jurisdictional question considered on the appeal was whether an order settling the final account of the removed executrix was void because the required stipulation consenting- to the hearing by a judge pro tempore was signed only by those who appeared in the estate. The stipulation had not been signed by non-appearing heirs, devisees and creditors. Section 5, article VI, of the Constitution, as amended in 1928, permitted the hearing by a judge pro tempore ‘ ‘ upon stipulation of the parties litigant or their attorneys of record”. On that appeal this court said: “Who are the parties in a probate proceeding? More than thirty years ago in the Estate of McDougald, 143 Cal. 476 [77 Pac. 443, 444], the Supreme Court of this state declared the law on the question, who are parties in a probate proceeding, in a well-reasoned opinion in which that question was" the only question before the court, and the law so declared has been accepted and followed by the superior court of Los Angeles county and other counties from that day to this. That law has become a rule of property, followed alike by the title companies and all others interested in the vast amount of property which passes through the probate department of that court each year.” The court then discussed and quoted extensively from the McDougald case, and continued: “The court’s position is supported by citations therein from numerous decisions, including In re Ryer’s Estate, 110 Cal. 556 [42 Pac. 1082] ; In re Calkins’ Estate, 112 Cal. 296, 297 [44 Pac. 577]; In re Bullard’s Estate, 114 Cal. 462 [46 Pac. 297], and other cases. See, also, In re Carpenter’s Estate, 146 Cal. 661 [80 Pac. 1072]. This also is the rule throughout the nation. In all but a few of the probate cases, when the question is raised, it is held that the several persons having an interest in the subject-matter of the action, who do not appear, are not parties. See cases collected in 88 A. L. R. 442.

“This law was stated again in almost the same language in McKenzie v. Hill, 9 Cal. App. 78 [98 Pac. 55, 56], as follows: ‘In a proceeding to probate a will any person interested, whether as devisee, legatee, or heir, may appear and contest the probate. The petition for probate must show the names of the heirs and devisees, and hence their interest must always appear in the record. Yet it would not be contended that an heir, devisee, or legatee who fails to appear at the time of the hearing of the petition is in any sense a party to such proceeding. . . .' Upon the settlement of an account, every creditor, heir, legatee, or devisee is a person interested, and as such has a right to enter an appearance and become a party. The names of these persons generally appear upon the face of the account or upon some of the documents referred to therein, but the giving of the notice and the statement of their rights or claims does not ipso facto make them parties to the proceeding.’ . . .

“All of the above has been stated in support of our decision that nonappearing heirs and legatees and creditors are not parties to a probate proceeding.”

The jurisdiction of the probate court in the present case was established by the giving of due notice on the filing of the petition for approval of the agreement and for distribution in accordance therewith. Its jurisdiction of the res thus conferred on it power to grant or deny the petition. That jurisdiction continued and when no appeal was taken from the order of partial distribution such jurisdiction extended to the hearing and determination of a motion pursuant to section 473 of the Code of Civil Procedure, after due notice, as required by that section. It must inevitably follow, however, that only such further notice in any such subsequent proceedings need be given as is expressly required by that section, which is limited to “notice to the other party”.

We may assume that personal notice to “other” or “adverse parties” is required in .every proceeding under said section 473. (McDonald v. Severy, 6 Cal. (2d) 629 [59 Pac. (2d) 98]; Gill v. Peppin, 41 Cal. App. 487, 491 [182 Pac. 815].) But when the motion is made in a probate proceeding, the question of who are such other or adverse parties must be held to have been answered by the reasoning of the foregoing cited eases. The same necessity for finality and certainty in the chain of title of decedents’ estates applies with equal force when the procedure under section 473 is brought into question. Representatives of decedents’ estates and attorneys for many years have acted in reliance upon the provisions of the code and the pronouncements in the decision of the court that personal notice in any such proceeding is required to be given only to those interested persons who have appeared in the probate proceeding, and that only the persons so appearing are adverse parties or parties litigant within the meaning of any provision regarding personal notice on parties. It is said that the petitioners were not interested persons or that any interest they might have was not disclosed until the filing of the petition for partial distribution. But so is it upon the initial filing of any proceeding in probate whereupon and upon compliance with the statutory provisions for notice, jurisdiction to proceed attaches. In this proceeding, jurisdiction was acquired to hear and determine the application for approval of the agreement and for partial distribution in accordance therewith. At any time after the petition for partial distribution was filed and the notice given, pursuant to section 1200 of the Probate Code, the assignees named as the prospective distributees could have filed an appearance so as to entitle them to personal notice of any subsequent proceedings. No contention is made that they were not the recipients of the statutory notice given upon the initiation of the application for distribution. Even if they could be deemed to be adverse parties by being named in the proceedings for partial distribution, and in the decree, still personal notice was not required on any such parties who had not appeared in the probate proceeding. Section 1010 of the Code of Civil Procedure, prescribing the formal requisites of a notice, also provides: “No bill of exceptions, notice of appeal, or other notice or paper, other than amendments to the pleadings, or an amended pleading, need be served upon any party whose default has been duly entered or who has not appeared in the action or proceeding.” Those provisions apply in probate proceedings. (See. 1233, Probate Code.)

