(182 P.)

wills or transfers of the property after her (Civ. 2646.) | death; that "she was insane, feeble in mind, and mentally incompetent, and did not know

(41 Cal. App. 537)
BENNETT ▼. BENNETT et al.
(District Court of Appeal, Second District, Di-

vision 1, California. June 10, 1919.)

the difference between a deed and a will, and supposed when she signed said deeds that she was making a disposition of her property in the same way that she would by a will properly executed."

Based upon these allegations, and the alleged facts that on the 18th day of March, 1913, the said Mary K. Bennett was the own

JURY 14(6, 9)—Right to TRIAL BY-AcTION TO CANCEL DEED OR TO QUIET TITLE. An executor's action to declare testator's deeds null and void and require them delivered up and canceled, and to adjudge executor as such to be the owner of such land and bar de fendants' interest, right, and title therein, the complaint not stating a cause of action in eject-er and in possession of said lots, and that ment, must be regarded as one to set aside a deed or one to quiet title, and is entirely equitable, and plaintiff is not entitled to jury trial, and the court may disregard a verdict.

she died on the 16th day of October, 1913, and that the plaintiff is the duly qualified executor of her last will and testament, the plaintiff—

"therefore alleges that the said real estate

Appeal from Superior Court. Los Angeles hereinbefore belonged to the said Mary K. BenCounty; Curtis D. Wilbur, Judge.

Action by B. S. K. Bennett, executor of the estate of Mary Kingsford Bennett, deceased, against Nelson D. Bennett and another. Judgment for defendants, and plaintiff appeals. Affirmed.

nett at the time of her death, and she was the owner and holder thereof in fee simple, and the same is now a part of the estate of the said Mary K. Bennett and now belongs to this plaintiff as executor of the estate."

The prayer is that said deeds each be de

J. B. Holley, of Long Beach, and Levi D. clared to be null and void and be delivered Barr, of Los Angeles, for appellant.

J. D. Fredericks, Byron C. Hanna, Joseph Musgrove, and Charles W. Lyon, all of Los Angeles, for respondents.

up and canceled; that it be adjudged that plaintiff, as executor, is the owner of said land, and that the defendants have not any right, title, or interest therein; and that defendants be forever debarred from asserting any right, title, or interest therein.

CONREY, P. J. The plaintiff appeals from a judgment in favor of the defendants. We have thus carefully set forth the isThe complaint refers to three deeds made sues, and the only issues, proffered by the by plaintiff's testator-one made on March complaint, because the appeal rests solely 18, 1913, purporting to convey a described upon the ground that appellant has been delot to defendant Nelson D. Bennett; one prived of the right to a trial by jury, a right made on June 21, 1913, purporting to convey which he cannot maintain unless the action is, another described lot to defendant Edward in respect to some issue therein, an action at D. Bennett; and one made on August 12. law. The case was tried before a jury, 1913, purporting to convey a third described which rendered a general verdict for the lot to defendant Nelson D. Bennett. It is plaintiff. The court also submitted to the alleged that each of said deeds was executed jury six special interrogatories, of which while plaintiff's testator, Mary K. Bennett, the jury answered only three. Thereafter was insane. feeble, and mentally incompe- the judge who presided at the trial set aside tent to attend to her business affairs, and the verdict and made findings of fact and that at the stated times and while the said conclusions of law, pursuant to which he Mary K. Bennett was so insane, etc.. the de-caused judgment to be entered in favor of fendants unduly influenced her to make said the defendants. deeds: that the deeds were executed with- Appellant concedes that in a case in equiout any consideration therefor. It is further ty a jury acts only in an advisory capacity alleged that the deeds were never delivered, and its verdict may be disregarded by the but were handed to the defendant Edward court. He contends, however, that the case D. Bennett by the said Mary K. Bennett, is one "of mixed law and equity, the proposiwith instructions to take said papers and tion of delivery of deeds being purely a take care of them for her, for fear some-law proposition, and one in which the jury thing might happen to her; that thereafter, has the power to render a verdict"; that without said deeds ever having been deliv- therefore, if the court was not satisfied with ered, they were placed on record by the defendants for the purpose of cheating the said Mary K. Bennett and her estate out of said property. It is further alleged that said Mary K. Bennett never intended to part with the title or any part thereof during her lifetime, but intended said deeds to operate as

the verdict, its utmost power was the power to grant a new trial, wherein the plaintiff might again claim the right of trial by jury.

