use it at his discretion in the business in which he was employed. Rahn v. Singer Mfg. Co., supra; Jessen v. Peterson, Nelson Co., supra. Under the admitted circumstances of Ordway's employment, we are not willing to hold that his testimony as to the manner in which he performed his duties connected therewith and his rather uncertain testimony as to his movements following the consum mation of the personal business, which he claims brought him from his employer's ranch some distance into the city of Fresno, on the day of the accident, is so convincing, or free from justifiable doubt, as to amount to an admission by plaintiff, or to eliminate the presumption that Ordway at the time of the collision was engaged upon the business of his employer. Ferris v. Sterling, supra. [9] Furthermore, plaintiff is not bound by Ordway's testimony. "A party to the record of any civil action may be examined by the adverse party as if under cross-examination, subject to the rules applicable to the examination of other witnesses. The party calling such adverse witness shall not be bound by his testimony, and the testimony given by such witness may be rebutted by the party calling him for such examination by other evidence." Section 2055, Code Civ. Proc., as added by St. 1917, p. 58. The judgment in favor of the defendant Pacific Acreage Company is reversed. (41 Cal. App. 74) therefor has been signed and filed, is not invali- 422-FORECLOSURE-VENUE. Where a decedent's creditor claimed that premises covered by his mortgage was situated in two counties, but decedent had declared a homestead covering the premises situated in one county, suit to foreclose could not be brought in such county as to the part of the premises situated in the other county, in view of Const. art. 6, 5; there being no property subject to the mortgage in the county where suit was brought. Appeal from Superior Court, Lake Coun ty; M. S. Sayre, Judge. A. Valentine and others. C. M. Crawford, of Lake Port, and Geo. The RICHARDS, J. This is an appeal from a judgment in favor of the defendants. The action is one to foreclose a mortgage. facts are undisputed and are briefly as follows: On and prior to the 9th day of May, 1911, the premises described in the complaint herein were the community property of Clarence A. Valentine and Flora A. Valentine, his wife, and on the above date they executed their promissory note, secured by a mortgage, upon the whole of said premises, VOTYPKA v. VALENTINE et al. (Civ. 2834.) delivering the same to one George F. Hilton, with the mortgage described therein, which note, as to the principal and as to a certain portion of the interest, was unpaid at the time this action was brought. The mortgage thus executed and delivered described the and being in the county of Lake, state of property covered thereby as "situate, lying California." The mortgage was recorded in Lake county on May 16, 1911, but was also recorded in Napa county on December 15, 1915, a few days before this action was commenced. On March 19, 1912, Clarence A. Valentine made and executed a declaration of homestead upon the whole of said premises, describing the same as being situated in 46-DECLARATION-RECORD the county of Lake, and recorded said declaration of homestead upon the date of its execution in the county of Lake, but not elsewhere. On August 27, 1912, said Clarence A. Valentine died intestate in the city and county of San Francisco, being then a resident therein, and thereafter and on April 25, 1913, after due proceedings had, his widow, Flora A. Valentine, was duly appointed and qualified as the administratrix of his estate. On said April 25, 1913, an order for the publication of notice to creditors was signed by the probate judge, which (District Court of Appeal, First District, Division 1, California. May 5, 1919.) 1. HOMESTEAD 115(3) FORECLOSURE OF MORTGAGES. Where a deceased husband had declared and recorded a homestead on community property, and notice to creditors of his estate has been given, and no claim has been presented on account of a note and mortgage on the property covered by the homestead, as required by Code Civ. Proc. § 1475, the homestead property is released from the mortgage, and no action can be maintained to foreclose it under such section in view of section 1500. 