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

text:
    [L. A. No. 16655.
    In Bank.
    November 22, 1938.]
    HELEN ELLISON, as Administratrix, etc., Respondent, v. LANG TRANSPORTATION CO. (a Corporation), Appellant. CAETANO V. ANDRADE, as Administrator, etc., Respondent, v. LANG TRANSPORTATION CO. (a Corporation), Appellant.

      George H. Moore and Gerald O’C. Egan for Appellant.
    Hugh B. Rotchford, as Amicus Curiae, on Behalf of Appellant.
    Claflin, Dorsey & Campbell and Charles R. McCarty for Respondents.
   SHENK, J.

The defendant has appealed from judgments rendered against it in two actions consolidated for trial. Each action was prosecuted by the personal representative of one who met death in a collision between the automobile driven by the decedent Ellison, in which the decedent Nora Andrade was riding, and a loaded trailer attached to a truck being operated by the defendant's employee. Each plaintiff sought damages for alleged wrongful death. The actions were tried twice. The first trial resulted in verdicts in the amounts of $30,000 and $20,000 awarded respectively to the representatives of Ellison and Nora Andrade. The verdicts and the judgments entered thereon were set aside on motions for new trial. On the second trial the jury returned verdicts of $12,000 and $10,000 respectively. The appeal is from the judgments entered on these verdicts.

The decedent Ellison was 36 years of age and supported his wife and four minor children by earning $100 per month as a railroad employee. The oldest child was ten years of age at the time of the accident. At the time of her death Nora Andrade was 33 years of age. She and her husband made their home with their four minor children ranging in age from 4 to 12 years when the accident occurred. It was in evidence that Nora Andrade also contributed to the family living expenses to the extent of $50 or $60 a month by doing housework for school teachers and doctors. Both families lived in Bakersfield.

Claude Ellison, Nora Andrade, James Ellis, Rachel Keys, and three of the Andrade children were being driven by Ellison in his Studebaker coach from Los Angeles to Bakersfield over the Ridge Route in the early morning hours of November 13, 1934. Between Castaic and Gorman, at 2 or 2:30 o’clock the Studebaker, going about 35 miles an hour, struck the rear end of the defendant’s truck and trailer, loaded with steel, going about four miles per hour up the grade. Both Claude Ellison and Nora Andrade were killed by the impact.

Whether the judgments are sustainable depends on the sufficiency of the evidence to support the jury’s implied findings that the defendant was negligent and that the respective decedents were not guilty of contributory negligence; and on the correctness of the rulings of the court made in the course of the trial and in instructing the jury.

Existence of negligence for which the defendant may be held liable depends on whether there was sufficient evidence that the truck was proceeding without lights or without sufficient warning lights on the loaded trailer and on the steel projecting from the rear thereof. The evidence on this question was in conflict.

The truck driver testified that he left Los Angeles at 5 P. M. with his load. He examined his lights, including the lights fastened to the rear of the extended steel', at Glendale. At Roscoe he again examined his lights and found they were burning. Here he lighted a red globe lantern and placed it on the projecting metal. He stopped at the northerly edge of San Fernando for his supper, and turned off only his headlights while his truck was parked at the side of the road. After supper he noted that all rear and side lights were burning. He thereupon turned on his headlights and proceeded on his way. At Castaie about midnight he stopped for lunch, again turning off only his headlights. He then proceeded again after turning on his headlights. As he passed Paradise Garage, about 700 feet southerly from the point of the accident, he saw on his left the reflection of his headlights and some of the side and extended lights.

The surviving occupants in the Studebaker automobile testified that no lights were observable, but that immediately preceding the crash “there was a big black object”. There was other evidence on both sides of the question of the condition of the lights both before and after the accident, including evidence from which the jury could conclude that there was not sufficient illumination at the rear end of the trailer and no illumination on the projecting steel. The state of the record on the questions of negligence and contributory negligence is such that the evidence for the plaintiffs, if believed by the jury, is sufficient to sustain the verdicts in their favor.

The defendant specifies some twelve alleged erroneous rulings claimed to be prejudicial, in giving or refusing instructions and in the admission of evidence. At the plaintiffs’ request the court instructed the jury that “the presumption is that a person takes ordinary care of his own concerns. This presumption is in itself a species of evidence and it shall prevail and control your deliberations until and unless it is overcome by satisfactory evidence”. The defendant contends that the giving of such an instruction is prejudicially erroneous in a case where the plaintiffs, as here, presented testimony as to the details of the accident and the conduct of the decedents before and at the time of the occurrence relying on Kelly v. Fretz, 19 Cal. App. (2d) 356 [65 Pac. (2d) 914], and other cases following Mar Shee v. Maryland Assur. Corp., 190 Cal. 1 [210 Pac. 269], to the effect that a presumption in favor of a party is entirely dispelled by the testimony of the party himself or of his witnesses, which is wholly irreconcilable with the presumption sought to be invoked.

It may be assumed that the giving of an instruction indicating to the jury that a decedent is presumed to have taken due care of his own concerns is erroneous in a ease where all the details of his conduct and of the accident are disclosed to the contrary by those seeking recovery on account of his alleged wrongful death. In other words, it may be assumed that in such a case there is no place for the presumption under the rule of the cases relied upon. However, the giving of the quoted instruction in this case may not property be objected to by the defendant. The instruction told the jury that the presumption remained only until it was overcome by satisfactory evidence. This qualifying language was not included in the instruction given in the ease of Kelly v. Fretz, supra, where the effect of the instruction was held to be a statement to the jury that the deceased was presumed to have been free from contributory negligence. That was not the effect of the instruction in this case. Furthermore, the defendant asked for instructions concerning presumptions favorable to itself, which the court gave with the qualification that such presumptions were a species of evidence and should prevail and control the deliberations of the jury until and unless overcome by satisfactory evidence. We also note that at the defendant’s instance the court instructed the jury that “all drivers of vehicles on a public highway are required by law to keep a vigilant lookout ahead so as to avoid, if reasonably possible, a collision with any other vehicle or person lawfully upon such highway. Failure to keep such lookout, or failure to see that which may be readily seen, if the driver is looking, would constitute negligence as a matter of law’’, and that even though the jury find “that the statutory limit of speed of 45 miles per hour was not being exceeded by the . driver of the automobile in which plaintiffs were riding, yet the rate of speed at which an automobile may be traveling may be held under some circumstances to be negligence. That is to say, the operator of an automobile is not necessarily free from negligence by a showing, simply, that at the time of the accident he was running at a rate of speed allowed by law. He still remains bound to anticipate that he may meet persons or vehicles at any point on the highway, and he must, in order to avoid a charge of negligence, keep a proper lookout for them and keep his automobile under such control as will enable him to avoid a collision with another vehicle driven with care and caution as a reasonably prudent person would do under similar conditions ’ ’.

We have examined the record and we cannot say that the giving of the instruction complained of was either erroneous in the light of the plaintiffs’ evidence or that it prejudiced the defendant’s rights in any way. This court has heretofore held that in the absence of any showing of prejudice to the appellant the giving of such instruction, if error, does not require a reversal of the judgment. (Paulsen v. McDuffie, 4 Cal. (2d) 111 [47 Pac. (2d) 709]; Tuttle v. Crawford, 8 Cal. (2d) 126 [63 Pac. (2d) 1128].)

Likewise, we find that no prejudicial error was committed in the giving of other instructions complained of by the defendant or in the refusal to give certain requested instructions. All subjects were fairly and fully covered by the court in its charge to the jury. Mere matters of phraseology objected to by the defendant are found to be inconsequential and not of sufficient moment to require specific mention. Nor do we find that any prejudice appears to have been suffered by the defendant by any of the rulings of the court which it designates as erroneous. The trial was full and fair, and the damages do not appear to be excessive.

We conclude that no point made on this appeal would justify a reversal of the judgments. Each of the judgments is, accordingly, affirmed.

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

EDMONDS, J., Dissenting.

I cannot agree with the conclusion that under the evidence presented by the record in these cases the trial judge committed no prejudicial error when he instructed the jury that the law presumes a person takes ordinary care of his own concerns. The plaintiffs, in addition to relying upon the presumption, by the testimony of Rachel Keys and James Ellis, who were occupants of the automobile which Claude Ellison was driving, showed all of the circumstances surrounding the happening of the accident. This testimony was uncontradicted. The opinion of my associates concedes “that the giving of an instruction indicating to the jury that a decedent is presumed to have taken due care of his own concerns is erroneous in a ease where all the details of his conduct and of the accident are disclosed to the contrary by those seeking recovery on account of his wrongful death”, but concludes that under the facts shown “we cannot say that the giving of the instruction complained of was either erroneous in the light of the plaintiffs’ evidence or that it prejudiced the defendant’s rights in any way”. Such a determination, in my judgment, is inconsistent with other decisions of this court on the same subject.

A rebuttable presumption, such as the one stated to the jury by the challenged instruction, assumes that which human reason and experience dictate should be true as the result of certain proved facts. (Ballentine’s Law Dictionary.) A fact is presumed to exist because of the absence of evidence by which it may be established. More specifically, a presumption is a rule of law that under certain circumstances a fact is assumed to be true for the purpose of judicial action.

Although it has not always been so, it is now the rule in this state that a rebuttable presumption is evidence which may be considered by the jury even in the face of evidence to the contrary produced by the litigant against whom the presumption has been invoked. (Mar Shee v. Maryland Assur. Corp., 190 Cal. 1 [210 Pac. 269]; Smellie v. Southern Pacific Co., 212 Cal. 540 [299 Pac. 529].) The reason for this rule is said to be that the jury, as the trier of fact, may not believe the evidence produced in contradiction of the presumption, and in that event the decision is not required to be “in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds against a less number or against a presumption or other evidence satisfying their minds”. (See. 2061, Code Civ. Proc.) Under such circumstances the presumption is opposed by the evidence of the litigant who is contending for a decision contrary to it.

But the situation in the present ease is that one who claims the benefit of the presumption has also offered evidence from which a conclusion directly contrary to it may be inferred. True, under another view of that evidence it is not inconsistent with the presumption. But when it may reasonably be said that the evidence would support a verdict contrary to the presumption, I can see no basis for submitting the presumption to the jury.

That this court has recognized the difficulties which arise in cases where facts are proved from which the law expressly directs a presumption to be made (sec. 1959, Code Civ. Proe.) and there is also evidence tending to prove what actually occurred, is evident from the decisions commencing with Mar Shee v. Maryland Assur. Corp., supra. That case was brought by the beneficiary of an accident insurance policy which had been issued to one Pong Wing. It contained a provision that the insuring company should not “be liable for any injury, fatal or otherwise, resulting directly or indirectly from murder, highbinder acts, or tong wars, anything else in the policy to the contrary notwithstanding”. The insured was shot twice while on the street near his place of business and died as a result of his wounds. The insurance company resisted payment upon the ground that his death occurred from causes excluded by the policy. The plaintiff relied upon the presumption “that a person is innocent of crime or wrong” (see. 1963, Code Civ. Proc.); hence, the shooting was accidental rather than criminal. But he also offered testimony showing the circumstances surrounding the shooting and this court held that the facts so shown were wholly irreconcilable with the presumption and that it was dispelled thereby. In the later case of Smellie v. Southern Pac. Co., supra, the same rule was stated somewhat differently. There the court said: “When the presumption is invoked by a party and his evidence is not inconsistent therewith, it is in the case, provided, of course, the evidence sufficiently establishes a sphere or field within which the presumption can operate.”

Under these two leading cases if the evidence offered by one claiming the benefit of the presumption is “wholly irreconcilable” with the presumption it disappears from the case; if the evidence is not “inconsistent” with the presumption it may be considered. In the later case of Mundy v. Marshall, 8 Cal. (2d) 294 [65 Pac. (2d) 65], the court declined to consider the presumption of due, care where there was evidence from which contributory negligence could be, although not necessarily, inferred. It held that as the plaintiff’s own evidence showed the manner in which the decedent was crossing the street, the presumption that he was exercising due care could not be invoked. The subject was again considered in the case of Paulsen v. McDuffie, 4 Cal. (2d) 111 [47 Pac. (2d) 709]. There the court pointed out that what the plaintiff did at the time he was injured was entirely covered by the evidence offered on his behalf and there was, therefore, “neither necessity nor reason for indulging in any presumption upon that subject”. Under such circumstances, it was held, an instruction that until the contrary appears by the evidence, a plaintiff is presumed by the law to have exercised ordinary care “had no place . . . and should not have been given. Had this been a ease where the contributory negligence of the plaintiff could have defeated his claim for damages, the consequences following the giving of that instruction might have been most serious, and possibly might have required a reversal of the judgment”.

As I read these cases the latter two hold that whenever a plaintiff offers evidence showing all of the facts and circumstances surrounding the happening of an accident, he cannot invoke the presumption of due care. If this statement be too broad, certainly the first two cases bar the presumption where there is evidence either inconsistent or wholly irreconcilable with it. Under the first statement of the rule the plaintiffs in the present case were not entitled to the benefit of the presumption. And unless the second statement of it means that the evidence which is offered by a plaintiff must be open only to the construction that the one whose actions are being considered, did not use ordinary care, then the same result must follow.

In my opinion it is illogical to say that although one who is relying upon a presumption of due care may not offer evidence which reasonably points to the contrary and submit both the presumption and the evidence to a jury, that such evidence may be considered with the presumption if it is also susceptible to an inference consistent with the presumption. Under such circumstances as a practical proposition it would be impossible for the jury to weigh the evidence because of the court’s instruction. As against the evidence from which negligence could reasonably be inferred, the jury would be confronted by a rule of law that the one whose actions were being considered used due care. In such a situation is it not certain that the jury would feel compelled

to render a verdict which followed the instruction notwithstanding the evidence? It is apparent to me that this is exactly what occurred in the present ease.

From the evidence offered by the - plaintiffs it appears that the collision occurred about 2:30 A. M. on a journey from Los Angeles to Bakersfield which commenced at midnight. Mr. Ellison was driving the five-passenger coach in which four adults and three children were traveling. Alongside the driver’s seat there was a separate one which was occupied by Mr. Ellis. Miss Keys was sitting partly on an overnight bag between these seats and partly upon the seat occupied by Mr. Ellis. Mrs. Andrade and her three children were sitting in the rear seat. Just prior to the accident.the adults “had been talking backwards and forwards in the car, carrying on a conversation” and the children were singing. Miss Keys testified that the car was “going about 30”; it was traveling “down hill” and she “didn’t see anything until we got right up on the truck and at that time the car hit the truck”. Mr. Ellis fixed the speed of the automobile at 30 or 35 miles per hour and stated that “Mr. Ellison was talking to me prior to the accident”; that immediately prior to the crash he saw “a big black object of some kind” close enough so he “could say ‘Look out’ and that is all” before the collision occurred. Afterward, according to his testimony, he saw that the automobile had struck the right rear corner of the trailer. He then noticed the load on the trailer. The angle iron had been moved or pushed to the right. The flat sheet iron that extended over the rear end of the trailer was bent down on the right rear corner and next to it he observed a broken tail light “on the rear end, on the extreme right hand side”.

This evidence, according to one view of it, was “wholly irreconcilable” with the presumption and entirely “inconsistent therewith”. From the testimony of the plaintiffs’ witnesses the jury might have inferred that Mr. Ellison was guilty of contributory negligence because he was driving at-an excessive rate of speed, or while he was not looking ahead, or that he was operating the car while his senses were dulled by fatigue and loss of sleep, or that the automobile did not have headlights as required by law, or that it was not under reasonable control, considering the time of night, the condition of the road and the number of persons in the front part of it. Except for the instruction requiring it to give effect to the presumption, the jury might, have found a verdict in favor of the defendant. Under these circumstances I am of the opinion that the giving of the challenged instruction was prejudicial error and that each of the judgments should be reversed.

Seawell, J., concurred.

Rehearing denied. Seawell, J., and Edmonds, J., voted for a rehearing.


source: Caselaw Access Project

author: THE COURT.

license: Public Domain

text:
    [Sac. No. 5133.
    In Bank.
    November 28, 1938.]
    PROVIDENT LAND CORPORATION (a Corporation), Appellant, v. I. G. ZUMWALT et al., Respondents.

      Louis Bartlett and W. S. McGuire for Appellant.
    George R. Freeman, Thomas Rutledge and Elmer Laine for Respondents.
    Hankins & Hankins, C. F. Metteer, Harry W. Horton, George R. Kirk, Arvin B. Shaw, Jr., A. L. Cowell and Thomas C. Boone, as Amici Curiae, on Behalf of Respondents.
   THE COURT.

This is an action by a bondholder to set aside purchases by an irrigation district of its own bonds from other bondholders.

Provident Irrigation District was organized in April, 1918, under the provisions of the California Irrigation District Act (Deering’s Gen. Laws, Act 3854, p. 1948), with an area of some 22,805 acres. Two bond issues were sold, one in 1918 and the second in 1921, in the total aggregate sum of $1,190,-000. In common with most of the other irrigation districts, it suffered considerable delinquencies in its assessments in recent years, and much of the land was taken over by the district for nonpayment. For reasons hereinafter mentioned, this did not relieve the district’s financial difficulties, and in January, 1936, its outstanding bonds were in the 'sum of $900,000, with $152,000 in instalments of principal past due. Unpaid interest coupons in the approximate sum of $225,000 were also past due.

From 1933 to 1936 the district acquired title to over 10,000 acres of land by collector’s deed after sale for delinquent assessments. Being unable to find a buyer for any of the land, it leased a portion of it during these years, and deposited the proceeds in its general fund. On January 7, 1936, the directors passed a resolution declaring that the sum of $10,-000 in the general fund constituted a surplus, and ordered that it be set aside for the purchase of bonds of the district in the open market. The secretary was instructed to inform the bondholders that they would be bought from the one making the lowest offer. On February 4, 1936, the district by another resolution purchased from three bondholders, I. G. Zumwalt, defendant herein, the Capital National Bank, and L. M. Benoit, a total of 50 outstanding bonds and attached coupons, of the par value of $1,000 each, for said sum of $10,000.

Plaintiff is the holder of bonds past due in the sum of $86,000 and coupons past due in the sum of $125,000. Its bonds were due and registered prior to those of the aforementioned parties. On the theory that the purchases by the district were in violation of the provisions of the Irrigation District Act, plaintiff sued to set aside the sales and to restore to the treasury of the district the sum of $10,000 paid for the bonds. Three separate actions were brought against each of the three sellers mentioned above, joining as defendants the district and its officers and directors. The complaints in each case are practically the same, and the decision in the instant case will be determinative of the other actions, namely, Provident Land Corp. v. Provident Irr. Dist. et al., Sac. No. 5134 (post, p. 791 [85 Pac. (2d) 122]), and Provident Land Corp. v. Benoit et al., Sac. No. 5135 (post, p. 790 [85 Pac. (2d) 122]).