The petitioners place special reliance on the recent cases of Toby v. Superior Court, 8 Cal. App. (2d) 32 [47 Pac. (2d) 338], and Linstead v. Superior Court, supra. In the Toby case, as in the Kent case, supra, the court was concerned with the validity of a stipulation for a judge pro tempore to conduct the hearing. The matter for disposition by the probate court was a motion to vacate and set aside an order settling final account and a decree of distribution. The opinion shows that certain distributees had not signed the stipulation which was entered into only by the attorney for the administratrix and the attorney for the moving parties. The court in that case noted the constitutional section prescribing a stipulation “of the parties litigant”. It thereupon, without further consideration, held that “as the distributees were the real persons in interest, the appointment of such judge pro tempore was void because of their failure to consent to the appointment”. It is true that in the Kent case this court distinguished the Toby case because it involved the rights of distributees. However, if the law as it relates to probate proceedings is to be kept uniform, it becomes apparent that the true distinction which retains that case in harmony with the Kent case is that it does not appear from the facts stated by the District Court of Appeal in the Toby case that the distributees had not appeared in the probate proceeding. If they appeared they were parties litigant within the meaning of the constitutional section as defined in the Kent case.

In the case of Linstead v. Superior Court, supra, a writ of review issued to test the validity of an order setting aside a decree of distribution. The ground of the petition for annulment of the order was that personal notice of the motion had not been served on the distributees, and that was also one of the grounds upon which the court there decided that the order was invalid. But what should be specially noted from the opinion is that the distributees were then represented by an attorney of record. In that ease, therefore, it may be said that it affirmatively appears that the distributees Had appeared in the probate proceeding, in which case they would be entitled to notice.

There is nothing said in Estate of Mitchell, 126 Cal. 248 [58 Pac. 549], which is contrary to the views herein expressed and approved. The remarks of the court in that case were directed to the necessity of giving the notice required by section 1663 of the Code of Civil Procedure relating to proceedings for partial distribution, namely, by posting, before the application for partial distribution could be heard.

A decree of distribution is undoubtedly a muniment of title of the highest value (Estate of Garraud, 36 Cal. 277; 24 Cor. Jur., p. 529), but its character in that respect does not prevent the exercise of jurisdiction by the appropriate court to set it aside in a proper case upon the giving of due notice as prescribed by law. Any such application or action brought after the jurisdiction of the probate court as such has terminated is properly addressed to the equity jurisdiction of the court, and the proceeding is then in personam. In such eases, the distributees must be made parties and be brought into the action or proceeding by service of appropriate notice. (See Bacon v. Bacon, 150 Cal. 477 [89 Pac. 317] ; In re Gall, 182 N. Y. 270 [74 N. E. 875]; In re Leavens, 65 Wis. 440 [27 N. W. 324].) But in the administration of decedents’ estates, where the probate court has acquired jurisdiction of the res, a distinction must necessarily be drawn in accordance with the reasoning of the McDougald and Kent cases, supra, when the question of service of personal notice on interested persons is raised. To hold that personal notice is required to be served on persons interested who have not appeared, when personal notice in such ease is expressly not required by statute, is to modify the statutory provisions b.y judicial pronouncement. So to do would have the effect of creating an inconsistency in the law applicable in such cases, and an instability therein to the extent that certainty and repose in the chain of title to decedents’ estates would be greatly diminished. And if such pronouncement were made, the question would naturally arise: Should the requirement for personal notice be confined to such non-appearing distributees as are resident in this state, or should it be extended to include all, irrespective of their whereabouts or the difficulties which might be encountered thereby % It is apparent that the reasons for not requiring personal service on persons whose interests, are disclosed in the probate proceeding, unless they have entered an appearance, applies a& cogently when the motion is addressed to the probate court to set aside an order of distribution pursuant to section 473 of the Code of Civil Procedure. Personal service in many cases would be impossible.

