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taken the above facts-are attacked, but there is sufficient evidence, we think, to sustain them all. This action was commenced October 3, 1885, to recover from Tittel and Huber one-half of the money and land awarded to Lichtnock in his action against Tittel. The court entered a judgment in favor of the plaintiff, as prayed for, and from that judgment the defendants have appealed.

his assignment from Lichtnock. The judgment must be reversed, and, in order to dispose of the whole matter, it is necessary to reverse the judgment as to both defendants. The defendant, Tittel, however, is not entitled to recover costs of this appeal, as the judgment is more favorable to him than it should have been. Judgment and order reversed, and

cause remanded for a new trial.

We concur: BEATTY, C. J.; WORKS, J.

(79 Cal. 283)

HANSON v. FRICKER. (No. 12,554.) (Supreme Court of California. May 24, 1889.)

APPEAL-PRACTICE.

to be made in the court below, cannot be asserted 1. A defense not within the issues, nor attempted on appeal.

2. Matters well pleaded in the complaint, and not denied by the answer, stand admitted.

Commissioners' decision. In bank. Ap-
peal from superior court, Butte county;
LEON D. FREER, Judge.
Hundley &

C. K. Boneste, for appellant.
Gale, for respondent.

Upon the facts stated, the simplest and most direct remedy was for the plaintiff to proceed in the court below by motion to set aside the satisfaction of the judgment in Lichtnock v. Tittel, and substitute himself as a party plaintiff therein. Section 385, Code Civil Proc.; Thomas v. Mining Co., 54 Cal. 578. It is only where damages are claimed, or equitable relief which cannot be had on motion, that an action is necessary. Lichtnock is not a necessary party defendant. No plea of non-joinder was made by demurrer, and the answer shows that prior to the commencement of the action Lichtnock had sold and assigned his interest in the judgment. The judgment against Huber is not warranted by the facts. He is, of course, a necessary party to this action, wherein the court is asked, in effect, to adjudge that he is BELCHER, C. C. This action was brought not the owner of the judgment, and he would to establish a resulting trust. The property have been a necessary party to a proceeding in controversy is a quarter interest in a minby motion to set aside the satisfaction of judg- ing claim situate in Butte county. The comment, and in each case liable for the costs; but plaint alleges that defendant purchased the the fact that he failed to get title to the judg- interest for the sum of $500, and took a deed ment because of his notice of the prior assign- therefor in his own name, but that in doing ment to plaintiff does not render him liable to so he acted for and as the agent of plaintiff, plaintiff for the judgment debt due from Tittel and that plaintiff paid the purchase money. to plaintiff. His position, under the facts of The court found all the facts to be as alleged this case, is not different from that of a pur- in the complaint, and rendered judgment acchaser of any chose in action with notice of a cordingly. The defendant moved for a new prior assignment, set-off, or other defense. trial, and has appealed from the judgment The judgment debtor and assignee with no- and order denying his motion. The princitice of the prior assignment may, by a fraudu-pal question presented for decision by appellent and collusive assignment and satisfac-lant relates to the finding as to the amount tion of judgment, succeed in delaying the enforcement of the judgment until, through the insolvency of the debtor, or attachment of his property by other creditors, the judgment creditor or his assignee is deprived of the fruits of his judgment. But no such circumstances appear in this case. It does not appear whether Lichtnock, Tittel, or Huber have been made, or attempted to make, any transfer of an interest in the real estate, other than by the assignment and satisfaction referred to. The court gave judgment against defendants for the sum of $1,042.63 and costs of suit; and then "adjudged and decreed that the plaintiff, C. W. Cramer, or his assigns, have leave to proceed as they may be advised for the recovery of the reversionary interest, and the interest of said Lichtnock in and to the lot of land." The whole subject-matter ought to have been disposed of at once,-not piecemeal. It was not necessary to leave the controversy thus unfinished. The court ought to have required the defendants to execute and deliver to plaintiff a good and sufficient conveyance of the interest in the land, and of the reversionary fund acquired by plaintiff under

