It is apparent that the defendants, by their own testimony, did not enter upon the mine under any title of claim of right which they had to the mine. They entered only because they believed or suspected that the plaintiffs' claim of title was defective. After their entry without right or color of title they went through the forms of making a location, and posted a notice thereon, which they caused to be filed in the Recorder's office of the district. Upon this testimony it was not error for the Court below to refuse to give to the jury the following instruction, at the request of the defendants, to-wit: "If the jury believe that defendants entered upon the mines peaceably and in good faith, believing that they were open to re-location, then the entry was not unlawful, and they are entitled to your verdict." The Court had already correctly given them the law upon the subject by telling them that if the defendants entered peaceably, in good faith, under claim or color of title, they were entitled to a verdict; and again, if they entered under claim or color of right peaceably and in good faith, believing themselves to be the true owners, they were entitled to a verdict. Nor did the Court err in instructing the jury that a party cannot enter for the purpose of obtaining title or color of right. He must have it before he entered. This was correct, because, as we have already shown, title or color of right was necessary as a basis upon which they could found their good faith in making the entry. They could not enter without it for the purpose of acquiring it after entry. Taken as a whole, the entire charge of the Court fully and fairly submitted the questions involved in the case to the consideration of the jury; and we are not inclined to disturb the judgment because some of the instructions which were given are subject to mere verbal criticism. (Brooks vs. Crosby, 22 Cal. 42.) It is also assigned as error that the Court erred in sustaining an objection to the following question put to a witness: "Do you know what the general belief was in reference to those mines, as to whether they were abandoned or not?" The objection to the question was properly sustained. What was the belief of defendants was admissible upon the question of good faith in making their entry, but the general belief of the community was not an element of their conduct, or in the defense of the case before the Court. We see no errors in the proceedings which prejudiced the defendants. The verdict is fully sustained by the evidence. Judgment affirmed. We concur in the judgment: Myrick, J., Thornton, J. DEPARTMENT No. 1. [Filed July 28, 1880.] JOHN MCBETH ET AL., RESPONDENTS, VS. A. D. MCINTYRE ET AL., APPELLANTS. LIABILITY ON BOND OF INDEMNITY. Parties to a bond of indemnity to Sheriff become, with that officer, joint trespassers, and jointly liable for the damages sustained by parties upon whom process was unlawfully served; and the latter are entitled to sue separately or jointly, and the judgment against one would be no bar to an action against others unless fully satisfied. RELATION OF PARTIES TO BOND OF INDEMNITY. The liability of indemnitors to an officer arises out of contract. If the officer has not sustained any damage, there is no breach of the condition of the bond. A judgment against the officer cannot be considered in the light of such loss or damage as would enable him to maintain an action on the bond, unless he has paid the same or some part thereof. Appeal from the District Court of the Twenty-first Judicial District, Plumas County. J. D. Goodwin, for respondents. W. H. Kellogg and R. H. F. Variel, for appellants. Ross, J., delivered the opinion of the Court: The action is upon a bond given by defendants to M. B. Bransford, a Constable of Indian Township, Plumas County, to indemify him for selling under an execution, issued on a judgment in favor of A. D. McIntyre against J. W. Shiers, certain personal property of which the plaintiffs in this action claimed to be the owners. The condition of the bond is as follows: "Now, therefore, the consideration of this obligation is such that if the said A. D. McIntyre, Wm. Stevens, and Duncan McIntyre, their heirs, executors, and legal represenatives, or either of them, shall well and duly indemnify and save harmless the said constable, his heirs and legal representatives, and from all damage, expense, cost, and charges, and against all loss and liability which he, the said Constable, shall sustain or in any wise be put to, for or by reason of the attachment and sale by the said constable of this said property, claimed as aforesaid,, then the above obligation to be void; otherwise to remain in full force and virtue.' Upon receiving the bond, the officer went on and sold the property at the execution sale, notwithstanding the claim made by the plaintiffs; but after the sale the plaintiffs brought suit against Bransford for the conversion of their property. Upon being sued, the latter notified one of the indemnitors of the bringing of the suit. The attorney of the defendants in this action appeared in that action and made defense. Judgment was recorded against Bransford for $445 damages and $72.60 costs. Upon the rendition of the judgment, Bransford assigned the indemnity bond to the plaintiffs, "in consideration," says Bransford, "that I was released from all liability to plaintiffs on account of the judgment against me, and I have never paid anything on that judgment. By giving the bond of indemnity, the defendants participated in the trespass of the officer, and they became, with him, joint trespassers, and jointly liable for the damages