If this had been an action in ejectment, an action wherein the right to possession of real property was the real issue involved, and the delivery or nondelivery of the deeds

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Albert D. Trujillo, of San Bernardino, for appellant.

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

JAMES, J. Defendant was convicted of the crime of assault with intent to commit rape. The appeal is from a judgment of imprisonment and from an order made by the trial court denying to defendant a new

trial.

had been in dispute, we would have an action at law and issues at law upon which the parties would be entitled as of right to a jury trial. But the cause of action stated in the complaint here is entirely of an equitable nature. This is so, whether the action be regarded as one brought to set aside deeds obtained by fraudulent means, or be considered as an ordinary action to quiet title. The allegations concerning delivery of the deeds are no part of any cause of action pleaded by the plaintiff, except as those alIn support of the claim for reversal of the legations are incidental to the application judgment it is contended that the evidence made for equitable relief. The complaint does not show that the decedent at the time the jury, particularly in that the identity of was insufficient to warrant the verdict of of her death was in possession, or that plain- the defendant as being the person who comtiff ever was in possession, or that defend-mitted the alleged assault was not estabants are in possession of the property or any lished. We have carefully examined the part thereof, and does not demand possession. It does not state a cause of action in eject-transcript of the evidence, and think that sufficient evidence is shown to fully support ment. The answer raises issues upon the allegations of the complaint concerning the 13 years, was on her way home from school the verdict. A young girl, about the age of deeds made to defendants, and denies the in a country district in the county of Riverplaintiff's claim of ownership. It is silent side on a day in November, 1918. It was on the subject of possession. The defendapproaching dark, and her way led along an ants were content to rest on their denials uninhabited road, by the side of which was and to demand that the plaintiff take nothbrush or shrubbery. While passing along ing. If the judge had approved the verdict this road she was accosted and seized by a of the jury, the court's judgment would have Mexican, thrown to the ground, and the rape been and could have been nothing other than was attempted. In order to still her cries a decree in equity. The cause of action rethe assailant beat her in the face so that lied upon being solely of equitable cogni- blood ran, and the child became partially unzance, the plaintiff was not entitled to a conscious. However, before the act designed trial by jury. Davis v. Judson, 159 Cal. 121, had been accomplished, the assailant, evi113 Pac. 147. In such a case the verdict of dently becoming frightened at some noise, the jury, when allowed, was subject to the left his victim and ran away. Before doing rule that in equity cases such verdict is not so, however, he had not only beaten the girl, binding unless approved by the court. Sweetas we have narrated, but, as evidence of his ser v. Dobbins, 65 Cal. 529, 4 Pac. 540; Rock- ultimate purpose, had torn her underclothhill v. Parker, 22 Cal. App. 371, 134 Pac. 720. ing almost from her body. On the morning The judgment is affirmed. following the assault several Mexicans were brought before the little girl, and she identiSHAW, J.; JAMES, J. fied the appellant as being the man who had

We concur:

(41 Cal. App. 390)

PEOPLE v. LOZA. (Cr. 651.)

assaulted her. His description tallied with the picture of her assailant as it appeared to her mind. However, at the trial she would not swear positively that appellant was the assailant, and it is because of her qualified answers in this regard that counsel now con

(District Court of Appeal, Second District, Di- tends that no sufficient identification was vision 1, California. June 5, 1919.)

shown. Among the statements made in her testimony, the child, when asked if she was positive that the appellant was the man who assaulted her, said:

"Yes; I am positive of it, but I won't swear to it; I am as positive as possible to be, but I won't swear because I may be mistaken."

When asked as to what had been her state Appeal from Superior Court, Riverside of mind when the man was first brought be County; Hugh H. Craig, Judge.

Porfirio Loza was convicted of assault with intent to commit rape, and from judgmcnt of imprisonment and from order denying new trial, he appeals. Affirmed.

fore her the day after the assault had been committed, regarding his identity, she said:

"Well, I was certain he was the man when I saw him. Q. Are you still of that opinion? A. I am."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Cal.)

(182 P.)

Code Civ. Proc. §§ 953a, 953c, authorizing typewritten form of record on appellant's application for transcript to be certified by court and considered in lieu of bill of exceptions, has no application to bill of exceptions or statements settled and allowed by trial judge as provided in section 653.