2. HOMESTEAD -PROPERTY IN TWO COUNTIES. Where a homestead in community property is mainly situated in one county, a homestead declaration recorded in such county only is not void merely because a part of the premises covered by the homestead is claimed to be located in another county wherein no homestead decla ration has been made. 226 3. EXECUTORS AND ADMINISTRATORS Publication of notice to creditors of a dece dent's estate, begun on a date after the order For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) was filed with the clerk of his court on the that the deceased husband had declared and following day; on April 28, 1913, another recorded in the county of Lake a homestead order for the publication of notice to credi- thereon, and thereafter had died, and that tors was signed by the same judge and filed in the course of probate of his estate notice on the same date with the clerk. These two to creditors had been duly ordered and puborders are identical, except as to their dates lished, and that no claim had ever been preand filing marks, and no reason for their sented for or on account of said note and duplication appears in the record. Both or- mortgage, as required by section 1475 of the ders were recorded on May 2, 1913. The Code of Civil Procedure, the property coverfirst publication of notice to creditors under ed by said homestead became thereby reone or both of these orders was made on leased from the operation and effect of said April 29, 1913. It appears in the record mortgage, and hence this action to foreclose that such publication was made in the select the same could not be maintained under ed newspaper on said April 29, 1913, and said section and also under section 1500 of also on May 6th, 13th, and 20th and 27th of said Code. The following authorities cited that year, and that on June 20, 1917, upon a by respondent sustain this view with respect showing of these facts, a decree establishing to the application of the foregoing sections due and legal notice to creditors in said of the Code of Civil Procedure to cases of estate was signed, filed, and recorded in this character: Camp v. Grider, 62 Cal. said probate court. No claim was ever pre- 20; Bollinger v. Manning, 79 Cal. 7, 21 Pac. sented to the administratrix of said estate 375; Hearn v. Kennedy, 85 Cal. 55, 24 Pac. by the holder of said note and mortage 606; Rosenberg v. Ford, 85 Cal. 610, 24 Pac. which shortly after their execution had been 779; Hibernia S. & L. Soc. v. Laidlaw, 4 assigned to the plaintiff in this action. In Cal. App. 626, 88 Pac. 730. the complaint filed herein for the foreclosure of said note and mortgage the plaintiff describe's one of the pieces or parcels of land covered by said mortgage as being situate "partly in the county of Lake and partly in the county of Napa," but does not further show either in said complaint or in the evidence offered in support of its averments what portion of said premises is located in the county of Napa. The court in its nndings recited that the allegation of that paragraph of the complaint which contains this brief recital as to the location of a portion of said premises partly in Napa county is true; but the findings do not inform us what, if any, appreciable portion of said premises is located in Napa county. This action was commenced in the county of Lake. The plaintiff, by an amendment to his said complaint, expressly waived all recourse against any other property of the estate than that described in said mortgage, and also waived any deficiency judgment. The defendants in their answer averred the foregoing facts as to the making and recordation of said homestead, and as to the death of said Clarence A. Valentine, and the said proceedings taken in the course of the administration of his estate, and thereupon prayed that the plaintiff take nothing by this action. The trial court found these averments of the defendants' answer to be true, and entered its judgment in their favor and in accordance with their said prayer. [1] The appellant herein contends that said judgment was erroneous for several reasons. The first of these relates to the jurisdiction of the court to entertain said action. The position of the respondents in this regard is that having established the fact that the premises in question were the community property of the Valentines, and [2] The appellant, however, urges three main arguments against the application of the sections of the Code and the cases construing them to the facts of the case at bar. The first of these is that the complaint having averred, and the court having found, that a portion of the premises covered by said homestead was situated partly in the county of Napa, the said homestead is wholly void because it was not recorded in Napa county. We cannot go to the extent which the appellant would have us go in order to uphold this contention. The homestead was duly recorded in the county of Lake. So far as this record discloses, the main amount of the lands covered by said homestead declaration are located in the county of Lake. In point of fact, it has not been shown that any substantial or valuable, or not easily divisible, part of said premises is located in Napa county. This being the state of the record, we are constrained to hold that the homestead is valid as to the lands described therein which are situated within the county of Lake, wherein said homestead was duly recorded, and that the same was such valid and subsisting homestead at and during the time of the giving of notice to creditors in the course of probate of said estate, and that if the publication of such notice