deed and as to the identity of the party or parties named therein as the grantee or grantees of Mrs. Wilson. What is said of the last considered point is equally applicable to the objection that the court erred in striking out the answer made by Mrs. Morse to the following question: "What knowledge did you have?" referring to her knowledge of the conveyance by Mrs. Wilson and the parties to whom the conveyance was made, the answer being: "My knowledge was that they (meaning J. C. and E. A. Forbes) both took the property back again." [3] The complaint by appellant that the court erred by failing to find on the defense of the statute of limitations interposed by defendant is so plainly without merit, coming as it does from the plaintiff, who, of course, desired a trial on the merits, that further comment would be superfluous. It may be said, though, that the defendant seems not to have pressed that defense, and other than what was shown in that particular by the complaint itself there was no evidence to support the defense or authorize a finding thereon. But however that may be, it obviously does not lie in the mouth of the appellant (plaintiff in the case) to complain because the JAMES, J. On this appeal taken from the judgment of imprisonment the sole question presented is as to the alleged error of the trial judge in refusing to submit to a jury the question of the sanity of the defendant. The judgment was entered after plea of guilty had been made to a charge of forgery. Before sentence was pronounced a physician was called by the defendant, and he testified that, in his opinion, based upon a brief observation of the defendant, he was not rational. However, his testimony did not produce in the mind of the trial judge a sufficient doubt as to the defendant's sanity, and we think that the mere opinion of a medical witness was not sufficient to compel a determination of the question in the defendant's favor, but that the trial judge had discretion to make the ruling which he caused to be entered. People v. Hettick, 126 Cal. 425, 58 Pac. 918; People v. Keyes, 175 Pac. 6. The judgment appealed from is affirmed. WEYER v. WEYER et al. (Civ. 2757.) court omitted to notice the defense in its de- (District Court of Appeal, First District, Di cision. CRIMINAL LAW 981(2) INSANITY AFTER CONVICTION-DISCRETION OF TRIAL JUDGESUBMISSION OF CAUSE TO JURY. Where, after plea of guilty had been made to a charge of forgery and before sentence was pronounced, a physician was called by the accused, and testified that in his opinion, based upon a brief observation, accused was not rational, it was within the discretion of the court to rule that such testimony did not produce in his mind a sufficient doubt as to the defendant's sanity, and to enter an order refusing to submit the question of sanity to a jury. Appeal from Superior Court, Los Angeles County; Frank R. Willis, Judge. James Harvey Huntoon pleaded guilty to a charge of forgery, and from the judgment of imprisonment he appeals. Affirmed. Dana Ong, of Los Angeles, for appellant. U. S. Webb, Atty. Gen., and Joseph L Lewinsohn, Deputy Atty. Gen., for the People. vision 2, California. April 23, 1919.) 1. VENUE 16-JOINDER OF DIVORCE ACTION AND ACTION FOR RECOVERY OF REAL ESTATE. Under Code Civ. Proc. § 427, wife's divorce action cannot be joined with cause of action to recover property situated in a county other than that of wife's residence, the statute requiring the divorce action to be brought in county of wife's residence, and section 392, and Const. art. 6, § 5, requiring the action to recover real estate to be brought in county in which it is situated. but one cause of action. 4. VENUE 5(3) RECOVERY OF REAL ESTATE-APPLICABILITY OF Statute. An action must be wholly local in its nature to require it to be brought in the county For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) in which land involved is situated under Code | the husband to her for support, counsel fees, Civ. Proc. § 392. and costs. 5. DIVORCE 90-ALLEGATIONS AS TO COмMUNITY PROPERTY-PRESUMPTION. In the absence of an allegation in a petition for divorce that there is community property, court will presume that there is no community property. The appellant moved for change of place of trial on the ground that San Francisco, the place of residence of the plaintiff, is not the proper county, and that Stanislaus is the proper county by reason of the residence of H. P. Weyer there. Further, that as to him, the action is for recovery of real property Under Civ. Code, § 3511, where reasoning of and the determination of the right or intercourt in deciding one case is directly applica-est of the plaintiff therein, and that all the ble to another case, the rule laid down in former real property is in the counties of Stanislaus case should be followed in latter case. and Tuolumne. 6. COURTS 90 (1)—RULES OF DECISION. Appeal from Superior Court, City and County of San Francisco; Thos. F. Graham, Judge. Action by Madge Weyer against Gustavus A. Weyer and H. P. Weyer. From an order denying motion for change of place of trial, the last-named defendant appeals. Affirmed. L. H. Dennett and J. C. Needham, both of Modesto, for appellant. The argument on behalf of the appellant in substance is that section 5 of article 6 of the Constitution provides that all actions for the recovery of possession of, or for the enforce ment of liens upon, real property must be commenced in the county where the real property is situated, and, under Code of Civil Procedure, § 392, tried in such county; that so far as H. P. Weyer is concerned, the suit is simply one concerning title to his real estate, and that it is not in any way subsidiary to the suit for divorce, with which he is a misjoinder of causes of action, one being has nothing to do. It is further argued there the action for divorce in which the brother must sit as a silent spectator, and the other an action to set aside a conveyance in which Sullivan & Sullivan and Theo. J. Roche, of the husband, the grantor, must remain equalSan Francisco, for respondent. BRITTAIN, J. The appeal is from an order denying a motion for change of place of trial. The plaintiff wife sought divorce on the ground of extreme cruelty, and joined as a defendant her husband's brother, alleged to be the fraudulent grantee of the husband. The brother alone moved to change the place of trial. ly quiescent. [1-4] The statute required the action for divorce to be brought in the county of the residence of the wife. If the suit were, as claimed on behalf of the appellant, one involving two separate causes of action, and the second cause of action were for the recovery of the property, under the constitutional provision the second cause of action would necessarily have been brought in one of the counties in which the land is, and it would follow under the provisions of section 427, Code of Civil Procedure, that the two causes could not be joined. There are not two causes of action. The case is not within the provisions of section 5 of article 6 of the Constitution or section 392 of the Code of Civil Procedure. An action must be wholly local in its nature to require it to be brought in the county designated by section 392, Code of Civil Procedure. Smith v. Smith, 88 Cal. 573, 26 Pac. 356; Clark v. Brown, 83 Cal. 181, 23 Pac. 289. The plaintiff alleged the husband is the owner of a one-third interest in four promissory notes of the aggregate face value of nearly $14,000, secured by mortgages and deeds of trust, and in certain described lands, some of which are in Stanislaus county and some in Tuolumne county. It is further alleged that on January 31, 1917, some eight months before suit was brought and three months before the separation of the parties, the husband purported to grant and convey to his brother, the appellant, upon no consideration, all the property without the knowledge of the plaintiff, and with the intent of defrauding her of her right to subject the same to her claim for maintenance, support, and alimony. After praying for a divorce the plaintiff prayed for a monthly sum for her support and lump sums for counsel fees and costs. She further prayed the conveyance and transfer of her husband to his brother be de-vorce, there can be no joinder such as is here creed to be fraudulent and void as to her, and that a lien be imposed upon the property as security for the payment of such sums as may be directed by the court to be paid by [5] The appellant contends there is a different principle involved where separate property of the husband is conveyed from that where the property belonged to the community, and, further, that regardless of the power of a court of equity in a suit for maintenance, or more properly alimony, without di made in a suit for divorce. The Legislature has dealt with this subject. Even though divorce is denied, the court in the divorce action may provide for the maintenance of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the wife (Civ. Code, § 136); it may provide been questioned. It has been made the basis for alimony pending the suit (Civ. Code, § of numerous decisions in other jurisdiction3. 137); and for maintenance after divorce It is cited as a leading case in a note append(Civ. Code, § 139). The court may require ed to a case decided in Alabama, where it reasonable security for providing mainte- was held that a bill for divorce was not rennance or making any payments required un- dered multifarious by a prayer for a conveyder the provisions of the chapter, and may ance by the husband to the wife of lands paid enforce the same by an appointment of a re- for by her with the title resting in him. ceiver, or by any other remedy applicable to Singer v. Singer, 165 Ala. 144, 51 South. 