PEOPLE v. MANUEL. (Cr. 641.) (District Court of Appeal, Second District, Division 1, California. May 12, 1919.) 1. JURY 116 CHALLENGE TO PANELFORMS FOR DRAWING AND RETURN OF JURY. Pen. Code, § 1059, as to challenge to panel for departure from forms prescribed in respect to drawing and return of jury, has no application where jury constituting panel is not a drawn jury.

2. JURY 116-CHALLENGE TO PANEL-BIAS OF SHERIFF.

Bias of the officer who summoned the jurors, by Pen. Code, § 1064, made ground of challenge to panel when it is formed from persons whose names are not drawn as jurors, held not shown by the fact that in filling special venire for trial of a woman for forgery, women only, under Code Civ. Proc. § 190, equally competent with men, were summoned, nor by fact that they were all from a part of the county other than where the offense was charged to have been committed.

Appeal from Superior Court, San Bernardino County; J. W. Curtis, Judge.

Anna Manuel was convicted of forgery, and she appeals. Affirmed.

A. S. Maloney, of San Bernardino, for appellant.

U. S. Webb, Atty. Gen., and Joseph L. Lewinsohn, Deputy Atty. Gen., for the People.

SHAW, J. Defendant appeals from a judgment which followed her conviction of the crime of forgery.

The sole error urged as ground for reversal is the ruling of the court in denying defendant's challenge interposed to the panel of jurors summoned to try the case. The ground of the challenge was that

"There has been a substantial departure from the form provided by law in this: That the sheriff in summoning the jury failed and intentionally omitted to draw the jury from the

In support of the motion, it was made to appear that the court made an order directing the sheriff to summon 25 good and lawful persons from the body of the county to act as jurors in the trial of the case; that in compliance with the order the sheriff idents of that part of the county known as summoned 25 women, all of whom were resfrom the jury was that the county had no Upland; that his reason for omitting men accommodations for keeping a mixed jury over night, and, in his opinion, a mixed jury "would not be nice, provided they were held over and they had night sessions"; that he had no prejudice or feeling against the defendant, and in summoning the jury did not omit men therefrom in order to secure a jury that would convict defendant. [1] Section 1059, Pen. Code, provides that

"A challenge to the panel can be founded only on a material departure from the forms prescribed in respect to the drawing and return of the jury in civil actions, or on the intentional omission of the sheriff to summon one or more of the jurors drawn."

A sufficient answer to that part of the challenge based upon the alleged departure from the forms prescribed in respect to the drawing and return of the jury is that the jury constituting the panel challenged was not a drawn jury, and hence there could be no departure from the forms prescribed in respect to the drawing and return of the jury, within the meaning of the section quoted.

[2] Since it was not a drawn jury, defendant's right to challenge the panel is measured by section 1064, Pen. Code, which pro

The claim of bias on the part of the sheriff is predicated upon the fact that in filling the special venire he summoned women only who were residents of that part of the county known as Upland. There is no merit in the contention. That the persons summoned were good and lawful persons and in every way competent to act as jurors is not questioned. No difficulty appears to have been had in obtaining from those summoned a jury satisfactory to defendant; nor is any claim made that her substantial rights were in the slightest degree prejudiced by reason

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(182 P.)

of the acts of the sheriff. In the absence of, brief embracing any portion of the record, and such showing, mere irregularities in the ac- the brief contains no part of the pleadings or tion of the officer in summoning persons to excerpts from the evidence directing the court's fill the venire would constitute no ground attention to any portions thereof, as required by for the granting of a challenge to the entire Code Civ. Proc. § 953c, and appellant's attenpanel. Wadsworth v. State, 9 Okl. Cr. 84, tion was directed thereto by the brief of re130 Pac. 808; People v. Richards, 1 Cal. of the defect and no response to the order to spondent, and he made no effort at correction App. 575, 82 Pac. 691. show cause, the appeal will be dismissed and the judgment affirmed.

Considered as jurors, the law makes no distinction between men and women. Subject to qualifications applicable alike to each, they are equally competent to act as jurors. Section 190, Code Civ. Proc. Hence it cannot be said the sheriff, in summoning all women, confined himself to a certain class as distinguished from another class, any more than had he summoned all men, or a mixed jury composed of a greater number of either sex than the other.