and payment of the purchase money. The contention is that appellant paid for the property $1,500, and not $500, as found by the court, and had therefore a right to retain the title until he received from plaintiff the balance of the purchase price. But no such defense was set up, or even hinted at, in the answer. It cannot, therefore, be raised here for the first time. The case was properly tried upon the issues presented by the pleadings, and upon all of those issues there was ample evidence to justify the. findings. It is further contended that the finding that defendant, shortly before the commencement of this suit, repudiated the understanding between the plaintiff and himself, and denied plaintiff's ownership of the one-fourth interest purchased by him for plaintiff, and refused to give plaintiff a deed thereof, was not justified by the evidence. It is said that "the most rigorous examination of the evidence discloses nothing tending to support this finding." The answer to this position is that the facts found were distinctly and clearly averred in the complaint, and were not denied by defendant in his answer.

They were therefore admitted, and no evi- this there was also a wide difference of opindence in support of them was necessary. ion. Some symptoms and conditions usualNo other points are made, and it follows that the judgment and order appealed from should be affirmed.

We concur: FOOTE, C.; HAYNE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed.

ly present in cases of phosphorus poisoning were wholly absent in this case, or at least were not proven to exist. There were indications which, in the opinion of some of the physicians, indicated that death might have resulted, and probably did result, from natural causes. There was atrophy of the liver, which was greatly reduced in size. It was admitted that this might have been occasioned by disease, and there was a difference of opinion as to whether the condition was, or could have been, caused by phosphorus poisoning. There was no jaundice. There was an ulcer in the stomach. Whether this could have been occasioned by phosphorus poisoning was a matter of controversy. Clots of blood were found in the heart and in the On a trial for wife-murder by phosphorus poi- ovaries and fallopian tubes. There is evisoning the evidence was almost entirely circumstantial; the existence of the most important facts dence that the illness of the deceased was was established only by experts, and was disputed brought on by a miscarriage, purposely by other experts; some of the usual symptoms of caused by her own act, and that she did not phosphorus poisoning were not shown to exist, wish her husband to know anything about and there were indications that death might have,

(79 Cal. 415)

PEOPLE v. BOWERS. (No. 20,345.` (Supreme Court of California. June 1, 1889.)

MURDER-POISONING-EVIDence.

and probably did, result from natural causes; it. There was no evidence that the defendthere was no evidence that defendant had pro-ant had procured, or had in his possession, cured, or had in his possession, any phosphorus. any phosphorus. Held, that where the conduct of the trial judge| was calculated to give the jury the impression that he thought defendant guilty, and the prosecuting attorney made objectionable statements calculated to influence the jury, though the court instructed the jury to pay no attention to such statements, a conviction and sentence of death would be set aside, and a new trial granted. McFARLAND, J., dissenting.

In bank. On rehearing. For former port, see 18 Pac. Rep. 660.

We do not feel like saying, under these circumstances, that as matter of law the jury could not be satisfied beyond a reasonable doubt of the guilt of the defendant; but it is evident that the case was one of great difficulty, and required unusual circumspection, and the utmost coolness and impartialre-member that the crime with which the deity in its consideration. Now, when we refendant is charged is one of an unusually reVolting character, it is easy to believe that one unaccustomed to judicial investigations might easily be made to feel, upon finding a mere probability of guilt, much short of the certainty required to authorize a conviction, a strong desire for the punishment of the defendant. In view of all these circumstances, certain occurrences at the trial have a sig

On December 29, 1888, the supreme court, sitting in bank, filed the following order: "This cause having been heretofore submitted to the court sitting in bank, and upon consideration it appearing that a constitutional number of the justices who heard the argument cannot agree upon a judgment, it is therefore ordered that the order heretofore made submitting the case be, and the same is hereby, set aside, and the cause

placed upon the calendar to be heard by the

court in bank."