to creditors was itself valid, and if no claim was presented by the mortgagee thereunder, his mortgage, in so far as it related to the lands covered by said homestead located in said Lake county, was released under the provisions of the foregoing Code sections and of the above-cited authorities construing the same. [3] The appellant, however, further contends that this result does not follow for the reason that the publication of such notice to creditors in said estate was void, its alleged invalidity consisting of the fact that the first publication of said notice was made upon a date prior to the entry of the order for publication of notice to creditors, although it is conceded that the said publication was begun upon a date after the said order for publication had been signed and filed. We find no merit in this contention. In Estate of Hughston, 133 Cal. 321, 65 Pac. 742, 1039, the Supreme Court held that as to probate orders their entry in the book prescribed by the statute was a mere ministerial act of the clerk, having for its purpose the fixing of the time within which an appeal might be taken, and that such orders are perfect and complete from the time they are signed and filed. The case of Tracy v. Coffey, 153 Cal. 356, 95 Pac. 150, cited by the appellant in support of his contention, does not in any degree militate against the rule above announced, since its only effect was to hold that probate orders must be entered in order to fix the time within which an appeal may be taken. [4] Finally, the appellant contends that he was entitled to commence and maintain this action in the county of Lake for the purpose of foreclosing said mortgage as to that portion of the lands in question as lay within the county of Napa, under the provisions of article 6, § 5, of the state Constitution, which reads in part as follows: "Provided, that all actions for the recovery of the possession of, quieting the title to or for the enforcement of liens upon real estate shall be commenced in the county in which the real estate, or any part thereof, affected by such action or actions, is situated." The difficulty with the appellant's contention in this regard lies in the fact that, under the authorities above cited, the appellant's failure to present his claim against the estate of Valentine within the period prescribed by law had the effect of releasing so much of the property covered by said mortgage as lay in the county of Lake, as to which we have herein held the homestead to be valid. This being so, such of said property as was thereby released from the operation and effect of said mortgage would be no longer affected by it, and hence would not be affected by any action which could be commenced for the enforcement of the lien of said mortgage. The trial court, therefore, properly held that the action could not be maintained in Lake county for the foreclosure of the mortgage as to lands which were located in the county of Napa. Rogers v. Cady, 104 Cal. 288, 38 Pac. 81, 43 Am. St. Rep. 100. This disposes of the several contentions urged by the appellant upon this appeal. Judgment affirmed. KREAGER et al. v. McCORMICK. (No. 8838.) (Supreme Court of Oklahoma. May 14, 1918.) (Syllabus by the Court.) 1. MUNICIPAL CORPORATIONS 572 TAX by a tax bill, regularly issued by a municipal TAX The property owner may free himself from liability to pay attorney's fees upon such tax bill by paying the amount of the installment in default, accrued interest, and the penalty prescribed for delinquency, at any time, before suit is commenced to recover judgment thereon. Commissioners' Opinion, Division No. 2. Error from District Court, Tulsa County; Conn Lynn, Judge. Action by E. P. McCormick against Mary D. Kreager and Lorenzo Grier. Judgment for the plaintiff, and defendants bring error. Reversed and remanded. J. J. Henderson, of Tulsa, for plaintiffs in error. Randolph, Haver & Shirk, of Tulsa, for defendant in error. GALBRAITH, C. The defendant in error commenced this action in the trial court as the holder of four certain tax bills that had been issued by the city of Tulsa evidencing a claim and lien for street improvements made in improvement district No. 79 of that city, to enforce the claim and to foreclose the lien against certain lots belonging to the plaintiffs in error; each tax bill being a claim and lien against a separate lot located in such improvement district. There was a demurrer to the petition which was overruled and exceptions saved, when the plaintiff in error answered by setting out nine separate grounds of defense. We concur: WASTE, P. J.; KERRI- The reply was a general denial. GAN, J. Upon the issues formed by the pleading the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) cause was submitted to the court for trial. The court found that there had been default in the payment of the second installment due on the tax bills, that is, the one maturing February 1, 1915, and that the plaintiff had