There was the testimony of another school | 3. APPEAL AND ERROR 553(1)—RECORDTYPEWRITTEN FORM-BILL OF EXCEPTIONS. girl who had passed along that road earlier in the afternoon, to the effect that she had been pursued by a Mexican, and that in her opinion the appellant was the man whom she had seen at that time. But this was not all. After the appellant had been arrested and taken to the jail he made statements which, in effect, admitted that he had committed an assault upon the young girl at the time charged. It is argued that these statements were disconnected, indefinite, and not properly interpreted, but an examination of them will show that at least one of the witnesses who heard the statements testified positively that he did hear from the lips of

Appeal from Superior Court, Los Angeles County; Sidney N. Reeve, Judge.

Action by the Title Land Company against B. G. Schaefer and another. From judgment for plaintiff and from order denying motion for new trial, defendants appeal. Affirmed. Charles Lantz and W. J. Davis, both of Los' the defendant the direct admission that he had had improper relations with a child. Angeles (Howard F. Shepherd, of Los AnThese statements were brought out by in-geles, of counsel), for appellants. quiry being made of the appellant as to the The evidence as to cause of his arrest. the identity of the defendant was fully as strong as that shown in the case of People v. Delgado, 175 Pac. 24, where the judgment

was sustained.

We find no error here sufficient to warrant

an order of reversal.

The judgment and order are affirmed.

We concur: CONREY, P. J.; SHAW, J.

(41 Cal. App. 294)

TITLE LAND CO. v. SCHAEFER et al. (Civ. 2657.)

(District Court of Appeal, Second District, Division 1, California. May 27, 1919.)

1. APPEAL AND ERROR PRESUMPTIONS-NEW TRIAL.

John F. Poole, of Los Angeles, for respond

ent.

SHAW, J. Defendants appeal from a judgment rendered by the court in favor of plaintiff, quieting its title to a certain lot of land described in the complaint, and also from an order of court made denying their motion for a new trial.

[1] No argument is made by appellants urging a reversal of the judgment for any In error disclosed by the judgment roll. their brief, however, they insist not only that the evidence is insufficient to support certain findings, but complain of rulings of the court both in admitting and rejecting evidence offered, by reason of which they' insist that the court erred in denying their motion for a new trial. No record is presented upon which the court may review the rulThe motion for new ings complained of. trial was made upon a statement the correct933(1)—REVIEW-ness of which is certified by the judge who tried the case; and while the record shows that defendants' motion for a new trial was by order of the court denied, it fails to show upon what ground the motion for a new trial was made. For aught that appears to the contrary, it may have been made for any one or all of the causes specified in subdivisions 1, 2, 3, and 4 of section 657, Code of Civil Procedure, in which event such grounds must be made to appear by affidavits, none of which were filed. We must, in the absence of an affirmative showing of error, presume the order denying the motion was properly made.

On appeal from order denying new trial, where no affidavits had been filed in support of motion, and where record on appeal fails to show on what ground motion for new trial was made, court will presume that order denying motion was properly made; there being no affirmative showing of error in view of Code Civ. Proc. § 657, subds. 1-4.

2. APPEAL AND ERROR 553(1) — RECORD
COMPLIANCE WITH
TYPEWRITTEN FORM
STATUTE.

On appeal from order denying new trial, where appellants did not avail themselves of Code Civ. Proc. § 953a, providing that appellant, in lieu of preparing and settling a bill of exceptions pursuant to section 650, may file notice with clerk requesting transcript to be considered when certified by court in lieu of bill of exceptions, statement in support of motion for new trial, as settled and allowed by court, brought up in typewritten form, was unauthorized in such form and could not be considered.

Section 953a, Code

[2] The statement in support of defendants' motion for a new trial, as settled and allowed by the court, is brought up in typewritten form. No authority or warrant for such procedure exists. of Civil Procedure, provides that one desiring to appeal may, "in lieu of preparing and settling a bill of exceptions pursuant to the provisions of section 650 of this Code,"