The fact that all the jurors were residents of the vicinity of Upland furnishes no ground upon which to base the claim that the sheriff was biased. People v. Vaughn, 14 Cal. App. 201, 111 Pac. 620, where it is said:

"The offer of the defendant was to prove that the sheriff summoned the special venire 'entirely from the city of Marysville, where the feeling and prejudice against the defendant was strong. From this he proposed to contend that 'there must have been prejudice and bias on the part of the officer. The conclusion would not be warranted from the circumstance relied upon."

Appeal from Superior Court, City and County of San Francisco; John J. Van Nostrand, Judge.

Action by Thomas Ockenden against Henry C. Cutting. Judgment for plaintiff, and defendant appeals. On order to show cause why appeal should not be dismissed. Ordered that judgment be affirmed.

Douglas A. Nye, of San Francisco, for appellant.

Arnold W. Liechti, of San Francisco, for respondent.

RICHARDS, J. This matter is presented upon an order to show cause why the appeal should not be dismissed for failure on the part of the appellant to comply with the requirements of section 953c of the Code of Civil Procedure. The appeal was by the alternative method, and a typewritten transcript of 119 pages has been filed. The main question discussed in appellant's opening brief is the sufficiency of the pleadings and No claim is made in the instant case that evidence to support the judgment appealed any feeling of prejudice against defendant from. No supplement is appended to appelexisted among the residents of Upland; on lant's brief embracing any portion of the the contrary, the very purpose of the sheriff, record, nor is there printed in said brief any as shown, was to obtain a jury from a sec- part of the pleadings or any excerpts from tion of the county other than that in which the evidence (except one brief half-page) dithe crime was alleged to have been commit-recting the court to the portions thereof upon ted. There is nothing in the record to which our attention is directed which even tends to show the slightest bias on the part of the officer in summoning the jurors; on the contrary, it appears that he acted with entire impartiality and without prejudice to the substantial rights of defendant. The judgment is affirmed.

which the appellant relies. The existence of that portion of section 953c, Code of Civil Procedure, which requires that these things be done, has been utterly ignored in this case. This court and the Supreme Court have repeatedly pointed out the necessity of a compliance with the requirements of this section of the Code before any duty devolves upon the court to so far examine into the merits of

We concur: CONREY, P. J.; JAMES, J. the appeal as to search through the record for

that which should have been embraced in the brief. Moore v. Guajardo, 174 Pac. 92; Scott v. Hollywood Park Co., 169 Pac. 379; Chandlee v. McCalla (Sup.) 178 Pac. 709.

The attention of the appellant having been directed by the brief of respondent to his failure to comply with the statute in this re

gard, and no effort at the correction of the defect having been attempted, nor any response made to the order to show cause, it is therefore ordered that the judgment herein shall be, and the same is hereby affirmed.

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(41 Cal. App. 134)

out in the amended complaint, were made in EGENBERGER et ux. v. NEUMAN et al. the alternative or disjunctive form—that is,

(Civ. 2766.)

(District Court of Appeal, First District, Division 2, California. May 9, 1919.)

1. BILLS AND NOTES 32, 462(1)—ACTIONSPARTIES "PROMISSORY NOTE."

While a note payable in the alternative to one of two persons is not a "promissory note,' if, however, it purports on its face to be for value received, the setting forth of the note according to its terms is sufficient to entitle the plaintiff to recover as on a contract.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Promissory Note.]

they were made to "Valentine Egenberger or Katherine Egenberger."

