(229 P.) guardian as prayed for. In said order the tenance, and education, to his counsel; and court found that notice had been given to all that he had by the latter been advised that relatives of said minors residing in San Fran- he had a good and sufficient defense upon cisco, and that a copy of the petition had the merits to the said petition for letters of been mailed to the father at Annapolis at guardianship; and that, in addition, he had least 5 days before the hearing. Petitioner been advised by his counsel that good, suffithereupon qualified, and letters of guardian-cient, and legal cause existed why the court ship were issued to her. should not appoint the said Margaret S. Pryor as guardian of the persons and estates of said minors, which advice and information he verily believed. As hereinbefore stated, said motion was denied, and the appeal is from the order made in that behalf. In support of the appeal, it is urged that the trial court erred in denying appellant's motion to vacate and set aside the order ap by reason of the failure of the trial court to require notice to be given to the father of said minors as required by the law of this state. Thereafter, on June 15, 1923, the father, appellant herein, filed a notice of motion for an order vacating and setting aside the order appointing respondent guardian, together with a request that he be permitted to file an answer to the petition, which proposed answer was annexed to his notice of motion. The said notice advised the guardian that the father would move to vacate, annul, and set aside the order of appointment and per-pointing the guardian; said order being void mit him to contest the petition. In his affidavit accompanying said notice, he set forth that, at all times mentioned in these proceedings, and for a long time prior thereto, the affiant was an officer of the United States navy, to wit, a lieutenant commander, in command of the U. S. S. Kittery, assigned to active duty as such; that, on the day following the date (February 19, 1923) that the copies of the petition and notice of the time fixed for hearing were deposited in the United States post office at San Francisco, the said U. S. S. Kittery sailed from Hampton Roads in the state of Virginia for foreign ports. The movements of said vessel were then by affiant traced and specifically set forth from the date of sailing from Hampton Roads until the return of said vessel to its port of departure on March 15, 1923; and it appeared in said affidavit that, from the 20th day of February, 1923, to the 15th day of March, 1923, the U. S. S. Kittery was at all times either upon the high seas or It is apparent that the purpose of the in foreign ports; and that, through all of Legislature, in requiring a reasonable notice said period of 25 days the affiant was actual- to be given to the parents of the minor, is to ly and physically on board said vessel; and enable them to appear in the proceeding. We that at no time during the said period did do not think that a reasonable construction the affiant receive any mail or have any in- of this provision requires that the court formation from any source whatever of the must wait upon the convenience of a person filing of said petition for letters of guardian-residing in a foreign state or moving from ship or of the time or place fixed for the point to point beyond its jurisdiction; and hearing thereof. The affiant further alleged that, in the ordinary course of the United States mail, first-class mail matter deposited in the United States post office on February 19, 1923, would not be received at the post office at Annapolis until about the 23d or 24th of February, 1923; and that, had he been informed of or had any notice of the filing of said petition, he would have appeared in said matter by counsel, and would have opposed the granting of the same. Contained in the said affidavit is the statement of affiant that he had fully and fairly stated the facts of the case in said matter, and all the facts pertaining to the guardianship of the persons and estates of said minors, and pertaining to their care, custody, control, main Section 1747 of the Code of Civil Procedure, dealing with the subject of the appointment of guardians, requires that notice must be given to certain persons. Before the amendment of this section in 1921 (St. 1921, p. 138), it was only necessary to give notice to the person having the care of the minor, and to such relatives of the minor residing in the county in which the application was made as the court deemed proper; but, by this amendment, it became mandatory upon the court to require notice to be given to the parents of the minor, or proof made that their addresses were unknown, or that, for other reasons, notice could not be given. The precise character of notice is not prescribed, but must be "such notice as the court deems reasonable." it is not necessary to decide whether the notice must be actual, or that constructive notice merely is sufficient; but we are satisfied that, where the