755, the case. Civ. Code, § 140. In executing the 29 L. R. A. (N. S.) 819, 138 Am. St. Rep. 19, preceding sections, the court must resort: (1) 21 Ann. Cas. 1102. From the note it might To the community property; then (2) to the seem that the Kashaw Case was limited to separate property of the husband. Civ. Code, the division of the community property. The § 141. The appellant asserts that it appears appellant in this case relies on a California in this case the property transferred by the case cited in the note. Cummings v. Cumhusband was his separate property. It fur- mings, 14 Pac. 562. It was published in the ther appears negatively from the complaint Pacific Reporter, and would seem to support there was no community property to which the contentions of the appellant. It was not the court might resort for the maintenance of published in the official reports, no doubt bethe wife. In the absence of an allegation cause upon rehearing the Supreme Court exthat there is community property, the pre-pressly declined to determine the questions sumption is there was none. No such allegation is made in the complaint in the present case. Kashaw v. Kashaw, 3 Cal. 312. Provision is to be made for the wife, and it must be from the separate property of the husband, either owned or to be acquired by him. No reason exists why either the wife or the chancellor should forego the certainty of recourse to property owned by the husband for the uncertainty of speculation regarding future earnings. In Kashaw v. Kashaw, supra, the wife sued for divorce, joining certain other defendants to whom it was claimed by the wife the husband, with intent to defraud her of her community rights, had conveyed community property. It was contended there, as here, that the bill was multifarious. Basing its decision upon the then existing act in relation to husband and wife, which required a division of the community property, the Supreme Court said: "It seems, from this, to be beyond dispute that a partition of the common property is one of the direct results of a decree for divorce, and is part and parcel of the decree to be rendered, and consequently is necessarily one of the proper subjects of the action. How, then, can its introduction render the bill subject to the charge of multifariousness? The bill would really not be perfect without it, for the purpose of obtaining the decree of division, as contemplated by the law. * * And as the one-half of it is equitably the right of the plaintiff, and to be so determined in this action, she may well make a party of any one claiming an interest in it, in order that she may obtain a complete determination." [6] In the present case, as there is no community property, it is the duty of the court to make provision for the wife out of the separate property of the husband. The reasoning of the court in the Kashaw Case is directly applicable. Where the reason is the same, the rule should be. Civ Code, § 3511. which in the unreported decision the department undertook to decide in a manner at variance with the Kashaw Case. In the unreported department opinion, which was concurred in by Mr. Justice McFarland, the wife, suing for divorce and a division of the community property, joined certain other parties in the litigation, alleging that they fraudulently entered into a contrivance with the husband to defeat the plaintiff of her rights. The argument was made, which is made here, that under Code of Civil Procedure, section 427, there was a misjoinder of causes of action. In the department opinion it was said: "We do not find the causes of action here united, * to belong to any of the classes of actions allowed to be united by the above section." Cummings v. Cummings, 14 Pac. 562. Without reference to the earlier department opinion, in the same case, upon the same appeal, the Supreme Court in bank expressly determined it was not necessary to decide whether the court below did or did not err in overruling the demurrer, upon which ruling the department opinion was based, because on other grounds the judgment appealed from was reversed. The court in the final disposition of the case determined that the bank, which was the mortgagee defendant in the divorce suit, was a necessary party to the accounting. "Its mortgage is recognized as valid in the judgment, and no decree could properly be entered determining what sums had been paid to it by the defendant Ketchum, or giving priority to the alimony or suit money in the absence of the bank." Cummings v. Cummings, 75 Cal. 434, 17 Pac. 442. Mr. Justice McFarland concurred spe cially in the bank decision, saying: "The only proper parties to a divorce suit are, generally, the husband and wife." His statement is fundamental, but under The rule of Kashaw v. Kashaw has never the rule of the Kashaw Case and in the (182 P.) Cummings Case, where it is charged the husband has conveyed the community property, the grantee may be a proper party, as a third party may be a proper party under certain other circumstances. The appellant in the closing brief refers to the special concurring opinion of Mr. Justice McFarland in the Cummings Case. In another part of his concurring opinion, the learned justice said: was also in that county. F. R. Warner was joined as the alleged fraudulent grantee of C. A. Warner, the husband. The defendants sought to have the suit removed to their place of residence. The case was decided upon the construction of section 128 of the Civil Code, requiring the residence of the plaintiff in the county in which the action is commenced, and sections 395 and 397 of the Code of Civil Procedure, requiring personal actions on motion to be transferred to the place of residence of the defendants. Both defendants joined in the motion. Here the motion is made on behalf of one only of the defendants. The plaintiff in that case insisted upon the trial of the action in the county where the "If, when such a suit has been commenced, or is about to be commenced, one of the parties having such suit in view colludes with a third party with intent to cover up community property, such third party may, perhaps, be made a defendant for the purpose of keeping the property in statu quo until after the determination of the action." Cummings v. Cum-real property was, and which was her place mings, 75 Cal. 442, 17 Pac. 442, 446. Mr. Justice McFarland, after the decision of Cummings v. Cummings, said: "The very purpose of alimony in such a case is to give support to the wife and to enable her to conduct her side of the litigation pending the trial of the issues made by the pleadings." Storke v. Storke, 99 Cal. 621, 34 Pac. 339. [7] The husband cannot put his separate property out of his hands for the purpose of defeating his wife in an anticipated application for alimony. Murray v. Murray, 115 Cal. 266, 47 Pac. 37, 37 L. R. A. 626, 56 Am. St. Rep. 97. Counsel for the appellant state there is a broad distinction between suits for divorce and for support. Neither argument nor citation of authority is presented upon this claimed distinction. It does not exist. Under the broad equitable powers of the court, and in applying the provisions of the Civil Code sections to which reference has been made, the rule announced in Kashaw v. Kashaw must be held to extend to transfers of separate property where there is no community property. In regard to the claim that the suit in so far as it affected the appellant's interest in real property was within the provisions of section 392 of the Code of Civil Procedure, in a similar case where the same question arose as to an alleged fraudulent conveyance of community property, the Supreme Court held that section does not apply, saying: "The object of the action, however, was not simply to procure the cancellation of the deed and reconveyance of the property. Another and probably much greater object was to secure a dissolution of the bonds of matrimony, and, so far as this last matter was the subject of the action, the proper county for the trial thereof was the county of the defendant's residence. It has been held here that if real and personal actions are joined in the same complaint the case falls within section 395 of the Code of Civil Procedure, and must be tried in the county of defendant's residence." Warner v. Warner, 100 Cal. 11, 34 Pac. 523. In that case the plaintiff wife was a resident of San Bernardino. The real property of residence. The court determined that it was a personal action falling within section 395, Code of Civil Procedure, and not a local one under section 392, Code of Civil Procedure, and said the alleged fraudulent grantee "might perhaps have insisted upon the action being retained in the county of San Bernardino for trial." The statement of what War ner might perhaps have insisted upon, if not at variance with the matter decided, did not establish a rule of law contrary to the conclusions reached on this appeal. The order appealed from is affirmed. 3. FACTORS 14-NEGLIGENCE OF FACTORINFORMATION BY CABLEGRAM. In action by a merchandise dealer against a commission merchant to recover damages claimed to have been suffered through negligence of defendant in wording a cablegram, the message should be read as a whole and in light of relations of parties and circumstances surrounding transaction. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1 Appeal from Superior Court, City and County of San Francisco, James M. Troutt, Judge. Action by George Bambridge against Douglas B. Crane, doing business under the firm name of Wightman & Crane. Judgment for defendant, and plaintiff appeals. Affirmed. P. A. Bergerot and A. P. Dessouslavy, both of San Francisco, for appellant. Goodfellow, Eells, Moore & Orrick, of San Francisco, for respondent. a cable every time that the rate of copra will change in order for me to buy accordingly." In reply to this letter the defendant wrote: "Regarding your request for information, we have to-day sent you the following cablegram: 'Copra Maitai five half cents Frisco,' and we trust that same will be entirely intelligible to you. It means that we have sold your copra per s. 8. 'Maitai' at 5 cents per pound delivered on wharf San Francisco. We have taken the matter up of further cables with your brother, and he is writing you in the premises. For your information we would say that we think your request is a very unusual one and one which will mean a great expense to you as the price of copra is changing daily. Rest assured that we will keep you advised of material chang RICHARDS, J. Plaintiff brought this action against the defendant for the purpose of recovering from him the sum of $1,691.35, the amount of damages claimed to have been suffered by him through the negligence of de-es in the market." fendant, consisting in the dispatch of a cablegram to plaintiff by reason of which he made certain purchase of copra for shipment to San Francisco and which he was compelled to sell at a loss. The court gave judgment in favor of the defendant, and the plaintiff appeals. The essential facts upon which the controversy depends are uncontradicted, and may be stated as follows: The plaintiff is a merchant of Tahiti, dealing in copra and other articles, and the defendant is a commission merchant of San Francisco. The business relations of the parties were inl tiated by a letter from plaintiff to defendant, dated November 18, 1915, in which the defendant was invited to communicate to the plaintiff the terms upon which business could be carried on between them, including the sale on commission by defendant of shipments of copra to be made by plaintiff. This letter was replied to by letter of December 8, 1915, in which the defendant stated the terms and conditions upon which he would engage in the business indicated. In this letter the defendant wrote: On January 14, 1916, plaintiff wrote to defendant as follows: I have received your cable of the 7th inst saying that 'Copra Maitai 51⁄2 cents,' for which I thank you. You will not forget to send another cable when this lot will be sold" On February 2d the defendant, having sold a shipment of copra by steamship Moana at the rate of 6 cents per pound, wrote plaintiff: "We have sold same at the high price of six cents per pound, and on the 31st ult. we sent you the following cablegram: Copra Moana six.'" On February 18th the plaintiff wrote to defendant: * You will receive by bearer 747 bags (21,566 kg.) of copra for which I will call your usual attention. Please send me a cablegram as usual. Your wireless message 'Copra Moana six' has not been received. In a letter of March 11th the plaintiff ad"We will by all steamers keep you advised | vised defendant of another shipment of copra, of the current rate for this article (copra). and in that letter said: If you have anything to offer you can send us a wireless by means of the steamer, and we can offer you a price providing you will name a definite quantity with date of shipment." Thereafter several shipments were made and sold and the proceeds duly accounted for, the business being done principally by correspondence. In the course of this correspondence plaintiff requested defendant to keep him informed of the price at which his shipments of copra were disposed of, and also of the market price at San Francisco of that article. Thus in one of his letters plaintiff writes: "Soon as you will sell the copra please send me a message via Awanui to Papeete as we have a receiving wireless station, and to let me know the rate per pound, as I will always be buying some more to prepare another next shipment. alligator pears, and as you will send me a cable "I am sending to different fruit dealers some for the copra as usual I will instruct my broth er to see you for to add on your cable the approximate net proceeds obtained per case of fruit. For example 'pear six' will mean that pears have been sold at about six dollars a case. On April 26th defendant wrote plaintiff as follows: 66 On March 29th we cabled you as follows: 'Pears six copra Republic Moana six one-half. * We trust to receive shipment of copra from you by next steamer. This article is quoted to-day in this market at 6 cents per pound." On May 8th the plaintiff wrote to defendant: I note that you have sold my two You will not forget to send me shipments of s. s. Republic and Moana at 6% |