text:
    [L. A. No. 17132.
    In Bank.
    September 20, 1939.]
    TOM L. GLENN, Jr., Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.
    Fred 0. Reed for Petitioner.
    Philbrick McCoy for Respondent.
   THE COURT.

This is a proceeding to review the recommendation of the Board of Governors of The State Bar that petitioner be disbarred. The proceedings were heard before local administrative board No. 12 of The State Bar, for Los Angeles County, on two notices to show cause charging him with professional misconduct with reference to the business entrusted to him by several of his clients. The notices to show cause charged petitioner with a violation of his oath and duty, as an attorney and counselor at law within the meaning of subdivision 2 of section 287 of the Code of Civil Procedure, and the commission of acts involving moral turpitude, dishonesty and corruption within the meaning of subdivision 5 of section 287 of the Code of Civil Procedure. After a rather extended hearing, the sessions of which were held intermittently and covered a period of several months, the local administrative committee made its findings by which they exonerated petitioner of certain of the charges preferred against him, found him guilty on the remaining charges, and recommended that he be suspended from practice for a period of two years. The Board of Bar Governors, on a review of the record, approved and adopted the findings of the local administrative committee but recommended that petitioner be disbarred.

After a careful reading of the record, we are of the opinion that petitioner, although perhaps a victim of unfortunate circumstances, was nevertheless guilty of conduct in relation to his clients which was censurable and warrants some disciplinary action. We do not believe, however, that his conduct with reference to the specific charges against him merits disbarment, and are satisfied that the recommendation of the local administrative committee that he be suspended from the practice of the law for a period of two years is a more fair and just penalty to be imposed.

As a preliminary to our discussion of the specific charges against petitioner, we may say that the seriousness of his offenses, and it-must be admitted that his conduct in several particulars was blameworthy, depends largely on the motives which actuated him. If he intentionally contracted to undertake certain legal work for his clients and accepted fees therefor with no intention of performing such services, he was obviously guilty of the most flagrant dishonesty. If through gross negligence, he failed to attend to the legal matters he had undertaken to handle, his conduct was inexcusable. If, however, as petitioner claims, during the period covered by the charges against him, he was under such a severe mental, physical, and financial strain, as to be unable to give his attention to his clients’ business, such neglect, although blameworthy, does not merit the same degree of censure as conduct motivated by deliberate dishonesty or wilful neglect.

In general the charges preferred against petitioner are that he accepted from several different clients fees ranging from $45 to '$250, for which he rendered little, if any, service; that on several occasions he misinformed these clients as to the progress which had been made in their matters, that he used for his private purposes money which had been advanced by these clients to pay court costs; that on one occasion he failed to inform a client of an advantageous offer of settlement in order that he might be retained to handle further litigation in the matter, and that during the course of handling one matter, he had his client sign a blank form of verification to a complaint which had not then been drawn. Petitioner frankly admitted to the local administrative committee that he had received fees from clients for which he had rendered no service and admitted his obligation to reimburse them as soon as he was able. Petitioner, who is a young man with a wife and two small children, offers as an excuse for the situation in which he finds himself the fact that at the time in question he was in dire financial straits, that as a result he was unable to pay his office rent, and was evicted therefrom and his files retained by his landlord, that he was laboring under the mental stress occasioned by the preferring of a criminal charge against him for the issuance of a check without sufficient funds, given by him in connection with the lease on his home in Glendale, and that during a period of some days subsequent to his eviction from his office, he was ill with a streptococcus infection of his throat. There is no question that this is a true picture of petitioner’s situation. The fact that he was evicted from his office for failure to pay his rent, and the fact that a criminal charge was pending against him from October 13, 1937, until January 29, 1938, when it was dismissed, is not denied. This being so, we are of the opinion that petitioner’s explanation is genuine, and that his dereliction of duty grew out of his financial straits.

It will serve.no good purpose in our opinion to go into the charges preferred against petitioner, setting forth in detail the conflict in evidence relative to each particular charge, or the different inferences which might possibly be drawn from the same evidence. There were seven charges preferred against petitioner. We shall discuss these charges in the same order in which they are discussed in the brief filed by the attorney for The State Bar.

The Tassio Matter.

In June, 1937, one Ralph Tassio, a licensed contractor, had a dispute with one Berthold, a subcontractor. The matter was discussed with a Mr. Lawson, inspector of contractors, and Tassio gave Lawson a check payable to petitioner in the sum of $31.25. Petitioner was not the attorney for either Tassio or Berthold, but it appears that he had been the attorney for Lawson, and had theretofore performed certain services for him for which he had not yet been paid. The check was left at- the office of petitioner by Lawson. Petitioner cashed it and used the proceeds. Thereafter he learned what the check was for, and that he was only intended to be the stakeholder. Thereafter petitioner gave Tassio his check for $31.25 which Tassio endorsed and gave to Berthold but which was dishonored by the bank. Tassio talked the matter over with a Mr. Butler, an attorney, who came over to see a friend of Mr. Tassio and who offered to take the matter up with The State Bar for him. Two days thereafter Tassio called petitioner on the phone with reference to the check and petitioner went over to Tassio’s house and paid him the $31.25 in cash. It will be noted, that the substance of this complaint is that petitioner, having cashed Tassio’s cheek, probably through inadvertence, thereafter failed to reimburse him for several months. According to petitioner’s explanation he was without any means to refund said sum. The failure cannot be correctly characterized in our opinion as wilful misappropriation of said money.

The Corazzo-Buchanan Matter.

In November, 1937, Corazzo and Buchanan employed petitioner to collect their claim of $747 from one Susan Underwood, paying him a fee of $25 as a retainer. Petitioner was unable to secure a settlement, and advised Corazzo and Buchanan that it would be necessary to file an action against Mrs. Underwood. He advised them that his fee would be $50, which they agreed to pay, $25 at the time, and $25 when the case came on for trial. On December 15, 1937, Buchanan gave petitioner a check for $45 which included, according to his testimony, $25 on account of attorney’s fees, and $20 for court costs. At the time, petitioner had Corrazzo sign a blank form of verification for the complaint which had not yet been prepared. That day or the next day, petitioner was locked out of his office. Thereafter Corazzo and Buchanan vainly attempted to contact him but were unable to do so. They finally got in touch with him at the courthouse, and he promised them he would go ahead with their matter as soon as possible. Petitioner admits that he never did prepare or file a complaint, and that he owes these clients the $45 which they paid to him. He explains his neglect in this matter by the fact that immediately after receiving his fee, he was locked out of his office, and by the fact that he was postponing the matter until after the criminal charge pending against him had terminated. We do not find that there was on the part of the petitioner any actual intent to defraud his clients. With reference to the fact that he had his client sign a blank form of verification, this practice, although improperly indulged in by some attorneys, is one which is highly reprehensible, and in our opinion, should be most severely condemned.

The Lund Matter.

