text:
    [S. F. No. 16152.
    In Bank.
    December 18, 1939.]
    In the Matter of the Guardianship of FANNIE ROLLINS WAITE, an Incompetent Person. CROCKER FIRST NATIONAL BANK OF SAN FRANCISCO (a National Banking Association) et al., Respondents, v. FANNIE ROLLINS WAITE, Appellant.

      Clarence E. Rust for Appellant.
    James E. Colston and Richard C. O’Connor for Respondents.
   GIBSON, J.

This is an appeal from a decree of the Superior Court of San Francisco, declaring Fannie Rollins Waite, incompetent, and granting letters of guardianship of her person and estate.

On August 15, 1938, Pearl Stewart, daughter of the alleged incompetent, filed a petition praying for the issuance of letters of guardianship of the person and estate of appellant, aged 78. At the hearing two doctors, appointed by the trial court, were called by the respondent and testifled. Upon the conclusion of the doctors’ evidence the court having been informed by counsel for respondent that there were eight lay witnesses in the matter, said: “I am prepared to make the order in this matter right now, and I am relying on the testimony of the doctors ... I don’t want to hear any lay witnesses.”

Counsel for appellant requested permission of the court to call appellant as a witness. The court replied: “I don’t want to hear from her.” Counsel for appellant then called appellant to the stand and offered her to be sworn. The court said: “If you have any medical testimony I will be glad to hear it, but I don’t want to hear from the lady. I don’t know anything personally about her mental condition. ’ ’

The court thereupon made the decree appointing Pearl Stewart, the daughter, guardian of the person, and Crocker First National Bank, guardian of the estate.

Appellant complains: (1) that the court erred in refusing to permit her to testify in her own behalf; and (2) that the evidence is not sufficient to justify the finding of incompetency.

On the evidence presented it was prejudicial error for the court to refuse to permit appellant to testify in her own behalf. The record clearly shows that she was of sound mind and qualified to testify under sections 1879 and 1880 of the Code of Civil Procedure. The only reason assigned by the court for refusing to permit her to testify was that it did not want to hear any evidence except medical testimony. Appellant’s testimony could not be properly excluded upon the sole ground that she was a lay witness. (Code Civ. Proc., sec. 1870, subd. 1; see Atkins Corp. v. Tourny, 6 Cal. (2d) 206 [57 Pac. (2d) 480].)

This proceeding was commenced pursuant to section 1461 of the Probate Code, which provides that notice shall be given to the alleged insane or incompetent person of the time and place of hearing, and that such person, if able to attend, “must be produced at the hearing”. As this court observed in Matter of Coburn, 165 Cal. 202, 217 [131 Pac. 352], such language “seems to contemplate an examination”. The section has been amended since that decision, but the quoted language remains unchanged. Apart from the provisions of the statute applicable to this proceeding, it is the general rule that the right of a party to testify in his own behalf is fundamental. (See McClatchy v. Superior Court, 119 Cal. 413 [51 Pac. 696, 39 L. R. A. 691] ; Calder v. Levi, 168 Md. 260 [177 Atl. 392, 97 A. L. R. 880] ; 49 Harv. L. Rev. 499.)

It is difficult to conceive of a situation in which a party has a greater right to, or need for, his own testimony than in the type of proceeding considered here. The right to control her own person and affairs was taken from appellant upon the testimony of two strangers whose conclusions were based upon acts and circumstances she was not permitted to explain or controvert, and she was denied the opportunity to show by testimony her capacity for rational thought and intelligent action.

The second ground of appeal relates to the sufficiency of evidence to prove incompetence. The testimony of the doctors, in so far as it was based upon their observation of appellant, was entirely favorable to her. They testified that she was in fine physical condition and was very well preserved for her age; that she was clear mentally and that her memory was very clear as to transactions occurring over a period of four or five years previous to the examination; that she knew the nature of the transactions in which she engaged, and understood the nature, status and title of her property; that she knew who her relatives were and gave intelligent answers to questions concerning them.

The doctors examined appellant separately. Bach testified to certain facts related to them by appellant which they refer to in their testimony as her “past history”, and each of the doctors gave these facts as the basis for his conclusion relative to appellant’s competency. The facts so related are in substance as follows :

At the time of the hearing appellant was 78 years old. Her second husband had died about 3 years previously leaving her $31,000. At the age of 76 she married her third husband, aged 45. She lived with him about two months and the marriage and subsequent divorce cost her about $4,000. Appellant had always wanted to live on a ranch, and about one month before the hearing she purchased a ranch in Dublin Canyon, where she resided at the time of the hearing. She paid $8,000 for the ranch and stocked it with cattle for which she paid $850. She gave a one-half interest in the ranch and the income therefrom to a man under an arrangement whereby the latter would take care of the cattle, do all the work on the ranch, and serve her as chauffeur. At the time of the hearing she was dissatisfied with the ranch and wanted to get rid of it.

One doctor testified that these facts showed “a serious defect in judgment insofar as the handling of her affairs is concerned”, and stated that he thought she was liable to be imposed upon or deceived by artful or designing persons. The other doctor testified that “considering her recent past history” he believed “that she is over credulous and has shown a lack of judgment” and that her marriage to a man of 45 “is a subnormality” and shows “intelligence defect”.

This testimony is inadequate to support the order. The opinions of the doctors as to her “lack of judgment” and “intelligence defect” are to be tested by a consideration of the facts from which those opinions are derived; and if those facts do not justify the conclusions, the opinions are arbitrary and without substantial value as evidence. There was no evidence that the price paid for the ranch was in excess of its real value, or that it was a bad investment. The fact that appellant may have been disappointed in her hope for happiness in her third marriage to a man much younger than herself could hardly be considered substantial evidence of incompetency. The arrangement which appellant made with a man to manage and care for her ranch and act as her chauffeur in return for the half interest in the ranch might indicate poor business judgment, but such conclusion does not necessarily follow. Moreover, there must be something more than poor business judgment to establish incompetency. As the court remarked in Estate of Watson, 176 Cal. 342, 345 [168 Pac. 341], speaking of the alleged incompetent: ‘1 She was the owner of the property. It was her right to manage it as she pleased, either personally or through agents of her choice, and to dispose of it as she saw fit, unless her mental faculties were impaired to such an extent as to make her unable to properly manage and take care of it or to render her liable to imposition by 1 artful or designing persons’.”

In our opinion the finding of incompetency is not supported by any substantial evidence.

The decree and order are reversed.

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


source: Caselaw Access Project

author: WASTE, C. J.

license: Public Domain

text:
    [L. A. No. 17323.
    In Bank.
    December 19, 1939.]
    LEIGH HUMMER HILL, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.

      Hal Hughes for Petitioner.
    Philbrick McCoy for Respondent.
   WASTE, C. J.