[1] There are only two authorities cited to us directly upon this question, neither one of which is from this state. The appellants rely upon the case of Musselman v. Oakes, 19 Ill. 81, 68 Am. Dec. 583, in which it is said that a note payable in the alternative to one of two persons is not a promissory note and cannot be sued on as such. This contention may be granted; but in the instant case the action is brought to collect the debt secured by a mortgage regardless of the means by which the debt was evidenced. Furthermore, in reply to the contention of counsel based upon the Oakes Case, we may say that, while it has been held that a note payable in the alternative is not a promissory note, if, however, it purports on its face to be for value received, the setting forth of the note according to its terms is a sufficient statement of consideration to entitle the plaintiff to recover as on a contract. Walrad Where a note and mortgage securing the V. Petrie, 4 Wend. (N. Y.) 575, cited in 1 Dansame were made in the alternative, that is, pay-iel on Negotiable Instruments, § 103. The able to one or another, and both the payces joined in a suit to foreclose the mortgage, held, that the note and mortgage were not void, and foreclosure might be decreed.

2. MORTGAGES 137-NATURE OF ESTATE OF PARTIES.

Under Civ. Code, § 2920, a mortgage is merely a contract by which specific property is hypothecated for the performance of an act, the statute changing the original character of a mortgage so it is no longer a conveyance of land, but a mere security. 3. MORTGAGES

23-VALIDITY-PARTIES.

record in the present case discloses that the note stated on its face it was given for a valuable consideration.

[2, 3] However, the case of Seedhouse et al. v. Broward, Adm'r, 34 Fla. 522, 16 So. 425.

Appeal from Superior Court, Alameda is a case covering a very similar state of County; J. J. Trabucco, Judge.

facts in so far as the language of the note Action by Valentine Egenberger and Kath- and mortgage is concerned. In that case, as erine Egenberger, his wife, against August in this, the action was to foreclose a mortH. Neuman and others, and J. E. Davis and gage securing a note, the plaintiffs being another. From a judgment for plaintiffs, Henry Seed house and Helen Seedhouse, his the last-named defendants appeal. Affirmed. wife. There, as here, a demurrer was interposed on the ground that the note and mortJ. M. Kinley, of San Francisco, for ap-gage were in the alternative. The court in pellants. that case pointed out that the mortgage was Dibert & Stiefvater and Albert P. Stief- not a conveyance of real property, but a convater, all of Oakland, for respondents.

LANGDON, P. J. This is an appeal by defendants J. E. Davis and Alice M. Davis from a judgment and decree foreclosing a mortgage against them. Appellants are the holders of the legal title to the property affected by the foreclosure, title having passed to them through mesne conveyances from August H. Neuman and Ida Neuman after the lien of the mortgage had attached. The appellants demurred on general and special grounds to plaintiffs' amended complaint. Their demurrers were overruled, and upon their failure to answer judgment was entered against them.

There is but one question upon this appeal, and that is: Does the amended complaint state facts sufficient to constitute a cause of action? The argument of appellants is predicated upon the fact that the note, and mortgage securing the same, and which were set

tract between mortgagor and mortgagee whereby a specific lien was created upon certain property; that, viewed as a contract, requiring the interposition of judicial action to enforce its provisions, there was no reason why the fact that it and the debt secured were made payable to one or the other of two parties definitely named therein should render such contract void. The court pointed out that there was some variance in the authorities as to whether in such a case the action could be maintained alone by either of the parties named as alternative payees or whether it must be instituted jointly y both of the payees, but added that the better practice was for all of the parties named as alternative payees to join in the suit to enforce such a contract. The reasoning of this Florida case applies precisely to the facts of the instant case, and to the legal effect of mortgages in this state. For in this state also the original character of mortgages has

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(182 P.)

undergone a change, and they have ceased til after the grantor had conveyed the premisto be conveyances except in form. They pass es to another, and such person had mortgaged no estate in the lands and are mere security. the same to a bank which recorded its mortUnder the Code a mortgage is merely a con- gage, the bank was under Civ. Code, §§ 1214, tract by which specific property is hypothe- 1215, a bona fide incumbrancer, and its rights are prior to those of defendant. cated for the performance of an act. McMillan v. Richards, 9 Cal. 365, 70 Am. Dec. 655; Fogarty v. Sawyer, 17 Cal. 589; Dutton v. Warschauer, 21 Cal. 609, 82 Am. Dec. 765; Mack v. Wetzlar, 39 Cal. 247; Savings & Loan Soc. v. McKoon, 120 Cal. 177, 52 Pac.gage having been recorded before conveyance 305; Civ. Code, § 2920.

