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dence in this action. Its allegations were not binding on the plaintiff here. It was filed in an action which was dismissed before that at bar was brought. The parties to the two actions were not identical. The fifth point made by the defendants for the first time in this court should not be considered. The record shows no error, and the judgment and order should be affirmed.

We concur: SEARLs, C.; BELCHER, C. C.

BY THE CourT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(67 Cal. 451)
MURPHY v. SNYDER. (No. 9,973.)

Filed September 22, 1885.

1. FORCIBLE DETAINER—IEASE AS EVIDENCE IN. In an action for forcible detainer, brought by a lessee, his lease is admissible in evidence, in connection with his former possession, to show the extent of his possession and his right thereto. 2. PRACTICE—CONCLUSIONS OF LAW IN FINDINGS. In an action for forcible detainer, a direction by the court, at the conclusion of the findings of fact, to the effect that “judgment be entered in accordance With the foregoing findings in favor of plaintiff for restitution of said premises, and for his costs and disbursements in this action,” is equivalent to a conclusion of law that plaintiff is entitled to the possession of the premises sued for, and that he recover the same.

Department 2. Appeal from superior court, Santa Barbara. Plaintiff claimed under a lease of the premises, which lease he was permitted to give in evidence on the trial. R. M. Dillard, C. E. Huse, John T. Richard, and J. J. Boyce, for appellants. McNulty & Ogelsby, for respondents. THORNTON, J. Action for a forcible detainer. There was no error in admitting in evidence the lease to plaintiff. It was admissible, in connection with plaintiff's former possession, to show the extent of such possession. In an action for a forcible detainer, the plaintiff is entitled to recover on showing the forcible detainer, and that he is entitled to the possession at the time of such forcible detainer. Code Civil Proc. § 1172. The lease was admissible, also, to show that plaintiff was entitled to the possession. The objections of plaintiff to certain questions asked by defendant of witness Mullaney were properly sustained, as was also the objection to a question asked plaintiff. These questions related to matters which were entirely irrelevant to the issues to be tried. There was evidence tending to prove the allegations of the complaint. It is urged that the court below, in giving its decision, stated no

conclusion of law. The record shows that after finding the facts the

court adds this direction: “Let judgment be entered in accordance

with the foregoing findings in favor of plaintiff for restitution of. said premises, and for his costs and disbursements in this action.”

This, in our judgment, is in substance a conclusion of law stated by

the court that the plaintiff is entitled to recover the possession of the

premises sued for. It would be yielding too far to mere form to hold

that the above is not a conclusion of law. Judgment and order af

firmed.

We concur: MYRICK, J.; MoRRISON, C. J.

(2 Cal. Unrep. 532)
McKINNEY v. Roberts. (No. 9,342.)"

Filed September 23, 1885.

1. COMPLAINT IN SLANDER—ALLEGATIONS ON INFORMATION AND BELIEF. In an action for slander it is not a sufficient averment of the speaking of slanderous words to allege that at a certain time, in the presence of certain persons, “as the plaintiffs are informed and believe,” the defendant spoke the words complained of; and the defect in the complaint arising therefrom goes to the sufficiency of the facts stated, and not to the manner of stating them, and may be taken advantage of by a general demurrer

2. CoST-BILL–CoLNSEL FEES AS PART OF. Counsel fees are not recoverable in an action of slander by a defendant in whose favor a judgment is rendered, unless such fees are included in his memorandum of costs.

Commissioners’ decision.

Department 2. Appeal from superior court, Stanislaus county.

SEARLs, C. Plaintiffs are husband and wife, and this is an action to recover damages for slanderous words alleged to have been spoken of and concerning the latter by defendant. A demurrer to the complaint was sustained, and, plaintiffs declining to amend, final judgment was rendered in favor of defendant for $100 counsel fees, as provided by section 7 of an act concerning actions for libel and slander, approved March 23, 1872, and for costs in the sum of $7.75. A memorandum of costs was made out, served, and filed, as required by section 1033 of the Code of Civil Procedure, but which did not include the $100 allowed by the court as a counsel fee.