Petitioner seeks a review of a recommendation of the board of governors of The State Bar made to the Supreme Court that petitioner be suspended from the practice of the law for a period of three months.

Petitioner failed to pay his dues to The State Bar in 1937. On March 31st of that year a notice of delinquency was mailed to him at his office in Los Angeles. A copy of the sixty-day statutory notice (sec. 46, State Bar Act) was sent to him by registered mail. A final delinquent notice was also mailed to him in October of that year. By this he was informed that a certification of his delinquency had been made by the 'board of governors and would be forwarded to the Supreme Court. Such certificate having been received by the clerk’s office, the clerk of the Supreme Court mailed a notice to petitioner advising him that on December 15, 1937, the court would act upon the recommendation of the board of governors and that he would be suspended for failure to pay his dues unless prompt action was taken by him and payment of all fees and penalties was made at the main office of The State Bar on or before that date. Petitioner having ignored this notice, he was suspended by order of this court on December 15, 1937, and the period of suspension remained in effect until June 7, 1939, when he was reinstated by payment of dues and arrears.

On April 26, 1939, petitioner was directed to appear before local administrative committee No. thirteen of The State Bar for Los Angeles County, to show cause why he should not be disciplined for professional misconduct in having engaged in the practice of the law during the period of his suspension, in violation of section 6126 of the Business and Professions Code of the State of California (Stats. 1939, chap. 34), [formerly sec. 49 of the State Bar Act.] After a hearing at which petitioner appeared in his own behalf, the local administrative committee found that petitioner had practiced law following the date of his suspension and prior to his reinstatement, and submitted the matter to the board of governors without recommendation. At the hearing before the board of governors, petitioner was represented by counsel. That board after finding that petitioner had practiced law on two occasions specifically referred to, while he was under suspension, recommended to the Supreme Court that he be suspended from the practice of the law for a period of three months.

Petitioner challenges the validity of his suspension, and urges that his evidence was uncontroverted to the effect that he was unaware of his earlier suspension and received no notice thereof. All of the notices were sent by United States mail to the office regularly maintained by petitioner, and it does not appear that any were returned for failure of delivery. When appearing before the board of governors, petitioner testified with reference to the receipt by him of the various notices above mentioned bearing on his failure to pay his dues, that he shared a suite of offices with some fourteen attorneys, and that although there was an arrangement for the receipt and delivery of mail, there was considerable confusion in the office and there were times when mail was not received by the addressees. He admitted, however, that he received several delinquent notices and knew that under the Bar Act a person would be suspended if his dues were not paid; but he claimed that he did not know when the suspension would be enforced.

Petitioner charges that the recommendation of respondent that he be suspended for three months is excessive and shocking to the conscience; that the suspension so recommended deprives him of his right to practice his profession without due process of law; that the board of governors acted in excess of its authority; that the evidence does not support its finding to the effect that he knowingly practiced law when he was suspended; and that the findings do not support the recommendation.

These and many similar contentions have been considered and passed upon by this court in review of many proceedings brought by other members of the bar who have been suspended since the passage of the State Bar Act. Where an attorney at law fails to pay his State Bar dues, the action of the board of governors in recommending his suspension from membership in The State Bar shall be treated as a finding of fact and recommendation that the Supreme Court make such order of suspension, and his suspension shall be made by an order of that court.

The State Bar Act' is valid as a regulatory measure under the police power and is not open to the criticism that an unregulated discretion to fix dues is conferred upon an executive body. (Carpenter v. State Bar, 211 Cal. 358 [295 Pac. 23], and cases therein cited; Johnson v. State Bar, 4 Cal. (2d) 744, 758 [52 Pac. (2d) 928].) During his suspension, petitioner was precluded from practicing as an attorney at law. (Sec. 299, Code Civ. Proc.; sec. 6143 of the Business and Professions Code; formerly State Bar Act, sec. 46.) He admitted, in fact stipulated, that during his suspension he did so practice and maintained an office in Los Angeles for that purpose. He was, therefore, guilty of a misdemeanor. (Sec. 6126, Business and Professions Code, supra.)

We are not impressed with petitioner’s persistent denials concerning his knowledge of his suspension for nonpayment of dues. He had practiced law nearly ten years, and admitted that he had several times been delinquent in payment of his dues before the present instance. Although the record is not entirely satisfactory, we feel the showing is sufficient to warrant the action of the board of governors of The State Bar in recommending to this court that petitioner should be penalized for his disregard of the order of this court suspending him from practice.

It is ordered that petitioner Leigh Hummer Hill be and he is hereby suspended from the practice of law in this state for a period of three months from and after the first day of January, 1940.

Curtis, J., Houser, J., Shenlc, J., Edmonds, J., Carter, J., and Gibson, J., concurred.


author: THE COURT.

text:
    [L. A. No. 17309.
    In Bank.
    December 22, 1939.]
    In the Matter of the Petition of FARNESE M. ANDREANI for Reinstatement to Practice Law.

      Harold E. Prudhon for Petitioner.
    Philbricb McCoy for Respondent.
   THE COURT.

This is an application by F. M. Andreani for readmission to practice law in this state. Among other things the record herein discloses that on October 22, 1915, petitioner was admitted to practice law in all the courts of this state; that on or about March 2, 1933, petitioner was ordered to show cause before a local administrative committee of The State Bar why he should not be disciplined for specified professional misconduct, which, in effect, consisted of charging a “highly excessive and unreasonable” fee and of the appropriation to his own use and benefit of moneys belonging to a corporation for which petitioner was acting as attorney; and that following a hearing on such charges the local administrative committee made its findings of fact, upon which it concluded that petitioner had been “guilty of acts of misconduct in violation of rule 9 of the Rules of Professional Conduct of The State Bar of California”, also that “the said acts of misappropriation and embezzlement of the said funds of said corporation and the failure to pay the said moneys to the said P. D. Estate Company and to the persons lawfully entitled thereto, were knowingly committed by the said respondent attorney as an attorney at law and involve moral turpitude and dishonesty within the meaning of subdivision 5 of section 287 of the Code of Civil Procedure of the State of California”. In pursuance of such findings and conclusions the said committee made its recommendation to the state board of bar governors that petitioner “permanently be disbarred ... ”. Thereafter, in due course, the said board approved the findings of fact which theretofore had been made by the committee, and recommended to this court that petitioner be disbarred from the practice of law in this state,—with the result that, in the absence of any contest thereof by petitioner, an order of this court of date December 11, 1933, was made in accordance with said recommendation.