In the present case both parties named in the note and mortgage have joined in the suit. It would seem, therefore, that all the elements exist here to make the reasoning in the Florida case applicable.

There is no defense made on the merits, but appellants urge that the mortgage and note should have been reformed; that the

plaintiffs should have pleaded the true intent of the parties and made an issue of that matter. They cite the case of Pierson v. McCahill, 21 Cal. 122. That case holds that where, in reducing an agreement to writing, a material clause has been omitted by mistake, a party seeking to avail himself of the actual contract must obtain a reformation of the writing, either by a distinct proceeding to reform it or by special pleading of mistake in an action in which the contract is sought to be used, and asking its correction as independent relief. To the same effect are the other cases cited by the appellant upon this point. This rule, however, is wholly inapplicable here. The plaintiffs are not contending that a mistake has been made, or that the instruments do not express the true intent of the parties. Under our conclusion, herein expressed, the note and mortgage as executed are not void, and, as both parties named therein as alternative payees are plaintiffs in the suit, there is no occasion to ask for a reformation of the instrument, nor to allege any other intent of the parties than the intent appearing upon the face of the instruments; the instruments are sought to

be enforced as executed.

The judgment is affirmed.

We concur: BRITTAIN, J.; HAVEN, J.

(41 Cal. App. 124)

FOULGER v. TIDEWATER SOUTHERN
RY. CO. (Civ. 1861.)

2. MORTGAGES 536-BONA FIDE PURCHASER-EXTENT OF PROTECTION.

Where a bank which had a mortgage on lands was a bona fide incumbrancer, its mort

of a right of way to defendant, held that a purchaser at foreclosure sale was protected by the bona fides of the bank, and his rights are superior to those of defendant, even though he learned of defendant's asserted rights prior to the consummation of his purchase.

Appeal from Superior Court, Stanislaus County; W. H. Langdon, Judge.

Action by T. M. Foulger against the Tidewater Southern Railway Company. Judg. ment for plaintiff, and defendant appeals.

Affirmed.

Arthur L. Levinsky, of Stockton, for appellant.

Hawkins & Hawkins, of Modesto, for respondent.

HART, J. This is an action to quiet title and for damages for the wrongful taking of a certain portion of the land in dispute and for injury to the remaining portion.

On February 15, 1912, one James M. Johnson and his wife deeded to II. C. Leffingwell and Ella E. Leffingwell, his wife, a certain tract of land near Modesto, in StanisThe Leflaus county, containing 10 acres. fingwells, on December 17, 1913, conveyed the same land to Lottie R. Kerry and WilOn January liam J. Kerry, her husband. 16, 1914, the Kerrys borrowed from the Modesto Savings Bank $775 and executed a deed of trust, which was recorded January 26, 1914, to A. L. Cressey and J. J. McMahon, as trustees, to secure the payment of the note given for the amount of the loan. Default was made in the payment of said note and, after due proceedings, said trustees sold the property, under the terms of the deed of trust, to T. M. Foulger, the plaintiff herein, for the sum of $2.000, and executed a deed to the latter, dated July 15, and recorded July 21, 1916.

It was alleged in the complaint that, "subsequent to the execution of said deed of trust, the defendant, without any right or authority, entered upon said land and prem

(District Court of Appeal, Third District, Cal- ises and constructed thereon a ra road,"

ifornia. May 9, 1919. Rehearing Denied

by Supreme Court July 7, 1919.)

1. MORTGAGES 153-BONA FIDE PURCHASER-WHO IS.

Where a deed granting defendant a right of way over the land involved was not recorded un

which runs in a diagonal line across plaintiff's land. It was also alleged that the land was farming land, that it was necessary to irrigate the same, and that the construction of the railroad cut off plaintiff's ditches and water supply; that the construction of the railroad severed plaintiff's