elected, as authorized to do in the tax bill, to mature all the remaining installments on each of the said tax bills, and render judgment for the amount thereof, aggregating $407.34, as principal, $68.56, as interest, and $18.75, as attorney's fees on each bill, amounting in the aggregate to $75. The property owners, as defendants below, appealed and assigned a number of errors as ground for reversal of that judgment. Practically all of these, except one, have been considered by this court, and the contention of the plaintiffs in error in regard thereto have been denied, in an opinion not yet officially reported, filed in case No. 8311. Nitsche v. State Security Bank Zainesville, Ohio, 170 Pac. 234, and for that reason only the one assignment will be considered in the disposition of this appeal. The assignment not covered by the above case is No. 3, as follows: "The judgment is against the law, under the pleadings and the evidence in the case; the judgment should have been for the defendants, instead of for the plaintiff." Under this assignment it is argued that the answer denied default at the time suit was filed, and the right to mature the deferred payments on account of such default, for the reason that the property owners, prior to the commencement of suit, tendered to the attorney for the holder of the tax bill, and also the commissioner of finance and revenue of the city of Tulsa, the amount of the installment due February 1, 1915, together with the interest on the deferred payments and 18 per cent. penalty on such installment from the date of its maturity to the date of the tender, and that this tender was refused because the attorney for the holder of the bills demanded, in addition to the amount tendered, the payment of $100 as attorney's fees. Each of the tax bills in suit provided, among other things, as follows: "This special tax bill is payable at the office of the commissioner of finance and revenue of the city of Tulsa, in ten installments, the first installment due on the 1st day of February, 1914, for one-tenth the principal amount with interest on the entire principal amount from the 25th day of July, 1913, and for one-tenth of the principal amount and interest on the deferred installments on the 1st day of February of each and every year thereafter up to and including the 1st day of February, 1923, as evidenced by coupons hereto attached. And this obligation and the lien aforesaid shall extend to and include reasonable attorney's fees and other costs of collection of this special tax bill or any part thereof if default shall be made in the payment thereof. Default in the payment of any installment or any part thereof, or the interest thereon, as provided herein, may, at the option Pro of the holder hereof, mature all installments for all purposes without notice, and upon such default suit may be commenced at once to recover judgment for the entire principal, acfor the sale of said property to satisfy the crued interest, attorney's fees, and costs, and same, or said amounts, may be enforced and collected as are other delinquent taxes. vided, however, that the owner of said property, his heirs, successors or assigns, shall have the privilege of discharging the whole amount assessed against said property, or any installment thereof, upon payment of the unpaid principal with accrued interest, to the proper officer of the city, at any time before maturity." Lorenzo Grier, one of the plaintiffs in error, testified, in regard to the tender, as fol lows: "Q. Just go on and state what you did relative to paying or offering to pay that installment. A. I have a letter here, may I tell of the motive? "The Court; Tell what you did. A. Here is a letter dated May 10, 1915, reminding me of this payment not being paid and asked me to call at their office, Randolph, Haver, and there at the office and talked it over with Mr. Shirk's office, signed by Mr. Haver. I was Haver. I didn't have the money that day, and about three days afterwards I called at the office and Mr. Haver was absent, and I offerments with 18 per cent. penalty. ed Mr. Randolph the amount of these install "Q. I will get you to state if Mr. Randolph figured it up and gave you the amount at that time? A. He did. "Q. What was it? A. $78.18. "Q. I will get you to state if that included 18 per cent. penalty? A. It did, the 18 per cent. penalty. pay them; did you tender him the money? A. "Q. State now why or how you offered to I tendered him the money. It was in four $20 gold certificates. Randolph at that time asked me a $100 attorney fee, and I refused to pay it. "Q. Is that the reason you didn't? A. That was the reason why this was not paid that day. "Q. Did Mr. Randolph refuse to accept the money tendered? A. He did; he said that it didn't look good to him. "Q. And he wouldn't take it? A. He didn't take it. the default in the payment of an installment, that could have been lawfully demanded of or by placing the tax bills in the