It is not intimated that the probate court, if deemed necessary or desirable as a condition of granting the relief under section 473, may not require personal service to be made upon interested persons, including distributees, even ivhen they have not appeared in the proceeding. The petitioners, as non-appearing distributees, are not deprived of the right to have a review of the merits of the order setting aside the decree of partial distribution. The return herein discloses that upon the same hearing, after the motion to set aside the decree had been granted, the court denied the pending application for approval of the agreement and for distribution in accordance therewith. An appeal would lie from such an order when duly made and entered. (See Brownell v. Superior Court, 157 Cal. 703 [109 Pac. 91]; see, also, Estate of Parsell, 190 Cal. 454 [213 Pac. 40, 25 A. L. R. 1561].) The petitioners herein, feeling aggrieved, could appear in the probate proceeding and notice an appeal from the final order made upon the application for approval of the agreement and for partial distribution. On such appeal the propriety of that order as well as of the order setting aside the order of partial distribution would be reviewable. (Sec. 1233, Prob. Code; sec. 938, Code Civ. Proc.; Estate of Mitchell, supra; Postal Telegraph Cable Co. v. Superior Court, 22 Cal. App. 770 [136 Pac. 538]; 4 Cal. Jur., p. 1053.)

The order designated “Order setting aside order confirming written memorandum of agreement and ordering partial distribution” is affirmed.

Curtis, J., Houser, J., Edmonds, J., and York, J., pro tern., concurred.


text:
    [L. A. No. 16425.
    In Bank.
    September 18, 1939.]
    BERTHA LOEWENBERG, Appellant, v. EDWARD J. SCHNEIDER et al., Respondents.

      Anthony G. Kolda and Eton Gilbert Galusha for Appellant.
    Taylor, Kolliner and Bolton & Schwartz for Respondents.
   THE COURT.

In this cause respondents move to dismiss the appeal or affirm the judgment upon the ground that no substantial question is presented for decision. The point is well taken.

By her amended complaint plaintiff sought to impress a trust upon certain real property in Los Angeles, to secure an accounting of rents, issues, and profits, and to recover damages for waste. Defendants answered, and also filed a cross-complaint. Trial of the cause resulted in judgment for defendant in the sum of $3,296.39. Plaintiff appealed.

It appears that plaintiff owned real property in Los Angeles which she had encumbered with a $12,000 first mortgage to California Bank, and a $6,000 deed of trust to defendants. She was in default upon payments due on both debts. Defendant Edward J. Schneider acquired the first mortgage, and also caused his deed of trust to be foreclosed. He then purchased the property at the foreclosure sale for $8,500. At the time there was due him from plaintiff the sum of $10,350.59, or a balance of $1850.59 after allowing credit for the purchase price. On trial of the present cause plaintiff endeavored to show that said defendant had occupied a relation of trust toward her; that he had induced her not to refinance the property by promising her that if she would permit him to acquire the first mortgage without opposition, and to effect a friendly foreclosure of the trust deed, he would then hold the property in trust for her. Said defendant to the contrary alleged and asserted that he purchased the first mortgage for the amount due thereon in order to protect his second deed of trust; that he occupied no position of intimate friendship or confidence toward plaintiff, and that he made no promises, or false representations to her. By cross-complaint he sought judgment for the balance due him under the trust deed of $1850.59, with rentals, interest, etc., or a total of $3,296.39. The trial court found on all issues in favor of defendant, and entered judgment awarding him the sum prayed by his cross-complaint. Among other things the court specifically found that it was not true that defendants were intimate friends of plaintiff, or that plaintiff reposed the utmost trust and confidence in defendant Edward J. Schneider, or that she made any agreement with him whereby he became obligated to protect her interest from foreclosure, or that there was any trust relationship between them.

On appeal it is contended that these findings are erroneous. In fact, the question of the sufficiency of the evidence is the only major contention urged in appellant’s opening brief, and it is argued under various headings. The remaining questions listed relate to issues not raised by the pleadings, or other immaterial matters which do not merit discussion.

