Page images

Lacific Coast Law Journal.

VOL. 1.

JULY 6, 1878.

No. 19.

Current Topics.

We have just consummated an arrangement for the publication of the decisions of the Supreme Court of Nevada, the preparation of each having received the approval of the Supreme Court of the State before publication, thus rendering them official in their character. This will prove quite an important feature to our work, whose circulation already reaches nearly five hundred in this State.

ATTENTION is directed to the article appearing in this number entitled, “Can a married woman make a simple contract for the payment of money?” It is in review and criticism of the argument and opinion in the case of Wood vs. Orford, noticed in the JOURNAL (No. 16, p. 301). Our continued efforts to bring this important case before the profession are at last producing the effect desired which we hope will end with some more positive expression from the Supreme Court touching the question discussed in that case. tion of such practical importance has been raised the profession and public alike are entitled to a clear and positive ruling by the supreme bench, leaving room for no possible doubt concerning it.

The article, “Our Judicial System,” in this number of the JOURNAL, will be found full of thoughtful and important suggestions on that subject which should claim the attention of the people and profession of this State at present.

There can be no doubt that the judiciary system of our State should undergo some radical changes in many of its

When a ques

features, and the profession who by their experience are best informed in that regard should see that such changes as their experience suggests are made and incorporated in the new constitution.

While a free and full discussion might not end in a general or particular acceptance of the minutia of any one plan or system, it certainly would place before the people the acknowledged faults and shortcomings of the present system. We would be pleased to see the subject further discussed to


of the JOURNAL.

which we open

In Wilson vs. S. P. R. R. Co. (an unwritten opinion), the Supreme Court affirms the order of the court below in granting a change of venue. The case presents these facts: Wilson sued the railroad company in Santa Clara County for the value of certain wool destroyed by fire while in the warehouse of the defendant, situated in San Benito County, alleged to have occurred by the negligence of the defendant.

A demand for change of venue was made, alleging that the motion was made upon the ground, that Santa Clara is not the proper county for the trial of said action; that the cause of action arose in San Benito County; that defendant is not a resident of Santa Clara County; and that the convenience of witnesses and the ends of justice will be promoted by such change.

At the hearing of said motion on September 3, 1877, the defendant, in support of the motion for a change of venue, read the complaint, the demurrer, the written demand for a change of venue, the notice of said motion, and the affidavit of F. E. Spencer in support thereof. The plaintiff declined to read any paper in opposition to said motion, and after argument by the parties the court declared the affidavit of Spencer to be insufficient to justify the granting of said motion, but continued the further hearing of said motion to September 10, 1877, and granted the defendant permission to file further or amended affidavits in the meantime in support of said motion, to the granting of which permission the plaintiff objected and excepted upon the ground that the affidavit must be filed as used at the time of appearance in said action. In pursuance of said permission the defendant, on September 7, 1877, filed the affidavit of one Willcutt in support of said motion. At the hearing on September 10th, the plaintiff excepted to the reading of Willcutt’s affidavit, but the court overruled the objection. No other paper or evidence were read or produced in support of said motion, and plaintiff declined to introduce any evidence whatever. The court granted the motion and plaintiff excepted.

S. F. Leib, of counsel for plaintiff, argued-1. That defendant made no showing of materiality of witnesses and the affidavit of merits were insufficient in not stating that the fact were “fully and fairly" stated to counsel, and the counsel himself made the affidavit, which was improper. 2. The court erred in permitting a new affidavit to be filed. The Code provides that the cause shall be tried where brought unless the defendant, “at the time he appears and answers or demurs,” files an affidavit of merits. (C. C. P., Section 396.)

The new affidavit is not even an amendment of the first. It makes no reference to the first. The first was made by counsel, who was unauthorized by law to make it. (Bailey vs. Taafe, 29 Cal. 425.)