During the fall of 1937, petitioner had handled the matter of paying off certain mechanics ’ liens for Mrs. Margaret Lund. Although Mrs. Lund complained before The State Bar that he had failed to file the releases which he had received, the local administrative committee found that the money paid by Mrs. Lund to petitioner was not intended to cover the cost of filing these releases. In August, 1937, Mr. T. W. Patrick, the contractor who had built her house, filed a suit for a foreclosure of a mechanic’s lien against Mrs. Lund, but did not serve the summons and complaint at that time. Mrs. Lund paid petitioner $150 in full payment for his services to be rendered in defending the action for her. The local administrative committee found that said sum was not intended to include costs. Petitioner assured Mrs. Lund that she need not worry about being served and the various court proceedings as he would take care of all of them for her. She testified before the local administrative committee that he had informed her that he had filed a demurrer, and later informed her that the demurrer had been overruled. Mrs. Lund was served with summons on December 29, 1937, and upon telephoning to the clerk’s office, found that no demurrer had been filed and no answer had been filed. Thereafter, and two days before the expiration of the time allowed to answer, Mrs. Lund employed other counsel who handled the matter for her. Petitioner denied that he had received the registered letter from Mrs. Lund demanding the return of her files and the fee of $150, but after Mrs. Lund had made complaint to The State Bar, he turned over the files to her new attorney, and stated that he was willing to make a refund of the fee paid to him “as he had been paid for Avorlc he didn’t complete”. In addition to the charges made, Avith reference to this particular client, of his accepting a fee for services Avhich were not performed, and misinforming his client as to matters pertaining to the progress of her action, a finding was made by the local administrative committee that he had failed to inform his client, Mrs. Lund, of an offer made by T. W. Patrick, to accept the sum of $200 in full settlement of the controversy existing between him and Mrs. Lund. The committee further found “that respondent failed to advise Mrs. Lund of the proposed settlement . . . for the purpose and in the hope that thereby respondent might be able to have and use said $150 paid to him as attorney’s fees”. This failure to inform his client of an advantageous offer for his own private gain, if true, is one of the most serious charges preferred against petitioner, as it indicates a deliberate intent to take advantage of a client. There is a direct conflict of evidence in this regard between the testimony of Mrs. Lund and petitioner. Mrs. Lund testified that petitioner had never informed her of the proposed settlement. Petitioner testified that he had informed her of the proposed offer, but inasmuch as she had a claim against Patrick based upon damages as a result of Mr. Patrick’s failure to complete the job and loss of rental during that period of time, she had said, “Why should I pay Mr. Patrick anything, he owes me money.” The local administrative committee accepted as true the testimony of Mrs. Lund, and we cannot, of course, say that it was not justified in so doing. However, petitioner points out that the question with reference to the proposed settlement was first brought into the investigation by a volunteer statement of petitioner, himself, during the discussion of the $150 from Mrs. Lund, to the effect that at or about the time he received the check, a proposal to settle the entire controversy for the sum of $200 had been made by Mr. Patrick, of which offer he had informed Mrs. Lund. Mrs. Lund had not apparently learned of this proposal of settlement from Mr. Patrick or any other outside source as it was not set forth in the order to show cause served on petitioner. On the other hand, if petitioner had refrained from furnishing his client with information as to this proposed settlement for purposes to his own advantage, it is unreasonable to suppose he would have brought the matter up before the investigating committee.

There can, of course, be no denial of the fact that petitioner neglected his client’s business and that his neglect to properly handle the matter is highly censurable. Besides the annoyance and worry which he caused his client by this neglect of her business, she was compelled to employ and pay other counsel to act for her, and the fact that she was able to make an appearance in the case against her before any default was taken while fortunate for her was not anything for which petitioner could claim credit. It is useless, however, to conjecture whether petitioner would have been so derelict in his duty as to permit judgment to go against his client by default. Any such conclusion could never amount to more than a mere surmise. But whatever may be the explanation for his neglect, the fact should be emphasized that no amount of personal difficulties could in fact justify such neglect.

The Isett Matter.

Prior to July, 1936, G. W. Isett had filed an action in the superior court for the county of Los Angeles against one Frees for alleged malpractice. Isett, in the latter part of 1936 employed petitioner to represent him, and petitioner was substituted as his attorney in that case. At the time of taking the case it was agreed that it should be handled on a contingent fee basis of 50 per cent of any amount recovered and that petitioner would pay the cost of litigation. In the spring of 1937, petitioner informed Isett that he could not provide the money for costs, that there would be considerable preliminary work to be done in preparation of the trial, and the costs would amount to about $300. It was then agreed between them that Isett would advance money for costs, and petitioner would handle it on a contingent fee basis of 35 per cent. Isett paid petitioner $100 on June 1, 1937, and the remaining $200 was paid during the course of the trial. The case after a three days’ trial resulted in a non-suit. The gist of this charge against petitioner is that there was no authorization from Isett to spend the money furnished by him for certain items in the preparation of the case and that petitioner expended a portion of said money in payment of certain expenses which he should have paid himself, such as the payment of another attorney to do research in the law for him, the payment for stenographic services and an extra girl whom he called in to type instructions, as well as certain other items. Petitioner testified that he did not keep a system of books but put a memorandum of all items with the case in the files. Upon request from Isett, he furnished him with an itemized account of the money paid out by him. This itemized account was furnished by petitioner at the time of the preliminary hearing of the charges made against him by Isett. It is quite evident' that the itemized statement contains items which are usually borne in contingent fee cases by the attorney handling the case, and it is possible that Isett did not specially authorize the particular items. But in view of the exigencies of petitioner’s financial situation, of which Isett must have been aware since petitioner informed him that he did not have money to provide for the costs of preparing for trial and changed his contract with Isett for that reason, it does not seem unreasonable to us that petitioner honestly felt that he was justified in charging the entire cost of the trial and its preparation to Isett. The fact that petitioner included the items which were questioned in the account furnished to Isett at the preliminary hearing of the investigation against him, would seem to indicate good faith on his part. The local administrative committee found that $197 had properly been expended by petitioner, and also that the portion of the sum of $82.26 paid by petitioner which might properly be allocated to the investigation of witnesses, was properly paid by respondent. We are of the opinion, from a perusal of the itemized account, that possibly $50 of the amount paid to Boland was paid for investigation and therefore properly paid. It is also apparent from the record that petitioner had personally obligated himself to pay Dr. Gassman $50 as expert witness’s fee. It seems a fair conclusion, therefore, that the amount properly chargeable against said fund by petitioner is approximately $300 and that if he personally pays Dr. Gassman, he will have properly accounted for the entire amount of money advanced by Isett.

There was a finding to the effect that an item of $4.20 included under one heading in the account, was also included in the other two items totaling $9.25. Petitioner at the hearing admitted that this might be possible due to the fact that he had made up the account from his own recollection aided solely by the memoranda in the file.

Complaint was also made with reference to the Isett matter that petitioner had advised Isett that he would take an appeal. It is admitted that Isett was told by petitioner that a transcript of evidence would cost '$180, but petitioner never told Isett that the $300 had been entirely expended, and that Isett would need to furnish an additional $180 for the appeal. Isett secured another attorney to handle the matter for him. Petitioner’s conduct in failing to advise his client that he was financially unable to take the appeal, and his leading his client to believe that the matter was being properly taken care of when it was not, cannot be condoned.

The Gassman Matter.

Petitioner gave to Dr. Gassman, as an expert witness in the • Isett matter, his check for $50 which was refused payment by the bank. Petitioner admits his liability to Dr. Gassman on this obligation, and has stated that he will pay him as soon as he is able. Petitioner’s financial straits were undoubtedly responsible for his transgression in this instance.

The Osborne Matter.

The notices to show cause charge petitioner with professional misconduct in respect to four matters in which he was employed by one Lewis W. Osborne. The local administrative committee expressly found that he was not negligent with reference to three of these matters. With reference to the matter of the foreclosure of a deed of trust of one Di Maria, the committee found that petitioner had accepted a fee of $250, to foreclose said deed of trust and had not consummated said work. It appears that when Osborne was unable to locate the petitioner by reason of the fact that petitioner’s office had been closed, Osborne got in touch with another attorney, who contacted petitioner, and after giving petitioner ten days in which to take care of the matter, took over the matter himself. The finding of the committee is that petitioner “has not completed the services for which he was paid $250 by Osborne”. The attorney who took the matter over testified that i$ his conversation with petitioner, petitioner had informed him that he had already filed a lis pendens when in fact no complaint had been filed. It appears that petitioner had received $250 for services which he has not rendered, and which he is in good conscience obligated to return to his client.

The Lowery Matter.

Petitioner in 1937 had represented one R. J. Lowery in certain criminal cases in the city of Bell, near Los Angeles. These services were, according to petitioner, worth $150. Prior to his representation of Lowery in the criminal cases, Lowery had sought to employ petitioner to secure the removal of one Leona Stiler as the guardian of Mrs. Lowery, who had been adjudged incompetent. In a conversation with Mr. Lowery, and one Mike Senko, a relative of Mrs. Lowery, Senko offered to furnish $100 of the $250 fee asked by petitioner, and paid petitioner $20 at the time, and later sent him a cashier’s check for $80. Petitioner, in addition to representing Lowery upon the criminal charges, also argued the motion for a new trial in the ease of Lowery v. Lowery, but took no action whatever with reference to the removal of the guardian. The committee found itself unable to decide whether the $100 paid by Senko was intended as payment or part payment for services rendered in the past, or whether said $100 or any part thereof was intended to be in payment of a portion of the fee for services to be rendered in the removal proceeding. They did find that petitioner had promised to proceed to take some action looking toward the removal of the guardian, and he had failed to take any whatever. It is apparent that in this particular also, petitioner was remiss in his duty.