Appellants claim that the court erred—First, in sustaining the demurrer to the complaint; and, second, in including the sum of $100 as counsel fees in the judgment, the same not having been mentioned in the memorandum of costs as filed.

The language complained of is set forth in the complaint as follows:

“(2) That on the first day of March, 1883, as the plaintiffs are informed and believe, at the county of Stanislaus, the defendant, addressing William Walker, spoke, in the presence of said William Walker and George M. Dewel, the following words, to-wit: ‘If you wish to see or talk to any woman go over the river and talk to your paramour, Mrs. W. McKinney. By God, sir, she is over at my house visiting to-day.”

* Reversed in banc. See 8 Pac. 857, 68 Cal. 192.

“(3) That said words were spoken concerning the plaintiff Susan McKin hey.

“(4) That said words were false, except that the said plaintiff Susan McKinney was at the house of said defendant on said day visiting.”

The allegation of the complaint is: “That on the first day of March, 1883, as the plaintiffs are informed and believe, at the county of Stanislaus, the defendant, addressing William Walker, spoke, in the presence of said William Walker and George M. Dewel, the following words, to-Wit.” “Plaintiffs are informed and believe defendant spoke certain words.” Is this a sufficient averment of the speaking? Plaintiffs might have been informed, and might have believed, the defendant to have spoken the words as charged, and yet it may not have been true. Would proof that they were so informed, and that they thus believed, be sufficient to sustain an action? We think not. If denied, the proofs should show the words to have been spoken by the defendant, or the action must fail. No amount of proofs that plaintiffs were informed defendant had thus spoken, and that they believed it, would suffice to establish the fact. The allegata and probata should concur. The averments of the complaint should be as precise and specific as the proofs are required to be. The language used does not exclude the hypothesis that defendant did not speak the words. It may all be true, and the defendant be entirely innocent. Had plaintiffs stated that, upon information and belief, they averred defendant spoke the words in question, quite a different proposition would be presented. Suppose defendant had failed to answer, what would have been the effect of admitting the allegations of the complaint? Why, simply that plaintiffs were so informed, and not that it was true, but that they believed it to be true. We think the defect goes to the sufficiency of the facts stated, and not to the mode of stating them, and therefore that it can be reached by a general demurrer, and that for this reason the demurrer was properly sustained. 2. As to the action of the court in including the counsel fee in its judgment, the same not having been included in the memorandum of costs filed. The order of the court was that defendant have judgment for his costs, and thereupon the clerk seems to have entered the judgment for not only the amount included in the cost-bill, but also for the counsel fee of $100. Section 7 of the statutes of 1871–72, p. 533, provides as follows: “In case the action is dismissed, or the defendant recover judgment, he

shall be allowed $100 to cover counsel fees, in addition to the other costs, and judgment therefor shall be entered accordingly.”

This court construed the above section in Jacobi v. Baur, 55 Cal. 554, and held it did not have the effect of entitling a party to recover, except in those cases where, under the Code of Civil Procedure, he became entitled to costs; and accordingly held that in a case for slander a plaintiff who recovered less than $300 was not entitled to $100 to cover counsel fees. It is allowed to cover counsel fees in addition to the other costs. Treating it as costs, it becomes necessary that the amount thereof should be included in the memorandum filed, pursuant to section 1033 of the Code of Civil Procedure. Not having been included in the cost-bill as filed, it was waived. We think the judgment of the court below should be modified by striking out the sum of $100 allowed as counsel fees, and that in all other respects it should be affirmed.

We concur: Foot'E, C.; BELCHER, C. C.

BY THE CourT. For the reasons given in the foregoing opinion the judgment is ordered modified by striking therefrom the sum of $100 allowed as counsel fees, and in all other respects the judgment is affirmed.

(67 Cal. 469)
INGLIS v. SHEPHERD. (No. 11,011.)

Filed September 24, 1885.

CONTESTED ELECTION–COUNTING OF BALLOTS. Ballots should be counted for a candidate for the office of supervisor of the First district of a county, which on their face show that he was voted for as supervisor of the Second district of the same county, where all the circumstances tend to show that the ballots were intended to be cast for him for the office for which he was a candidate. Commissioners’ decision. Department 1. Appeal from superior court, San Joaquin county. J. H. & J. E. Budd, for appellant. Campbell & IIosmer and Smith & Keniston, for appellant. Foot'E, C. William Inglis contested D. C. Shepherd's election as supervisor for the First district of San Joaquin county. The court below gave judgment in favor of the contestant, nd the respondent appeals therefrom. The question determining the contention was this: Was or was not Inglis entitled to have counted for him as supervisor for the First district of San Joaquin county 67 ballots which on their face showed that he was voted for as supervisor for the Second district of said county ? The evidence admitted by the court, and which, under the circumstances of this case, is permissible, was that at the time no other person named William Inglis, except the contestant and his minor son, resided in said county; that contestant was the only person of that name running as a candidate for the office of supervisor of the First district; and that he lived in said district, and was the only candidate of his party therein for said office. The board of election all knew those facts. His name, together with the name of the office and the number of the district, were properly printed on the great majority of the ballots voted for him, as issued by the printer employed by his party managers to attend to the matter. By some mistake of that printer, the figure “2” became substituted for the figure “1” on said 67 ballots, and others, placed on tables convenient for the use of voters. Some time during the day of election this mistake was discovered, and as far as possible those misleading ballots were destroyed. Before this mistake was discovered those 67 ballots were voted at the proper precinct of the district in which contestant was such candidate; and nearly half of them were counted for him by the proper election board, but they refused to count for him some 36 of them. Those 67 ballots, with one or two exceptions, were what are called “straight tickets.” Thus it appears that the voters casting the disputed ballots intended to vote for William Inglis for supervisor of the First district of said county. And no fault resting on them, we do not perceive the propriety of permitting the carelessness or mistake of a printer to defeat that intention. The judgment of the court below should be affirmed.

We concur: SEARLs, C.; BELCHER, C. C.

By THE CoURT. For the reasons given in the foregoing opinion the judgment is affirmed.

(68 Cal. 24)
HALL v. SUPERIOR CourT of EL DoRADo Co. (No. 11,013.)

Filed September 24, 1885.

APPEAL FROM JUSTICE’s CourT-HOW PERFECTED. The superior court obtains jurisdiction of an appeal from a justice’s court, where the notice of appeal is served and filed, and the undertaking on appeal filed within the statutory time, and the appeal cannot then be dismissed for want of jurisdiction; and the fact that the acts necessary to the perfection of the appeal were not done in the order prescribed in the statute is immaterial, if they are all done within the prescribed time.

In bank. Application for writ of certiorari. Geo. C. Blanchard and Chas. A. Swisler, for petitioner. Irwin & Irwin, for respondent. MoRRIsoN, C. J. Application for a writ of certiorari. The petition in this case sets forth that on the fourteenth day of June, 1884, one William Went recovered a judgment against petitioner in a justice's court, in the county of El Dorado, for a sum of money therein stated; that on the twenty-third day of June a notice of appeal in said case was served and filed on the following day, and on the twenty-eighth of June, 1884, a bond on appeal was duly filed. The petition alleges that the appeal was in all respects regular and according to law, but that on the eleventh day of February, 1885, the cause was brought on for hearing before the superior court of El Dorado county, when a motion was made to dismiss the appeal, which was granted on the grounds, as the order of dismissal shows, "that the notice of appeal was served on the twenty-third day of June, 1884, and filed on the 24th; that the bond was filed on the 28th."

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