residence of a parent is known, and information as to the pendency of the proceeding can be conveyed to him by mail, so that he may appear in the proceeding within a reasonable time, it is perfectly plain that no notice can be called reasonable which prima facie must fail to afford him opportunity to so appear. The time given by the trial court in the case at bar was barely sufficient to apprise the parent of the pendency of the proceeding, assuming that he would receive the notice at his residence in due course of mail, and left him entirely without opportunity to appear either personally or by counsel. Certain relatives of the minors were residing in San Francisco, the place in which the court was sitting, and the same notice was by the court's order directed to be given to them, namely, 5 days, as to the parent residing several thousand miles away. This would seem to indicate an inadvertence on the part of the court, for, if it regarded that period as reasonable notice to persons located in the immediate vicinity of the place of hearing, it is difficult to see how it could regard the same period as reasonable notice to a person residing at a great distance therefrom. In any event if, as seems indisputable, the purpose of requiring notice was to afford the person entitled to it an opportunity to appear in the proceeding, any notice not calculated to permit him to do so cannot be regarded as reasonable. We think it follows that it was the duty of the trial court to grant the appellant's motion to vacate and set aside the order appointing Margaret S. Pryor guardian of the persons and estates of said minors, and to be permitted to file an answer to the petition in that behalf; and that its order denying said motion was erroneous. Said order is therefore reversed. We concur: KNIGHT, J.; ST. SURE, J. FAY FRUIT CO. v. RYAN et ux. (Civ. 3998.) (District Court of Appeal, Second District, Division 1, California. Aug. 8, 1924.) 1. Pledges 55-Pledgee held to have burden of proving nonliability for missing portion of pledged property. Where pledgee of orange crop was authorized to market it and apply proceeds to debt, and portion of crop was stolen or taken while under its control, in action by pledgee to recover deficiency of proceeds to pay debt, where pledgor demanded judgment for portion of crop stolen or taken, burden was on pledgee to establish its lack of negligence. CONREY, P. J. In December, 1918, the defendants were the owners of an orange grove in Riverside county on which there was a crop of oranges then nearing maturity. On December 10, 1918, the plaintiff loaned to the defendants on the security of said citrus fruit crop the sum of $600, and defendants placed said crop in the hands of the plaintiffs "to market for my account and risk on its regular terms. * * * Should the net proceeds of my said crop not be sufficient to cover said indebtedness, I hereby agree to pay the Fay Fruit Company on demand any balance due it." The quotations are from a memorandum at that time signed by the defendants and delivered to the plaintiff. In this action the plaintiff sued on that agreement. Plaintiff alleged that it took charge of said citrus fruit crop and marketed a part thereof, and received therefor only certain sums, which in the aggregate amounted to $153.95. Plaintiff demanded judgment for said sum of $600, with the accrued interest, less the said sums credited, and interest thereon from the date of receipt of said sums until the date of judgment herein. The defendants in their answer alleged that, in addition to the sums received by the plaintiff as stated in the complaint, the plaintiff picked from said crop and received therefor other sums sufficient to pay the entire amount of principal and interest of said loan, together with an additional amount for which defendants demanded judgment in their favor. The court having rendered judgment in favor of the plaintiff in the sum of only $40.23, the plaintiff appeals from the judgment. [1, 2] The judgment as entered is justified by the evidence, unless the defendants are entitled to a certain credit of $450, which was allowed by the court, but which, accord ing to the contentions of the plaintiff, is not chargeable to it. It will be necessary to review the evidence concerning said item. In the orchard there were about 63 rows 2. Pledges 55-Evidence held to establish of trees, numbered consecutively "from the pledgee's liability for missing portion of pledg-bottom up." The orchard was on sloping ed orange crop. Evidence held sufficient to establish pledgee's liability for value of portion of orange crop taken or stolen, while under its control, with authority to market it and apply proceeds to debt. ground. Some time after December 10th the fruit on the lower part of the orchard, including about a dozen rows, was frozen. The upper part of the crop, although affected to some extent by frost, was not classed as froz en fruit. The plaintiff's manager notified Appeal from Superior Court, Riverside Mr. Ryan that part of the fruit was