Charles N. Fox and Colin Campbell, for appellant. George A. Johnson, Atty. Gen., for the State.

nificance which in a different kind of a case

we should hesitate to attribute to them. Unfortunately the judge allowed himself rather frequently to question the witnesses, always in the interest of the prosecution, and often by putting questions which were leading and suggestive. We think the jury would be sure to get the impression that the judge PER CURIAM. The defendant was con- thought the defendant guilty. Still more victed of murder, and judgment of death objectionable was the conduct of the prosepassed against him. He was charged with cuting attorney. It is true, the court prophaving poisoned his wife by the use of phos-erly interfered, rebuking the attorney, and phorus. The evidence against him is almost instructing the jury to pay no attention to entirely circumstantial. The existence of the statements. But the statements were the most important facts was established only by the opinion of experts, and their existence is disputed by experts apparently equally competent. The significance of the supposed facts as inculpatory circumstances We think, upon a careful examination of was also matter of difference. The judg- this record, that the interests of justice rement of medical experts was also taken up-quire a new trial before a judgment of this on the question whether all the clinical symp-gravity should be carried into execution. toms and pathological conditions indicated We do not see the necessity of passing upon death from phosphorus poisoning. Upon the other points made. The questions are

well calculated to influence the jury in a case of this character, and it is impossible for us to say that no injury resulted to the defendant therefrom.

not likely to recur upon the new trial. Judgment reversed, and a new trial ordered.

I dissent: MCFARLAND, J.

Commissioners' decision. In bank. Appeal from superior court, Nevada county; J. M. WALLING, Judge.

Suit by M. C. Taylor against the North Star Gold Mining Company, to have an assessment sale of stock set aside.

Charles W. Kitts and Cross & Simonds, for appellant. A. W. Thompson and Gaylord & Searls, (Niles Searls, of counsel,) for respondent.

THORNTON, J., (concurring.) The only poisoning charged in this case is that by phosphorus. If there was no poisoning by phosphorus, then it is not pretended that there was any poisoning at all. In my opinion, the preponderance of evidence supports HAYNE, C. This was an action to set the conclusion that there was no phosphorus aside an assessment sale of mining stock. It poisoning. The indications of such poison- is admitted that the assessment proceedings ing were lacking. There was no garlicky were regular. The material facts upon odor on the breath before death, and there which the objections to the sale are based are was no luminosity apparent when the test of as follows: The defendant was a corporathe Mitscherlich process was applied after tion organized for the purpose of mining for death. The garlicky odor, if apparent in the the precious metals. Success did not attend portion of the stomach and intestines sub- its operations, and business was discontinued. jected to examination after death, may be The organization, however, was preserved. accounted for by two circumstances. Such The secretary was continued at a smail salodor is usually made apparent by the decay ary, and the taxes had to be paid upon the of the human body, and this decay had com- property. In this condition of affairs one of menced when the portion of the stomach and the largest stockholders organized a scheme intestines were taken from the body, (to by which it was hoped to give value to the which the process above-mentioned was ap- property. In substance it was this: The plied,) some seven or eight days after death. corporation acquired the works of an adjoinThe other circumstance is this: that for ing mine called the "Scotia," which also had some 15 or 20 days prior to the death of Mrs. abandoned business, and transferred these Bowers a compound containing phosphorus works and its own mine to a new corporahad been given to her by the physician or tion called the "North Star Mining Comphysicians in charge. These two facts ac- pany," which raised money for renewed count for whatever garlicky or alliaceous work upon said mine. The consideration odor may have been perceived after death. which the defendant received for the transfer The evidence tends strongly to show that of its property consisted of stock in the new Mrs. Bowers died from disease indicated by corporation. In the course of the transacthe symptoms which manifested themselves tion the defendant incurred indebtedness as during her illness, and by the conditions of follows: For the services of an attorney at the body after death. This was the opinion law, $800; and for incidental expenses in of some of the physicians who testified upon and about the transaction, such as the emthe trial. ployment of an expert, a broker, traveling expenses, and the like, $2,020. These sums, together with that due to the secretary, and for taxes on the mine, amounted to $3,940. Some question is attempted to be raised as to whether the defendant authorized the incurring of a part of these expenses. But the services and expenditures were incurred on behalf of the corporation, and with its knowledge, and it raised no question as to their having been authorized, but borrowed money from one of its stockholders to pay what was due for them. It was to pay the money so borrowed that the assessment was levied. The plaintiff knew of the whole transaction while it was going on, and made no objection thereto. The undertaking was a success, and the property became very valuable. The plaintiff does not seek to have anything set aside except the assessment sale. main positions are that there was fraud, and that the disposal of the property of the comWhere a mining corporation buys an adjoining pany for stock in another corporation was property and transfers all the property to a new ultra vires. The findings, however, negacompany, receiving stock in the new corporation tive the charge of fraud, and the evidence is therefor, and borrows money from one of its stock-sufficient to support the findings. We do not holders to pay the expenses thereof, there being no fraud, the company is liable for the money bor- think that the question of ultra vires arises in rowed, and can levy an assessment to pay for it. the case, and we express no opinion in regard v.21p.no.12-48

Upon a full consideration of the evidence in the case I am of opinion that the preponderance of evidence sustains the conclusion that Mrs. Bowers did not die of phosphorus poisoning, and that in the judgment of men of average intelligence and discretion the evidence would establish the conclusion that the defendant could not be held to be guilty beyond a reasonable doubt. Where this is the case there should be no conviction. For the foregoing reasons I am convinced that the verdict ought not to stand, and that the judgment and order should be reversed, and the cause remanded for a new trial.

(79 Cal. 285)

TAYLOR . NORTH STAR GOLD MIN. Co. (No. 12,522.)

(Supreme Court of California. May 25, 1889.) CORPORATIONS-ASSESSMENTS ON STOCK.

His

1. As to the first of these points we cannot know from the record before us whether a guardian ad litem was appointed or not. The appeal being upon the judgment roll, we cannot look outside of it to determine the question. Harper v. Minor, 27 Cal. 107; Sharp v. Daugney, 33 Cal. 505, 512. Proceedings relating to the appointment of a guardian ad litem form no part of the judgment roll. Code Civil Proc. § 670; Emeric v. Alvarado, 64 Cal. 592, 2 Pac. Rep. 418. In this condition of the record we must presume in favor of the action of the court be

to it. There having been no fraud, the com- | (3) that the findings do not support the judgpany could not refuse to pay the money ment. which it had borrowed, on the ground that it was borrowed for the purpose of being used, and was used, for the payment of expenses which were incidental to an act which was ultra vires. Bradley v. Ballard, 55 Ill. 413. It is possible that there may be cases where ancillary operations are so inseparably connected with the main act that they would have to fall with it; but we do not think that this case presents features of that character. The company was legally liable for the money borrowed, and had power to levy an assessment to pay for it. The other matters do not require special notice, and we there-low, especially as the answer itself and the fore advise that the judgment and order denying a new trial be affirmed.

We concur: BELCHER, C. C.; FOOTE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(79 Cal. 266)

BATCHELDER v. BAKER. (No. 11,495.) (Supreme Court of California. May 25, 1889.)

GUARDIAN AD LITEM-QUIETING TITLE.

1. The proceedings in the appointment of a guardian ad litem being, under Code Civil Proc. Čal. § 670, no part of the judgment roll, on an appeal on the judgment roll, where the appearance and answer of defendant were by guardian ad litem, the court will not go outside the record to determine whether such guardian was appointed

or not.

2. In an action to quiet title, a judgment that plaintiff is the owner of the land is supported by a complaint alleging possession for a sufficient length of time to show title in plaintiff.

3. In such case a finding that defendant has no interest in the land is not necessary, where defendant sets up no such claim in his answer.

Department 1. Appeal from__superior court, city and county of San Francisco; OLIVER P. EVANS, Judge.

Maria A. Batchelder sued A. S. B. Baker to quiet title. Code Civil Proc. § 670, determines what portion of the proceedings below shall form the judgment roll. Proceedings in the appointment of a guardian ad litem are not included.

recitals in the judgment show that the appearance and answer of the defendant were by a guardian ad litem. Sharp v. Daugney, supra; Emeric v. Alvarado, supra.

2. The ground upon which it is claimed that the complaint does not support the judgment is that the complaint alleges possession only, and the judgment is that the plaintiff is the owner of the property. But the complaint alleges possession, not only at the time of the commencement of the action, but for a sufficient length of time to show title in the plaintiff, which is equivalent to a direct allegation of ownership.

3. The last point made is equally groundless. It is to the effect that the findings do not show that the defendant had no interest in the property. Such a finding was unnec essary as the defendant set up no such interest. But the court found the facts showing the plaintiff to be the owner of the property which was sufficient as to the matter of ownership. Judgment affirmed.

BEATTY, C. J. I concur.

PATERSON, J. I concur in the judgment.

(79 Cal. 265)

FAULKNER v. HENDY. (No. 11,651.) (Supreme Court of California. May 25, 1889.)

PARTNERSHIP-ACCOUNTING-COSTS.

In a suit for partnership accounting, if the services of an expert are necessary in the examination of the partnership books, he should be appointed Fox & Kellogg, for appellant. E. J. & J. by and act under the directions of the court, and H. Moore, for respondent.

neither party is entitled to charge as costs the expense of an expert privately employed.

Department 1. Appeal from superior court, city and county of San Francisco; T. K. WILSON, Judge.

Wm. H. H. Hart, E. W. McKinstry, Aylett R. Cotton, and Warren Olney, for appellant. C. E. Royce, for respondent.

WORKS, J. Action for the dissolution of

WORKS, J. This is an action to quiet title to real estate. The defendant answered by a guardian ad litem, as shown by the recitals in such answer, denying the allegations of the complaint, but set up no claim or title to the property. There was judgment for the plaintiff quieting her title, decreeing that she was the owner of the property, and that the defendant had no interest therein. The a partnership and for an accounting. Judg appeal is from the judgment, and is presented to us on the judgment roll. It is contended by the appellant (1) that no guardian ad litem was appointed by the court for the defendant, who was a minor; (2) that the judgment is not supported by the complaint;

ment for the plaintiff dissolving the partnership and for the sum of $35,254.24. As to the costs, it was provided in the decree that "the costs of said action be divided between said parties and adjusted hereafter." Subsequently the plaintiff filed his cost-bill, in

priority as such judgment, the estate would have

paid it in full, are no defense.

5. Nor is it a defense that the original judgment in foreclosure was a personal judgment, and might have been enforced against all the mortgagor's property. Plaintiff having elected not to treat it as such, and having issued the order of sale, he could thereafter have no personal judgment except for the deficiency, and that depended upon the sheriff's return being properly filed.

Department 1. Appeal from superior court, city and county of San Francisco; T. H. REARDEN, Judge.

Cope & Boyd, for appellant. Clitus Barbour, for respondents.

which was included an item of $4,570, | diligent in securing its payment according to its amount expended by him in payment of one Julius Reimer, an accountant. The defendant moved the court to retax the costs, and to strike out the whole of this item, upon the ground, among others, that it was not a legal charge against the defendant as a part of the costs of the action. The court refused to strike out the whole item of costs, but reduced the amount to $1,360, and charged that amount against the defendant as a part of the costs. The defendant appeals to this court from the order of the court retaxing the costs as above stated. The evidence taken at the hearing of the motion to retax clearly shows that Reimer was employed by the plaintiff, or his attorney, as an expert to examine the books of the partnership, and render a statement of the condition thereof. The question presented, therefore, is whether it is proper, where an expert is employed and is acting for one of the parties, to charge the same against the losing party as a part of the costs of the action. If the services of an expert are necessary for the proper presentation and determination of the case, he should be appointed by, and act under the direction of, the court. Where, as in this case, he is the employé of one of the parties, the temptation to act in the interest of such party must be apparent. Therefore, in order to secure his fair and disinterested services, he should be appointed by the court, and not by either of the parties, and if either party sees proper to employ the services of an expert for his own benefit the court should not require the opposite party to pay for the services thus rendered. For these reasons the order appealed from is reversed, with instructions to the court below to sustain the motion of the defendant to strike out the item of costs above mentioned.

WORKS, J. This is an action on a sheriff's bond for damages for a failure to return an order of sale, by reason of which it is alleged the plaintiff failed to procure the entry of a deficiency judgment, and thereby lost his debt. There was a trial by jury, and verdict for the defendants. The plaintiff moved for a new trial, which was denied, and from this order he appeals. The principal controversy in the case, in the court below and in this court, is whether the evidence is sufficient to show a delivery by the sheriff of the order of sale, with his return thereon, to the clerk for filing. The question as to the weight of the evidence relating to this question is discussed in the briefs of counsel, but we do not regard the truth or falsity of the testimony of the defendants' witnesses, tending to show such delivery, as of any importance. The undisputed evidence shows that there was nothing on any of the registers kept by the sheriff or the clerk showing, or tending to show. that the paper had ever been returned to or filed in the clerk's office. There is no direct evidence that it was ever delivered to the clerk for filing. The bill of sale, with the sheriff's return upon it, was produced, and it was shown that a witness

We concur: BEATTY, C. J; PATERSON, J. who made search, at the instance of the sher

(79 Cal, 250)

BOYD v. DESMOND et al. (No. 11,755.) (Supreme Court of California. May 25, 1889.) SHERIFFS-LIABILITY-FAILURE TO FILE WRIT.

1. In an action by a mortgagee against the sheriff, who made sale under the decree of foreclosure, to recover damages for the sheriff's failure to file the order of sale, with his return thereon, in the clerk's office, whereby plaintiff was prevented from obtaining a deficiency judgment against the mortgagor, evidence that the sheriff's deputy, who actually made the sale, was a competent, prudent, and careful man, was immaterial, it not being shown that he was in any way responsible for the failure to file the order.

iff, found the paper in an out of the way place in the clerk's office. This finding was within a few days of the trial, and after diligent search made by the deputies in the clerk's office. The paper had been missing for several years. The papers in the clerk's office had been removed in the mean time from one building to another, and all of the papers carefully examined, compared with the register, and filings indorsed upon papers where such filings had been omitted, and this particular paper was not discovered. The place where the paper was found, at the last moment, was used for filing large and bulky papers, such as rolls of evidence, and not for small or loose papers. There was evidence tending to show that this drawer or box had been searched frequently for other papers, 3. The order of sale, and sheriff's return in- therein. The bill of sale, when found, had and that no loose papers were kept or found dorsed thereon, were properly admitted in evidence on behalf of defendants, without first prov-, no file-mark upon it. Laying aside the exing that they had been filed in the clerk's office. treme improbability of this paper having 4. The facts that, after the death of the mortgagor, plaintiff had his claim for deficiency allowed against the estate as a judgment, (when in truth it was not,) and that, if plaintiff had been

2. Evidence that the order of sale, with the sheriff's return thereon, was discovered in the clerk's office, but bearing no marks of filing, is not sufficient to prove that the order was delivered by the sheriff to the clerk or his deputy for the purpose of having it filed.

found its way to the clerk's office in the usual manner, and in the regular course of official business, and conceding the evi

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