J. E. Foulds, for defendant, and S. W. Sanderson, of counsel, say: The order was made upon the ground of the convenience of witnesses and the furtherance of justice. That Section 396 of the Civil Code, on which it is presumed the exception to Willcutt's affidavit was based, relates only to cases in which the action is not brought in the proper county, and while it is true the motion was made on the ground also that San Benito was the proper county for the venue of the case, yet the motion was granted on the ground of convenience of witnesses and the promotion of justice, because the affidavit of Spencer was held insufficient and that of Willcutt's sufficient, which merely recited the names of witnesses and the evidence to be given by them, and the injury to be sustained if they were brought to Santa Clara County; and, further, that neither San Benito County to which it was desired to remove the action nor Santa Clara was the residence of the defendants, so that Section 396 of of the Code had no application whatever. 2. The affidavit filed on the appearance of the action was a proceeding within the meaning of the Code and was subject to amendment. Any pleading or proceeding may be amended. (Section 473, C. C. P.) 3. The motion was granted upon the third subdivision of Section 397, C. C. P. The whole matter lay in the discretion of the court and subject to revision only in cases of gross fraud.

[ocr errors]
[ocr errors]

Silver vs. Mullan (5935), an unwritten opinion by our Supreme Court, was a contest between applicants to purchase State lands under the five hundred thousand acre grant, and the court below found the following facts: That on the 24th day of December, 1867, the lands in controversy were surveyed by authority of the government of the United States, the plat of such survey approved by the Surveyor-General of the United States for the State of California, and filed in the U. S. Land Office at San Francisco.

That on the 25th of July, 1870, the Surveyor-General for the State of California, as the duly authorized agent, and in behalf of the State, made application to the Register of the U. S. Land Office at San Francisco to locate the said lands in part satisfaction of the grant of five hundred thousand acres for internal improvements made to the State under the provisions of the Eighth Section of the Act of Congress, approved September 4, 1841. That thereafter, on the 6th of September, 1870, the defendant Mullan presented and filed with the Surveyor-General his application and affidavit to purchase the land. That prior to the presenting and filing of said application and affidavit Mullan had entered and purchased from the State of California more than three hundred and twenty acres under the grant in lieu of the sixteenth and thirty-sixth sections, and that he had entered and purchased of the State of California, in his own name, many hundred acres of land in part satisfaction of said grant.

That prior to said presenting and filing the said Mullan

[ocr errors]

had entered and purchased from the State, in his own name, more than three hundred and twenty acres of land in part satisfaction of the five hundred thousand acres for internal improvements. That on July 14, 1871, the said lands were listed and certified over to the State of California in pursuance of the application of said Surveyor-General; that on the 31st day of January, 1874, the Surveyor-General of the State approved the application of said Mullan and authorized the County Treasurer to receive twenty per cent. in part payment of purchase money. That on February 5, 1874, Mullan conveyed to Harbin; that on February 5th Mullan made payment in full for said lands, and on March 11, 1874, a certificate of purchase was issued to Mullan by the Register of the State Land Office; that no other application for purchase was made prior to the issuance of said certificate; that Harbin afterward mortgaged the lands to McDonald, and McDonald purchased the same at the foreclosure sale. That after the purchase by McDonald, to-wit: On the 11th day of August, 1876, the plaintiff Silver presented to and filed with the Surveyor-General of the State his application and affidavit, first paying the legal fees therefor, to purchase the said lands. That he had not and has not entered any land in part satisfaction of the grant in lieu of sixteenth and thirty-sixth sections, which together with that sought to be purchased in the application and affidavit exceeds three hundred and twenty acres; that there was not a claim of any kind to said lands at the time of plaintiff's application, except the alleged claim of McDonald. That in December, 1876, the plaintiff filed a statement with the Surveyor-General and ex-officio Register of the State Land Office contesting the right of Mullan to purchase said lands and the certificate of purchase issued to him, and the contest was referred to the District Court of the Seventh Judicial District.

As conclusions of law the court state that the application and affidavit of Mullan is invalid and of no effect; that he had no right to purchase said lands, and that the certificate of purchase issued to him is invalid and of no effect; that defendant McDonald is not the owner of said lands, nor en


« PreviousContinue »