Thereafter, on January 24, 1936, on the filing by petitioner of his application for reinstatement the said board of bar governors denied his petition “without reference to a Committee for formal hearing and without taking testimony”. On June 14,1936, petitioner again “duly and regularly filed his written petition with the said Board of Governors of The State Bar of California, requesting its favorable consideration and recommendation that he be readmitted to The State Bar of California ’ ’; and in pursuance thereof, but not until September 8, 1938, a duly appointed committee filed with the said board its report, findings of fact and conclusions thereon, together with its recommendation that petitioner be reinstated as a member of The State Bar. On March 24,1939, the board of bar governors reref'erred the matter to the committee, with special instructions to “receive all evidence and further testimony which may be presented to it by the Petitioner and the Examiner pertaining to the repayment by Petitioner of his obligations, the rehabilitation of Petitioner and the present attitude of Petitioner with respect to restitution”,'—which reference resulted in amended findings and a second recommendation by the committee that petitioner “be reinstated as a member in good standing of The State Bar of California”. Thereafter, on August 12, 1939, the board of bar governors, “without taking evidence of any kind other than said Report of the Administrative Committee, adopted a Resolution whereby the Petition of the said F. M. Andreani for readmission was denied”. On the conclusion thus finally reached by the state board of bar governors, at his request therefor, petitioner has been granted a writ of review; and the matter, which has been briefed and argued by the respective parties, is now ready for determination by this court.

For the reason that after the board of bar governors had made its order recommending petitioner’s disbarment the latter voluntarily declined to avail himself of the right to have such proceedings reviewed by this court, and to the end that a fair understanding may be had herein with regard to the facts which form the background of the instant petition, a consideration of the principal incidents which led to the commission of the offense of which petitioner was found guilty are here set forth: At the inception of the legal business which resulted so disastrously as far as he was concerned, petitioner was a practicing lawyer with a rather select clientele, especially among the more prosperous of the foreign population of the city of Los Angeles and its environs. It appears that, prior to the time when petitioner became involved in the instant transaction, two maiden ladies of advanced years, named respectively Francesca and Caledonia Domec, had deeded to their niece, Marie More (reserving unto themselves a life interest therein), a tract of land containing approximately 140 acres. The consideration for such transfer was “love and affection”, which had accrued throughout the many preceding years during which the niece had lived with her aunts as a member of their household in a house which formerly had been the property of the mother of the niece, long since deceased. Soon after the date of such conveyance, the two Misses Domec began to consult petitioner with regard to their business affairs. They offered to sell the entire acreage to petitioner for the sum of $16,000. He declined the offer, but suggested that they and Miss More form a corporation, to the end that the property might be more expeditiously handled in the event its sale or other disposition were contemplated. Accordingly a corporation known as the P. D. Estate Company was organized, with an authorized capitalization of $50,000, divided into 500 shares of the par value of $100 per share. It appears that petitioner personally paid all fees, costs and expenses of the organization of such corporation. All the shares of stock of the corporation were divided and distributed,—140 shares to each of the Misses Domec and Miss More, and 80 shares to petitioner, in payment for his services in performing not only the legal work which was required in the organization of the corporation, but also that which thereafter might be required in the conduct of its “business”. Each of such stockholders became an officer of the corporation and so remained during all the time here under consideration. It was petitioner’s original idea that the property of the corporation advantageously might be subdivided into small parcels which could be sold as cabin sites. Thereupon he bestirred himself to the accomplishment of that purpose, and eventually succeeded in consummating a sale of the property at a price of $84,750. A trust was created which contained a provision to the effect that, as and when sold, a fixed proportion of the sale price of each lot would be paid to the corporation. At or about the same time that the trust agreement was executed, but entirely distinct and separate therefrom, a resolution was regularly adopted by the corporation which provided, in substance, that no funds should be withdrawn from its bank account except by check carrying the signature of both petitioner (as secretary) and Miss More (as treasurer). But also at about that time it was agreed, orally, by at least one of the Misses Domec together with Miss More and petitioner that as moneys were received from the sale of the property of the corporation, such proceeds would be divided among the four stockholders thereof in the respective proportion that the stock of each shareholder bore to the total number of shares of stock of the corporation,—which apportionment of moneys was to be accomplished without and in the absence of the legal formality usually employed by a corporation in the business of declaring a dividend. The evidence does not fully disclose whether both of the Misses Domec were present and agreed to such manner of dividing the assets and profits of the corporation. The one who possibly or probably was absent was quite ill and infirm; but the other Miss Domec, wffio was able to go about, usually acted as agent for her absent sister and transacted all business in which they were commonly or mutually interested. But, however the facts in that regard may be, it is certain that during a period of five or six years following the date of such oral agreement the plan thereby adopted was carried into exeeution, in that as proceeds from the sale of the property were received they were appropriated either by petitioner or by Miss More either to his or her respective personal use, or by a division of such moneys by each of them respectively with either or both of the Misses Domec. In that regard Miss More testified as follows: That “ . . . every time I got a cheek I got the money for them [her aunts]. I kept some of it as it was agreed that I should keep some”; that it was agreed that her aunts should have some; that Andreani should have some, and that she should have some; that it also was agreed that “it should be paid out equally as it came inthat she was present when the agreement was made; that her aunt Francesca and Mr. Andreani were also present; that it “was one of the agreements when the corporation was formed”; that the understanding was that the money was to be divided equally between them, that is, it was to be divided among those interested in the corporation; that it was so divided; that she knew that Andreani was receiving funds from the corporation as they came in; that she kept no books as to how much money she gave to her aunts or how much she retained; that the agreement was made about dividing the profits at a regular stockholders’ meeting called for that purpose in Mr. Andreani’s office. (Emphasis added.) Thus it appears that each and all of the stockholders (and officers) knowingly participated in the irregular distribution of the assets and profits of the corporation, amounting in the aggregate at the first of the year 1930 to the sum of approximately $19,000. Of that amount petitioner was apparently chargeable with $10,000, as against which he claimed some offsets, including a distribution of over $2,000 to one of the Misses Bornee. During the period of years that such assets and profits of the corporation continued to be apportioned as hereinbefore has been outlined, Miss More went to Mexico, where she remained for approximately a period of two years. While in Mexico, and at her insistent request therefor, petitioner caused several hundred dollars, in the aggregate, of the funds of the corporation to be forwarded to Miss More, which she used for her own private purposes. On her return to Los Angeles, in January, 1930, she became dissatisfied with the manner in which petitioner was or had been managing the business of the corporation and soon thereafter, either because of her suggestion in that regard or at his own initiative, petitioner ceased to concern himself with the financial affairs of the. corporation, and he accordingly notified the bank with which the funds of the corporation were deposited that, following such notice, funds would be withdrawable without his authorization but on the signature of Miss More alone. Thereafter that plan was followed. At about the same time, each of the Misses Domec also indicated a lack of confidence in petitioner, with the result that they consulted other counsel whom they engaged to represent them in matters relating to the corporation. A little later, a portion of the stock of the corporation which had been the property of Miss More was acquired by an estate, through execution of a judgment which had been rendered against her. Thereupon the attorney who was executor of such estate, together with the new attorney who represented the Misses Domec, joined in an investigation of the affairs of the corporation, with the immediate result that an action was brought against each of several different banking institutions to recover judgment for the amount represented by checks that had been cashed by such bank on an inadequate or improper endorsement thereof by petitioner alone, in violation of the corporate resolution which required that such endorsement be made by both petitioner and Miss More. In each of such actions a judgment was recovered and thereafter paid by the defendant bank. The evidence which was introduced in one of such actions was the direct cause of the institution of proceedings for the disciplining of petitioner, which resulted in the order for his disbarment. At or about that time an action was brought against petitioner and Miss More, in which they were jointly charged with having committed certain fraudulent acts in connection with the corporation. Petitioner stipulated that a judgment in the sum of $10,088.63 be entered against him in that action. It further appears that he agreed to that stipulation for the asserted reason that he believed ‘1 other actions would not be pressed upon the same cheeks involved and charged to him and to other members of said corporation, or against the other stockholders, the various banks and against third and innocent parties”.