As stated before, a reading of the record does not convince us that petitioner was wilfully dishonest nor deliberately neglectful of his clients’ business, but that his dereliction of duty in the main grew out of his financial embarrassment. While this fact does not, of course, justify his conduct or absolve him from wrongdoing, it does in a measure lessen to at least a slight degree its blameworthiness. We are well aware that the protection of the public requires that the rules of professional conduct be adhered to, and we also believe that the ethical standards of the legal profession demand the ostracism from its ranks of any member who has proven himself unworthy to be a member. We are also of the opinion that an attorney’s personal misfortunes and private embarrassments, however serious, cannot be accepted as extenuating circumstances to the extent of absolving him from discipline.

We do not believe that petitioner should escape all disciplinary action, but we do feel that in the instant case disbarment is too severe a penalty and that a two years ’ suspension from the practice of the law is sufficient. In the case of Wilcox v. State Bar, 2 Cal. (2d) 614 [42 Pac. (2d) 631], in an opinion written by Mr. Justice Seawell, it is said, “The disbarment of an attorney, which means a denial of his right to practice law in this state is a grave matter, as it places an indelible stain upon the name of the disbarred lawyer which affects him generally as a citizen. Once disbarred, experience teaches us that the barrier which is thereby raised becomes almost insuperable to reinstatement. Therefore, the court should and does exercise much care in making an order of disbarment. ’ ’

We are, however, firmly convinced that petitioner’s clients, from whom he accepted fees without rendering services, had just and serious cause for complaint. The fact that petitioner himself has recognized that fact, and in his final brief has offered to reimburse his clients, is a hopeful sign of his rehabilitation. This offer, we are persuaded, was made in good faith by petitioner and will be carried out by him.

It is ordered that thirty days after the filing of this opinion, petitioner be suspended from the practice of law in this state for a period of two years.


source: Caselaw Access Project

author: THE COURT.

license: Public Domain

text:
    [L. A. No. 17253.
    In Bank.
    September 20, 1939.]
    JOHN E. LIGHT, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.

      J. E. Light, in pro. per., for Petitioner.
    Philbrick McCoy for Respondent.
   THE COURT.

Founded upon several complaints which theretofore had been made against him to the respondent herein, J. E. Light, the petitioner, who was an attorney at law practicing his profession in the city of Los Angeles, was cited by an authorized local administrative committee of The State Bar of California to show cause why he should not be disciplined in punishment for the alleged commission of certain acts of professional misconduct which in said citation were specifically charged against him. By his answer thereto, petitioner denied, collectively and severally, each of the allegations that thus had been made, either evidentially or as ultimate facts, and which purportedly showed the asserted breach of his moral obligation as a lawyer either to the public in general or to The State Bar of California in particular. Following an extended hearing on the charges which thus had been preferred, the local administrative committee made its findings of fact in harmony with many of the essential facts which assertedly formed the basis of the charges which theretofore had been set forth within the several accusations against petitioner—in consequence of which the said committee made its recommendation to the board of governors of The State Bar that petitioner be disbarred from the further practice of law by him in this state. Thereafter, at a regular meeting of said board, by its formal resolution duly adopted to that effect, an identical recommendation with respect to petitioner was made to this court. At the instance of petitioner a writ of review of the proceedings which resulted from the filing of the charges hereinbefore referred to has been caused to issue by this court; and having been briefed and argued by the respective parties, the matter is now ready for determination.

The first reason that is presented by the petitioner as being sufficient in law to justify an annulment or cancelation of the recommendation is that “petitioner had no notice, knowledge, or information of the findings and recommendation of the Committee hearing this matter”; and that “petitioner had no notice, knowledge or information of the hearing before said Board of Governors on May 19, 1939, at which petitioner was adjudged and ordered to be disbarred”.

In that connection, it will be noted that as to the asserted lack of notice of the “findings and recommendation of the Committee ’ ’ petitioner makes no definite statement as to the exact date, if ever, when he was given notice, or when he received the same, or of the date when he acquired “knowledge or information of the [filing of the] findings and recommendation of the Committee”. But, manifestly, the possible fact that the committee may have failed to give “notice” to petitioner, or that he had not received “knowledge or information”, of the filing of such findings and recommendation—although perhaps somewhat irregular and possibly erroneous—could have no adverse effect on the legality of the .determination by the said committee. However, the record of the proceedings affirmatively shows the mailing to petitioner of “a copy of the letter of transmittal [of such information] bearing date of mailing and the name of the person mailing the same”, which record constitutes “prima facie evidence of the mailing thereof upon said date”. (Rule 31, of Rules of Procedure of The State Bar of California.) With reference to such asserted defects, as they might or did affect the subsequent and final hearing before the board of governors, it is clear that petitioner was entitled to reasonable advance notice of the date upon which the said board proposed or intended to consider the charges against him. But again, a certified copy of that part of the minutes of the meeting of the board of bar governors held in Los Angeles on May 19, 1939, which relate to the instant matter, includes the notation that “On April 24, 1939, a notice was sent to the respondent [petitioner] at his last known address as shown by the records of The State Bar, advising him that he would be permitted to be heard before the Board of Governors at 10:30 o’clock a. m., Friday, May 19, 1939, in Los Angeles. The respondent [petitioner] did not appear before the Board at the time set for his appearance nor otherwise communicate with the Board during its May meeting.” Furthermore, it is not shown affirmatively that, had petitioner received timely notice of the date of such ■hearing, he would have appeared before said board either in person or represented by counsel; nor in his opening brief filed herein .is it asserted or even suggested by petitioner that, had he been afforded an opportunity to be then and there present, he either could or would have presented any additional evidence which might have tended to show his innocence with respect to each or any of the charges of which theretofore he had been found guilty. In oral argument before this court petitioner declared, for the first time in this proceeding, that had he received timely notice of the date and place of the hearing before the board of governors, he could and would have produced pertinent evidence before said board relative to the charges which theretofore had been made against him. However, he failed to disclose either the name or names of any witness or witnesses that he proposed to call on his behalf, what the pertinent evidence was that such or any witness might have given—or how or in what manner any evidence, if given, would have been either material to, or could or would have related to, or in anywise affected, a determination of each or any of the said charges against him. Nor even at that late moment was petitioner’s statement with regard to his ability to produce possible additional evidence supported either by his own affidavit, or by the affidavit of any person upon whom petitioner may have hoped or expected to rely in that connection. From aught that appears, it cannot conclusively be said that such purported evidence would have been admissible in any event. Neither is it anywhere shown that such evidence, even if received, would have been other than incidental to that which petitioner already had introduced; nor that such evidence might have resulted in a conclusion favorable to petitioner by either the committee or the board. In view of all those circumstances—assuming that as an established fact petitioner received no notice of the impending hearing—so far as now appears, obviously, it may not be said that his ultimate rights in the premises had been prejudicially affected..

In effect, petitioner also has complained that the evidence which was adduced against him was insufficient to support the findings which were made by the committee. However, it is to be noted that in the accusation, in substance, it was charged that in an action which some time theretofore had been pending in the Superior Court of Los Angeles County, entitled Jennie E. Osborne v. Ralph G. Armiston, No. 374,214, petitioner knowingly filed a false affidavit of service of the complaint and summons therein; that the action was one to quiet title, but was not brought in good faith; that at all times, petitioner “well knew that the plaintiff in said action had no right or interest in or to the property concerning which he sought to quiet title”; that he filed a lis pendens for the purpose of clouding the title of the defendants in said action; that petitioner’s purpose in so clouding the title to the property of the several defendants named in said action was to force all or some of said defendants to pay various sums of money by way of “nuisance value” to procure either quitclaim deeds or dismissals which would be necessary in order to remove the clouds on the titles to their respective properties; that if by chance one of said defendants learned of the pendency of said action petitioner would attempt to secure from such defendant as much money as possible in exchange for either a quitclaim deed or a dismissal; and that in the event any one of the defendants instituted an action to remove any such cloud on the title to his property and, under those circumstances, petitioner failed to exact any money from such defendant, petitioner would then dismiss the action as to that particular defendant.