As to the main contention of insufficiency of the evidence, an inspection of the record shows that consideration of the point is precluded by deficiencies in the form of the bill of exceptions. That document contains only five and one-half typewritten pages of excerpts from testimony given on the trial. It neither purports to set forth the evidence in full, nor does it contain any statement that it sets forth all evidence pertaining to those questions of fact on which the findings are allegedly without support. With such a showing, it cannot be held that the evidence was insufficient. All intendments favor the correctness of the findings. (City of Los Angeles v. Moyer, 108 Cal. App. 4, 6 [290 Pac. 1073].) Moreover, the bill of exceptions also fails to specify the particulars in which the evidence is alleged to be insufficient. As stated in Schultz v. City of Venice, 200 Cal. 50, 54 [251 Pac. 913] : “Such specifications are expressly required by the provisions of section 648 of the Code of Civil Procedure relating to bills of exceptions, and it has been uniformly held that such provisions are mandatory and that in their absence the question of the sufficiency of the evidence to sustain the findings of the trial court cannot be considered by this court upon appeal from the judgment. (Beeson v. Schloss, 183 Cal. 618 [192 Pac. 292]; Mills v. Brady, 185 Cal. 317 [196 Pac. 776], and cases cited.) ” See, also, Newbury v. Lineberger, 45 Cal. App. 556 [188 Pac. 72]; Carter v. Canty, 181 Cal. 749 [186 Pac. 346].

The judgment is affirmed.


text:
    [Crim. No. 4220.
    In Bank.
    September 18, 1939.]
    THE PEOPLE, Respondent, v. JESSIE J. CORDOVA, Appellant.

      Clarke A. Walker and Edgar G. Langford for Appellant.
    Earl Warren, Attorney-General, and R. S. McLaughlin, Deputy Attorney-General, for Respondent.
   SHENK, J.

Pursuant to the provisions of section 1239 of the Penal Code there is here automatically presented an appeal by defendant from a judgment of conviction imposing the extreme penalty.

Accused by information of having murdered his three-year-old son, defendant entered the dual pleas of “not guilty” and “not guilty by reason of insanity”. After jury trial on the main plea he was found guilty as charged, and the degree of crime was fixed as murder of the first degree. Trial was then had on the plea of insanity, and the jury returned a verdict finding that defendant was sane at the time of commission of the offense. Thereafter motion for new trial was denied, and judgment of death pronounced. This.appeal followed.

No question whatsoever is raised by appellant concerning the sufficiency of the evidence to support the verdicts. Indeed, on oral argument counsel frankly conceded that in view of past rulings of this court he did not think that any such contention could be successfully maintained. It is therefore unnecessary to include in this opinion a statement of the revolting facts and circumstances which led to and surrounded the perpetration of the crime. An examination of the record reveals abundant and conclusive evidence of guilt. Likewise as to the claim of insanity there is, despite some conflict, ample and convincing evidence in support of the verdict rendered on that issue. In short, the record made affords no basis for disturbance of either of the verdicts of the jury, and no question of fact is presented for decision.

The argument of appellant consists solely of an attack upon the constitutionality of sections 1016, 1020, and 1026 of the Penal Code. These are the statutes which provide for a dual trial where a defendant pleads both not guilty and not guilty by reason of insanity. Many objections to this procedure have heretofore been urged on constitutional grounds, and answered by prior decisions. (People v. Hickman, 204 Cal. 470 [268 Pac. 909, 270 Pac. 1117] ; People v. Troche, 206 Cal. 35 [273 Pac. 767]; People v. Leong Fook, 206 Cal. 64 [273 Pac. 779]; People v. Dias, 210 Cal. 495 [292 Pac. 459]; People v. French, 12 Cal. (2d) 720 [87 Pac. (2d) 1014] ; People v. D’Angelo, 13 Cal. (2d) 203 [88 Pac. (2d) 708]; People v. Davis, 94 Cal. App. 192 [270 Pac. 715] ; People v. La Crosse, 5 Cal. App. (2d) 696 [43 Pac. (2d) 596]; People v. Groves, 9 Cal. App. (2d) 317 [49 Pac. (2d) 888, 50 Pac. (2d) 813] ; 74 A. L. R., note, p. 265.) Appellant pleads for adoption of the theories set forth in dissenting opinions in the cited cases (see particularly People v. Troche, supra, and People v. Leong Fook, supra), but at the same time he recognizes that the plea is not likely to be heeded in view of the strong entrenchment of the majority rule. In addition, however, he contends that there is a further and fatal point of weakness in the statutory plan which has never been called to the attention of an appellate court, and which demonstrates beyond cavil that the prescribed procedure deprives a defendant of the equal protection of the law, and is discriminatory and otherwise violative of constitutional rights.