Again referring to the facts with regard to the question of restitution, it appears that, extending over a period of five or six years, in accordance with the prior agreement of the officers, directors and stockholders of the corporation and with their actual knowledge and at least implied consent thereto, petitioner caused funds of the corporation to be irregularly distributed to himself, which amounted in the aggregate to approximately $10,000,—less an amount of $2,000 which assertedly was turned over to another of the officers. But it also appears that during such entire period, with the exception of taxes and the like, the corporation had no financial liabilities of any sort, and that all the other officers, directors and stockholders of the corporation committed similar acts involving the irregular appropriation of corporate funds. However, no one was directly injured. Petitioner owned 16 per cent of the stock of the corporation. As a result of his efforts and management, the corporation had sold all its property for the sum of $84,750. If the purchase price had been paid in cash, instead of in instalments, petitioner’s total share therein would have amounted to $13,560. With the knowledge and consent of the stockholders in the corporation, he actually appropriated the sum of $8,000. However, the corporation was but the “alter ego” of its four stockholders; so that from a financial standpoint, at least, neither the corporation nor any of its stockholders had any just cause for complaint. In fact, in all probability “all would have been well” had not a new situation arisen. Times became hard; cabin sites on the property of the corporation no longer were readily salable; no money was being received; and it was but a natural result that distrust and dissatisfaction should take the place of the mutual trust, confidence and contentment which theretofore apparently had prevailed among the stockholders. But obviously the altered situation in that respect could not affect the former acts of petitioner concerning the distribution of corporate funds, which previously had been performed by him with the consent of the interested persons. And although petitioner originally was accused by The State Bar of having charged an “unreasonable” fee for his services as attorney for the corporation, he was not specifically found guilty thereof. His clients in the instant transaction consisted of three women, two of them being quite elderly and undoubtedly possessed of the various unfounded suspicions, whims and eccentricities that usually attend advanced age. They originally offered their property to petitioner for the sum of $16,000, but instead of accepting such offer petitioner succeeded in selling it for them at a price of $84,750, or at a “paper profit” of $68,750. Petitioner organized a $50,000 corporation for them and performed all the necessary work in appearing before the various and sundry state commissions and agencies incidental thereto, including the corporation commission which granted a permit for the issuance and distribution of the stock of the corporation. Additionally, it appears not only that he drew all necessary legal papers and documents connected with the organization of the corporation and the creation of the trust pertaining to the sale of the lots, but that his services, in the course of five or six years of intensive efforts in the interests of the corporation, included consultations with his clients, attendance upon directors’ and stockholders’ meetings,—all for a purported fee of $8,000 to be paid to him in stock of the corporation. Merely in making the sale of the property, had petitioner received as payment therefor only the regular (lesser) commission of 5 per cent ordinarily charged by a real estate broker—instead of 10 per cent, frequently charged as commission for the sale of country property—his fee therefor would have amounted in cash to $4,237.50, which would have left a remainder amounting to only $3,762.50 to be paid for all the other legal services which he rendered to his clients. With reference to the question of restitution by him to the various persons who suffered financially because of his irregular diversion of funds of the corporation, petitioner asserts (without contradiction of the facts) that: “Long before these disciplinary proceedings were instituted, . . . without distinction as to the amounts chargeable to him as recipient of funds or dividends from said corporation”, and “in order to prevent innocent third parties from suffering losses occasioned by the negotiation of the aforementioned cheeks”, he “sacrificed his last resources to reimburse all known negotiators thereof’’; that he “suffered a judgment to be entered against him by stipulation, based on a complaint alleging embezzlement, in the sum of $10,-088.63, and greatly in excess of the amounts [properly] chargeable to him’’, notwithstanding the surrender by him to the corporation of “his [remaining] 40 shares of the capital stock of said corporation, at that time reasonably well worth over $4,000.00, upon the assumption and in the belief that other actions would not be pressed upon the same checks involved ...” (Emphasis added.) When questioned with regard to the judgment' last mentioned, petitioner testified that his “idea in confessing that judgment was to evade any trouble in litigation, particularly to protect Miss More from further trouble and litigation”, but that he “didn’t go into the fine points of what the allegations contained”; that he “also surrendered the stock . . . with the same idea in view”, and “also repaid to innocent third parties, these intervening endorsers of these checks and others, in order not to make innocent persons suffer, all with a view to evading trouble and litigation”. Incident thereto petitioner likewise asserts that although he was charged with having “improperly appropriated to his own use and benefit funds of said corporation and that the amount thereof was evidenced by the aforementioned judgment, . . . counsel and present secretary of said plaintiff corporation now admits that the said judgment should be reduced to from $2,000.00 to $3,000.00”; but that “in recapitulating the accounting between petitioner and said corporation and his previous repayment to parties involved in the various transactions . . . nearly all of the $3,963.37 recovered by said corporation from several defendants (. . . the present directors of plaintiff corporation would credit petitioner with the entire said amount, . . .) had been paid by petitioner in reimbursement to third parties, with the exception of an undetermined amount, some $800.00, advanced by Bank of America, but for which no claim has been advanced or pressed against petitioner”; that “out of the total amount charged and [on the] basis of the judgment entered against petitioner, a total of $2,850.00 had been by him paid at various times and in divers ways to other stockholders of said corporation during the four years in which [he] we received or took monies therefrom. . . . Moreover, at the time of said accounting and entry of judgment, . . . petitioner was reasonably entitled to approximately $3,000.00 in regular dividends from said corporation”; and that “All of the above would reflect a reduction of some $9,000.00 on the aforementioned obligation, with the said plaintiff corporation still holding the 40 shares of its capital stock returned by petitioner. ” Petitioner makes the further assertion that “The said reckoning would make possible a compromise and settlement along the lines suggested by the petitioner at the hearing before the Local Administrative Committee on March 20 [1939] last past. However, the present directors of P. D. Estate Co. find themselves unable to compromise, modify or amend the said judgment (now of record seven years and not renewed) for the reason that the aforementioned 70 shares of corporate stock formerly held by Marie More Mon jar din are retained by . . . [the] Executor of the Estate of Lucie Dubordieu, Deceased, and that the holdings of Francesca Domee, Deceased, are not administered by any personal representative, an Administrator having resigned before returning an Inventory”; that “the said directors decline to fix or accept a determined amount or assume responsibility for a settlement without adequate confirmation”; that “notwithstanding that an equitable accounting resolves the controversy of any financial obligation to his reputed victim in his favor, in further effort to make amends and by way of additional restitution [petitioner] is willing to pay the sum of $2,000.00 when the directors of the P. D. Estate Co. are in a position to effect a settlement”. Furthermore, the findings of the examining committee contain the statement that “the attorneys who brought suit against him [petitioner] and obtained judgment against him submit letters which appear in the exhibits, acknowledge that he was entitled to some offsets which he did not urge” (emphasis added) ; and also that, in addition to substantial credits which petitioner is entitled to have offset against the judgment, petitioner “surrendered his stock in the P. D. Estate Company, the value of which no one is able to determine but which at whatever value it had at that time should be a further credit against said judgment”; also that “in addition to the foregoing credits, there is evidence warranting a conclusion that a considerable portion of money in addition to the amounts above mentioned, which were obtained on checks endorsed by Mr. Andreani, went to other stockholders of the corporation and that he received no benefit from certain of these funds. That in so far as further restitution is concerned, the same is impossible at the present time due to petitioner having no funds which could be devoted to this purpose but that petitioner has indicated and we believe sincerely that if reinstated he will soon be in a position to effect a settlement of his obligation to the P. D. Estate Company and will be able to work out a satisfactory compromise and within a reasonable length of time will be able to liquidate said obligations in full.” It also appears in that connection, as petitioner asserts, that the “petition for reinstatement has been . . . recommended by the persons or officials most directly and financially interested in the transactions growing out of which the disbarment of petitioner resulted, to wit: Marie More Mon jar din, former treasurer and intended principal shareholder of P. D. Estate Co., . . . Mr. W. G. Brooks, the contract purchaser of the realty holdings of said P. D. Estate Co. ... ; Edmond Nelson, Esq., counsel and vice president of Bank of America . . . ; [also] H. G. Sadicoff, Esq., E. T. McGann, Esq., and Carl W. Minton, Esq., the present directors of said P. D. Estate Co. . . . ”