As to those charges the evidence was sufficient to establish the facts that, although petitioner had served a copy of the complaint and summons on a person bearing a name somewhat similar to that of each of three of the defendants, as a matter of fact, in each instance, petitioner knew that the person whom he thus served with a copy of such papers was not one of the defendants in the action; that petitioner not only was a lawyer of many years’ experience, but also, for a considerable length of time, had been an • expert “searcher” or examiner of titles for a title company, and, therefore, that at the time when the complaint was filed petitioner well knew that the plaintiff in the action had no right or interest in the property involved therein; that the only “paper” title the plaintiff possessed arose from a so-called “wild deed”, which petitioner knew had no foundation from a legal standpoint, and which conveyed no interest whatsoever to the plaintiff; that, in one instance, and with regard to one defendant, petitioner requested the former to pay him the sum of $25, either for a dismissal of the action in the defendant’s favor, or for a quitclaim deed; that notwithstanding the fact that such sum was not paid, nevertheless, a disclaimer was filed by petitioner as to that defendant. It also appeared in evidence that, after the action had been instituted, petitioner recommended its dismissal for the reason that he knew the plaintiff’s interest in the property was based upon a “wild deed”; that the action was not dismissed, however, but, as to some of the defendants named therein, was prosecuted to a default judgment; that each of several of the defendants was compelled to employ counsel to protect his rights, and that through the efforts of the respective counsel each defendant had obtained a quitclaim deed from petitioner. In such circumstances, petitioner asserts that his conduct was commendable. To the contrary, however, the evidence establishes the conclusion that petitioner well knew the action which he had instituted was wholly without merit and could not be sustained—hence his apparent willingness, at the instance of any of the defendants, either to dismiss the action in favor of such defendant, or to give him a quitclaim deed. Even if petitioner had believed in the justice of his cause—that is to say, that the plaintiff was the legal owner of the property— in that regard Ms conduct, if not reprehensible, at least would have invited and been deserving of adverse criticism.

What may be designated as the second cause of complaint, in many respects, presented a situation similar to that which hereinbefore has been set forth. From the evidence relating thereto there is justification for the conclusion of the committee that petitioner initiated the filing of an action which he well knew was lacking in substantial merit. In that regard, at the outset it appears that petitioner approached a Mr. Simon and represented to Mm that for the sum of $250 and a note, or notes, totaling the sum of $2,700, to be given to petitioner by Mr. Simon, petitioner could procure deeds to certain properties, which when procured would be used as a basis for the bringing of a quiet title action in the name of Mr. Simon, as plaintiff, against a large number of defendants, and that any profit which might accrue from the transaction would be divided equally between petitioner and Mr. Simon. Thereafter deeds were obtained to more than 600 pieces of real property, and petitioner began to check the records in Los Angeles County to ascertain the description of all property in which the grantor of the deeds, and his associates, might have had a record interest. Petitioner also investigated the said records as far back as the year 1923, even though he knew that the said grantor had gone into bankruptcy in 1930 or 1931, and that in consequence thereof at that time the trustee in bankruptcy had deeded to a third person all property in which the grantor might have had an interest. Thereafter, as attorney for the plaintiff Simon, petitioner caused a quiet title action to be filed, and incidental thereto he also filed a “lis pendens’’, which clouded the title to the property of many of the respective defendants in the action. Prior to filing the said action, petitioner, who theretofore had had office accommodations jointly with the grantor of such deeds, had removed his law office from that of the said grantor, for the reason that, as petitioner testified, he knew that the said grantor was wholly unreliable and dishonest, and for the further reason that petitioner was becoming “scared a little” because of the nature of the work he was doing for the grantor. At the time said action was instituted, petitioner knew or had reason to believe that neither the grantor nor any of his associates had any right, title or interest in, or claim to, or lien upon, any of the said 600 lots. At the time of initiating the transaction with Mr. Simon, petitioner had called Mr. Simon’s attention to the fact that there might and probably would be some lots which were described in the complaint to which Mr. Simon would not have title, and that it therefore might or would be necessary to give some quitclaim deeds. Nevertheless, in the complaint that petitioner had prepared he alleged on behalf of the plaintiff Simon that said plaintiff was the owner in fee of all the property described in the complaint. At that time petitioner knew that plaintiff Simon was not the owner in fee of any of the property therein mentioned: and the fact appears that, at the instance of petitioner, the superior court entered judgment against two defaulting defendants wherein it was adjudged that the plaintiff was the owner in fee of all the property described in the complaint. Also, according to petitioner’s statement he did not know what parcels of property in Los Angeles County had been conveyed to plaintiff Simon, and in order to ascertain the description of such property petitioner thoroughly checked the records in the office of the county recorder of Los Angeles County. It appears, however, that at no time during the entire hearing was any attempt made by petitioner to show that the plaintiffs—whom he had represented in the quiet title actions which involved hundreds of separate parcels of land—were the legal owners of such parcels, or any of them, or that they or any of ■ the plaintiffs had any genuine interest in any of the said lands. No testimony of any kind was introduced to show that any plaintiff represented by petitioner was the actual owner of, or had any genuine interest in, even one parcel of the property involved in the quiet title actions. Furthermore, petitioner admitted that he knew and had advised his client, Mr. Simon, prior to the filing of one of the actions (Simon v. Metropolitan Trust Company), that in all probability it would be necessary to give quitclaim deeds to some of the property described in the complaint for the reason that plaintiff Simon did not have title thereto.

It is apparent that petitioner utterly ignored the rights of property owners and filed sham actions to quiet title, therein describing parcels of land, owned by others, in disregard of the expense and burden which the respective property owners might be called upon to bear in order to clear the title to their respective properties—for evidently a quitclaim deed was given only in instances wherein the respective property owners employed counsel to protect their interests, or where they threatened to institute criminal proceedings against petitioner, and then, and only then, were they given a quitclaim deed.

However, as to each of the two causes of complaint above referred to, it also should be noted that the findings of fact which were made by the local administrative committee represented conclusions which, in some respects, were reached on conflicting evidence. Notwithstanding the general rule that on review of proceedings of the nature of those here involved, findings of fact which have been made by such a committee are not considered binding on this court (Furman v. State Bar, 12 Cal. (2d) 212 [83 Pac. (2d) 12] ; Fish v. State Bar, 214 Cal. 215 [4 Pac. (2d) 937]; Herrscher v. State Bar, 4 Cal. (2d) 399 [49 Pac. (2d) 832]), the burden is on the petitioner to show wherein the decision of the board of governors of The State Bar is erroneous or unlawful (Aydelotte v. State Bar of California, 209 Cal. 737 [209 Pac. 41]; Ring v. State Bar, 218 Cal. 747, 751 [24 Pac. (2d) 821]; State Bar Act, sec. 26, Stats. 1927, p. 38); and, as the court said in the case entitled Herrscher v. State Bar, 4 Cal. (2d) 399, 401 [49 Pac. (2d) 832], in these proceedings, “the Board of Governors acts as an administrative arm of this court and the court will approve or disapprove the Board’s findings, depending upon the court’s opinion as to the weight of the evidence”, so that, when, on a review thereof, the findings are found to be supported by unquestionable and substantial evidence, they should be entitled to great weight. As was said in Furman v. State Bar, 12 Cal. (2d) 212 [83 Pac. (2d) 12], (syllabus): “ . . . such findings, and the conclusion upon which the recommendation of said board is based, should be accorded persuasive force by said [this] court, even though some of the evidence is impeached, if the remainder of the entire evidence be either legally sufficient in itself, or be sufficiently corroborative of that which is under suspicion.”

In the instant matter, although petitioner denied the truth of much of the evidence which was adduced against him, nevertheless, the apparently unimpeachable character of the evidence which was given in support of the findings in question may neither be denied, nor seriously questioned. In such circumstances, considering the comparatively broad opportunity which the committee had for arriving at the truth, this court is constrained to adopt the essential findings of fact which were made by the committee, rather than to depart therefrom and rely upon petitioner’s uncorroborated testimony to the contrary. As a practitioner of long standing at the bar of Los Angeles County, his testimony was entitled to receive, and undoubtedly did receive, more than ordinary consideration; but, apparently, to the collective mind of the committee, the physical facts and other indisputable evidence presented at the hearing were sufficient to overbalance the evidence that was proffered by and received in behalf of petitioner. The fact that each of several of the allegations tljat were contained in the charges which were made against petitioner was not supported by the evidence and, consequently, was found by the local administrative committee to be untrue—although perhaps redounding to the credit of petitioner generally—does not suffice to absolve him from the charges in their entirety, in the light of other essential facts which were found to be true, as hereinbefore set forth. In other words, in order that the charge of professional misconduct may be sustained, it is unnecessary that all the allegations which were contained in the several charges against petitioner should have been found to be true. To the contrary, if the combined facts as found by both the committee and the board were supported by substantial evidence, and amounted to a violation of petitioner’s duty as an attorney at law, this court is warranted in sustaining the recommendation of the board of governors to the effect that petitioner be disbarred. No serious claim is made by petitioner that the facts, as found, do not constitute sufficient grounds for his disbarment.

It is with regret that this court feels impelled to accept as true the several conclusions which are represented by the respective findings of fact which were made by the local administrative committee. They lead but to the one conclusion, to wit: That petitioner has grievously erred in his professional conduct and for that reason no longer is entitled to practice law within this state. However, the purpose of disbarment proceedings is not to punish the individual, but to determine whether the attorney should continue in that capacity. (Dudney v. State Bar, 8 Cal. (2d) 555 [66 Pac. (2d) 1199] ; Marsh v. State Bar, 2 Cal. (2d) 75 [39 Pac. (2d) 403].)

Accordingly, it is ordered that, in conformity with the recommendation made in said matter by the board of governors of The State Bar of California, petitioner be, and he is, disbarred.

Rehearing denied.


text:
    [Sac. No. 5193.
    In Bank.
    September 27, 1939.]
    SAMUEL L. CARPENTER, Jr., Insurance Commissioner, etc., Appellant, v. GLENN-COLUSA IRRIGATION DISTRICT, Respondent.

      W. Coburn Cook for Appellant.
    Hankins & Hankins and P. J. Minasian for Respondent.
   THE COURT.

This is an action by the holder of bonds of an irrigation district to recover a money judgment against the successor of the district.

Glenn-Colusa Irrigation District, defendant herein, was organized in 1920. In 1924 a plan was proposed for its consolidation with Williams Irrigation District, a smaller district. This plan was carried out by an election called for the purpose, and thereby the Williams Irrigation District became a part of defendant.

Plaintiff is the holder of unpaid bond interest coupons of the old Williams District which matured after the consolidation, in the sum of $18,000. He brought this action, alleging his ownership and that the coupons were presented to the treasurer of defendant district with demand for payment, which was refused. The prayer was for a money judgment against the district. A general demurrer was sustained without leave to amend, and judgment for defendant followed. Plaintiff appealed.

This case is controlled by Moody v. Provident Irr. Dist., 12 Cal. (2d) 389 [85 Pac. (2d) 128], It was therein pointed out that under section 52 of the California Irrigation District Act, registration of unpaid bonds or coupons amounts to a new agreement, in which the interest rate rises from 6 per cent to 7 per cent, and the statute of limitations is tolled, until such time as money becomes available to pay the obligations. It followed, therefore, that no additional right would be gained by the entering of a money judgment, which would be an idle and unnecessary act. Accordingly it was held that an action to recover such a judgment was improper.

Plaintiff necessarily concedes the force of the above decision, but suggests exceptions to the rule by reason of certain asserted differences in the facts of the present case.

The first point urged is that this action seeks to establish the liability of the defendant, Glenn-Colusa Irrigation District, for the old obligations of the Williams Irrigation District. Plaintiff relies on certain general observations in Jordan v. Williams Irr. Dist., 13 Cal. App. (2d) 465 [57 Pac. (2d) 566], to the effect that when a public corporation or district takes over the property of another district, there is an implied promise to pay the obligations of the district thus absorbed. Defendant replies by setting forth the asserted facts of consolidation, showing that the plan recommended by the state engineer and submitted to the voters called for the apportionment of the indebtedness of the Williams District to the lands of that district alone, and that assessments have been levied on the lands of the old Williams District annually for that purpose. However, we need not discuss these matters, for defendant’s statement is mere argument in the briefs brought forth in connection with its contention that the point is outside the issues of the case. With this contention we agree.

Plaintiff, in effect, now asks for declaratory relief, a determination of the liability of the lands of defendant district for the obligations represented by certain bonds. But this was not a proceeding for declaratory relief, contains no pleadings appropriate thereto, and the complaint discloses an entirely different object. The sole relief sought, a money judgment, is inappropriate, whether defendant district is or is not liable on the bonds. Hence the lower court was warranted in sustaining the demurrer.

The next point,made by plaintiff is that certain of his bond coupons were not presented within 4 years of their maturity, and, therefore, are on their face barred by the statute of limitations. But, he contends, the district has never made any provision for payment of these coupons during the last 10 years, and consequently should be estopped to set up the defense of the statute of limitations. Here again it seems that plaintiff wants a declaratory judgment in the appeal from the lower court’s decision. We repeat that whether defendant is liable on the bonds owned by plaintiff, and whether the liability on any of them has become barred by limitations, are not matters which can be determined in an action for a money judgment against the district. If any basis for estoppel exists, and we express no opinion on the point, the denial of a money judgment in this case cannot deprive plaintiff of any rights he may have by virtue of such an estoppel.

It is finally urged by plaintiff that it is necessary to decide what are his rights on coupons presented for payment but not stamped by the treasurer. Assuming that there are such coupons, it seems to be conceded by defendant that the presentation is all that is required to give bonds or coupons the benefits of registration under the statute, and we have. no reason to question this concession. But this point, likewise, is outside the issues of the present proceeding, for the reasons stated above.

The judgment is affirmed.


author: SHENK, J.

text:
    [L. A. No. 15919.
    In Bank.
    September 27, 1939.]
    HARRY B. SCHILDWACHTER, Appellant, v. THE CITY OF COMPTON et al., Respondents.
    A. N. Soliss for Appellant.
    Ralph K. Pierson, City Attorney, for Respondents.
   SHENK, J.

This is an action by a taxpayer and elector of defendant, City of Compton, to set aside a resolution of the city council declaring the repeal of its civil service ordinance following a popular vote.

On June 11, 1935, the city council adopted ordinance No. 368, establishing a civil service system. Thereafter a change in personnel of the council resulted in attempts to repeal and to amend the civil service ordinance, each of which was met by a referendum petition, following which the council repealed the repealing and amending ordinances.

On December 3, 1935, the council decided to submit the question of repeal of the civil service ordinance to a popular vote. A special election was called for January 17, 1936, and an affirmative vote of 1404 to 1310 was registered. Accordingly the council declared the original civil service ordinance repealed.

Plaintiff brought this action to have said determination declared a nullity, making two contentions: First, that a two-thirds vote was required for the repeal and the simple majority vote was consequently inadequate; second, that the matter was improperly submitted as a “proposition” instead of an ordinance. The lower court sustained a demurrer to the complaint without leave to amend, and dismissed the action. In our opinion, the court rightly concluded that plaintiff failed to successfully challenge the result of the election.

In support of the first contention that a two-thirds vote was required for the repeal, plaintiff advances the following argument: Defendant city operates under a freeholders’ charter which merely authorizes provision “for a Civil Service System subject to the terms of this charter” but is silent on the procedure for establishing it. The same charter declares that “where the general laws of the state provide a procedure for the carrying out and enforcement of any rights or powers belonging to the city, said procedure shall control and be followed unless a different procedure shall have been provided in this charter or by ordinance”. Section 16 of the civil service ordinance provides that the “general laws of the State of California as they now or may hereafter exist, with reference to a Civil Service System in Municipalities, in so far as the same do not conflict with the provisions of this ordinance, or the Charter of the City of Compton, are hereby incorporated herein and made a part hereof”. The Municipal Civil Service Act of 1935 (Deering’s Gen. Laws, Act 1401) provides that the legislative body of any municipality which has established a civil service system “shall not have the authority to withdraw any departments, appointive officers or employees from the operation of such system unless and until the withdrawal thereof shall have been submitted to the qualified electors of said city at a special or regular municipal election held in said city and shall have been approved by not less than a two-thirds vote of the electors voting on such proposition”. The argument is in substance that the civil service ordinance incorporated by reference the above provisions of the Municipal Civil Service Act, and that since the charter is silent on the procedure of repeal of a civil service ordinance, there is no conflict nor interference with the paramount power of the municipality in its municipal affairs.