hands of an him by the wrongful demand for the payment attorney for collection. The bill does provide of an attorney's fee. The judgment for atthat, in case of default in payment: (1) torney's fees was unauthorized. The judg"The obligation and lien" shall extend to and ment is also erroneous for the deferred ininclude "reasonable attorney's fee and other stallments. The judgment should have been costs of collection"; and (2) all deferred pay- for the installment due February 1, 1915, inments may be matured at the option of the terest and penalty up to the day of the tenholder, and "suit may be commenced at once der, shown by the evidence to be $78.18, and to recover judgment for the entire principal, interest thereon at the rate of 7 per cent. accrued interest, attorney's fee, and costs." per annum to the date of the judgment, and It will be recalled that the liability for the the cost incurred subsequent to May 31, 1915, payment of attorney's fees on these tax bills should have been assessed against the defendis not a contractual liability, but one imposed ant in error. Enid Conservation Inv. Co. by law, and that the obligation to pay the v. Porter et al., 45 Okl. 406, 145 Pac. 805. attorney's fee is based upon the theory of The judgment appealed from should be rethe default of the property owner being reversed, and the cause remanded for further sponsible for incurring such expense. It was proceedings not inconsistent with this opinsaid by the court in the Nitsche Case, supra: "The theory of these decisions, it seems, is that, as may be done, where there is a default in the payment of ordinary taxes assessed against property, the Legislature has the right to impose upon those defaulting in the payment of such assessment for the improvements on streets a penalty which may include a reasonable attorney's fee." And also it is said: "The conclusion above announced, it will be observed, sustains the allowance of an attorney's fee upon the ground of the negligence of the property owner, that is, for his failure to pay the assessment, and thereby being the direct cause and occasion for creating this additional expense." Under the provisions of the tax bill, upon default in the payment of an installment, or any part thereof, the holder had the right to mature all the deferred installments and to bring suit to recover judgment for the entire amount thereof, interest, attorney's fees, and costs. At the time of the offer to pay this second installment, and the interest and the penalty, the holder of the tax bill had the right to bring suit to recover the attorney's fee and costs, as well as the deferred payments and interest; but he had not exercised that right, and prior to exercising that right, by filing suit, he had no right to demand the payment of attorney's fees. Prior to the exercise of this right, in the manner prescribed in the tax bill, the holder thereof had the same right to demand the payment of "court costs" that he had to demand the payment of "attorney's fees." It is evident he had the right to neither before commencing action on the tax bill. At any time prior to such action the property owner had the right to save himself from liability to pay attorney's fees and court costs, by paying the installment in default, interest, and penalty. The uncontroverted evidence shows that the property owner attempted to relieve himself from such liability and was prevented from paying all ion. PER CURIAM. Adopted in whole. (75 Okl. 107) BOURKE v. MEACHAM et al. (No. 9357.) (Supreme Court of Oklahoma. June 24, 1919.) (Syllabus by the Court.) APPEAL AND ERROR 773(5)— CONSIDERATION OF BRIEFS-REVERSAL AND REMAND. Where the defendant in error has not filed briefs as required under rule 7 of this court (165 Pac. vii), or offered excuse for such failure, and it appears from briefs properly filed by for reversal are well taken, the judgment will plaintiff in error the propositions relied upon be reversed, and the cause remanded. Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. against W. Bourke and M. C. Binion, Sheriff Action by A. R. Meacham and another of Oklahoma County, in which the the O. K. Transfer & Storage Company became a Storage Company and M. C. Binion, Sheriff, party. Judgment for the O. K. Transfer & and defendant Bourke brings error. Reversed, and remanded for new trial. W. J. Davidson, of Oklahoma City, for plaintiff in error. JOHNSON J. In the court below, the district court of Oklahoma county, the defendants in error, A. R. Meacham and A. A. Meacham, as plaintiffs, filed their action against the plaintiff in error, W. Bourke, and the defendant in error M. C. Binion, as sheriff of Oklahoma county. The original petition was filed February 29, 1918, and later on in the progress of the cause in the court below, after plaintiffs filed an amended petition, the O. K. Transfer & Storage Company became a party to the action, and prior For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |