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the Code of Civil Procedure; and it could not | Stockton, and talked to him. I met him once be correctly said that, outside of those opin- at the house of Mr. Schmidt, and conversed ions, there was sufficient evidence to justify with him. I always stopped and talked with the finding of the jury. The principal wit-him when I met him on the street. I talked ness on that point for the contestants was to him ten or fifteen minutes when he was George M. Hurlburt, and he was, indeed, shearing sheep. I never was at his place about the only witness on that side who ex- where he lived, except in the mountains. I pressed a positive opinion that the deceased never was at his abode, you may say, except was insane, or of unsound mind. Appellants in the mountains at one time." The witcontend very strenuously that there was no ness, having then said that he had an opinion sufficient showing of Hurlburt's intimacy as to the mental condition of the deceased, with the deceased, under the section of the was asked to state that opinion, and the reaCode above mentioned, to warrant the court sons for it. Respondents objected because in allowing him to give his opinion. While sufficient intimacy had not been shown. The the showing of intimacy was not very strong, court sustained the objection, and appellants still there was considerable evidence to that excepted. point, and we cannot hold that the court erred in admitting the testimony; but we are satisfied that the court did err in refusing to allow the witness of the appellants, H. W. Weaver, to give his opinion of the mental sanity of the deceased.

In People v. Pico, 62 Cal. 53, People v. Levy, 71 Cal. 623, 12 Pac. Rep. 791, and People v. Fine, 19 Pac. Rep. 269, it was said that the determination of the question whether a witness was an acquaintance The evidence of his within the meaning of the Code was adintimacy with the deceased was much strong-dressed to the discretion of the court below, er than that of the intimacy of Hurlburt; and that, "there being no abuse" of the disand the two rulings were inconsistent. The cretion, the appellate court would not interpreliminary testimony of Weaver was as fol- fere. But in all those cases the evidence lows: "I live in Stockton. Have lived here had been admitted; and the language used sixteen years. I know C. K. Bailey, and I was not in a case where, after a sufficient knew Carpenter in his life-time. I became showing of the statutory qualification, the acquainted with Carpenter in 1875. I became testimony of the witness had been rejected. intimately acquainted with him about 1877. The distinction between those cases and the From 1880 to the time of his death I conversed one at bar is obvious. A jury, in determinwith him quite frequently. I met him in ing the doubtful and delicate question of a the city of Stockton and on Bailey & Carpen- man's sanity, not having had the opportuniter's ranches. I know three ranches,-the ty of personal observation, should have the home ranch, the ranch on the plains, and the benefit of everything offered within the range ranch in the mountains. I never saw him | of legal evidence. It was said in the case of on the plains ranch. I met him on the home Estate of Toomes, 54 Cal. 509, that, "whatranch twice, once in 1879 and once in 1881. ever may be the rule as to the admission of In 1879 I saw him a few minutes. I stopped improper testimony, the exclusion of proper a few minutes. I was on business. In 1881 testimony is always ground for reversal." it was about the same. I stopped there as I Perhaps that is too strong a statement of the was passing by. Stopped there and saw him. rule; but it is certainly true that the excluI saw him but a few moments at the mount- sion of proper testimony, which is evidently ain ranch. It was in 1882 or 1883. I was material and important, and might probably there two or three days. I had two or three have changed the result, is a ground for reconversations with him at that time. He versal; and we are satisfied that the offered was shearing sheep, and we had some con- testimony of Weaver was proper, and also versation about shearing,-about the condi- that in the state of the evidence it was in a tion of his sheep. Then one evening he high degree material and important. For came up to our camp, and we had a general this error, therefore, the judgment must be conversation with him. Conversed on gen- reversed, and a new trial granted. We will eral subjects. I met him in my office in not undertake to discuss all the other points Stockton quite frequently, and conversed with made in the case, but will notice one or two. him generally on business matters. I saw 1 We think that the instruction No. 27, him twice during his last sickness. The first given at the request of the respondents, had time I talked with him five or ten minutes; better be omitted or greatly modified. If a the second time I asked him how he was. man, by his will, should disinherit his wife That was about all the conversation I had or children, or perhaps other near relations with him. I met him in Sacramento. He with whom he was intimate, and for whom was a witness there in a case in which I was he had shown great affection, the will would an attorney. The case never came to trial. perhaps, by common consent, and may be in I examined him in regard to what the nature law, be called "unnatural." But in the case of his testimony would be. Examined him at bar the testator was a bachelor, and had on what his knowledge of the case would be. neither father nor mother living. He had I met him a dozen or fifteen times in my of- left his early home in Vermont in 1849, when fice; once at the ranch in the mountains; only 20 years old, and had spent nearly all his twice on the ranch. I also met him frequent-life in California. During that time he had ly, a half a dozen times, on the streets of but little, if any, intercourse with his collat

eral kin in the Eastern states; and, under these circumstances, it was for the jury to say if the willing of his property to the children of his business partner here, instead of his brothers and their children in the Eastern states, was unnatural. The use of the word "unnatural" in the instruction was, we think, improper and prejudicial.

2. We think, also, that the court erred in refusing to allow the witness Montgomery to testify whether or not there had been any change in the mental condition or capacity of the deceased, provided the witness was asked for facts about the change, and not for a conclusion. A marked change in a man's habits of thought is strong evidence of his mental unsoundness, and the absence of such change is evidence of the contrary.

3. The affidavits presented by appellants make a strong case for a new trial, upon the ground of newly-discovered evidence; but if that were the only ground for a new trial we would not feel warranted in holding that the court erred in denying it.

WORKS, J. The respondent brought this suit against the appellant to revover certain personal property, consisting of live-stock and a wagon. The complaint avers that the plaintiff was the owner, and entitled to the possession, of the property on the 12th day of August, 1880, and the complaint was not filed until the 15th day of December, 1884. There was no demurrer to the complaint, but the point is made in this court that it does not state facts sufficient to constitute a cause of action. A complaint to be good must show a cause of action in favor of the plaintiff, and against the defendant, existing at the time the action is commenced. This complaint does not show this, but, if it states a cause of action at all, shows that it existed more than four years before the commencement of the suit, and for that reason the complaint is clearly bad. There is nothing in the complaint to show that at the time the action was commenced the plaintiff had any ownership or right to possession of the property, or that the defendant had possession of it wrongfully.

It is further claimed that the verdict of the jury in favor of the plaintiff is not sustained by the evidence. The facts, as disclosed by the evidence, and upon which the plaintiff relies, are in substance as follows: The plaintiff was the administrator of the estate of Cord Pope, deceased, on the 11th day of August, 1880, and at that time the defendant was indebted to the estate upon a judgment, and executed to the plaintiff, as ad

4. The instructions asked by the parties, and given or refused, number over 80, and, with the instructions given by the court of its own motion, cover about 50 pages of the transcript. We have not observed any material errors, except as above noticed, but, as the case is reversed on other points, we have not undertaken to critically examine the whole mass of instructions given and refused, and this opinion must not be taken as a determination of the correctness of the rulings of the court in the matter of instruc-ministrator of said estate, a bill of sale for a tions. It is to be hoped that if there shall be another trial of the case counsel may be able, in asking instructions, to put their views of the law with reasonable brevity, and in a digestible form. Orders appealed from reversed, and new trial granted.

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

large amount of personal property, including the property in controversy here. On the following day the plaintiff, in his individual capacity, executed to the defendant a lease of this same property for the term of one year. It is claimed by the plaintiff that the bill of sale was an absolute conveyance of the property in satisfaction of the judgment due the estate, and so it appears to be upon its face, while the defendant claims that the bill of

PATERSON, J., did not participate in the sale was executed as a mere security for the

decision of this cause.

(79 Cal. 268)

AFFLERBACK . MCGOVERN. (No. 11,930.) (Supreme Court of California. May 25, 1889.)

payment of the debt, and that the lease back was made upon an express verbal agreement between the parties that the defendant should hold the property under the lease, and pay the rent, which was to be applied in satisfacment being so satisfied, the property was tion of the judgment, and, upon the judgtion of these instruments it was found that again to be his. Subsequently to the executhe defendant owned but a one-half interest in the property, the other one-half being 2. Where an administrator pays and satisfies a owned by one Jean Sere, as a partner of the judgment in favor of the estate against a third party, and takes a bill of sale of personal property defendant. In a litigation between Sere and to himself, as administrator, from the third party the defendant, involving the title to the in consideration of such payment, the sale is to property, Sere was determined to be the him personally, and the reference to him as ad-owner of a one-half interest therein, and the ministrator is descriptive of the person.

REPLEVIN-COMPLAINT-SALE TO ADMINISTRATOR. 1. A complaint in a suit to recover personal property, alleging a cause of action existing more than four years before the suit, and not at that time, is bad.

Department 1. Appeal from superior court, city and county of San Francisco; M. A. EDMONDS, Judge.

J. W. Harding, for appellant. J. C. Bates, for appellee.

property here in controversy was ordered to be sold. Execution had issued, and the property was about to be sold. While the property was in that situation, the defendant, acting with the attorney for the plaintiff, purchased from Sere his interest in the prop

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

ON PETITION FOR REHEARING.
(June 19, 1889.)

In bank.

erty in order to avoid the sale upon execu- [ion filed March 13, 1889.) The judgment tion, and furnished to the plaintiff's attor- and order denying a new trial are reversed, ney the sum of $225 to be paid therefor. and the cause remanded. The attorney of the plaintiff made the purchase of the property, and took a bill of sale from Sere to the plaintiff. There is no evidence showing that this bill of sale to the plaintiff was made with the consent of the defendant, and it is an admitted fact that the purchase money was paid by him. The defendant testifies positively that the bill of sale was made to the plaintiff without his knowledge or consent, and the only evidence to the contrary is that of the attorney for the plaintiff, who testified as follows: "Question. Were you authorized to do that by your client, McGovern? Answer. Was I authorized to do what? Q. To take the bill of sale of Sere's half interest in this property to Afflerback, instead of making it to McGovern. Did McGovern authorize you to do that? A. In effect, he did. The sheriff had succeeded in getting a part of this property, and the other part was concealed from the sheriff, and upon my demand McGovern delivered the other part to me as agent of Afflerback, and the next day or two brought me this $225, and paid me for Sere's interest." This testimony wholly fails to show any authority given by the appellant for the taking of this bill of sale to the plaintiff instead of

himself.

WORKS, J. The petition for rehearing is denied, but upon a more careful examination of the bill of sale from the defendant to the plaintiff, for the property in controversy, we are of the opinion that it should be construed as being a bill of sale to him, individually, and not as administrator. The reference to him should be regarded as descriptive of the person. Therefore, if it be made to appear on a second trial, as claimed in the petition for rehearing, that the plaintiff paid and satisfied the judgment held by the estate, and the bill of sale was given in consideration of such payment, it had the effect to vest the title to the property in him, if all other things necessary to pass title to personal property were performed.

We concur: BEATTY, C. J.; SHARPSTEIN, J.; PATERSON, J.; THORNTON, J.; McFarLAND, J.

(79 Cal. 336)

PEYRE . PEYRE. (No. 11,834.)

DIVORCE-ALIMONY AND COSTS.

1. Civil Code Cal. § 136, providing that in an action for divorce, if relief be denied the plaintiff, the court may direct that the husband maintain the wife or children, does not authorize an allowance of permanent alimony in such a case upon the mere allegations by defendant of her husband's cruelty, without proof.

These three written instruments-the bill of sale to the plaintiff as administrator of Cord Pope, the lease from him individually (Supreme Court of California. May 30, 1989.) to the appellant, and the bill of sale from Sere to the respondent--are the only evidences of title in the respondents, and we think they wholly fail to show a right of recovery on his part. The first bill of sale, admitting it to be an absolute conveyance of the property, vested the title in the estate of Cord Pope, and not in the respondent. The second bill of sale, having been made to him without authority from the appellant, who paid the purchase money for the property, vested no title in him that he can assert as against the appellant. Admitting that an administrator may sue in his individual name to recover property belonging to the estate, it is conceded here that at the time this suit was brought the appellant had ceased to be the administrator of the estate of Cord Pope, and for that reason no cause of action existed in him.

We think, for the reasons stated, the verdict of the jury was not sustained by the evidence. Other questions are made upon the instructions, but the view we take of the merits renders it unnecessary to consider them.

The point is made by the respondent that we cannot consider questions made upon the statement, for the reason that the notice of intention to move for a new trial is not set out therein; but we have held in a late case that it is not necessary to bring the notice of intention to move for a new trial to this court. Pico v. Cohn, 20 Pac. Rep. 706, (opin

2. Under Civil Code Cal. § 137, authorizing alimony pendente lite to be granted to enable the wife to maintain or defend the action, temporary quired, and no proof is necessary to assist the alimony and reasonable attorney's fees may be recourt in fixing the amount of the fees, or to show that the husband has property with which to pay the amount ordered to be paid.

Commissioners' decision. Department 2. Appeal from superior court; T. H. REARDEN, Judge.

Action by Jean Peyre against Annie Peyre for divorce. Relief denied to plaintiff, who was ordered to pay permanent alimony and counsel fees. Plaintiff appeals.

Langhorne & Miller, for appellant. E. P. Cole and R. Johnson, for appellee.

BELCHER, C. C. Plaintiff and defendant were husband and wife. Plaintiff commenced an action for divorce on the ground of defendant's habitual intemperance. Defendant, by her answer, denied the charge made against her, and as a separate defense alleged that while she was sick plaintiff, with intent to make her worse, compelled her to drink some mixture concocted by him, and that after she had taken it she became so ill that she was unable to leave her bed, "and while she was

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ill the plaintiff caused her to be removed to said: "The objects of the provision evidenta hospital for inebriates, and had her im- ly are to enable the court in a proper case to prisoned therein without her consent for the aid in a restoration of domestic harmony, to period of one week; that there was no reason prevent the breaking up of the family,-esor cause for the act of plaintiff, but that he pecially where there are children of tender did so to compel defendant to leave him, and age and delicate health, and to require pehe has forced her to leave and abandon her nurious husbands to furnish decent support home, and to seek the protection of friends." for their wives, and for the care and educaIt is then alleged that defendant has no tion of the children, where the parties have means to defend the suit or on which to live, no cause for divorce on statutory grounds, and that plaintiff is worth the sum of $3,000. or where the innocent party has condoned the The prayer is for judgment in her favor, and offense." In view of these decisions we that plaintiff be compelled to pay her alimony think the court erred in granting to defendand counsel fees. The cause was tried, and ant permanent alimony. The affirmative defindings filed stating, in effect, that defend-fense set up in the answer was deemed to be ant had not been guilty of habitual or any in- denied, and there is nothing in the record temperance whatever. Thereupon judgment was entered, denying the plaintiff's prayer for a divorce, and requiring him to pay defendant "permanent alimony in the sum of $20 per month, payable in advance on the first day of each and every month hereafter, beginning on the 1st day of April, A. D. 1886, and the further sum of $20 attorney's fees." From this judgment plaintiff appealed, and has brought the case here on the judgment roll. He now asks that that part of the judgment which awards alimony and counsel fees be reversed, on the ground that it is wholly unsupported by any findings of fact.

showing that any proof was offered in support of those allegations, or tending to show that the parties were not living together, or that defendant then needed, or would need, alimony for her support and maintenance. If such proofs were offered the court should have found the facts so that it could be seen that the relief granted was necessary and proper.

2. Section 137 of the Civil Code provides that "when an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action." Under this section the court was authorized to require the plaintiff, by an order entered for that purpose, to pay the de

Nor

able attorney's fee. And no testimony was
necessary to determine what the amount of
the fee should be. "The court could deter-
mine from its own experience and from the
facts and circumstances of the case, as they
appeared to it from the pleadings and other
papers and proceedings, what was a reason-
able fee." Llamosas v. Llamosas, 62 N.
Y. 618; Estate of Dorland, 63 Cal. 282.
was it necessary to appear that plaintiff had
money or property with which to pay the
amount ordered to be paid. "The allowance
may be based upon his earnings or his abil-
ity to earn money. Eidenmuller v. Eiden-
muller, 37 Cal. 364. We conclude, there-
fore, that the judgment, in so far as it awards
permanent alimony, should be reversed, and
that in all other respects it should stand af-
firmed.

1. The judgment, in so far as it gives alimony, was evidently based upon the supposed authority of section 136 of the Civil Code, which reads as follows: "Though judg-fendant temporary alimony, and a reasonment of divorce is denied, the court may, in an action for divorce, provide for the maintenance of the wife and her children, or any of them, by the husband." That section was before the court for consideration in Hagle v. Hagle, 68 Cal. 588, 9 Pac. Rep. 842, and 74 Cal. 608, 16 Pac. Rep. 518. In the former case the trial court found, among other things, that while there was no sufficient cause for a divorce the husband's conduct towards his wife was cold, harsh, and disagreeable, making it unpleasant for her to live with him; that the marriage was an unhappy one from the beginning; that there was no love between the parties, and no probability that they would ever live together again as husband and wife; and that, under the circumstances as shown, $25 per month was a reasonable sum to be provided by the husband for the maintenance of the wife. Judgment was accordingly entered, denying a divorce, and requiring the husband, until the further order of the court, to pay to his wife for her maintenance the sum of $25 per month. And this judgment was affirmed on appeal. In the last case it was held that the courts of this state have no authority to grant a divorce a mensa et thoro, or to compel a husband to support his wife while she is living separate and apart from him, against his will and consent, without any statutory ground for an absolute divorce, or any statutory ground for her absence from his home. And speaking of section 136, supra, the court

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

PER CURIAM. For the reasons given in the foregoing opinion, the judgment, in so far as it awards permanent alimony, is reversed, and in all other respects it is af

firmed.

(79 Cal. 402)

FENTON . ALSIP et al. (No. 12,615.) (Supreme Court of California. May 31, 1889.)

TENDER.

plaintiff acquired no title to the land actually purchased, but received a deed to another lot, it was

In a suit to recover money paid for land, where

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cost and expense. The findings and judgment were in favor of defendant, a new trial was asked for and granted, and the appeal is from that order. The motion for a new trial was based upon the alleged insufficiency of the evidence to justify the decision, and upon errors in law occurring at the trial; but it does not appear upon what ground it was granted.

WORKS, J. This is an action to recover money paid as a part of the purchase money We think the order must be affirmed. It for real estate for which the plaintiff claims is settled law in this state that motions for he got no title. There was a nonsuit grant- new trial on the ground of the insufficiency of ed by the court below on the ground that the the evidence to justify the decision are adplaintiff had received a deed for the proper- dressed to the sound legal discretion of the ty, and, the title having vested in him, he trial court, and that when such motions ar must tender a reconveyance of the property granted the orders will not be reversed on before he could recover back the money paid appeal unless it clearly appears that there by him. But the evidence shows, beyond was an abuse of discretion. Phelps v. any question, that the property deeded to the Mining Co., 39 Cal. 410; Pierce v. Schaden, plaintiff was not the property purchased by 55 Cal. 406; Pico v Cohn, 67 Cal. 258, 7 Pac. him, but of lots in a different block, and that Rep. 680; Breckenridge v. Crocker, 68 Cal. immediately upon discovering the fact he de- 403, 9 Pac. Rep. 426. We see no manifest clined to go further with the trade, and did abuse of discretion here. Without stating not take the deed, although it had actually particularly what was proved, we think it been placed in his hands. This was not a enough to say that there was evidence tenddelivery of a deed for the property the plain- ing to sustain the plaintiff's contention. In tiff had purchased, and vested no title in view of this evidence the court may have him. It was not necessary, therefore, that thought that it erred in making its findings, he should have tendered a conveyance of the and that the ends of justice would be promoted property before bringing this action. Judg- by a new trial. We advise that the order apment reversed. pealed from be affirmed.

We concur: MCFARLAND, J.; SHARPSTEIN, J.; THORNTON, J.; PATERSON. J.

(79 Cal. 340)

PACIFIC ROLLING-MILL Co. v. TELEGRAPH
HILL R. R. Co. (No. 11,421.)
(Supreme Court of California. May 31, 1889.)
NEW TRIAL-DISCRETION.

Granting a new trial for the insufficiency of the evidence to support the findings of fact is discretionary, and such an order will not be reversed unless it clearly appears that the trial court abused its discretion.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; F W. LAWLER, Judge.

Action by the Pacific Rolling-Mill Company against the Telegraph Hill Railroad Company to foreclose a lien for materials supplied. Trial by the court, and judgment for defendant, which was set aside by the court, and a new trial granted. Defendant appeals.

Olney, Chickering & Thomas, for appellant. T. Z. Blakeman, for respondent.

BELCHER, C. C. This action was brought to foreclose a lien for materials furnished by plaintiff, and used in the construction of defendant's cable railroad. The complaint alleged that the materials were sold and delivered by plaintiff to defendant. The answer denied this, and alleged that the road was constructed by one Fazackerley, under a contract by which he, for an agreed price, was to, and did, perform all the labor and furnish all the materials necessary therefor at his own

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DREYFUSS et al. v. GILES. (No. 12,430.) (Supreme Court of California. May 31, 1889.) FORECLOSURE of Mortgages.

Under Code Civil Proc. Cal. § 1500, a suit may be brought by the holder of a mortgage to enforce the same against the property subject thereto, where all claim against other property has been waived in the complaint, even after settlement and final distribution of the estate.

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

J. I. Caldwell and Cross & Simonds, for appellants. Gaylord & Searls, for respondent.

WORKS, J. This is an action to foreclose a mortgage. The complaint alleges the death of the mortgagor, the settlement of the estate, the distribution of the mortgaged property to his daughter, an only heir, and the sale of the mortgaged property by her to the defendants in this action. It is also averred in the complaint that the mortgage was not due at the time the estate was closed, and final distribution made, and was not presented as a claim against the estate. The complaint expressly waives all claims against any other property of the estate except the lands described in the mortgage. In their answer the defendants plead the settlement and final distribution of the estate as a bar to the

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