Defendant city vigorously attacks this reasoning, contending that under the charter the power to establish a civil service system resides in the city and that the Municipal Civil Service Act was not incorporated by the general language in the charter. It is further urged that the statute did not become effective until after the ordinance was adopted, and that the city could not validly incorporate such future legislation. Still further, it is contended that the attempt to enforce the said statutory provision for a two-thirds vote would be to directly violate the charter, because the charter expressly incorporates the provisions of the City Initiative and Referendum Law of 1911 (Deering’s Gen. Laws, Act 3651), which, in connection with elections such as these, require only a majority vote. It is unnecessary, however, to further examine these contentions, for defendant has advanced a more conclusive answer to the theory of plaintiff. The very statutory provision relied upon by plaintiff has nothing to do with an election called for the purpose of repealing a civil service ordinance. The provision (sec. 2 of Act 1401) states that the legislative body shall designate the departments, officers or employees which shall be placed under the civil service system; that it may from time to time, by ordinance, add additional departments, officers or employees to the list; and it then goes on to declare, as above quoted, that no departments, officers or employees may be withdrawn from the operation of the system without a two-thirds vote of the electors. The language of the section is free from ambiguity, and the intention seems quite clear. It was designed to discourage and make more difficult the exemption of departments or positions by members of the governing body of the municipality. This seems to be a salutary rule, but we are unable to perceive the manner in which it may be invoked to deprive the electors of their normal power to adopt legislation by a majority vote. The suggestion that repeal is simply another form of withdrawing positions from the operation of the system is without force. It is entirely reasonable that the council should have power by ordinance to establish or repeal a civil service system, and that the people should likewise have such power by majority vote, and it is not unreasonable that the council, by the requirement of a two-thirds vote to approve them, should be prevented from creating favored exemptions.

The other contention of plaintiff is that assuming the election was governed by the provisions of the City Initiative and Referendum Law, the method of submission of the question to the voters was improper. He relies on general statements to the effect that an ordinance may be repealed only by an enactment of equal dignity, i. e., by another ordinance. (See McQuillan, Municipal Corporations, 2d ed., sec. 885; 18 Cal. Jur. 928, note 7.) Here, instead of a repealing ordinance, there was submitted to the voters a “proposition” for repeal. But this is the very thing contemplated by the above-mentioned statute, which provides in part (sec. 1): “The legislative body of the city or town may submit to the people, without a petition therefor, a proposition for the repeal of any adopted ordinance, or for amendments thereto, or for the enactment of any new ordinance, to be voted upon at any succeeding regular or special municipal city or town election, and if such proposition so submitted receive a majority of the votes cast thereon at such election, such ordinance shall be repealed, amended or enacted accordingly.” This language clearly contemplates the submission of a “proposition” and does not necessarily require such proposition to be an “ordinance”. In the next paragraph of the statute it is provided that “Whenever any ordinance or proposition is required by this statute to be submitted to the voters of a city or town at any election, the clerk of the legislative body shall cause the ordinance or proposition to be printed and he shall mail a copy thereof . . . to each voter ...” Notice and full information are thus afforded the voters, and we are satisfied that the city council in the present ease followed the proper procedure in the submission of the proposition for repeal.

The judgment is affirmed.

Curtis, J., Edmonds, J., Waste, C. J., and York, J., pro tom., concurred.


author: PULLEN, J., pro tem.

text:
    [L. A. No. 16889.
    In Bank.
    September 28, 1939.]
    TERESA A. BRAUN, Respondent, v. BEN H. BROWN, Administrator, etc., Appellant.

      J. H. O’Connor, County Counsel, Ernest Purdum and William E. Lamoreaux, Deputy County Counsel, Louis J. Canepa, C. M. Castruccio and Horace W. Danforth, for Appellant.
    J. Marion Wright and Owen E. Kupfer for Respondent.
   PULLEN, J., pro tem.

Two matters, a motion to recall a writ of supersedeas and an appeal from a judgment, are before us. A determination of the appeal will make unnecessary any special consideration of the motion and we will, therefore, direct our attention first to the merits of the appeal.

The action was brought against the administrator of the estate of Julius H. Schmidt, deceased, to establish a gift causa mortis by deceased to plaintiff of certain personal property, and to quiet title thereto. This personal property, consisting of stocks, bonds, promissory notes, a diamond ring and bank deposit books during his lifetime belonged to Schmidt, and was kept in a safe deposit box in a bank in the city of Los Angeles. After the death of Schmidt, plaintiff attempted to take over the box and its contents, but upon refusal of the bank to surrender possession to her, she turned the key to the box over to defendant, who had previously obtained letters of administration in the estate of Schmidt, and upon the refusal of the administrator to recognize her claim to the property brought this action to secure the same or its value.

The underlying facts as revealed by the record briefly are that some time in 1922 Schmidt met Teresa A. Braun, the plaintiff, at a church bazaar in Chicago. He was then a man about 52 years of age and unmarried. In 1924 plaintiff, then a young woman, came to California with her parents, who established their home in Los Angeles. The following year Schmidt, who had retired from business, also came to Los Angeles, and from that time until his last illness spent several hours almost every day in the company of plaintiff, either in her home or accompanying her to and from her place of employment or escorting her to church and places of entertainment. During that time she received from him notes and Easter cards addressed to her in terms of friendship and endearment, and on more than one occasion he proposed marriage, which proposals were neither accepted nor encouraged by plaintiff. In 1925 he attempted to make her a gift of a diamond engagement ring, which she refused, and in 1926 he purchased and offered her an automobile, which she also refused to accept. The relationship between the two, however, continued very friendly and apparently did not abate.

On January 6, 1937, Schmidt complained to the sexton of his church that he did not feel well, and later in the day he suffered a slight paralytic stroke. The next day he was confined to his room and a doctor was called to attend him. A few days later Mr. Assmann, a brother-in-law, came over from Long Beach, where he was spending the winter, and remained with him almost continuously until Schmidt was taken to a hospital on January 26th, where he remained until his death on February 11, 1937.

After Schmidt was confined to his room by reason of illness, Miss Braun called upon him almost daily. On January 21st she called as usual. After some conversation about what had occurred that day at her place of employment Schmidt asked his brother-in-law, who was present, to bring to him his purse. He thereupon took from this purse a safe deposit key which he handed to plaintiff, saying, “Teresa, every thing in the box belongs to you,” and, turning to Assmann, said, “Bernard, you hear, I want Teresa to have every thing in the box.” He also told her that there was more than enough money in the box for her to live on and that she would not have to work any more. A day or so later Schmidt gave plaintiff a check for $175, drawn from funds other than those in the safe deposit box, and gave it to plaintiff in order that she might pay his hotel and hospital bills. Plaintiff then took the key and kept it among her effects at her home until after the death of Schmidt, when, as stated above, she gave it to the administrator and, upon his refusal to redeliver the key, this action was commenced.

The trial court confirmed the gift to plaintiff and ordered that the property be delivered to her or, in the alternative, the value thereof. It is from that judgment that this appeal is taken.

Certain preliminary motions as to the right of Assmann to intervene have already been before this court and disposed of (Braun v. Brown, 13 Cal. (2d) 130 [87 Pac. (2d) 1009]), leaving for consideration the basic question in controversy, that is, did Schmidt on the 21st day of January, 1937, entertain and express the specific intention then and there to give to plaintiff the property in the safe deposit box; and did he then and there effectuate that intention by the delivery of that property to her, divesting himself of dominion thereover, and was he actuated therein by the thought of death, and did plaintiff accept the same?

Section 1149 of the Civil Code defines a gift in view of death “as one, which is made in contemplation, fear or peril of death, and with intent that it shall take effect only in case of the death of the giver”, and by section 1150 of the Civil Code a gift is presumed to be in view of death when made during the last illness of the giver or under circumstances which would naturally impress him with an expectation of speedy death.

The court found it to be true that on the, 21st day of January, 1937, Julius H. Schmidt was the sole owner and in the exclusive possession of all the property here involved; that the same was kept in a certain safe deposit box, and the sole means of access thereto and the contents thereof was by one key kept in possession of Schmidt; that during his last illness he transferred, delivered and handed over to plaintiff this key and at the same time told her he was thereby making to her a gift of all the contents of said box; that by such delivery of the key and his statement he thereby made a gift and transfer cama mortis to plaintiff; and that plaintiff accepted said gift and delivery and that such gift was unrevoked and remained valid and binding at his death.

Appellant contends that the failure of the court to specifically find that Schmidt acted in contemplation of death is reversible error. The finding recited that by the delivery of the key Schmidt gave to plaintiff, causa mortis, all his interest in the property. By the adverbial use of the words “causa mortis” there is embodied in the finding all the elements as to the influence of the thought of death connoted by such words, making the finding adequate.

The evidence fairly establishes that the gift was made by Schmidt during his last illness, and there can be little doubt from the evidence that the circumstances surrounding such illness impressed him with the expectation of death, and, by the delivery of the key and his statement to plaintiff he intended to set over to plaintiff all his interest in the property.