frozen, County; G. R. Freeman, Judge. and by mutual consent of the parties the plaintiff made sales of this fruit as frozen. This included only the oranges in the lower part of the grove. The purchasers were the two brothers Graffia. The plaintiff accounted to the defendant for certain receipts of Henry O. Wackerbarth, of Los Angeles, money, which it claims represent all of the for appellant. boxes which it picked and sold to the GrafEdward M. Selby, of Los Angeles, for re- fias. The credit of $450 allowed by the court spondents. is for other fruit taken from the upper part For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (229 P.) of the orchard, which the court found was, Nevertheless the evidence is sufficient to waralso received by the Graffias, but which the rant the court in determining that the Grafplaintiff claims that it did not sell or de- fias were introduced into the orchard by liver to them, and for which the plaintiff has the plaintiff and were permitted to pick fruit refused to allow any credit to the defend- there. This being so, it was the duty of the ants. It is contended by the plaintiff that plaintiff to account for all fruit received and the evidence is insufficient to show that said taken away by those parties. fruit was received by the Graffias or by any other person through the plaintiff, or with the consent of the plaintiff. Plaintiff contends that this being so, plaintiff is not responsible for the disappearance of said fruit from the orchard, it having been taken or stolen by persons unknown; such taking not being the result of any negligence of the plaintiff. This is the rule governing a bailee for hire, as set forth in Perera v. Panama Pacific, etc., Co., 179 Cal. 63, 175 Pac. 454. Respondents, on the other hand, contend that the plaintiff caused the fruit in question to be picked and allowed it to be received by the Graffia brothers; and that, if the plaintiff for the value of that part of the crop tiff failed to keep account of the amount picked or failed to collect therefor, it should nevertheless be responsible to the defendants for the reasonable value thereof. According to the testimony of Jack Graffia, all of the fruit which they received was picked by employees of the plaintiff, and then was by the Graffias loaded into a Kissel car and trailer, in which the Graffias took the fruit away. He testified that he only took away frozen fruit, and that his brother was with him on each occasion when he took the fruit away. But there is other evidence tending to prove that at least a part of the fruit received and paid for by the Graffias was picked by them. The witness Gobruegge, an inspector for the plaintiff, testified that he saw the car and trailer while the Graffias were there, and saw them picking on the lower 10 rows. He did not see them picking in the upper part of the grove. The witness Otis, local agent of the plaintiff at Riverside, in a letter to the defendants, stated that plaintiff's employer, Mr. Abbott, found that the Graffias were picking in the upper part of the orchard, but had stopped them, and picked for them or had two boys from Mr. Maxwell's pick from the bottom of the grove certain boxes of oranges. These latter were the boxes for which the plaintiff accounted. One of the Maxwell boys testified that he picked a considerable amount of fruit from that part of the grove where the oranges were not frozen, and that this fruit was taken away by some Italians, who hauled the fruit away in a Kissel car with a trailer. In order to excuse the plaintiff from responsibility for any part of the fruit taken by the Graffias, even under the doctrine of the Perera Case, supra, the burden was upon the plaintiff to prove that, by an entirely separate and distinct act, and without fault of the plaintiff, the Graffias at a subsequent time secretly went back to the orchard and stole the fruit so taken. Under the circumstances shown, the burden was not thrown upon the defendants to prove that the fruit so taken was not stolen fruit. We think, therefore, that the evidence was legally sufficient to establish the liability of the plain taken away and for which it did not account. We concur: HOUSER, J.; CURTIS, J. Ex parte COLFORD. (Cr. 813.) (District Court of Appeal, Third District, California. Aug. 12, 1924.) 1. Criminal law 881(3), 995(4)-Verdict and judgment held void for uncertainty. In prosecution for robbery, where verdict found defendant guilty "as charged in the information," and court sentenced defendant to imprisonment in state prison without specifying length of term, such verdict and judgment were void for uncertainty, in view of Penal Code, §§ 211a and 213, as amended by St. 1923, pp. 270, 271, enumerating degrees of robbery and punishment therefor, and Pen. Code, §§ 1157, 1192, requiring jury and court to designate degree of crime. 