which the plaintiffs might sustain by their unlawful acts. (Lewis vs. Johns, 34 Cal. 633.) To recover such damages plaintiffs were entitled to sue them separately or jointly. They did sue the officer, and recovered judgment against him. But the recovery of that judgment did not prevent them from afterward suing the others for the same trespass. The judgment so recovered could not be used as a plea in bar to such suits, unless it was fully satisfied; and having been recovered against the officer in an action in which the indemnitors had an opportunity to defend, and which they in fact defended, it was binding, until satisfaction, on each and all of them in any action or actions which the plaintiffs might afterwards bring against the indemnitors as joint trespassers. (Dutil vs. Pacheo, 21 Cal. 438; 13 Cal. 297.) But the relation between the indemnitors and the officer is different from the relation between them and the plaintiffs. The liability of the former to the plaintiffs arises out of tort; while their liability to the officer arises out of contract, and depends simply upon the terms of their contract. By their bond they contracted to save harmless the officer from all damages, expenses, costs, and charges, and against all loss and liability which he might sustain or be put to by reason of the sale of the property claimed by the plaintiffs. But if the officer has not sustained any damage, loss, and liability, there is no breach of the conditions of the bond. Judgment, it is true, has been recovered against him on account of the acts for which the bond was given; but the plaintiffs have not averred in their complaint, and there is consequently no proof, that the officer has paid any part of the judgment, or has incurred any liability in consequence thereof. On the contrary, the officer himself has proved on the trial that he had not paid anything on the judgment, and that he was released from all liability to the plaintiffs on account of it. Under these circumstances, we do not see that the officer himself could maintain an action upon the bond; and the plaintiffs, as assignees of the bond, are in no better position than the officer himself. If the officer has not paid anything on the judgment, and has been released from all liability on account of it, there is no breach of the condition of the bond for which the defendants are liable. In Lott vs. Mitchell, 32 Cal. 24, the Court says: "The obligors do not undertake that suits shall not be brought against the officer, nor that judgment shall not be rendered, nor that executions shall not be issued against him. On the contrary, the undertaking assumes that such things shall or may arise, and provides, if they should, that the obligors will indemnify the officer for any actual damages that he may sustain by reason thereof. No such damages are averred. The complaint does not allege the payment of the judgment, and consequently there has been no breach of the indemnifying bond. The Sheriff was not indemnified against a liability, but against actual damages; and he sustains no damages until he pays." We are of opinion that the plaintiffs have shown no cause of action against the defendants upon the bond, and that the Court erred in instructing the jury to return a verdict for the plaintiffs. Judgment reversed and cause remanded. IN BANK. [Filed August 6, 1880.] JOHN SHEEHY, PETITIONER, VS. SAMUEL A. HOLMES, SUPERIOR JUDGE, RESPONDENT. PETITION FOR WRIT OF PROHIBITION. Appeal from the Superior Court of Fresno County. Grady & Griffith, J. C. Burch, and C. G. Sayle, for petitioner. H. J. Dixon and J. H. Smythe, for respondent. By the Court: In this cause no answer has been filed by the respondent, nor was there any appearance on his behalf at the hearing. We have examined the case, and think the petitioner entitled to the writ prayed for. Let the peremptory writ issue. DEPARTMENT No. 1. [Filed July 28, 1880.] No. 7128. ISIDORE DANIELWITZ, APPELLANT, VS. F. P. F. TEMPLE ET AL., RESPONDENTS. JURISDICTION IN LAND CONTEST. The judicial department of the State has no jurisdiction of a contest between opposing applicants for the purchase of lands belonging to the State, unless referred to it by the proper official. Appeal from the District Court of the Seventeenth Judicial District, Los Angeles County. W. F. Hazard, for appellant. W. Neely Johnson, G. W. Nourse, A. W. Hutton, and Thom & Stephens, for repondents. By the Court: The action was dismissed by the Court below upon the ground that the complaint did not show by proper averments that the alleged contest between the parties had been, by order of the Surveyor-General, referred to the Court for trial. The judicial department of the State has no jurisdiction of a contest between opposing applicants for the purchase of lands belonging to the State, unless it has been specially referred to a Court by the Surveyor-General or Register of the State Land Office, according to the provisions of the Act for regulating the sale of such lands. It is by virtue of the order of reference that a Court acquires jurisdiction to hear and determine the contest, and, as a jurisdictional fact, the order must be proffered or averred in the complaint, and proved. In Berry vs. Cammet, 44 Cal. 347, the Court says: "In order to give a Court jurisdiction of a controversy arising between applicants for the purchase of lands of the State, the facts conferring jurisdiction must be stated in the complaint." There is no error in the record. Judgment affirmed. (Morrison, C. J., sat in the foregoing case in the place of Ross, J., the latter being disqualified and taking no part in the decision.) |