At the time of the making of the gift Schmidt was ill in bed in his hotel room; he had suffered a stroke and had told certain friends that he was not feeling well. He was arranging to go to a hospital and had made provision for plain-, tiff to pay his hotel and hospital bills. His brother-in-law, realizing the seriousness of his condition, had left his place of abode in Long Beach and had a cot moved into the room of Schmidt, so he could be near him all night; he was at times delirious; a doctor had examined him and advised hospital care. He was then about 67 years of age and had never theretofore been sick. He left the hotel January 26th and died 15 days later. Such circumstances could not but have caused even the most optimistic of men to contemplate to some degree at least the fact of death. Realizing, however, that under such circumstances any reference to or discussion of death is universally avoided by the patient, his friends and the doctor, section 1150 of the Civil Code declares that a gift made during the last illness or under circumstances which would naturally impress one with an expectation of speedy death is presumed to be a gift in view of death. This presumption is evidence and is sufficient to establish the fact unless rebutted.

But the fear of impending death is not a sole essential element of a gift causa mortis. The code predicates such a gift on either contemplation of death or peril of death; and as pointed out in Donovan v. Hibernia Sav. & Loan Soc., 90 Cal. App. 489 [265 Pac. 995], while one may make general statements to the effect that he is feeling fine, yet his condition may be known to him to be critical. One may realize himself to be in peril of death and yet not expect to die. He may still believe his chances to live are greater than his chances to die, yet prudently take steps to adjust his affairs in case of death. In Knight v. Tripp, 121 Cal. 674 [54 Pac. 267], Mrs. Cook was about to undergo an operation. She sent for her friend, the defendant, and by an instrument in writing attempted to convey to him various personal property. In considering whether there was a gift causa mortis, the court said:

“Mrs. Cook was an invalid, 54 years of age, and it must be assumed that she had at best a hope that she would come safely out of the surgical operation that she was about to undergo and that her life, would be prolonged thereby. . . . Her disposition of her property was evidently made in contemplation of her death under the surgical operation but' it was not necessary for her to state that fact as one of its terms. If the circumstances under which it was made were such as to authorize such conclusion it will be treated the same as if it had been so stated by her.”

Both the circumstantial evidence and the presumption raised by the provisions of the code are sufficient to support the finding that the gift by Schmidt to respondent was made by him in contemplation of death and was a gift causa mortis.

It is next urged by appellant that there is no substantial evidence in the record to support the finding that Schmidt had the specific intent then and there to give to plaintiff the contents of the safe deposit box, or did anything to effectuate delivery, or that plaintiff accepted the same.

As to the intent, we find that when Schmidt handed the key to plaintiff he said, “Every thing in the box belongs to you,” and also said to plaintiff that she wouldn’t have to work any more, there would be enough money there for her to live on, and, calling upon his brother-in-law as a witness, said, “Bernard, you hear, I want Teresa to have every thing in the box.” Here are words of present donation, accompanied by the delivery into her hands of the means of access to the property in the presence of a witness particularly enjoined to act as such.

The mother of plaintiff in her broken English testified as to a conversation with Schmidt some five or six days after the delivery of the key, wherein Schmidt, according to her, said, “Yes, every thing what I have in the box belongs to Teresa; I told her that all the time,” and also testified that at that time Schmidt “asked Bernard to make a paper out for that he want to sign it that every thing belongs to Teresa”, to which Bernard replied, “We go to the hospital, then you can make out all the papers what you want. ’ ’ She also said Schmidt said, “Every thing was in the box—give to her.”

Appellant, analyzing this testimony, claims to find no express or direct words of gift or giving, nor any clear expression of intent that what had theretofore been the property of Schmidt then and there passed from him into the sole ownership of plaintiff. It cannot be fairly required that words spoken by one during one’s last illness or in fear of death shall be as grammatically correct or as comprehensive as would be language used under different circumstances, nor should the words of one to whom the use of English is obviously an effort outweigh other circumstances in the case. All that is required is that appropriate words of gift be used, and such words are here found. Nor, as said in Mellor v. Bank of Willows, 173 Cal. 454 [160 Pac. 567], need the intention to give be manifested solely by the particular words employed by the donor.

“It is a question of fact to be determined like other questions of fact upon all the evidence in the case—the situation of the parties, their relationship, the circumstances surrounding the transaction, the apparent purpose in making the gift, the words spoken at the time, and the like. (Citing cases.) If the words accompanying the delivery of the thing can be said to be expressive of a gift and, in the light of the circumstances, consistent with the intention to give, the execution of a gift is established.”

Appellant stresses the fact that on more than one occasion after saying to plaintiff, “Every thing in the box belongs to you,” he repeated to others, among them the mother, “Every thing what I have in the box belongs to Teresa,” as indicating some future contingency. With this we cannot agree. Schmidt knew that he had not actually handed to plaintiff the physical possession of the contents of the box. He knew that at some future time she would actually possess herself of them. It was, therefore, of that future event and not the gift itself upon which his mind dwelt. So, also, the desire of Schmidt to sign a paper of some kind to confirm the fact that he had made a gift to respondent in no way affects the validity of the gift. In Crane v. Reardon, 217 Cal. 531 [20 Pac. (2d) 49], it was said, “The evidence fairly considered points to the conclusion that the donor intended to part with title at the time of manual delivery and his expressed desire to ‘sign it over’ was simply for the purpose of facilitating the transfer making it possible for the donee to have the same entered on the books of the corporation. ’ ’

Assuming, as appellant does, that the language used by Schmidt was ambiguous, and that some extrinsic evidence was necessary to clarify his intention, such is found in the relationship of plaintiff and the deceased; the proposals of marriage, the declaration of affection by donor, statements that he intended to give her his property and that she would not have to work, the absence of an immediate family or close relatives of Schmidt who might otherwise be natural objects of bis bounty, his illness, all have force in explaining the acts of the donor, even if his words could be considered ambiguous. Furthermore, the intent with which an act is done is a question of fact to be determined from all the evidence in the case and a finding thereon by the trial court will not be disturbed. (Mutual Benefit etc. Co. v. Clark, 81 Cal. App. 546 [254 Pac. 306] ; Union Mutual etc. Co. v. Broderick, 196 Cal. 497 [238 Pac. 1034].) So, also, do we find some support for the claim of plaintiff that it was the intention of Schmidt then to make an immediate gift of the contents of the deposit box to her in the fact that at that time he did not direct her to pay his hotel and hospital bills out of any funds in the box, but had a clerk from a different bank call and make out a check for the $175 necessary to care for his expenses.

Appellant contends that plaintiff has failed to establish delivery. We are here dealing with personal property locked in a deposit box. The box was not capable of manual delivery, therefore, the well-recognized rule that a valid gift may be made under such circumstances by the transfer of the key thereto is applicable. (Estate of Escolle, 134 Cal. App. 473 [25 Pac. (2d) 860].) Nor can any rule or regulation of the depository affect the validity of the gift to plaintiff. (Donovan v. Hibernia Sav. & Loan Soc., supra.) The court found that the sole means of access to the deposit box was one key which was in the possession of Schmidt; that during his last illness he handed over to plaintiff this key and at the time stated to her that he was thereby making a gift to her of all the contents of the box. With the evidence in the record supporting the finding, there can be no question as to the divestiture of dominion. Appellant makes some point of a second key. This key, however, was locked in the box and was accessible to the one alone who had control of the Schmidt key. This second key may, therefore, be dismissed from consideration.

Lastly, appellant claims that because plaintiff did not exercise her authority by using the key and taking possession of the property before the death of Schmidt the gift never became effective and failed for lack of acceptance. In Wilson v. Crocker First Nat. Bank, 12 Cal. App. (2d) 627 [55 Pac. (2d) 1208], it was contended but unsuccessfully that because a donee had not assumed dominion and withdrawn money from the bank prior to the death of the donor the gift was incomplete. In Paddock v. Fonner, 84 Cal. App. 652 [258 Pac. 423], although the gift failed because of lack of donative intent, the court held that the acceptance was sufficient if the donee received the bank book and order and took into his possession the means of obtaining the funds on deposit; and that he later offered to turn over to the administratrix of the estate the bank book for the purpose of adjudication of a dispute did not affect the validity of the gift as far as acceptance was concerned. To the same effect was the holding in Estate of Elliott, 312 Pa. 493 [167 Atl. 289, 90 A. L. R. 360], where the donee turned over the keys of the deposit box to the administratrix prior to suit.