He points out that where a defendant charged with murder enters the single plea of not guilty by reason of insanity, the procedure is: (1) Trial of insanity issue. (2) Circumstances of crime shown. (3) Degree of crime and penalty therefor fixed. (See, as an illustration, People v. David, 12 Cal. (2d) 639 [86 Pac. (2d) 811].) But where the dual pleas of not guilty and not guilty by reason of insanity are entered, the procedure is: (1) Trial on main plea. (2) If defendant found guilty, degree of crime fixed. (3) Issue of insanity then tried. This variation in procedural steps, so appellant urges, creates an unjust and unreasonable discrimination in favor of a defendant who does not enter a plea of not guilty, and against one who does enter such a plea, in that in the first instance the penalty is not determined until after the trial court has heard all of the evidence touching upon the defendant’s sanity or insanity at the time of commission of the offense, whereas in the second instance, the degree of crime and the penalty therefor must be determined by the jury, or by the court in cases of waiver of jury, without the benefit of any information concerning such sanity.

This argument would perhaps be persuasive if in the one instance and not in the other, the evidence bearing on the issue of the defendant’s sanity at the time of commission of the offense was taken into consideration in determining the degree of crime and the penalty. The fact is, however, that in neither case may such evidence be considered in making said determination. Where the dual pleas are entered, the insanity issue is not tried until after the defendant has been found guilty and the degree of the crime has been fixed by jury verdict, or, on waiver of jury, by finding of the court. On the other hand, where insanity alone is pleaded, without denial of commission of the homicide, there is a reversal of procedure in that the insanity issue is tried prior to determination of the degree of crime. But even so, in fixing the degree and penalty the court is limited to a consideration of evidence of the circumstances attendant upon and connected with the offense, and to such evidence only. The alleged insanity may not be used as a basis for extending leniency. It is either a complete defense, or none at all. There is no degree of insanity which may be established to affect the degree of crime. Therefore, so far as fixing the penalty is concerned, it is immaterial at what point the insanity hearing is held, for evidence adduced thereon can only be considered for proper purposes and cannot be used to measure the severity of the punishment which should be imposed.

The above-mentioned limitation upon the scope of evidence which may be considered in fixing the penalty has been frequently declared. In the majority opinion in the Troche case, supra. (206 Cal., at p. 47), it is stated in the following language: “ ... the only evidence admissible for the purpose of enabling the jury to determine whether the death penalty or life imprisonment should be imposed in the event the defendant should be found guilty of murder in the first degree was the evidence which the court did admit, and which concerned ‘the circumstances connected with the offense’. (People v. Golsh, 63 Cal. App. 609, 613 et seq. [219 Pac. 456]; see, also, People v. Witt, 170 Cal. 104, 110 [148 Pac. 928].) The insanity of a defendant cannot be used for the purpose of reducing his crime from murder in the first degree to murder in the second degree. If responsible at all in this respect, he is responsible in the same degree as a sane man, and if he is not responsible at all he is entitled to an acquittal in both degrees. (State v. Maioni, 78 N. J. L. 339 [20 Ann. Cas. 204, 74 Atl. 526, 528].)” See, also, review of authorities in People v. Pantages, 212 Cal. 237, 271 et seq. [297 Pac. 890]; People v. French, 12 Cal. (2d) 720, 737 [87 Pac. (2d) 1014] ; People v. Lazarus, 207 Cal. 507 [279 Pac. 145]; People v. Leong Fook, supra; People v. Witt, 170 Cal. 104 [148 Pac. 928]; People v. Selph, 106 Cal. App. 704 [289 Pac. 918] ; People v. Phillips, 102 Cal. App. 705, 708 [283 Pac. 821]; People v. Golsh, 63 Cal. App. 609 [219 Pac. 456].

Appellant urges that a distinction exists between the duty of a court or jury in determining the degree of a murder, and its exercise of discretion in fixing the punishment for first degree murder at either death or life imprisonment, in this: That in determining degree the course is charted by well-defined rules, a violation of which may be remedied on appeal, whereas in fixing the penalty the act is purely one of discretion (Pen. Code, sec. 190), and the conclusion reached is not subject to review. Under this distinction it is only reasonable to suppose, argues appellant, that a court or jury in exercising its entirely arbitrary discretion, will be guided by something more than formal rules of law; it will be governed by its concept of the cause, formed and influenced by whatever evidence has been heard. Thus if in some instances evidence of insanity is heard before the exercise of discretion, and in others it is not, there is an unreasonable and unjust discrimination against the defendants in the latter class. In other words, where the insanity issue is heard before the penalty is fixed, the court, consciously or 'unconsciously, is bound to be influenced and persuaded to some extent by matters divulged on the insanity trial, and its exercise of discretion is bound to be affected accordingly.

We cannot' concur in this view. While it is true that under section 190 of the Penal Code the matter of determining the penalty is discretionary, it is not reasonable to suppose that in those eases where the determination is to be made by the court after trial of the insanity issue, the court will predicate its decision upon factors not properly before it for such purpose. The trial, although conducted with dual aspects, constitutes but a single trial (People v. Leong Fook, supra, p. 74 of 206 Cal.), and irrespective of the variable order of proof occasioned by the separate hearing of issues, evidence as in any other single trial may be admitted and considered for one purpose and not for another. The trial court, knowing the limitation upon the evidence which it is entitled to consider in fixing the penalty, will not be presumed to have committed an abuse by failing to observe this limitation, but will be presumed to have wisely exercised the discretion conferred upon it.

The prior decisions above cited are determinative of all other points raised on this appeal. Under those holdings no successful assault can be maintained upon the constitutionality of the statutes in question.

The judgment is affirmed.

Curtis, J., Edmonds, J., and York, J., pro tern., concurred.


author: EDMONDS, J.

text:
    [L. A. No. 17151.
    In Bank.
    September 19, 1939.]
    R. R. STOCKBURGER, Respondent, v. FRANCIS H. DOLAN et al., Appellants. FRANCIS H. DOLAN et al., Appellants, v. R. R. STOCKBURGER et al., Respondents.
    [L. A. No. 17150.
    In Bank.
    September 19, 1939.]

      Edward C. Purpus for Appellants.
    A. L. Abrahams for Respondents.
   EDMONDS, J.

In two actions which were consolidated for trial in the superior court and are presented together upon appeal, the court is called upon to determine the rights of lessors of land to rental under an oil and gas lease.

The litigation between the parties commenced when Francis H. Dolan and his wife sued to recover delay rental in the sum of $12,000 alleged to be due under a lease entered into by them with R. R. Stockburger as lessee. Thereafter, Mr. Stockburger filed an action against the Dolans to recover $5,000 paid by him upon the execution of the lease. His suit was brought upon the theory that as the land leased to him was zoned against oil drilling operations by the city of Los Angeles and the city had refused him a permit therefor, there was a failure of consideration which entitled him to recover the rental paid by him. He also relied upon the same facts as a defense to the action brought by the lessors. Upon findings that the lease was made for an unlawful purpose, the court entered judgment for Mr. Stockburger in both cases.

The lease, executed in 1936, is for a term of twenty years, and so long thereafter as oil is produced from the property. The rental prescribed is $5,000, paid by the lessee at the time it was executed, a one-sixth royalty, and, commencing with the fourth month of the term, the sum of $1,000 per month if the lessee has not commenced drilling operations on the land or terminated the lease. The lessors ’ action is to recover rent for the year commencing September 1, 1937.

It is conceded that at the time the lease, prepared by the lessee, was executed by the parties, the land upon which the lessee was to drill for oil was zoned by ordinance for residential purposes, yet it does not mention any restriction upon the use of the property. However, the record shows that the lessee, after entering into the lease, endeavored to secure a permit allowing him to drill for oil. This variance from the zoning requirements was sought by a petition filed by the lessee with the board of city planning commissioners pursuant to the terms of the ordinance which provides that the board may recommend to the city council a reclassification of the property.

This petition was denied without prejudice and sent to the city council with the request that it be returned for reconsideration after further study. Later the board disapproved the request, but Mr. Stockburger did not prosecute an appeal to the city council as allowed by the ordinance, nor did he take any further steps in the matter.

The lessee maintains that because of the restrictions imposed upon the use of the land by the zoning ordinance, the lease was illegal db initio and that there has been a failure of consideration. However, the lessors contend that a contract malum prohibition but not malum in se is enforcible if its object can be lawfully accomplished, and that as the municipal ordinance provided for the reclassification of property within the zone after petition and hearing, the lessee may not recover without proof of inability to obtain a drilling permit.

One provision of the lease is as follows: “The obligations of the Lessee hereunder shall be suspended while the Lessee is prevented from complying therewith, in whole or in part, by strikes, lockouts, action of the elements, accidents, rules and regulations of any Federal, State, Municipal or other governmental agency, or other matters or conditions beyond the control' of the Lessee, whether similar to the matters or conditions herein specifically enumerated or not.” The lessee, therefore, is not required to carry out his obligations during the time he is unable to drill or produce oil because of the zoning regulations, but they do not relieve him from all responsibility under the lease. The purpose of the agreement between the parties was to allow the lessee to drill for oil, but it is not contended, nor may it be presumed, that there was any intention to do so in violation of the city ordinance. The lease does not require any act to be done in contravention of existing law and the lessee does not assert that he undertook the obligations assumed by him in ignorance of the zoning requirements nor because of any representations concerning their effect. He drew the lease and provided that he would not be liable for rent during the period that he was prevented by governmental regulations from complying with his agreement. This provision contemplates that there might be some period when zoning or other regulations would interfere with the purposes of the lease and the parties agreed that the lessee’s obligations would be “suspended” for that time.

This is not an unusual situation and a lease which contemplates action by governmental authorities before the property may be used for the purpose specified in it is not illegal. For example, property may be leased for saloon purposes to one who does not have a license to engage in that business. (Grace v. Croninger, 56 Cal. App. 659 [206 Pac. 130]; Burke v. San Francisco Breweries, Ltd., 21 Cal. App. 198 [131 Pac. 83]; Shedlinsky v. Budweiser Brewing Co., 17 App. Div. 470 [45 N. Y. Supp. 174].) Also, leases of property for purposes not allowed by existing zone regulations have been upheld where they have been entered into upon the agreement that application should be made to the board of standards and appeals for a variance, as provided by the zoning ordinance. (Silverman v. Isaac Goldmann Realty Corp., 232 App. Div. 292 [249 N. Y. Supp. 505] ; Say-Phil Realty Corp. v. De Lignemare, 131 Misc. 827 [228 N. Y. Supp. 365] ; Louis Friedman Realty Co., Inc., v. De Stefan, 220 App. Div. 661 [222 N. Y. Supp. 371].)

The lessors offered to prove that by an oral agreement, made contemporaneously with the lease, the lessee agreed to seek such a variance but that he did not use due diligence in making application to the proper authorities of the city. This testimony was rejected by the trial court upon the ground that it tended to vary the terms of the agreement made in writing. However, an oral understanding that the lessee should procure a zone variance does not contradict the written contract, which is silent upon this point, but would be consistent with its terms. The testimony was, therefore, admissible in evidence and should have been received. (Buckner v. Leon & Co., 204 Cal. 225 [267 Pac. 693] ; Lindsay v. Mack, 5 Cal. (2d) 491 [43 Pac. (2d) 350]; Gardiner v. Burket, 3 Cal. App. (2d) 666 [40 Pac. (2d) 279] ; Greathouse v. Daleno, 57 Cal. App. 187 [206 Pac. 1019] ; 6 Cal. Jur. 265; 4 Cal. Jur. Supp. 96.)

So far as the record shows, the lessee may now, or at some future time, procure a zone variance which' will permit him to use the property for the purposes specified in the lease. There has, therefore, been no failure of consideration entitling him to recover. Liability for delay rental presents a different question and depends, primarily, upon whether the lessee agreed to seek a reclassification of the property.

The lessors urge that under no circumstances may the lessee take advantage of the provision suspending payment of rental because it was agreed that this provision should not apply to any time when drilling was prohibited by the ‘ terms of the zoning ordinance. However, evidence to that effect would vary the terms of the contract in that particular and was properly rejected by the trial court.

The judgment in the action entitled Dolan v. Stockburger (No. L. A. 17150) is reversed; the judgment in the action entitled Stockburger v. Dolan (No. L. A. 17151) is reversed with directions to the superior court to enter judgment for the appellants.

Shenfe, J., Curtis, J., Pullen, J., pro tom., York, J., pro tem., and Waste, C. J., concurred.

Rehearing denied.