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land into two fields, and that it was necessa- | Lindsey told him to go and see Mr. Bearce, ry for him to construct a crossing over said president of the defendant corporation, but railroad at a cost of $50; that it was neces- that he did not go to see him; he went to sary to siphon water across said railroad at his attorney, who began trying to get a seta cost of $100; that by reason of said sever- tlement out of the railroad. It appeared ance the market value of the land has de- that, in the month of May, 1916, and prepreciated $400; and that plaintiff is dam- viously to bidding on the property, having aged in the sum of $250 by reason of being in view the purpose of purchasing it, the deprived of the use of the land occupied. plaintiff visited and examined the property. Total damages in the sum of $800 were ask- At that time no work had been done on the ed for. rairoad right of way, and respondent saw no indications of a railroad or preparations to build one on and through the property. He then deposited $300, and entered into an agreement that he would bid at the trustees' sale or forfeit the $300. He stated that he bought the land after seeing the railroad there because if he did not he would have to forfeit the $300; that he would not have paid $2,000 for the property had he known the railroad was there when he "put his contract up."

The complaint was filed on September 3, 1917. On the 6th day of April, 1917, defendant recorded a deed from H. G. Leffingwell to Tidewater Southern Railway Company, conveying a right of way 50 feet wide across the land in question for railroad purposes, which deed was dated August 15, 1912.

T. M. Foulger, the plaintiff, was sworn as a witness, and testified that, some time prior to May 25, 1917, he examined the property in question; that at that time he saw no railroad across the land, saw nothing indicating a railroad and saw no stakes upon the ground; that, on July 15, 1916, he attended the trustees' sale of the property, and bid $2,000 for it, and in addition he was to pay the interest and taxes above that amount, amounting to $35, and that he did pay such sums for the property. He said that the railroad had been built through his land in a cut, the dirt being piled on both sides; that prior to the building of the road the land had been planted to grapes; that the grapevines had been plowed up and piled to one side; that on the east side of the track is a reservoir, about 14 by 16 feet in dimension, made of concrete. The right of way occupied about an acre of the land, and the amount on the east side of the track was about half an acre. It was necessary to pipe water under the railroad from the reservoir to the balance of the land. The witness testified as to what he thought would be the cost of piping, crossing the track, etc., and the value of the land taken and that severed.

J. R. Broughton, president of the Modesto Savings Bank, testified that at the date of the trust deed from the Kerrys the trustees, A. L. Cressey and J. J. McMahon, were directors of the bank; that they had nothing to do with making the loan more than approving it at the monthly meeting of the board of directors; that they are the parties who regularly act as trustees for the bank. Questioned as to what he did in making the loan, with reference to an examination of the land, the witness said: "Well, we were familiar with the quality of the land, and were satisfied it was good security for the amount we made the loan, and satisfied that the title was all right"; that they had an abstract prepared and relied upon that; that he had resided in Stanislaus county for 39 years, and for 30 years had been familiar with the quality and value of lands in the county; that at the time the loan was made to Mrs. Kerry he had no knowledge that the defendant claimed any interest in the land; that while the bank held the trust deed it never gave the railroad company a right to cross the land in question with a track.

Several witnesses testified as to the value of the land, and plaintiff rested.

On cross-examination the witness said that he was on the land on the 14th of July, 1916, the day before he bought it, and saw the railroad being constructed across the The defendant called as a witness its enland, and saw a construction train being gineer, J. C. Lindsey, who testified that, in operated on the track. He immediately November, 1911, a survey was made through went to Judge Broughton, president of the the lands now owned by plaintiff; that the Modesto Savings Bank, and asked him if he center line of the railroad was staked out knew anything about a right of way, that with stakes each 100 feet, the stakes being they had put a railroad there since he had approximately 8 inches above the ground; contracted to buy the land, and that Judge that, in July, 1915, another survey was Broughton replied to him; "I knew noth- made, and the stakes reset; that the original ing of it; they haven't got any right of way stakes were not there "by reason of the from me." That the witness investigated farmers' plowing them out and cultivating and found they had no right of way. That the lands"; that defendant began grading he did not go to the railroad company to on the land in question between June 15 see why they were on the land, but spoke and July 1, 1916, the grading was completed to their surveyor, Mr. Lindsey, probably about the 10th of July, and the track laid within a week after the sale. That Mr. on the 10th, 11th, and 12th of July; on July