This cause has been very fully and diligently presented. All the points presented by appellant have not been commented upon, as what we have said makes further discussion unnecessary. The motion to recall the writ of supersedeas, having now become functus officio, is dismissed. The judgment should be affirmed and it is so ordered.

Curtis, J., Edmonds, J., Shenk, J., Knight, J., pro tern., and Spence, J., pro tem., concurred.

Rehearing denied.


text:
    [L. A. No. 16055.
    In Bank.
    October 2, 1939.]
    SUZETTE THOMAS, Appellant, v. CLYDE THOMAS, Respondent.

      William Ellis Lady and H. Dexter McKay for Appellant.
    Horowitz & McCloskey for Respondent.
   PULLEN, J., pro tem.

By a divorce decree of the Superior Court of the County of Butte, defendant was ordered to pay to plaintiff the sum of $50 a month as alimony for her support and maintenance until she remarried. In Thomas v. Superior Court, 9 Cal. App. (2d) 383 [49 Pac. (2d) 898], and in Thomas v. Superior Court, 129 Cal. App. 282 [18 Pac. (2d) 755], other issues concerning this decree have been before the courts.

For over five years defendant defaulted in these payments, and this action was brought in the county of Los Angeles, where both plaintiff and defendant now reside, to obtain a judgment for the accrued alimony and also to incorporate therein the provision for the payment of $50 monthly as contained in the original decree.

The trial court granted plaintiff an ordinary money judgment for the amount of the accrued alimony, unpaid for the five years preceding action brought, with interest, but refused to order defendant to pay the sum found due, and refused to incorporate in the judgment any provision concerning the future instalments of alimony. From this Judgment plaintiff now prosecutes this appeal upon the judgment roll.

The difference between the judgment as entered and that prayed for is pointed out in Miller v. Superior Court, 9 Cal. (2d) 733 [72 Pac. (2d) 868], where it is said: “One difference between an award of alimony and an ordinary money judgment is that the ordinary judgment does not order the defendant to pay anything, it simply adjudicates the amount owing, while the award of alimony, though partaking of the nature of a judgment, goes further and is a direct command to the defendant to pay the sums therein mentioned.’’ An order to pay alimony may be enforced by contempt proceedings.

As to the attitude of the courts toward those seeking aid in the enforcement of payments of alimony under decrees of sister states, there is now no question but that the better considered recent eases adhere to the view that a local judgment based on a foreign decree of alimony will be enforced by equitable remedies as by contempt. This is the rule in California. (Bruton v. Tearle, 7 Cal. (2d) 48 [59 Pac. (2d) 953, 106 A. L. R. 580] ; Creager v. Superior Court, 126 Cal. App. 280 [14 Pac. (2d) 552] ; Straus v. Straus, 4 Cal. App. (2d) 461 [41 Pac. (2d) 218, 42 Pac. (2d) 378]; Palen v. Palen, 12 Cal. App. (2d) 357 [55 Pac. (2d) 228]. See, also, Cousineau v. Cousineau, 155 Or. 184 [63 Pac. (2d) 897, 109 A. L. R. 643].)

This principle is based not alone upon the full faith and credit clause of the federal Constitution, which does no more than protect the right to obtain a money judgment foi accrued alimony due under the foreign decree, enforceable by execution as an ordinary money judgment (Lynde v. Lynde, 181 U. S. 183 [21 Sup. Ct. 555, 45 L. Ed. 810]; German v. German, 122 Conn. 155 [188 Atl. 429]), but rests rather on the equitable consideration which favors an effee: tive weapon for enforcement of the terms of the award of alimony where the debtor has moved from the state where the award was made.

Respondent does not question this rule, but contends that decrees of other states are not authority in the instant case, which is upon a domestic decree, and points out that a foreign decree can be enforced here only by an action (sec. 191,3, Code Civ. Proc.), whereas under a domestic decree execution may be had throughout the state without any proceeding on the decree (see. 687, Code Civ. Proc.), and payment enforced by contempt in the county wherein the award was originally made.

The right to maintain an action on a domestic judgment has long been recognized in this state. (Sec. 685, Code Civ. Proc.; Atkinson v. Adkins, 92 Cal. App. 424 [268 Pac. 461]; Howell Co. v. Corning Irr. Co., 177 Cal. 513 [171 Pac. 100]; 2 Freeman on Judgments, 5th ed., 2211.)

That an action could be maintained in this state upon a domestic judgment was first held in Ames v. Hoy, 12 Cal. 11. It was there suggested, as it is here, that repeated judgments would create inconvenience, unnecessary expense, and be vexatious; but these objections were brushed aside, the court stating that an effectual remedy against such annoyances would be the payment of the debt. That this right is not limited to money judgments alone is indicated in Rowe v. Blake, 99 Cal. 167 [33 Pac. 864, 37 Am. St. Rep. 45], where the action was upon a judgment for the sale of property subject to a lien. In Brewster v. Ludekins, 19 Cal. 162, a judgment was obtained in the Sixth Judicial District (Sac.). Thereafter an action was brought upon the judgment in the Twelfth District (S. F.). That question being raised, the court said: “There is nothing in the point that suit could not be brought in one district on a judgment recovered in another.”

In the instant ease the purpose of the action upon the Butte County decree was to obtain a continuing judgment enforceable by contempt in Los Angeles County, where both parties now reside. An action upon a judgment is in its nature transitory and not local, and may therefore be brought wherever the requisite jurisdiction may be obtained. (Sec. 395, Code Civ. Proc.; 2 Freeman on Judgments, 5th ed., p. 2251.) And, as pointed out by the same author (p. 2212 et seq.), actions are allowed on domestic judgments when the plaintiff will secure some advantage thereby. The advantage here for plaintiff is that she may prosecute her action in the county of her residence rather than proceed to a distant county, and it can scarcely be said that defendant may legitimately object to proceedings in the county of Los Angeles which for several years has also been the county of his residence.

The provision in the Butte County interlocutory decree was as follows: “It is further ordered, adjudged and decreed that the defendant pay to the plaintiff the sum of fifty ($50.00) dollars per month as alimony for the support and maintenance of said plaintiff until such time as the plaintiff may remarry.” (Italics supplied.) This decree made no reference to a property settlement, although the complaint in the divorce action alleged the making of such an agreement. (See Ross v. Ross, 1 Cal. (2d) 368 [35 Pac. (2d) 316], and Armstrong v. Armstrong, 132 Cal. App. 609 [23 Pac. (2d) 50], as to effect of such a decree.) The final decree contained the following provision: “It is further ordered, adjudged and decreed that the defendant herein pay to the plaintiff herein the sum of fifty ($50.) dollars per month as alimony for the support and maintenance of said plaintiff until such time as the said plaintiff may remarry in accordance with property settlement entered into between plaintiff and defendant under date of Sept. 12, 1928.” (Thomas v. Superior Court, supra.)

Whether or not a decree in such form would be subject to modification in Butte County to meet changed circumstances (sec. 139, Civ. Code), or is governed by the law as announced in Ettlinger v. Ettlinger, 3 Cal. (2d) 172 [44 Pac. (2d) 540], and Baxter v. Baxter, 3 Cal. App. (2d) 676 [40 Pac. (2d) 536], we do not here decide in the absence of a complete record before us.

The establishment of the Butte County decree in Los Angeles for purposes of enforcement would not effect a transfer of the action to Los Angeles County, nor vest in the courts of Los Angeles concurrent jurisdiction with the Butte County court to modify the decree to meet changed conditions. If the Butte County decree is subject to modification, a matter which we do not here decide, the power of the Los Angeles court is limited to adjusting its judgment to conform to changes made by the court which had jurisdiction of the divorce action. (Cousineau v. Cousineau, supra.) Section 139, Civil Code, cannot be construed as vesting a power of modification in the first instance except to the court granting the divorce.

Neither are we concerned with the ability of defendant to make such payments. Some question is raised that the Los Angeles court failed to find that plaintiff had not remarried, but the complaint so alleged, and the court found that all of tire allegations thereof were true. If a marriage by plaintiff has occurred between the filing of the complaint and the entry of judgment, the trial court can take that matter into consideration in its entry of judgment.

Being of the opinion that as a cumulative right plaintiff is entitled to a decree directing payment of the amounts due and to become due under the former judgment, the judgment appealed from must be reversed, and the trial court directed to enter judgment in accordance with the views expressed herein. It is so ordered.

Shenk, J., Curtis, J., Spence, J., pro tern, and Waste, C. J., concurred.