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

adopt the procedure therein prescribed for obtaining and presenting to the court a phonographic report of the proceedings had and taken at the trial, to the truth of which the judge should certify, and when so settled it shall be deemed a part of the judgment roll and on appeal considered a part of the judgment roll. Section 953c, Code of Civil Procedure, provides that where an appellant, in adopting a procedure for presenting a record for review, avails himself of the provisions of section 953a, such transcript need not be printed, but "in filing briefs on said appeal the parties must, however, print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court." [3] The provisions of these sections have no application to bills of exception or statements settled and allowed by the trial judge as provided in section 653, Code of Civil Procedure. When such method of bringing up the record is adopted, it must be presented by a printed transcript thereof. It is only in those cases where the appellant avails himself of the provisions of section 953a, Code of Civil Procedure, that he may adopt a typewritten form in bringing up the record. Appellants did not avail themselves of the provisions of this section, but, for the purpose of illustrating the alleged errors committed by the court, procured the settlement

of a statement used on their motion for a new trial. The record so presented in typewritten form is unauthorized by the sections of the Code to which we have referred, and hence cannot be considered in support of their appeal from the order denying their motion for a new trial.

There appears to be no error disclosed by the judgment roll, and for the reasons given no authenticated record is presented upon which we can say the trial court erred in denying defendants' motion for a new trial. The judgment and order are therefore affirmed.

(Cal.

claim therefor in the pleadings, where contract right to way was established, and only effect of remand would be to strike out superfluous words "of necessity."

2. EASEMENTS-12(3) RIGHT OF WAY TEMPORARY AND UNCERTAIN CHARACTER. Temporary easement in the nature of a right of way granted defendants in suit to quiet title over plaintiff's land held not open to attack on account of its temporary character and

the claimed uncertain character of the right of provided that temporary way was to be superway, where contract on which right was based seded by a permanent way.

3. EASEMENTS 22-INNOCENT PURCHASER

-FREEDOM FROM EASEMENT.

If a purchaser bought without knowledge of chasers of other land a temporary right of way, an unrecorded contract granting to prior purand also without knowledge, actual or imputed, of facts sufficient to put a prudent buyer on inquiry, she took title free from the use of the right of way in the prior purchasers, and could convey good title to a purchaser from her, though he was fully informed of the prior purchasers' claims.

4. EASEMENTS 22-NOTICE OF RIGHT OF WAY.

notice of an easement in the nature of a right The purchaser of land was charged with of way across it in favor of prior purchasers from her vendor, though she was elsewhere when her purchase was consummated; the way across the land purchased being obvious and noticeable.

5. EASEMENTS 22-SUBJECTION TO RIGHT OF WAY.

Where the purchaser of land was charged, on account of the open and visible character of the road, with notice of an easement in the naed, on account of the purchaser's failure to obture of a right of way across the land purchastain information regarding the right of way, the title of the purchaser from her was subject to such right of way. 6. EASEMENTS

36(3)— EXISTENCE - SUFFI

CIENCY OF EVIDENCE.

In suit to quiet title against defendants setting up an easement in the nature of a right

We concur: CONREY, P. J.; JAMES, J. of way, if the burden was on defendants to

(41 Cal. App. 232)

TAYLOR v. BALLARD et al. (Civ. 2761.)

prove notice to or knowledge of the right of way in plaintiff's grantor when she purchased the land, they met such burden by proof of the patent existence and constant use of the road.

Appeal from Superior Court, Alameda

(District Court of Appeal, First District, Di-County; William H. Waste, Judge.
vision 2, California. May 20, 1919. Rehear-
ing Denied by Supreme Court July 17, 1919.)
1. APPEAL AND ERROR 1170(12)—REVER-
SAL-STATUTE DECREE-WAY OF NECESSITY.

In suit to quiet title, decree quieting plaintiff's title subject to a right of way "of necessity" across it in favor of defendants held not erroneous, in view of Const. art. 6, § 41⁄2, Code Civ. Proc. § 475, Civ. Code, §§ 3353, 3354, 3357, as to disregard of technical error, as giving a right of way of necessity in the absence of

Action by Henry W. Taylor against M. V. Ballard and others. From the judgment, plaintiff appeals. Affirmed.

Chas. F. Hanlon, of San Francisco, for appellant.

J. Early Craig, of San Francisco, for respondents.

BRITTAIN, J.

Taylor, appeals from a judgment quieting
The plaintiff, Henry W.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(188 P.)

his title to 241⁄2 acres of land in the Clare- convenience in stating the grounds of the mont district of Berkeley, subject to a right decision, the appellant's five propositions are of way across it, adjudged to belong to the discussed in an order differing from that of respondents E. D. Walden and Virginia E. their presentation. Walden.