On the situation as above revealed, this court is not prepared to say that petitioner was not justified in claiming a right to some offsets as against the amount it is asserted he stills owes on the judgment.

However, as far as the instant situation is concerned, although petitioner’s training as a law student and his experience in the practice of the law should have constrained him from committing the acts of which he was found guilty, nevertheless the law does not penalize its devotees for actions which are open to a satisfactory explanation,—nor for those which viewed from one standpoint, might bespeak a wrong intent, if, upon subjection to the light of a fair investigation and full disclosure of the facts and circumstances, a different or more favorable perspective may appear. Thus petitioner’s claim to offsets against the amount of the judgment is entitled to consideration on the question of restitution.

Petitioner is a man fifty-four years of age. His lesson has been hard. For six years he has suffered the ignominy of professional and social ostracism. To an attorney such as Mr. Andreani, who, prior to expulsion from the ranks of the profession, had enjoyed wide social intercourse in many different civic and fraternal groups, such a period of exclusion would indeed be bitter punishment. However, in accordance with the latter-day concept of such a situation, penalties imposed either in criminal matters or in disbarment proceedings are not intended “as punishment” of the offender. With respect to the disbarment of an attorney, expulsion from the ranks has for its aim the protection of the public and the reformation of the offender. Certainly the public has not suffered from the hands of petitioner since his disbarment. On the other hand, the record shows, without contradiction, that during that period of time petitioner has refrained from seeking emplojunent or from entering into any association which in any way might be construed as an effort on his part to enter the field of the practice of the law. His petition shows that upon occasion, throughout the past six years, he has accepted very humble employment, at modest wages—at times as low as $12 per week; that for a considerable portion of that period he has given largely of his services, gratuitously, to divers civic and public projects which had for their aim the solution of problems relating to “unemployment relief” and other “rehabilitation” programs. The record shows that twenty-three members of the bench and numerous members of the bar, as well as many other citizens of splendid repute in the community, together with his employers during the past six years, have expressed, through letters, their confidence in petitioner’s fitness for reinstatement as a member of the bar. The findings of the examining committee recite that petitioner appears to be “a man of more than average mental ability”. It further appears from the record that during the past six years he has kept abreast of the law, and of the changes that have taken place therein; and that not long since petitioner passed with high rating a written and oral civil service examination for the office of referee in one of the departments of the state government.

In matters of disbarment,—if properly it may be said that the function of the courts of last resort is but coldly to declare the law without regard to possibly worthy merits of the accused, or human sympathies for his plight,—-;.t might be argued that whenever it may appear that an attorney has grievously erred in the matter of his professional conduct, and by reason thereof it has been adjudged that he is no longer fit to be entrusted with the transaction of legal business for others, an order or judgment of his disbarment should be final. But that such conclusion is not the policy of the law is attested by the well-established rule that “An order or judgment of disbarment is not necessarily final or conclusive for all time, and does not preclude the court for good cause from setting it aside and restoring the delinquent attorney.” (In re Treadwell, 114 Cal. 24, 26 [45. Pac. 993], and precedents there cited.) In the case of In re Nisbet, 77 Cal. App. 260, 261 [246 Pac. 120], it also was said: “It is not the policy of the law,, and is not considered to be in the interest of justice, that an attorney who has been disbarred for misconduct shall never under any circumstances be readmitted to practice.” And in the case entitled In re Stevens, 197 Cal. 408, 424 [241 Pac. 88], this court declared that “The law is interested in the regeneration of erring attorneys, and in the enforcement of a sound discipline its disposition ought not to be to place unnecessary burdens upon them.” The “door of hope” should no more be conclusively or finally shut as to them than it should be thus closed as against any other person who has erred and consequently may have suffered a somewhat similar penalty through the disciplinary functioning of the law. Reformation and regeneration are open to any man and, when effected, should merit a just reward. Although it has been declared that disbarment is not adjudged as a punishment, but is a method judicially devised to insure protection to the public,—it is clear that when reformation of a disbarred member has been effected the public is no longer in need of such protection. Reformation may only be brought about by the individual. It may be manifested solely by a “state of mind” which may not be disclosed by any certain or unmistakable outward sign. Its existence may be difficult to establish affirmatively, but its nonexistence may be “proved” by a single act. Although “rehabilitation” is the word commonly employed by lawyers and the courts to designate the desired “change of heart”, or reformation, of a disbarred attorney,—in • reality, rehabilitation is only that status which must immediately result, not from any words, acts or creditable conduct of such attorney, ’ but rather from that which flows from an order or judgment of the court by which such attorney is restored to his former good standing and reinvested with the powers and dignities with which theretofore he had been authoritatively clothed. In reaching a fair conclusion on the question of reformation in such a matter, the favorable testimony of acquaintances, neighbors, friends, associates and employers with reference to their observation of the daily conduct and mode of living of an attorney who has suffered disbarment should weigh heavily in the scale of justice. Furthermore, in cases such as the one here concerned, which involve a charge of misappropriation of funds, it should be clear that although restitution may seem to indicate repentance, such act in itself “works no magic”. Nor does the failure to restore, in whole or in part, definitely establish lack of contrition. The importance of making restitution, and a conclusion respecting the weight which should be attached thereto, should be determined largely by the financial or other ability of the attorney to restore that which he has misappropriated, as well as by his attitude of mind regarding the matter. A wealthy attorney who has suffered disbarment should not be commended too highly for the restoration of a sum of money, however great, where such act would involve no appreciable hardship on him. Nor should one in straitened circumstances be condemned for failure to make restitution, where the return of a comparatively insignificant amount might involve great sacrifice. In the matter of making financial amends, each should be judged not only by his ability to restore, his sacrifice of financial advantages or bodily comforts of himself or family, but also by his attitude toward the subject as evidenced by a spirit of willingness, earnestness and sincerity. From a consideration of the foregoing, therefore, in the instant matter, it would appear -that greater weight might have been given to the reeommendátion of the local administrative committee—which not only had the opportunity to observe directly the petitioner and the numerous witnesses and to consider the testimony in the first instance, but also heard the matter anew after admonition to give careful attention to the question of rehabilitation. And if reformation may be “proved” by testimonies of meritorious conduct, the conclusion must be that petitioner has fully established his right to an order of reinstatement in the practice of the law.

As hereinbefore has been indicated, at the time when the board of bar governors issued its recommendation of disbarment, or thereafter within the time prescribed therefor, petitioner voluntarily declined to avail himself of the right which was open to him of having the record reviewed by this court. In that connection, it is indicated by petitioner that his failure to do so, as well as his failure to present a more adequate defense to the charges made against him by either the local committee or the board of bar governors, was due, in part at least, to petitioner’s ill health at or about the times in question. However, had this court been requested in the first instance to review the full and complete history of the entire transactions out of which the charges assertedly arose and that thereafter were instituted against petitioner, it may be that the order of disbarment would not have followed. And it is extremely improbable that—if the facts of the transactions upon which the recommendation of disbarment was predicated in this case had been submitted in a criminal trial— a jury would have found petitioner guilty of the offense of embezzlement. Although it is the general rule that on an application for readmission the court will not weigh the evidence in its relation to the original order of disbarment, particularly where a review of the proceedings was had by this court,-—nevertheless, in instances where this court has not theretofore had the opportunity of considering the entire record prior to the application for readmission, such as is the case herein, the aforementioned rule should be qualified to meet that situation. In other words, on an application for readmission, where the proceedings on disbarment have not theretofore been reviewed by this court, the latter should not be precluded in the proceedings for readmission from considering evidence in the light of the charges originally made. However, as hereinabove has been indicated, in the instant matter,- since it is the conclusion of this court that the evidence bearing on the question of the right of petitioner to readmission fully warrants the issuance of its order in that respect, it does not become necessary to weigh the evidence for any other purpose.

Accordingly, it is ordered that the petitioner be and he is hereby restored as an attorney and counselor of this court, and that his name be reinstated upon the roll of attorneys thereof, and that he be entitled henceforth to practice in all the courts of this state.

Rehearing denied.


text:
    [Sac. No. 5275.
    In Bank.
    December 26, 1939.]
    FRANK P. DENMAN et al., Appellants, v. JOE B. SMITH et al., Respondents.

      P. E. Coraney for Appellants.
    Arthur A. De Chamheau, Jess Hession and E. H. Woodard for Respondents.
   THE COURT.

In accordance with the allegations of a complaint which was entitled “Action possessory and quiet title mining claims”, the plaintiffs sought judgment for the restitution to themselves of certain quartz mining claims of which they assertedly had been dispossessed by the defendants, to have the title thereto quieted in themselves, and for damages for the “value, use and occupancy” of the said premises by the defendants. Each of the defendants answered the said complaint, specifically denied in his answer each and all of the essential allegations of the complaint, set up a title and right of possession in himself, alleged that the plaintiffs claimed some right or title to the premises, and prayed that title thereto be quieted in each or all of said defendants. On the trial of the action each of the several defendants Smith, Alice Lovatt, Jenny Brandon, Harry Charles, E. H. Woodard and “Mrs. E. H. Woodard” were represented by an attorney; no one appeared for any of the other defendants. The asserted title of the plaintiffs was predicated upon their allegation to the effect that on March 11, 1935, they went upon the public domain of the United States, “theretofore wholly unoccupied and unclaimed”, and thereupon located those certain lode mining claims which were described in the complaint as Early Dawn Nos. 1, 2, 3, 6, 7 and 8,— which said allegation the trial court specifically found was “not true”. (Emphasis added.) In addition to such finding the trial court found that, “It is not true that at the time the Plaintiffs attempted their location of each and every one of said claims that the lands sought to be so impressed by such locations, and each and every one thereof, were subject to location by anyone”; that “said lands, by reason of the same and all thereof being held by valid locations of Defendants Joe B. Smith and Florence Smith under and by virtue of those certain locations of said Joe B. Smith and/or Florence Smith of said claims being known as the ‘White Cloud’ [placer claim], ‘Florence’, ‘Florence Extension’, and ‘Ella’ [lode claims], were not unappropriated public domain”,—and, in substance, that the lands embraced in the claims assertedly located by the plaintiffs were practically identical with the lands held by the defendants Joe B. Smith and Florence Smith under [said] claims known as the “White Cloud”, “Florence”, “Florence Extension” and “Ella”. Other material findings of fact made by the trial court were that “ . . . long prior to March 11, 1935, . . . defendant Joe B. Smith had located said lode mining claims named and known as the Florence, Florence Extension and Ella”, as well as the White Cloud placer claim; that “said defendants had performed the necessary assessment work required by law to be performed on each and every one of said claims for the year ending July 1, 1934, and filed the necessary Proof of Labor therefor”; that “said claims were not subject to relocation, if at all, until the 1st day of July, 1935”; that for the said “year ending July 1, 1935, Defendants Joe B. Smith and Florence Smith had performed the required assessment work on the White Cloud placer, the Florence, Florence Extension and the Ella mining claims”; and that “Plaintiffs’ locations and each and every one thereof were a nullity, the same being placed on lands already held by valid mining locations”.