2. Indictment and Information 110(52)-Information for robbery sufficient to sustain verdict for either degree of offense. In prosecution for robbery, information following language of section 211 of Penal Code, which defines robbery, is sufficient to support convictions of either degree of robbery as defined by section 211a. 3. Habeas corpus 11(1)—Petitioner illegally imprisoned under void verdict, and judgment must be tried anew. tion are void and imprisonment thereunder Though a verdict and judgment of convicillegal, petitioner will not be set at liberty, but must be tried anew. From the evidence, it reasonably might have been inferred that the Graffia brothers, after they had received and paid for the oranges delivered to them by the plaintiff's representatives, went back and took fruit Application by Chas. Colford for a writ of from the upper part of the orchard without habeas corpus against the Warden of Folknowledge of the plaintiff or its employees. som State Prison. Writ granted. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Arthur J. De Lorimier and Erling S. Nor-, until duly released as provided for in this by, both of Marysville, for petitioner. U. S. Webb, Atty. Gen., and J. Chas. Jones, Deputy Atty. Gen., for respondent. * * * FINCH, P. J. This is an application for a writ of habeas corpus. The petitioner was charged with the crime of robbery, alleged to have been committed as follows: "The said Chas. Colford, on or about the 22d day of March, A. D., Nineteen hundred and twenty four did willfully and unlawfully and feloniously and forcibly take from the person, possession, and immediate presence of one Mrs. Ann Barnes, approximately $75 lawful money of the United States of America, and of the personal property of another, to wit, The National Theater's Syndicate, a corporation, which said taking was then. and there without the consent and against the will of said corporation and the said Mrs. Ann Barnes, and was then and there accomplished as aforesaid, by means of force used upon and against said Mrs. Ann Barnes, by said defendant, by then and there putting said Mrs. Ann Barnes in fear." act: Provided, that the period of such con- * "1157. Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty." "1192. Upon a plea of guilty of a crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree." It is perfectly clear that the judgment and the verdict are void for uncertainty. Since the jury failed to find the degree of the of [1] The jury returned a verdict of convic-fense, and the judgment necessarily follows tion reading as follows: the language of the verdict in substance, the prison authorities have no means of determining the minimum term of imprisonment to be imposed, whether one year or five. [2] Respondent contends that the information charges robbery of the second degree After the usual formal recitals, the court only because "nowhere in the information is rendered judgment: "That whereas, the said Chas. Colford having been duly convicted in this court of robbery, it is therefore ordered, adjudged, and decreed that the said Chas. Colford be punished by imprisonment in the state prison of the state of California." Petitioner did not appeal and he is now confined in the state prison at Folsom. The petition alleges, in effect, that the verdict and judgment are void for uncertainty. It is also alleged that such invalidity was not discovered until after the time to move for a new trial and to appeal had expired. All persons connected with the trial inadvertently overlooked the provisions of section 211a of the Penal Code, enacted in 1923 (Stats. 1923, p. 270), and the amendment of section 213 in the same year (Stats. 1923, p. 271). Those sections read as follows: "211a. All robbery which is perpetrated by torture or by a person being armed with a dangerous or deadly weapon is robbery in the first degree. All other kinds of robbery are of the second degree." it charged that the offense was perpetrated by torture, or that said Chas. Colford was then and there armed with a dangerous or deadly weapon." In cases of murder, arson, and burglary, it has always been held sufficient for the indictment or information to follow the language of the statute defining the crime charged, without alleging the degree thereof or the facts from which the degree might be determined. No reason appears why the same rule should not apply in cases of robbery. The information follows the language of section 211 of the Penal Code, which defines robbery, and is sufficient to support a conviction of either degree of the crime, as defined by section 211a. [3] The verdict and judgment being void, the imprisonment of petitioner in the state prison is illegal. He is not, however, entitled to be set at liberty, but he must be tried anew. "Where a verdict is so defective that no judgment can be entered on it, and the defendant fails to have it corrected when rendered, he is considered as consenting to the verdict, and as waiving any objection, "213. Robbery is punishable by imprison- including the plea of former jeopardy, to be ment in the state prison as follows: 1. Rob-ing put again on trial before another jury." bery in the first degree for not less than five years. 2. Robbery in the second degree, for not less than one year." Under the indeterminate sentence law it is made the duty of the warden of the state prison to receive every person sentenced to imprisonment therein, "who shall be confined 8 R. C. L. 141. "Because a defendant waives his right by not objecting when an imperfect verdict is rendered, if it is set aside he shall not be discharged, but tried anew." Bishop's New Criminal Procedure, § 1016. See, also, People v. Tong, 155 Cal. 579, 102 Pac. 263, 24 L. R. A. (N. S.) 481, 132 Am. St. Rep. 110; (229 P.) It is ordered that the warden of the state prison at Folsom deliver the petitioner into the custody of the sheriff of the county of Yuba, to be held by such sheriff pending further proceedings in the cause in the superior court of said county, in accordance with the views herein expressed. We concur: PLUMMER, J.; HART, J. State v. Rover, 10 Nev. 388, 21 Am. Rep., with the defendant Andrew J. Gerlach to ex745; Mahany v. People, 31 Colo. 365, 73 Pac. change their "Madrone ranch," consisting of 26; Marshall v. State, 73 Tex. Cr. Rep. 531, 18.84 acres of orchard land in Santa Clara 166 S. W. 722, L. R. A. 1915A, 526; State v. county, for property near Aromas, Monterey Bates, 22 Utah, 65, 61 Pac. 905, 83 Am. St. county, known as the "M. B. Tuttle ranch," Rep. 768. of record in the name of said defendant. In addition to the conveyance of the "Madrone ranch" plaintiffs gave a note for $5,000, secured by a mortgage on the Aromas property, which they acquired from said defendant in the exchange. The basis of the action is the alleged shortage in acreage in the property conveyed by defendant Andrew J. Gerlach. The grounds upon which the plaintiffs rely, as stated in their briefs, are "material error in description, mistake and misrepresentation, fraud, or gross mistake equivalent to fraud, and for breach of covenant of seizin or possession." The prayer of the complaint is for damages in the sum of $7,749.94, or a reconveyance to plaintiffs of the "Madrone ranch," and cancellation of said note and mortgage, or an abatement of said note and mortgage as part of the exchange price of the lands. The trial court found adversely to plaintiffs on all material allegations of their complaint, and rendered judgment for the defendants. The appeal is from this judgment, and is taken under section 953a of the Code of Civil Procedure. SHERLOCK et ux. v. GERLACH et al. (District Court of Appeal, First District, Divi- case. In action for breach of and to rescind exchange agreement, plaintiffs' groundless insistence that they were misled into believing that defendants had title to adjoining tract to which defendants gave quitclaim deed on request, and without cost, and which was not included in exchange agreement, held evidence of bad faith, casting doubt on their good faith as to other matters. 2. Fraud essential. 20-Reliance on representations Defendants A. P. Gerlach and Adella C. Gerlach were the father and mother respectively of defendant Andrew J. Gerlach. At the time of the exchange defendant Andrew J. Gerlach had the deed to the Madrone ranch made to his mother, and the said note for $5,000 and mortgage on the M. B. Tuttle ranch made to his father instead of to himself. The title stood thus at the time suit was commenced. Because of this the father and mother were made defendants. It is not questioned that the actual acreage of the land conveyed by respondent A. J. Gerlach to appellants was less than that named in the deed. This deed described the property by metes and bounds, and then added, "and containing 210 acres of land, more or less; and being the same land described in deed dated September 6, 1887, of record in Appeal from Superior Court, Santa Clara volume 16 of Deeds at page 167, in the office County; F. B. Brown, Judge. Action by Hugh Sherlock and wife against Andrew J. Gerlach and others. Judgment for defendants, and plaintiffs appeal. Affirmed. Wm. F. Rose, of San Francisco, J. B. Peckham, of San Jose, and Alva S. Sherlock, of Concord, for appellants. Frank H. Benson and Leland H. Walker, both of San Jose, for respondents. of the county recorder of Monterey county, Cal., saving and excepting therefrom 79/100 of an acre," etc. Then follows: "Also all the right, title, and interest of the said party of the first part in and to that certain 38 acres adjoining said 210 acres hereinabove described, which have been occupied by the owners of said 210-acre tract for many years." [1] It appears without dispute that there were about 20 acres less in the Tuttle ranch NOURSE, J. This is an action for dam- than indicated in the deed from respondent ages for breach of an executed written con- Andrew J. Gerlach, and that said respondtract for the exchange of real properties or ent had no title to and had not been in posfor the rescission of the contract. By the session of any 38 acres or any other number terms of the contract the plaintiffs agreed of acres adjoining said Tuttle ranch. It alFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 229 P.-5 |