The complaints allege that the resolution setting aside the sum of $10,000 for the purchase of bonds did not specify any time or place, and that no notice of such intended purchase was given. It is further set forth that Benoit, now deceased and represented in the action by his administratrix, was the secretary of the district; and that each of the three purchases was at the identical fixed price of 20 per cent of the par value of the bonds, determined in advance. The complaints do not allege fraud or collusion, nor do they attempt to show that other bonds could have been bought at a lower price. The theory of the actions is simply that the sales were beyond the powers of the district and in violation of the rights of bondholders.

The trial court sustained general demurrers to these complaints, and upon failure to amend, judgment by default followed, from which plaintiff appealed. The precise question raised by the appeals is whether the purchases were valid, that is, whether the district had power to buy unmatured bonds at a discount with funds derived from rentals of land acquired by sale for delinquent assessments, despite the existence of unpaid bonds and coupons which are prior in registration to those so purchased. There is a broader question, however, which underlies this group of actions and several other cases now pending in this court. That question, stated simply, is whether unpaid bondholders, in the unusual situation where there is wholesale delinquency in assessments, wholesale default in bond payments, and acquisition of substantial portions of the land by the district itself, have any special equitable rights or remedies, in addition to those expressly stated in the statute. These questions will become clearer by a brief review first, of the relevant provisions of the statute, and second, of the economic background of the present controversy.

The basic provision indicating the normal remedy of the bondholders is section 33 of the act, which read prior to 1935 : “Said bonds and the interest thereon shall be paid from revenue derived from an annual assessment upon the land within the district; and all the land within the district shall be and remain liable to be assessed for such payments as hereinafter provided.” Section 39 provides that the directors shall levy an assessment upon the lands in an amount sufficient to raise the interest and principal coming due on the bonds. The assessment is a lien against the property assessed (sec. 40), and upon delinquency, the property must be sold to the district (see. 43). It may be redeemed within three years or at any time thereafter before a deed has been delivered. (Sec. 47.) Section 52 provides for payment of matured bonds and interest coupons, and for additional interest of 1 per cent from the time of presentation, if not so paid.

The ordinary method of payment of bondholders is clearly indicated by these provisions. The directors must levy assessments in a sufficient amount to meet principal and interest payments. If delinquency occurs a higher assessment • may be levied thereafter to make up the loss, and meanwhile the district may proceed to sell the land of the delinquent owner and buy it in. If a heavy delinquency occurs, the remaining land bears a correspondingly heavy burden, for every parcel is liable ultimately for the entire bonded indebtedness, and assessments may therefore be "pyramided” on the land which is not in default. It would ordinarily follow, however, that the land taken in by the district would be resold, and some money would be realized from the sale; and that thereafter the land thus returned to private ownership and liable again for assessments would prove a sufficient source of revenue to keep the assessments at a reasonable figure.

But economic conditions have prevented the working out of this plan in the contemplated manner. Farmers in the agricultural area embraced by various irrigation districts have found it increasingly difficult to meet the obligations of mortgages, taxes and district _ assessments. When delinquencies began to mount, it became impossible to stop them because of the fact that the remaining land faced continually rising assessments. Moreover, there were no purchasers for the lands taken in by the districts, because a new landowner would immediately become liable for assessments, which could be pyramided to any extent. As a result, some districts now own practically all the land within their boundaries, which they are unable to sell. The land thus owned is of course not subject to assessments, and therefore produces no revenue in this manner. These districts have long been in default in bond payments.

Having title to this enormous acreage which they are unable to sell, these districts have turned to leasing of the land as a means of raising some revenue. In the case of defendant Provident Irrigation District this was done for several years, and a total income of $57,578.30 was produced for the years 1933, 1934 and 1935. This money was placed in the district’s general fund, and it was from this fund that the directors took the sum of $10,000 to buy the 50 bonds from the other defendants in these cases. It thus appears that the land, which is the normal source of the funds with which to meet the obligation of the bonds, is not only not producing funds for that purpose, but is actually being used to produce funds for other purposes. It is not difficult to perceive that if the procedure followed herein is approved, bondholders may be left entirely without a practical remedy to obtain any payments. It is further apparent that the district’s method of buying outstanding unmatured bonds at a discount is in effect the giving of a preference to bondholders who are not legally prior in time to others.

The defendants contend, however, that the directors of the district acted in strict compliance with the statutory requirements, and they point out that the sole remedy of the bondholders under the terms of the act is to compel the levy of assessments, and the enforcement of the same by sale of the land for delinquency. (See Mulcahy v. Baldwin, 216 Cal. 517, 525, 526 [15 Pac. (2d) 738].) They further contend that lands acquired by the district may properly be used for any of the purposes for which the district was formed, and that the use of the rentals to retire bonds at a discount is a proper use thereof, and within their discretion. It may be observed here that the benefit to the landowners resulting from the retirement of any part of the outstanding indebtedness is largely illusory because of the virtual disappearance of the landowner. The true situation seems to be that the directors of the district, by their present policy, are administering the land for the benefit of lessees who are able to rent the land at exceptionally low prices, and for those particular bondholders whose bonds are purchased and retired. The delinquencies have gone too far in this and other districts to save the landowners.

In so far as the act itself is relied upon as a justification for this use of the district’s funds, the strongest argument in favor of defendants is based upon certain amendments passed after the bonds were issued. Section 29 of the act contains the general provision that title to property acquired by the district “shall be held by such district, in trust for, and is hereby dedicated and set apart to the uses and purposes set forth in this act”, and the board of directors is empowered to sell or lease the same. Section 47, as amended in 1927, provides that where property is purchased by the district, “such district shall have the same rights thereto, and to the rents, issues and profits thereof, as a private purchaser”. Section 52, at the time the bonds were issued, provided that when the bond fund contained $10,000 in excess of the amount necessary to pay bonds and interest, the directors could advertise for sealed offers to redeem bonds not yet due, and should accept the lowest offer. As amended in 1931, this section provides that whenever there is “in any fund of the district money in excess of that required for the purposes of such fund”, the directors “may purchase with such surplus money, or any part thereof, any of its bonds not then due”. The requirements of notice and acceptance of the lowest sealed offer were eliminated. Section 67, as amended in 1931, reads: “The following funds are hereby created and established, to which the moneys properly belonging shall be apportioned, to wit: bond principal fund, bond interest fund, construction fund, general fund.”

The position of defendants is that the district has fulfilled its entire duty to the bondholders by levying assessments and selling the land for delinquency. Thereafter, they contend, the title to the land acquired by the district is held for all of the purposes of the act, and not for the benefit of the bondholders (sec. 29, supra) ; that the district has the same rights in these lands as a private purchaser, and may lease them and use the rentals for any of the purposes of the act (sec. 47, supra) ; and that consequently, in their discretion, the directors may place these rentals in the general fund, to meet general obligations of operation and maintenance of the district; and thereafter, if there is a surplus in this fund, they may use the same to retire bonds not yet due (see. 52, supra).

Although the question is a difficult one upon which we find no directly controlling authority, we are unable to agree with defendants’ position which, as already pointed out, has the effect of giving a preference to bondholders inferior in right, and may result in a complete cessation of any payments to bondholders generally. Defendants place such strong reliance upon the language of amended sections, particularly sections 47 and 52, supra, that a problem of constitutionality is suggested by what may appear to be a legislative impairment of substantial rights of bondholders. But upon a careful examination of the act as a whole, we have concluded that the real issue is rather one of interpretation. In our opinion, the statute was intended to secure the bonds by the proceeds of the land in the district. It is true that the bonds themselves are not a lien on the land. But the assessment is a lien (sec. 40), and the district is required to collect the assessment or sell the land. Land coming into other private ownership is again liable for assessments (sec. 33), and land in possession of the district should, if possible, be sold again, so that it may produce the required revenue. There is nothing in the nature or the terms of the act which sanctions the extraordinary procedure attempted herein, where the holders of matured bonds are unpaid, and the only revenue produced by the land is diverted to a few selected holders of unmatured bonds. It is no answer to say that "with legislative aid, the legislation being subsequent to the making of the bondholders’ contract, a classification of “funds” has been made, and a method of declaring a “surplus” has been devised, with the effect of destroying the sole intended source of payment of the bonds. We do not understand how a debtor owing $360,000, long overdue, can have a surplus of $10,000. Nor do we understand how the district can be entitled to take all of the money derived from the land, whether by sale or lease, and use.it for purposes other than payment of the primary obligations of holders of overdue bonds. It is within the discretion of the directors to use some portion of it for running expenses, and where this use is necessary, their discretion will be upheld on familiar principles. But when the directors themselves declare that a surplus exists, over and above the operating needs of the district, two things should be clear: first, that this money should go to the bondholders; and second, that in any event, it should not be given to junior bondholders in preference to those with prior claims, but should be paid on past due bonds and coupons in the order of their presentation. And to reach this conclusion we need not find any express direction setting forth the exact, procedure in the statute. The situation is one not contemplated by the act, not covered by any clear provision, and calls for a construction of its general provisions in the light of equitable principles.

These principles find an appropriate foundation in section 29 of the act, which provides that property acquired by the district under its provisions shall be held “in trust for, and is hereby dedicated and set apart to the uses and purposes set forth in this act”. This express statement that the lands are impressed with a trust must be kept in mind in considering the amendment to section 47, purporting to give the district the rights of a private purchaser. Reading the two sections together, the only reasonable interpretation is that the district may freely transfer, lease or otherwise deal with the lands, in so far as its power is concerned, but the lands remain in trust, and the district exercises its powers, however broad, as a trustee. Once it is made clear that the lands are held in trust, it necessarily follows that their proceeds, whether by sale or lease, are likewise subject to the trust. It would be manifestly absurd to say that although property is held in trust, none of the benefits of the trust accrue to the beneficiaries, and that none of the rents or profits of the trust property need be used in furtherance of the trust purposes. On this point, namely, that the land is trust property, held for the “uses and purposes” of the act, and that the proceeds are stamped with the character of the property from which they flow, the statute, read in the light of elementary principles, leaves no room for debate.

It next becomes necessary to determine whether payment of the bondholders is one of these purposes. On this question defendants and amici curiae vigorously contend that the purposes of the act are to construct irrigation works, and provide for' irrigation of the lands of the district. They concede that the district is authorized to borrow money for these purposes, but assert that creation of debts is not one of its purposes. They concede that the act requires repayment of the money borrowed, but assert that this is not one of its purposes. This type of argument, however, tends to prove too much, for it is difficult to conceive of the legitimate use of any funds of the district, derived in any manner, for something which is not a purpose of the district. How can the assessments, when collected, be paid to bondholders, if payment of their obligations is not a purpose of the act? If the bond fund was not created to carry out a purpose of the act, for what purpose was it created? But laying aside quibbles as to the exact meaning of the phrase “uses and purposes”, it seems clear that if the district is to be created and to function on borrowed money, repayment of the money is not a wholly immaterial and foreign objective. Evading creditors is not a contemplated activity of a public district, whose bonds are recognized investments for financial institutions. Among other purposes of the act, therefore, is the repayment of the bondholders of the district, and it íoIIoavs that this is one of the purposes for which the trust money is held.

This view is fortified by a consideration of the general plan of the statute, in so far as it provides for the creation of an obligation and a procedure for paynient. The land is the ultimate and only source of payment of the bonds. It can never be permanently released from the obligation of the bonds until they are paid. The release from liability for assessments while the district holds title is intended to be temporary only, and the liability for new assessments is again imposed when it goes back into private ownership. Any practice which removes the land from its position as ultimate security for the bonds, or which places its proceeds beyond the reach of the bondholders, destroys that plan and is contrary to the spirit of the act. And the practice employed by the district herein does exactly that. Theoretically and formally, the remedies of the bondholders remain unaltered. Actually, they have been destroyed. Economic conditions have placed the land itself outside of the power of assessment for payment of the bonds. But it is the act of the directors alone which has taken the proceeds of the land from the bondholders. This use of funds, contrary to the whole intent of the act, is in our opinion in violation of the trust impressed on the land under section 29. We do not mean to hold, nor is it contended by plaintiff, that the entire proceeds are held in trust for bondholders. Payment of the bonds is but one of the purposes of the trust. The land may also be a source of funds to enable the district to function. It is true that another important method of raising operating funds exists, namely, the charging of tolls for the use of water (sees. 39 and 55 of the act), a practice said to be successfully employed in some districts. Whether any duty exists to levy such tolls so that money from rentals might go in full to the bondholders is not an issue in the instant case. We assume, for the purposes of this case, that the directors, in their discretion, may determine that some of the proceeds of leasing of lands are essential to operation and maintenance, and may use them for these purposes. But any surplus, over and above operating expenses, remains subject to the trust, and should go to the payment of bondholders.

The foregoing discussion disposes of such eases as Mulcahy v. Baldwin, supra, wherein the statement is made: "The declared plan of the Irrigation District Act is that the holders of outstanding bonds of the district have the right to enforce their demands solely by an annual assessment on the lands in the district. Such is their contract.” And it is further declared that “in law purchasers of those bonds could look only to the statutory right of assessment and enforced payment under that method of raising revenue”. These remarks, obviously correct as a definition of the rights of bondholders in situations within the contemplation of the framers of the act, offer no solution for the entirely new problem which confronts us. We held in the Mulcahy case that the bondholder was not entitled to reach certain special funds, not derived from the land itself but from contracts for the sale of power; and we said that he could “enforce” payment under the assessment method. But suppose the assessment method has disappeared as a means of collecting revenue; can the bondholder “enforce” payment? He has a right to enforce making and payment of assessments under one part of the statute, but there are virtually no lands to assess; by reason of acts taken under other provisions of the statute the assessable land has been completely taken from him, and is now beyond the reach of this remedy. In this situation it would be unreasonable to say that the bondholder’s only remedy is to have an assessment levied. We must take a practical view of the circumstances, and recognize that where there are no assessable lands, there is no remedy of assessment. The quoted excerpts from Mulcahy v. Baldwin, supra, are not, therefore, an obstacle to the application of the principles which we have already discussed. If there is any doubt as to the propriety of this interpretation of the holding of that case, it may be set at rest by an examination of our late decision in Kerr Glass Mfg. Corp. v. San Buena Ventura, 7 Cal. (2d) 701 [62 Pac. (2d) 583], where we recognized the justice of applying equitable principles to the payment of bondholders in unusual circumstances, notwithstanding the fact that express provisions of the statute stood in the way. We call attention to this significant statement on page 710 of that decision: “The trust status of the fund has been considered appropriate where it is theoretically replenishable by a so-called inexhaustible taxing power, but the exercise of that power is rendered fruitless by reason of economic conditions resulting in a tax-collecting incapacity.” In the same sense the bond fund in the instant case is theoretically replenishable by the unlimited power of assessment, but in fact that power is gone because the subject of the assessment, the land, is removed from its reach.

It follows that if the allegations of the complaints are true, the purchases of the bonds from the various defendants were unauthorized, and the sales must be set aside, and the consideration returned to the parties.

The judgment is reversed with directions to the trial court to overrule the demurrers and permit defendants to answer if they deem it advisable to do so.

Rehearing denied.


text:
    [Sac. No. 5161.
    In Bank.
    November 28, 1938.]
    EL CAMINO IRRIGATION DISTRICT (a Public Corporation and Body Politic), Respondent, v. EL CAMINO LAND CORPORATION (a Corporation) et al., Appellants.

      A. L. Garvey and Curtiss E. Wetter for Appellants.
    L. C. Smith for Respondent.

      Harry W. Horton, George R Kirk, Hankins & Hankins, C. F. Metteer, Arvin B. Shaw, Jr., Thomas C. Boone and A. L. Cowell, as Amici Curiae, on Behalf of Respondent.
   THE COURT.

Plaintiff El Camino Irrigation District was organized April 12, 1921, under the California Irrigation District Act, and comprises 7546.5 acres of land in Tehama County. Its outstanding bonds, issued on November 1, 1926, now amount to $423,000. Defendant El Camino Land Corporation is the owner of about $302,000 of said bonds. In October, 1935, said defendant brought an action against the district on some of the past due bonds and interest coupons, and a judgment was entered in its favor May 15, 1936, for $40,390.

Upon entry of the judgment said defendant had execution issued, and levied on certain lands previously acquired by the district at sales for delinquent assessments, and deeded to the district after expiration of the redemption period. Of the 7546.5 acres of the district, about 5,500 had already been so transferred, and the rest were in default. The district then brought this action to enjoin the said defendant and defendant sheriff from holding the contemplated sale, on the ground that the lands were not subject to execution. The lower court granted the injunction, and defendants appealed.

The economic background of this and certain other related cases has been fully set forth in our opinion in Provident Land Corp. v. Zumwalt et al., Sac. No. 5133 (ante, p. 365 [85 Pac. (2d) 116]), this day filed. It is therein pointed out that a number of irrigation districts have suffered almost complete delinquency in assessments, followed by the taking over of the bulk of the land by the districts. The land thus acquired by a district is not subject to assessments and hence produces no revenue except minor amounts from rentals. Such districts are in serious default in their bond payments, for the normal method of payment provided by statute, namely, assessment of the land, has become ineffective. Bondholders, unable to obtain any payments, have sought to discover some other means of enforcing their obligations. The broad question, underlying this group of cases is, as we said in the Provident Land Corporation case, supra, "whether unpaid bondholders, in the unusual situation where there is wholesale delinquency in assessments, wholesale default in bond payments, and acquisition of substantial portions of the land by the district itself, have any special equitable rights or remedies, in addition to those expressly stated in the statute”. We held in that case that revenues from rentals of these tax-deeded lands were subject to the claims of bondholders, thereby establishing the rule that the statutory remedy of mandamus to compel levy of assessments was not, in these circumstances, the sole means of relief for unpaid bondholders. The question now presented is whether the bondholders may pursue the legal remedy of execution against the tax-deeded lands themselves.

Defendant’s argument in favor of execution may be summarized as follows: All property is subject to levy unless expressly made exempt by law, and this is true of public corporations as well as private persons. Property of a public corporation is exempt only where it is held for a public use; where held in a proprietary capacity and not devoted to public use, it is subject to execution. As applied to irrigation districts, this doctrine would exempt the operative property, e. g., the irrigation works, but not the tax-deeded lands.

Before discussing this contention we may briefly notice the further argument that it will be highly beneficial to force sale of these lands to private persons, who will become obligated to pay assessments, whereas now, with title in the district itself, the lands are free from assessments and produce no revenue. Such a proposition, even if sound, could hardly be deemed sufficient justification for subjecting exempt public lands to execution. But we are bound to observe that there is grave doubt as to whether defendant’s remedy would produce the suggested result. Amicus curiae has persuasively argued that if any buyers can be found, which is extremely questionable, they, faced with huge pyramided assessments, will in all likelihood prove as recalcitrant as the old, and will merely hold the land without any payments for the period of some five cropping seasons until they are again taken over by the district after expiration of the redemption period. The recent history of the districts lends support to this prophecy (see Provident Land Corp. v. Zumwalt, supra), and we are inclined to believe, therefore, that were it legally possible to execute on these lands, the bondholders as a group would derive little benefit from the procedure. No substantial revenue could be expected, and court costs and expenses of execution would add further amounts to the already staggering burden of indebtedness of the districts. Moreover, to permit successful ■ judgment creditors, whose bonds may not be prior in registration, to be paid by the proceeds of execution sales, would result in an unjustified preference in favor of those who brought the actions and procured the levies. The lower court in the instant case made an express finding to this effect, and the procedure, unless restricted in some manner unknown to us, would operate to violate the rule of priority established by the decisions in this state. (Bates v. McHenry,. 123 Cal. App. 81 [10 Pac. (2d) 1038]; Selby v. Oakdale Irr. Dist., 140 Cal. App. 171 [35 Pac. (2d) 125]; Strasburger v. Van Delinder, 17 Cal. App. (2d) 437 [62 Pac. (2d) 387]; Shouse v. Quinley, 3 Cal. (2d) 357 [45 Pac. (2d) 701].) It seems clear, therefore, that neither public policy nor the plan of the Irrigation District Act favors the position of defendant, and with this observation we turn to a consideration of the principles governing execution on public property.

There is a general doctrine, settled by numerous authorities, that land owned by the state or its agencies and held for a public purpose, is not subject to attachment or execution in the absence of an express statute permitting it. It is immaterial that there is no statute expressly exempting such property from execution. (Westinghouse Elec. & Mfg. Co. v. Chambers, 169 Cal. 131, 135 [145 Pac. 1025]; Meyer v. State Land Settlement Board, 104 Cal. App. 577, 585, 586 [286 Pac. 743]; People v. San Joaquin Valley Agr. Assn., 151 Cal. 797, 806 [91 Pac. 740]; San Francisco Savings Union v. Reclamation Dist., 144 Cal. 639, 648 [79 Pac. 374]; Tulare Irrigation Dist. v. Collins, 154 Cal. 440, 442 [97 Pac. 1124]; People v. Honey Lake Valley Irr. Dist., 77 Cal. App. 367 [246 Pac. 819].)

It is true that a few decisions in this state have recognized the familiar distinction between proprietary and governmental functions and uses, and have declared that property owned by a municipal corporation in its proprietary capacity, and not devoted to nor held for public use, is not exempt from execution. (See Marin Water & Power Co. v. Sausalito, 49 Cal. App. 78, 83 [193 Pac. 294]; Kubach Co. v. Long Beach, 8 Cal. App. (2d) 567 [48 Pac. (2d) 181].) Plaintiff vigorously attacks these cases, pointing out that the remarks in the Marin Water and Power Co. case were dictum, since the court actually held the particular property not subject to execution; and that the Kubach Co. case relies largely on that dictum, with no hearing sought in this court. Other criticisms of the latter case have been made, e. g., that it defeats the statutory protection enacted in 1901 (Deering’s Gen. Laws, Act 3918) enabling a city to repay a judgment creditor in ten instalments out of funds raised by tax levies. (Note, 9 So. Cal. L. Rev. 415; see, also, 49 Harv. L. Rev. 489.) But we do not find it necessary to reexamine the rule of that case, since it is clearly distinguishable both on the facts and the legal issues involved, from the instant case. The Kubach Co. case held that the money from lessor’s oil royalties on city-owned land under lease was subject to execution; the opinion stressed the fact that the lessor’s interest in an oil lease can be sold separate and apart from the land, and that a levy upon such interest is not a levy upon the land itself. The court was not called upon to determine whether the land itself was subject to execution, and expressly so states. (8 Cal. App. (2d) 578.)

When we consider the precise legal question before us it is equally apparent that this decision is not controlling. Defendant has attempted to lump together all public bodies and agencies, and to make the characterization of governmental or proprietary use applicable to all. But the cases make a sharp distinction between municipal corporations, such as the cities in the Kubach Co. and Marin Water and Power Co. cases, and state agencies such as irrigation or reclamation districts. These latter are agencies of the state whose functions are considered exclusively governmental; their property is state owned, held only for governmental purposes; they own no land in the proprietary sense, within the rule of defendant’s cases. (See Whiteman v. Anderson-Cottonwood Irr. Dist., 60 Cal. App. 234 [212 Pac. 706]; Turlock Irr. Dist. v. White, 186 Cal. 183, 187 [198 Pac. 1060, 17 A. L. R. 72]; Wood v. Imperial Irr. Dist., 216 Cal. 748, 752 [17 Pac. (2d) 128].) Once it is established that the property is owned by the state or its agency, rather than by a municipal corporation, the rule of the Kubach Co. case becomes inapplicable. ‘‘ Our attention has been called to no act, and we have been unable to find any act of the legislature authorizing state property to be sold upon execution, whether such property is used either in a governmental or in a proprietary character. The purpose or capacity in which state property is held does not, so far as we have been able to ascertain, alter the rule that state property cannot be levied upon and sold, save and except as permitted by the legislature, and not being permitted, it cannot be done.” (Meyer v. State Land Settlement Board, supra, at p. 586.)

There is another and conclusive answer to the contention of defendants, found in the terms of the Irrigation District Act. Section 29 of the act declares that property acquired by the district shall be held “in trust for, and is hereby dedicated and set apart to the uses and purposes set forth in this act”. We have discussed the meaning and effect of this section in Provident Land Corp. v. Zumwalt, supra, and it is sufficient to point out here that the statute places these tax-deeded lands in a classification which necessarily makes them exempt from execution. The “uses and purposes” of the act are of course the improvement by irrigation of the lands of the district, governmental purposes under the authorities cited above. The lands are expressly “dedicated and set apart” for these purposes. It is impossible, in the face of such language, to say that any such property could be subject to levy on the ground that it was not held for a public use; the statute forecloses any argument on this point. This is recognized in the statement in the Marin Water and Power Co. eases, supra: “ . . . property which it holds merely as a proprietor, devoting it to no use of a public character, such as lands acquired or held for other than public purposes and not in trust for public use, are subject to execution unless some statutory or constitutional provision forbids it”. Lands held subject to a public trust cannot be subjected to execution. (See Hart v. Burnett, 15 Cal. 530.) In Tulare Irr. Dist. v. Collins, supra, the district had acquired land for the purpose of a reservoir, but the project proved unsound and was abandoned. A creditor with an unsatisfied judgment levied on that land, which the lower court found was wholly unnecessary for the irrigation plans of the district. Nevertheless it was held by this court that execution was improper and should be enjoined. The opinion points out that the statute places all lands of the district in trust, dedicated and set apart to the uses and purposes of the act; that under the statute then in force there was not even the power of voluntary sale of the lands of the district; and suggests that the legislature might have reasonably provided for sale or execution of land of that type, thus relieving the same from the burden of the strict trust. The court then says (p. 442) : “But in the absence of such expression these lands stand in precisely the same position as do the other lands of the district. Equally with such other lands they are impressed with the trust and equally they are exempt from execution, levy, and sale. This question as to pueblo lands was most learnedly considered in the leading case of Hart v. Burnett, 15 Cal. 530, and the principles there announced have never been departed from. These principles are equally applicable to the lands held under this public trust.”

The view that the irrigation district land is free from execution is further supported by the holding of this court in San Francisco Sav. Union v. Reclamation Dist., supra, the similarity in purpose of reclamation and irrigation districts being well established. In the light of these various decisions and the clear provisions of the California Irrigation District Act, we deem it unnecessary to discuss or distinguish the very few cases from other jurisdictions which defendant cites as persuasive herein.

It follows that the trial court properly enjoined the levy. The judgment is therefore affirmed.


text:
    [Sac. No. 5090.
    In Bank.
    November 28, 1938.]
    GEORGE A. CLOUGH, Appellant, v. COMPTON-DELEVAN IRRIGATION DISTRICT (a Body Corporate and Politic) et al., Respondents.

      George A. Clough, in pro. per., and Tobin & Tobin for Appellant.

      U. S. Webb, Attorney-General, Ralph H. Cowing and Neal Chalmers, Deputies Attorney-General, Rutledge & Rutledge, W. Coburn Cook and Charles L. Childers for Respondents.
    Hankins & Hankins, C. F. Metteer, Arvin B. Shaw, Jr., A. L. Cowell and Thomas C. Boone, as Amici Curiae, on Behalf of Respondents.
   THE COURT.

This is an action by an unpaid bondholder of an irrigation district seeking partition of the lands of the said district which were deeded to the district after default in assessment.

The complaint alleges the following facts. Defendant Compton-Delevan Irrigation District was organized in 1920 under the California Irrigation District Act.. It issued over $300,000 worth of bonds to finance its works. Interest and principal obligations maturing on January 1, 1932, are unpaid. All of the lands in the district were sold to the district for delinquency, and in practically all cases the time for redemption has passed and title is vested in the district. Similar sales of the same land for delinquency have been made to Sacramento and San Joaquin Drainage District, and to Reclamation District No. 2047. The irrigation district has practically ceased to function. Plaintiff holds 21/384 of the outstanding bonds.

The complaint makes further allegations to the effect that the entire cost of creation of the district and construction of its works was met by funds contributed by the bondholders; that when title to the tax-deeded lands vested in the district, it took such title as trustee for the bondholders; that plaintiff and other bondholders are now collectively the owners of equitable interests in the land, and of estates of inheritance therein. The prayer is that the property be partitioned among such bondholders, or if this is not possible, that it be sold; and if neither be possible, that the court declare what relief shall be granted and instruct the plaintiff as to what procedure should be pursued, in order to obtain it.

The lower court sustained demurrers without leave to amend, and after judgment for defendants, plaintiff appealed.

The economic background of this and similar cases, and the rights of the irrigation districts and their bondholders, are fully considered in two decisions of this court filed to-day, Provident Land Corp. v. Zumwalt, Sac. No. 5133 (ante, p. 365 [85 Pac. (2d) 116]), and El Camino Irrigation Dist., v. El Camino Land Corp., Sac. No. 5161 (ante, p. 378 [85 Pac. (2d) 123]). In the Provident Land Corporation case we held that the bondholders were entitled to reach money derived from rentals of the tax-deeded lands. In the El Camino Irrigation District case we held that bondholders with judgments against the district could not levy execution on such lands. In the instant ease we find the bondholder seeking the unusual remedy of partition of the land on the theory that the contribution of the original capital of the district gave him a sufficient interest in the lands of the district.

The unprecedented character of plaintiff’s action makes it somewhat difficult to discuss. His theory seems to be that the original loan of money to the district created both an equitable lien and a resulting trust under section 853 of the Civil Code, reinforced by section 29 of the Irrigation District Act; that this trust is in favor of the bondholders as beneficiaries; that the beneficiary of a trust has an estate of inheritance and is therefore entitled to partition under section 752 of the Code of Civil Procedure. There is no authority supporting the main proposition for which plaintiff contends, and the entire argument runs counter to the terms of the statute and the holdings of our cases.

There is, first, no lien or resulting trust arising from the purchase of the bonds. The statute fully defines the relationship of bondholders, district and landowners. Nowhere does it déclare that the bondholder has a lien on the land itself, and it certainly does not recognize any trust for his sole benefit. Section 29 provides that the title to land acquired by the district shall vest in the district, “and shall be held by such district, in trust for, and is hereby dedicated and set apart to the uses and purposes set forth in this Act. ’ ’ The property is by this language impressed with the public use, and the trust is for all the purposes of the act. Payment of the bondholders is such a purpose, as we have held in the Provident Land Corporation case, supra; but there are other purposes as well, and the bondholders cannot be considered exclusive beneficiaries, even if the doubtful assumption be made that they, as individuals, are beneficiaries at all. Indeed, it is futile to attempt to discover the “beneficiaries” of the statutory trust created by section 29. It is enough to point out that it is an active trust for public uses and purposes, and to permit partition of the land which constitutes its corpus would mean the destruction of the trust, in violation of the statute. The same considerations of policy which make this property exempt from execution (see El Camino Irr. Dist. v. El Camino Land Corp., supra) are equally applicable to any attempt to take the same by partition.

Plaintiff’s vague demand for declaratory relief amounts to nothing more than a request that the court devise some means of obtaining payment of his bonds, and was properly refused. The prayer for judgment on the bonds would be futile," since enforcement by execution is not permitted (El Camino Irr. Dist. v. El Camino Land Corp., supra), and hence the refusal to permit the action to go to judgment for this purpose cannot be considered reversible error. (See Moody v. Provident Irr. Dist., Sac. No. 5235 (post, p. 389 [85 Pac. (2d) 128]) this day filed.)

The judgment is affirmed.


text:
    [Sac. No. 5235.
    In Bank.
    November 28, 1938.]
    GILBERT MOODY, Appellant, v. PROVIDENT IRRIGATION DISTRICT (a Body Corporate and Politic), Respondent.

      W. Coburn Cook for Appellant.
    A. L. Garvey and Curtiss E. Wetter, as Amici Curiae, on Behalf of Appellant.
    George R. Freeman for Respondent.
   THE COURT.

A hearing was granted in this ease in order that it might be considered in connection with certain other eases dealing with related matters then pending in this court, namely, Provident Land Corp. v. Zumwalt, Sac. 5133 (ante, p. 365 [85 Pac. (2d) 116]), El Camino Irr. Dist. v. El Camino Land Corp., Sac. 5161 (ante, p. 378 [85 Pac. (2d) 123]), and Clough v. Compton-Delevan Irr. Dist., Sac. 5090 (ante, p. 385 [85 Pac. (2d) 126].) Upon a full consideration of the issues in the light of the decisions this day filed in the above-mentioned cases, we have determined to adopt the opinion of Mr. Justice Plummer, with certain excisions, as the opinion of this court. It reads as follows:

“This action was begun by the plaintiff to recover a money judgment against the defendant upon certain of its matured bonds and coupons issued on the 5th day of August, 1918, and owned by the plaintiff. The cause was tried before the court without a jury, and resulted in a judgment favorable to the defendant. From this judgment the plaintiff appeals.
“The record shows that the Provident Irrigation District was organized on the 27th day of April, 1918, and ever since said date has been and now is a duly existing irrigation district.
“On the 15th day of August, 1918, the district issued certain bonds in the aggregate sum of $1,000,000, represented by 1000 bonds in the denomination of $1,000 each, payable serially commencing on the 15th day of August, 1930, and thereafter, on the 5th day of August of each year until 1940. The bonds provided for the payment of interest at the rate of 6 per cent per annum, payable semi-annually. The bonds had coupons attached specifying that the district would pay to the bearer, at the office of the treasurer of the district, in the city of Willows, county of Glenn, California, a sum of money representing six months' interest.
“The plaintiff is the owner of three matured and unpaid bonds, and also is the owner of matured and unpaid interest coupons of the face value of $502.50. All of the bonds and coupons owned by the plaintiff, after date of maturity and prior to the beginning of this action, were presented to the treasurer of the district for payment. There being no funds in the hands of the treasurer for the payment of either the bonds or the interest coupons, the treasurer endorsed thereon that funds were not available for payment, and that the bonds and coupons should bear interest at the rate of 7 per cent per annum from the date of presentation until notice is given that funds are available for their payment. After making this endorsement on the bonds and coupons, the bonds and coupons were returned to the plaintiff.
‘ ‘ The record shows that annual assessments for the payment of bonds and coupons have been duly and regularly levied by the district, but the assessments have not been paid by the landowners, and that there are not now, and have not been, any funds in either the bond or interest funds of the district with which to pay any of the plaintiff’s bonds or coupons since their original due dates.
“The record shows that there has been a general default in the payment of principal and interest on the bonds of the district since January 1, 1931.
“Where an action is begun to obtain a money judgment against the district for and on account of the unpaid bonds and coupons, it is contended by the respondent that the presentation by the plaintiff of his bonds and coupons at a time when there was no money in the bond or interest funds of the district for their payment, the registration and endorsement thereof by the treasurer of the district at the request of the plaintiff agreeing to pay the plaintiff 7 per cent interest from date of presentation until notice should be given that funds were available for payment, constituted a new agreement between the plaintiff and the district, under which the plaintiff’s bonds and coupons would be exempt from the running of the statute of limitations until money sufficient to make payment thereof had come into the hands of the treasurer and notice given that money was available for the payment of the bonds; that the action by the plaintiff was either premature or an idle proceeding.
“It is further contended by the respondent that having the bonds and coupons registered and the district endorsement made by the treasurer as authorized by the provisions of section 52 of the California Irrigation District Act as amended in 1919, increasing the interest from 6 per cent to 7 per cent, and specifying that the bonds and coupons should thereafter bear interest at the rate of 7 per cent until funds were available for their payment, and the acceptance of the same by the plaintiff, constituted a new agreement. The consideration moving to the plaintiff would be the increased interest and the waiving on the part of the district of the right to-plead the statute of limitations, thus, in any event rendering the entering of a money judgment against the district-on the bonds and coupons an unnecessary and idle procedure.

“It is clear that while it has been held in a number of eases prior to the amendment of section 52, supm, that a money judgment- was proper to be entered against the district, and also necessary to prevent the bar of the statute after the lapse of four years, it is likewise clear that the entering of a money judgment against the district does not give to a bondholder any additional remedies in seeking to enforce payment on matured bonds and matured coupons.

“The prayer of the complaint in this action asks for judgment in the amount of the principal sum of the bonds and coupons, matured and unpaid, and interest thereon at the rate of 7 per cent per annum. The endorsement on the bonds and coupons by the treasurer of the district binds the district to pay that rate of interest whenever funds are available for such purpose. Thus, the financial interests of the plaintiff are rendered exactly the same by the endorsement as it would be after obtaining a money judgment. Again, it is thus shown that no change could be effected concerning the financial interests of the plaintiff by having a judgment entered in his favor as prayed for.

"The first paragraph of section 52, supra, reads as follows: ‘Upon presentation of any matured bond of the District, the Treasurer shall pay the same from the bond principal fund, and upon presentation of any matured interest coupon of any bond of the District, the Treasurer shall pay the same from the bond interest fund. If money is not available in the fund designated for the payment of any such matured bond or interest coupon, it shall draw interest at the rate of seven per cent per annum from the date of its presentation for payment until notice is given that funds are available for its payment, and it shall be stamped and provision made for its payment as in the case of a warrant for the payment of which funds are not available on its presentation. ’

“It is settled law that an irrigation district is a governmental agency, and that it has such powers, and is subject to such liabilities as are expressly provided by statute. (Whiteman v. Anderson-Cottonwood Irr. Dist., 60 Cal. App. 234 [212 Pac. 706]; Selby v. Oakdale Irr. Dist., 140 Cal. App. 171 [35 Pac. (2d) 125]; Meyerfeld v. South San Joaquin Irr. Co., 3 Cal. (2d) 409 [45 Pac. (2d) 321].) Likewise, it is also well settled that the law in force at the time the bonds and coupons are issued by a district become a part of the contract. (Hershey v. Cole, 130 Cal. App. 683 [20 Pac. (2d) 972], and cases there cited.) These cases, however, do not limit the power of the legislature to provide for a subsequent method of payment which does not impair the existing rights of the bondholder; nor does it prevent the legislature providing that the district and' the bondholder may enter into a subsequent agreement relative to the bonds issued by the district and owned by the bondholder. In other words, there is no constitutional prohibition against a subsequent agreement being entered into between a bondholder and the district, specifying that the bonds and coupons shall be paid as soon as money is available therefor, and promising to pay the bondholder the same rate of interest which he would receive if a money judgment were entered on the matured bonds and coupons. There being, as we have stated, no change in the substantive rights of the bondholder relative to enforcing, such proceedings as the law specifies may be taken by the officers of the distriet in an effort to obtain money with which to pay the bonds.

“That the annual assessments and the sale of lands upon which the assessments are not paid may never realize sufficient money to pay the indebtedness of the district, is entirely beside the question. The property of the district, so far as it owns any property, constitutes a public trust and is held by the district for a public use, and, therefore, is not subject to levy and sale upon execution by a creditor of the district. (Tulare Irr. Dist. v. Collins, 154 Cal. 440 [97 Pac. 1124]; see. 29, California Irrigation District Act.)

“ That the statute of limitations, under the circumstances disclosed by this case, could never be pleaded by the district until it had the money in its possession to pay the bonds belonging to the plaintiff, and had given notice, is supported by the case of Freehill v. Chamberlain, 65 Cal. 603 [4 Pac. 646], where it was held that when a city issues bonds with interest coupons, payable as fast as money should come into the treasury from special sources designated in the act, the statute of limitations does not commence to run against the coupons until the money is received in the treasury in accordance with the terms of the act.

“That the registering of the bonds and coupons, as provided by section 52, supra, constituted a new agreement and tolled the statute of limitations until there was sufficient money in the hands of the treasury of the district with which to pay the same, and notice given as provided by the California Irrigation District Act, is upheld by the United States Supreme Court in the ease of the County of Lincoln v. Luning, 130 U. S. 529 [10 Sup. Ct. 363, 33 L. Ed. 766], The opinion in this ease, after holding that a transaction similar to that which took place between the plaintiff and the district constituted the creation of a new agreement, used the following language:

“ ‘The cases of Underhill v. Sonora, 17 Cal. 172, and Freehill v. Chamberlain, 65 Cal. 603 [4 Pac. 646], are in point. In the former case the court observes that “the legislative acts then recognized the debt and made provision for its payment. That is enough to withdraw the case from the operation of the statute; it is equivalent to a trust deed by the state setting apart property out of which the money due was to be paid at a given time, if not sooner paid upon a claim acknowledged to be an outstanding debt, and we cannot conceive of any principle of law or justice which would hold the claim to be barred by the statute simply because the creditor waited after this for his money”. In the other case it was held that “where a statute provides for the issuing of bonds of a- city with interest coupons payable as fast as money should come into the treasury from special sources designated by the act, the statute of limitations does not commence to run against the coupons until the money is received in the treasury in accordance with the terms of the act”. ’
“While the question has been presented as to whether matured bonds and matured coupons, without taking the proceedings specified in section 52, supra, would or would not bear interest, a ruling as to such question is not necessary to a decision in this cause. However, we may cite two cases from the supreme court of Colorado, to the effect that such bonds and coupons do not bear interest, to wit: In re Green City Irr. Dist., Heath v. Green City Irr. Dist., 91 Colo. 202 [13 Pac. (2d) 1113], and North River Municipal Irr. Dist. v. Heath, 91 Colo. 210 [13 Pac. (2d) 1116], reported on page 1116 of the same volume.

“ While the briefs presented in this cause cite a number of cases to which we have made no reference, we think what we have set forth determinative of the issues involved. The proceeding being a purely idle act, and the entry of a money judgment by the trial court affording the plaintiff no additional rights or remedies, we think the court was correct in holding in substance that it should not be burdened with proceedings which would avail the plaintiff nothing.

“We also hold that the statute of limitations in this case is tolled and cannot be pleaded by the district as a defense until the statutory period elapses after funds are in the hands of the treasurer of the district with which to make payment, and notice thereof given.”

The judgment is affirmed.


author: SEAWELL, J.

text:
    [L. A. No. 16690.
    In Bank.
    November 28, 1938.]
    B. W. McMANUS, Respondent, v. REGINA B. MONTGOMERY, Appellant.

      W. L. Baugh, Jr., Roy L. Herndon, and Meserve, Mumper, Hughes & Robertson for Appellant.
    Irvin C. Louis, H. B. Pool and Mildred Gilmore for Respondent.
    Courtney A. Teel, as Amicus Curiae, on Behalf of Respondent.
   SEAWELL, J.

This is an action by an assignee for collection to recover the reasonable value of legal services rendered for defendant herein in a separate maintenance action wherein a decree was rendered in her favor. The present action also includes the claim of a detective agency, assigned to plaintiff, for services performed in connection with the action. The legal services in question were performed by three attorneys. The court gave judgment for plaintiff herein, assignee of said attorneys and of the detective agency, for $2,185.28, consisting of attorneys’ fees in the amount of $2,000, less $250 paid on account, expenses incurred by the attorneys in connection with the separate maintenance action in the amount of $287, and $148.28 for services rendered by the detective agency. On this appeal by defendant no question is raised as to this item of $148.28.

Before trial of the separate maintenance action the court made an order against the husband allowing the wife $250 on account of attorneys’ fees, payable forthwith, and $250 for costs of suit, $50 of which was payable forthwith, and the balance as required. The judgment, rendered on September 3, 1936, made a further allowance to the wife of $400 “for and as attorneys’ fees for the prosecution and maintenance of this action until the entry of judgment”. Until August 27, 1937, when section 137.5, Civil Code, went into effect, the allowance of attorneys’ fees against the husband was required to be made to the wife, rather than directly to the attorney. (Keck v. Keck, 219 Cal. 316 [26 Pac. (2d) 300]; Stevens v. Stevens, 215 Cal. 702 [12 Pac. (2d) 432].)

Mrs. Montgomery alleged in her complaint for separate maintenance that there was community property of the value of approximately $50,000, in the exclusive control of her husband; that he earned approximately $18,000 a year from the practice of law; and that she was without funds to support herself or to pay costs, expenses and attorneys’ fees to prosecute the action. This complaint was prepared by the attorneys whose claim for compensation is the subject of the present action.

At the conclusion of the trial of the separate maintenance action, after Mrs. Montgomery’s attorneys had asked the court to make a further allowance for attorneys’ fees, the attorney for Mr. Montgomery asked Mrs. Montgomery the following questions:

“Q. Mrs. Montgomery have you made any agreement with your counsel in effect that you would pay them for their services out of any property that might be assigned to you in this case by the Court? A. No.
“Q. Have you made any agreement with them in regard to counsel fees? A. No.
“Q. Have you obligated yourself to them in any manner, form or in any way, to pay them any attorneys’ fees. A. No. That was never discussed at all.”

Mrs. Montgomery’s attorneys were present when this testimony was given. It appears therefrom that Mrs. Montgomery understood that her attorneys were to look to the court’s allowance as the measure of their compensation. Her testimony, given in the presence of her counsel, and with their acquiescence, constituted a representation by her and by her counsel to the court that no agreement existed for payment by her of any fee for legal services except such as the court should allow in the separate maintenance action. Her attorneys remained silent, without any attempt through statement to the court or examination of their client to refute the testimony above quoted.

The purpose of the court in making provision for attorneys’ fees in the judgment was to allow the full reasonable value of legal services to the “entry of judgment”. The amount of $400 was fixed at the rate of $100 a day for the four days of trial, including preparatory work not covered by the original allowance of $250. Having sought an allowance for the full reasonable value of their services at the conclusion of the trial, and having obtained such an allowance upon the representation made to the court, through testimony of their client, that no independent contract existed for payment of a fee, said attorneys are estopped now to contend that their client is indebted to them in an amount exceeding the sum allowed by the court in the maintenance action. To permit recovery of a larger amount would constitute a fraud upon the court and upon their client. (Theisen v. Keough, 115 Cal. App. 353 [1 Pac. (2d) 1015].)

Furthermore, without regard to the above testimony given in the separate maintenance action, the testimony in the present action is insufficient to support a finding that Mrs. Montgomery could be held for a fee for legal services exceeding the amount allowed by the court in the separate maintenance action. The testimony given in the present action by Mr. Pool, one of Mrs. Montgomery’s three attorneys, as to their employment by Mrs. Montgomery is summarized in the bill of exceptions, with the statement that the other two attorneys testified to the same facts. We quote the summary of Mr. Pool’s testimony:

“At the time Mr. Louis, Miss Gilmore and himself were originally retained by Mrs. Montgomery to prosecute her action for separate maintenance in Santa Barbara Superior Court, Mrs. Montgomery asked what the attorneys’ fees would be to complete the service and Mr. Pool told her that they could not estimate the fee until the services were completed, as it was too uncertain as to what would have to be done, but that the fee would be a reasonable one and that Mrs. Montgomery would also have to pay for all expenses incurred by the attorneys in their trips between Los Angeles and Santa Barbara and that they would procure an order to show cause against Mr. Montgomery.”

It appears from the above testimony that it was agreed from the first that an allowance of attorneys’ fees would be sought against the husband on an order to show cause. Mrs. Montgomery was without funds to support herself, or pay fees, as alleged in the complaint prepared by said attorneys. They thereafter sought and obtained an allowance based on the full reasonable value of their services. They cannot now contend that under the terms of their employment, as testified to above, a contract to pay them an amount exceeding the allowance made by the court will be implied. By their conduct they adopted this means of fixing the amount of the "reasonable fee ’ ’ they were to receive.

The decision in Neblett v. Getty, 20 Cal. App. (2d) 65 [66 Pac. (2d) 473], is not controlling herein. In that case the attorneys were wrongfully discharged just before an application for a second allowance of attorney’s fees was to come on for hearing, with the result that said allowance was not made. Upon their wrongful discharge they were entitled to sue in quantum meruit for the reasonable value of their services to the extent that they had not been compensated by the first allowance of the court. In the instant case the attorneys withdrew after preparing findings, but before filing of findings and judgment, apparently for the reason that they had incurred expenses for which Mrs. Montgomery had not reimbursed them. However, they knew that she was without funds to support herself or pay fees or costs, as alleged in the complaint prepared by them. The court heard their application for attorneys’ fees and provided for all services to the entry of judgment.

In the instant ease the court allowed plaintiff $287 for expenses other than court costs incurred in the separate maintenance action, including a considerable number of trips by the three attorneys from Los Angeles to Santa Barbara, where the Montgomerys resided and the maintenance action was tried. The evidence supports the finding that it had been agreed between Mrs. Montgomery and said attorneys that she was to pay these expenses, as well as for legal services in the amount fixed by the court in the separate maintenance action. On this appeal defendant raised no question as to the additional amount of $148.28 provided in the judgment herein for the claim of the detective agency, assigned to plaintiff.

It was stipulated in the present action that defendant Mrs. Montgomery had not received any part of the sum of $400 allowed as attorneys’ fees in the separate maintenance action. This sum is not due from Mrs. Montgomery to her attorneys until receipt thereof from her husband.

The judgment is hereby reduced to $435.28, including $148-28 for detective services, and $287 for expenses. As thus modified it is affirmed, appellant to recover costs.

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

Rehearing denied. Houser, J., voted for a rehearing.


text:
    [S. F. No. 16076.
    In Bank.
    November 30, 1938.]
    CANNIE CASNER, Appellant, v. DAILY NEWS COMPANY, LTD. (a Corporation), et al., Respondents.

      Freidenrich & Selig, Philip Selig, Jr., Francis Gill and Phillip Barnett for Appellant.
    William M. Abbott, Cyril Appel, Ivores R. Dains and George M. Naus for Respondents.
   THE COURT.

The defendants have made motions to dismiss the appeal of the plaintiff.

As the surviving widow of Mark Casner, the plaintiff commenced an action for damages for his wrongful death. The complaint alleges that he was struck by an automobile owned by the defendant, Daily News Company, thrown on the track of the defendant, Market Street Railway Company, and run over by one of its street cars. The plaintiff sued both corporations. The trial was commenced in April, 1937, before the court sitting with a jury. After all parties had rested each defendant made a motion for a directed verdict. Before the motion was ruled upon the plaintiff moved to dismiss the action without prejudice. This motion was granted, whereupon and on the same day, April 7, 1937, the jury was discharged. On April 26th the defendants respectively served and filed notices of motion to vacate the order of dismissal and for orders that their motions for a directed verdict be granted. These motions were granted on June 28, 1937. A formal judgment for the defendant, Market Street Railway Company, and against the plaintiff was, on written direction of the trial judge, filed on June 29th, and entered on June 30, 1937. Also a formal judgment for the defendant, Daily News Company, was, on like written direction of the trial judge, filed July 1 and entered on July 2, 1937.

On July 16, 1937, the plaintiff served and filed a notice of intention to move for a new trial, specifying all the-statutory grounds. No order of the trial court disposing of this motion appears of record. It was therefore denied without order of the court under the provisions of section 660 of the Code of Civil Procedure.

On September 14, 1937, the plaintiff filed a notice of appeal: (1) from the order of June 28, vacating the order of dismissal of date April 7, 1937; (2) from the judgment entered June 30; and (3) from the judgment entered July 2, 1937. The notice also specified an appeal from the order denying the plaintiff’s motion for a new trial. As the order denying the motion for a new trial was not an appeal-able order, no further notice need be taken of the attempted appeal therefrom. However, its propriety may be inquired into on an appeal from the judgments. (Sec. 956, Code Civ. Proc.)

The transcript on appeal was filed in the District Court of Appeal. Promptly and on February 21, 1938, before the filing of briefs for the respective respondents, notices of motion to dismiss the appeal were filed by them, based on the ground that the plaintiff’s appeal was taken seventy-three days after the entry of the judgments and order appealed from, and was therefore too late.

It is conceded that if the pendency of proceedings based on the notice of intention to move for a new trial did not toll the statute, the appeal was not taken in time, and the motions to dismiss the appeal should be granted. It is likewise conceded that if new trial proceedings were available to the plaintiff in the circumstances, the appeal from the judgments was taken in time and the motions to dismiss the same should be denied. The sole question is whether, under the facts, the plaintiff was entitled to move for a new trial.

The question must be resolved in favor of the plaintiff. When the trial court granted the plaintiff’s motion to dismiss her action “without prejudice”, she must be deemed to have been satisfied with that disposition of the pending action, choosing no doubt the alternative of filing another action. When, however, the defendants moved to vacate the order of dismissal of the action and this motion was granted, the plaintiff was in quite a different situation. Upon the granting of that motion the cause was then in the position of an action pending, at issue, undetermined and ready to be set for trial on motion of either party unless the effectiveness of the order granting the motion to vacate should be nullified. The order has not been disturbed. However, it is the law of the case that said order was appealable as a special order made after final judgment. (Casner v. Superior Court, 23 Cal. App. (2d) 730 [74 Pac. (2d) 298].) No appeal was taken from that order within time and the order became effective at the moment it was entered and thereafter remained in force as an effective restoration of the cause as an action pending and undetermined in said court. The plaintiff was then prevented from availing herself of the opportunity of having her cause retried by the action of the trial court in entering judgments against her on the merits. The court assumed thus formally to determine the action under the issues framed by the pleadings and the proof adduced in support thereof, but without a verdict, 'directed or otherwise. Whatever irregularity or illegality may have attended the action of the trial court in ordering the entry of judgments on a directed verdict after the discharge of the jury (questions which are, of course, not here decided), it is clear that the judgments so entered effectively terminated the trial proceedings in favor of the defendants, from which determination the plaintiff was entitled to move for a new trial under the provisions of section 657 of the Code of Civil Procedure.

The situation of the parties would also seem to make available to the plaintiff the provisions of section 616 of the Code of Civil Procedure which reads as follows: “In all cases where the jury are discharged, or prevented, from giving a verdict, by reason of accident or other cause, during the progress of the trial, or after the cause is submitted to them, the action may be again tried immediately, or at a future time, as the court may direct. ’ ’ Here the jury was prevented from giving a verdict, directed or otherwise, by its discharge immediately after the order of dismissal was entered.

It is urged by the defendants that the law of the case has also been established adversely to the plaintiff by the decision of the District Court of Appeal in the proceeding entitled, Casner v. Superior Cotort, supra, wherein it was stated that the judgments themselves were special orders made after final judgment. That was a proceeding in certiorari wherein the petitioner therein, appellant herein, sought to have annulled the order of the superior court of June 28, 1937, vacating the prior order of dismissal of the action “without prejudice”, and the judgments entered pursuant to the order of date June 30, and July 2, 1937, respectively. The writ of review theretofore issued was discharged on the ground that the order and judgments sought to be annulled were appealable under the provisions of section 963 of the Code of Civil Procedure and that therefore certiorari would not lie. The District Court of Appeal was supported in its decision that certiorari was not available by section 1068 of the Code of Civil Procedure, Hildcbrand v. Superior Court, 173 Cal. 86 [159 Pac. 147]; Olcese v. Justice’s Court, 156 Cal. 82 [103 Pac. 317]; Anglo-Californian Bank v. Superior Court, 153 Cal. 753 [96 Pac. 803], and a further reference to eases cited in 4 Cal. Jur., Certiorari, page 1052. In other words, when it was made to appear that an order sought to be annulled was appealable, the certiorari proceeding was at an end. Nothing was added in support of the discharge of the writ by the statement that the judgments were special orders made after final judgment. That they were appealable was all-sufficient for a discharge of the writ. But they were appealable because they were final judgments. They are in form final judgments on the merits, determining that the plaintiff take nothing by her action and that the defendants recover costs from the plaintiff. The;*- were not special orders made after final judgments because they were the only judgments then in the action. They were judgments adversely affecting the substantial rights of the plaintiff and could be vacated and a new trial granted pursuant to the provisions of section 657 of the Code of Civil Procedure. The appeal from the judgments was therefore taken in time.

The appeal from the order vacating and setting aside the order of dismissal is dismissed. The motions to dismiss the appeal from the judgments are denied.

Rehearing denied.