However, the trial court did not find that the defendants Joe B. Smith and Florence Smith were entitled to have their title quieted, by reason of the fact that they had failed tó offer sufficient evidence to establish that right.

Based on the findings hereinabove set forth, as well as on the conclusions of law made in accordance therewith, the judgment which was rendered recited that “Plaintiffs have no estate, right, title or interest in and to ’ ’ the so-called Early Dawn mining claims; that 1 ‘ Plaintiffs ’ locations of said mining claims were placed upon lands already located and appropriated by Joe B. Smith and Florence Smith”; that “Plaintiffs’ purported locations were therefore a nullity and void and no right attached to said lands, therefore, Plaintiffs have no title therein that could be quieted”; and that “Plaintiffs are not entitled to receive any damages whatsoever from Defendants or from any of them”.

Following the denial of their motion for a new trial, the plaintiffs have appealed to this court from such judgment.

As hereinbefore has been indicated, no decree was entered regarding the request of each or any of the defendants to have quieted as against the plaintiffs the respective titles, if any, of the said defendants in the properties here concerned. But since no appeal from the judgment that was rendered has been presented to this court in behalf of any of the defendants, no question is before this court with regard to the soundness of the said judgment as far as it may or does affect the rights of any of the defendants to have quieted his or their asserted title in the said properties.

On the trial of the action, at the close of plaintiffs’ case the defendants offered evidence to show a prior location by them of the claims here in dispute, including evidence as to the validity of their locations as far as compliance with statutory provisions is concerned, as well as evidence relating to the performance by them of the required annual assessment work, including the period ending July 1, 1.935.

However, in each of several respects appellants contend that the evidence failed to show that the several locations assertedly made by the defendants Smith were made in accordance with the provisions of the statutes in that regard. (Sec. 1426 et seq., Civ. Code.) The principal objections made in that connection by appellants, in effect, are: that some of the location notices filed by defendants Smith were defective for the asserted reason that they failed to properly describe the respective claims in that some of the said notices specified a description different from that indicated by the boundaries as erected on the claims by the defendants Smith ; that the designation of Chalfant station as the “natural object” by which to identify the claims in dispute was so inaccurate and insufficient that it could not be said to constitute the “permanent monument” contemplated by the provisions of the statute; also that some of the boundaries indicated by defendants were not sufficiently marked on the ground to meet the statutory requirements in that respect. Although under the rule to be hereinafter discussed it is not here essen-. tial to determine whether such asserted defects were or are present—as far as they may or might affect defendants’ title —nevertheless, it may be said, generally, that it has been ruled, in effect, that notices of location should be liberally construed, and that “monuments erected in the field should control courses and distances as indicated upon paper”, which statement it was held “embodies a correct rule many times declared by this court ’ ’. (Schroder v. Aden Gold Mining Co., 144 Cal. 628, 629 [78 Pac. 20].) As was said in the case of McInerny v. Allebrand, 107 Cal. App. 457, 461 [290 Pac. 530], “ . . . the recitals in the location notice cannot be accepted as proof of the various steps essential to perfect a mining claim. . . . ‘And besides, if it [the location notice] had contained every essential requisite of a location notice, the copy of the record would have proved nothing except the bare fact that such notice had been recorded. It would not have proved that . . . the location was so marked on the ground that its boundaries could be readily traced, ... ’ ”, Also, in the case entitled McLean v. Ladewig, 2 Cal. App. (2d) 21, 26, 27 [37 Pac. (2d) 502], one of the claimants to certain mining properties asserted that a location made by another claimant thereto was not valid because of alleged defects in the location notice, which defects were similar to those here asserted by plaintiffs; and in that case the court said:

“Plaintiff concedes that the location notice does not describe the Good Luck Mine in accordance with the monuments which at the time of the location were erected on the ground. She contends, however, that such monuments control over the description and courses as contained in the location notice. It is said in 40 Corpus Juris, page 807: ‘As a general rule, a mining location is not rendered invalid by a mere variation or discrepancy between the boundaries of a claim as marked on the ground and the courses and distances described in the location notice or certificate. In such a case if the markings on the ground are clearly ascertainable and can be definitely located they will control, as to the location and extent of the claim.’ ” And again: “The natural objects or permanent monuments referred to in the instant location notice are ‘the ridge east of Lyons Gulch’, ‘William Dougherty’s Spring’, ‘Prank Lord’s residence’ and ‘Charles Prank’s Ranch’. All of these are presumed to be well-known natural objects or permanent monuments until the contrary appears. (Hammer v. Garfield Mining & Mill. Co., 130 U. S. 291, 299 [9 Sup. Ct. 548, 32 L. Ed. 964].) Notices of location are to be liberally construed. (McCann v. McMillan, 129 Cal. 350 [62 Pac. 31]; Carter v. Bacigalupi, 83 Cal. 187 [23 Pac. 361] ; Mitchell v. Hutchinson, 142 Cal. 404 [76 Pac. 55].) At 40 Corpus Juris, page 805, it is said in referring to the sufficiency of the location notice: ‘If it is made in good faith, it should receive a liberal and reasonable construction in favor of the locator; and if by such construction the language employed in describing the claim, when taken in connection with the markings on the ground and other surrounding circumstances, will enable a reasonably intelligent person to find the claim, and trace its boundaries, and therefore imparts notice thereof to subsequent locators, it is sufficient. ’ ” (Emphasis added.)

Furthermore, the question whether the location of a mining claim as designated by boundaries marked on the ground is clearly ascertainable, is properly a question of fact for the trial court. (McKinney’s Digest, vol. 16, p. 192; McCarthy v. Phelan, 132 Cal 404 [64 Pac. 570]; Huckaby v. Northam, 68 Cal. App. 83 [228 Pac. 717]; Hammer v. Garfield Mining Co., 130 U. S. 291 [9 Sup. Ct. 548, 32 L. Ed. 964].) And where, as in the instant ease, the evidence relating thereto is conflicting, so, also, for the determination of the trial court is the question with respect to the accuracy and sufficiency of the “natural object” (here designated in the location notices to be “Chalfant Station”) as constituting an adequate compliance with the statutory provisions, which require that the claims be described in the notices by reference to a permanent monument.

But it is well-settled law that in an action to quiet title plaintiff cannot prevail because of the weakness of the title of the defendant therein, but that plaintiff’s success in such an action must depend upon the strength of his own title. In other words, plaintiff must establish clear title in himself before he may be permitted to prevail because of alleged possible defects in the title of his adversary. Thus in the case entitled McInerny v. Allebrand, 107 Cal. App. 457, 467 [290 Pac. 530], it was said: “The rule is well established in California that in a possessory action of this character, the plaintiff must rely upon the strength of his own title rather than upon the weakness of that of his adversary. . . . Weed v. Snook, 144 Cal. 439 [77 Pac. 1023]; Reay v. Butter, 95 Cal. 206 [30 Pac. 308] ; Schroder v. Aden Gold Min. Co., 144 Cal. 628 [78 Pac. 20] ”, And in the Schroder ease, last cited, it was said: “It is also urged that there was no evidence that the locators of defendant’s claims marked the boundaries thereof by monuments. These are matters which do not concern the plaintiffs. When it has been determined that they [plaintiffs] have no interest in the land in controversy the case is ended. This is in the nature of a suit to quiet title, and in such a case the plaintiff must obtain judgment upon the strength of his own title, and if it be shown that he has no title, it becomes immaterial to inquire into defendant’s rights. . . . The want of title in plaintiff renders it unnecessary to examine the title of defendant. (City and County of San Francisco v. Ellis, 54 Cal. 72; McGrath v. Wallace, 116 Cal. 548 [48 Pac. 719].) ” To the same effect is the case of Nobel v. You Bet Mining Co., 22 Cal. App. (2d) 623, 627 [72 Pac. (2d) 205].

It follows that if the specific finding of the trial court—to the effect that it was not true that on or about the 11th day of March, 1935, the plaintiffs made a valid location or locations on the lands in question—is supported by substantial evidence either to the effect that the attempted location by the plaintiffs was not made in accordance with the provisions of the statute, or that at such time the lands legally were not open to location by the plaintiffs, none of the several objections which are presented by the appellants may be sustained.

Appellants contended that on March 11, 1,935, they “laid out” the Early Dawn group of claims, using a tape and compass ; that they marked the discovery points, placed location notices on, and put up corner markers for, each claim; that on a day soon thereafter, accompanied by a mining engineer, they did certain other location work on the claims. The latter testified that on the day last mentioned he and the two plaintiffs checked the lines for each of the claims, chained from corner to corner, and put up corner monuments on each claim; that the monuments were made of rock, four or more feet in height, and that all the work just described was done in a single day, beginning at about 5 o’clock in the morning and ending some time between 2 and 3 o’clock in the afternoon of that day. On the other hand, the defendant Joe Smith testified that when he located one of the claims (the. “Florence Extension”) on June 6, 1933, “it took us [himself and another man, or boy] a good three days to monument that claim. ...” The testimony showed' that the land on which the mines were located was very precipitous, there being in places a rise of 2,000 feet in altitude from the lower to the upper end of the several claims. The testimony of another witness for the defendants was to the effect that, in the early part of 1935, in his capacity as sheepherder he was in a position to note the approach of any person who might go upon the properties whereon the claims were located, and that during the period from about February 22 until May 22, 1935, he saw no one “making locations” in that vicinity, nor did he see “any monuments there”. Defendant Joe Smith further testified that he was on the claims during the latter part of March, 1935, at which time he saw no new monuments, and that when he was on the land on or about July 1, 1935, he saw none which had been erected by the plaintiffs. The son of the defendants Joe and Florence Smith also testified that on July 18, 1935, he was on the claims known as Florence, Florence Extension, Ella and White Cloud, and that although he made a search for monuments or location notices at that time, he found none other than those monuments which theretofore had been placed on the claims by his father.

Since it is well-established law that where the evidence is conflicting a decision reached thereon either by a court or by a jury is conclusive on an appellate tribunal, it follows that none of appellants’ several contentions with regard to the insufficiency of the evidence to sustain the findings may be upheld. However, notwithstanding such conclusion, appellants contend that the finding of fact, which was reiterated in the judgment, to the effect that prior to the pretended location by plaintiffs of the claims here in dispute each of such claims had been legally located theretofore by the defendants Joe B. Smith and Florence Smith, was not supported by the evidence; also, the same objection was made with regard to the findings that the said defendants had performed the required assessment work on each of said claims for the year ending July 1, 1934, and that at the time when plaintiffs attempted to locate them the lands were not “unappropriated public domain”. However, the evidence discloses beyond the possibility of question that, prior to the date when the plaintiffs attempted to make their location of the several claims, the defendants in good faith not only had made location of each of said claims by monumenting them, marking the boundaries thereof on the ground, placing the required notices of their locations within the monuments, recording the several notices of location, and performing the required annual assessment work by constructing roads, a cabin, a mill and tunnels on the property, but also had actually operated the property as a mine or mines,,—all of which facts were personally and well known to the plaintiffs. It' is well settled that under such circumstances the land would not become open to relocation by another unless and until defendants failed to perform the necessary yearly assessment work. (Von Gal-Scale v. Cottrell, 2 Cal. App. (2d) 29 [37 Pac. (2d) 715]; Calico-Odessa Min. Co. v. Britt, 135 Cal. App. 744 [27 Pac. (2d) 778].)

In the case entitled Moodey v. Dale Consol. Mines, (C. C. A. 9th Cir.) 81 Fed. (2d) 794, 797, the rules governing the right to relocate a mining claim are aptly set forth, as follows:

“ ... A forfeiture of a mining claim cannot be established except upon clear and convincing proof of the failure of the locators or owners of the claim to have the work done or improvements made to the amount required by law. Hammer v. Garfield [Mining and] Milling Co., 130 U. S. [291] 292, 9 S. Ct. 548 [32 L. Ed. 964].” Again, at page 796, the same court said: “ ‘Mining claims are not open to relocation until the rights of a former locator have come to an end. A relocator seeks to avail himself of mineral in the public lands which another has discovered. This he cannot do until the discoverer has in law abandoned his claim, and left the property open for another to take up. The right of location upon the mineral lands of the United States is a privilege granted by Congress, but it can only be exercised within the limits prescribed by the grant. A location can only be made where the law allows it to be done. Any attempt to go beyond that will be of no avail. Hence a relocation on lands actually covered at the time by another valid and subsisting location is void; and this not only against the prior locator, but all the world, because the law allows no such thing to be done. ’ . . . ” (See, also, Lind v. Baker, 31 Cal. App. (2d) 631, 637 [88 Pac. (2d) 777].)

Therefore, in view of the evidence of a valid prior location by defendants, assertions made by appellants such as those to the effect that some of the notices of location were defective—in that the property was incorrectly or inadequately described therein—should not be permitted to prevail against the facts hereinbefore set forth. Besides, as hereinbefore stated, the judgment of the trial court did not provide for the quieting of title in the defendants. Neither of the parties to the action was granted any relief in that regard; and it is clear that the plaintiffs were entitled to no judgment for damages.

Appellants register further objections to the judgment to the effect that on the trial of the action the trial court erred in the admission of certain evidence offered by the defendants. Such objections related generally either to the order of “proof” or to evidence which in no way could have affected the decision that was reached by the trial court.

No miscarriage of justice resulted from the judgment from which the appeal was taken.

The judgment is affirmed.