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prescribes two different methods of perform county taxes. This position finds no support ing an act, upon the due and proper exécu in the language of the statute. In the first tion of which depends the legality or validity place, there is, it seems to us, no conceivable of the result or product of such act, a party ground or reason upon which to rest a sucmust first clearly disclose by his complaint cessful contradiction of the proposition that which of the methods prescribed had been the Legislature has absolutely no power adopted for the performance of such act, to delegate to the sanitary board provided for and that a failure to so point out the in the act under consideration the right or particular method followed is fatal to a authority to confer upon a county officer new proper statement of a cause of complaint. or additional official duties. The power of the It is claimed that plaintiff's complaint is Legislature to charge the tax collector with subject to this objection, for which reason the duty of collecting the taxes levied in and the special lemurrer should have been sus for the benefit of a sanitary district in any tained upon the ground of uncertainty.

proper manner it may deem wise to prescribe, The complaint, in paragraph 2 thereof, or to collect such taxes in the same manner as alleges that "defendant, B. Kelsey, is the state and county taxes are collected, cannot owner and holder of a certain deed made by be questioned; but to undertake to maintain the tax collector of the county of Alameda, that the manner or mole of discharging any and issued to and in the name of said B. i official duties which the general laws of the Kelsey by said tax collector, on the 13th | state require that officer to perform may be day of July, 1901"; and in paragraph 3 it is

changed by a mere regulation of a sanitary alleged that "said tax collector did on behalf board, or upon the mere wbim or caprice of of said sanitary district No. 2, a corporation, the members of such hoard, is a proposition and at its request, hold a pretended sale of which can find no encouragement in any rule said property for the noapayment of said pre of law with which we are familiar under our tended taxes," etc. The statute, it will be ob system of government. In the second place, served, provides that the tax collector of the we think it is manifestly clear that the Legiscounty upon the transmission to him by the lature, in the enactment of the law governing sanitary board or by the assessor of such the organization of sanitary districts, has not district of a duplicate list of the assessments i attempted nor indicated any intention of atmade in the district and for the purposes tempting to invest such boards with any such thereof shall proceed to the collection of the power. There is, it is true, a provision in taxes showr: by said list to be due, "in the the law that the board may, at any time, by same manner as he collects the county taxes,” | order entered in its minutes, provide a system and that "all the provisions of the laws of | for the collection of delinquent taxes, or the state as to the collection of taxes and de- i make any change in the manner of their collinquent taxes, and the enforcement of the ; lection, “which as to such taxes shall have the payment thereof, so far as applicable, shall force of law." By this provision the Legis. apply to the collection of taxes for sanitary lature evidently intended to grant to the board purposes." We think the complaint is suffi the right and authority to collect the taxes ciently clear, in its allegations as to the meth- . levied for the purposes of the corporation od for the collection of the taxes adopted by through its own agent, directly appointed the board of trustees under the discretion by itself, and to enforce the collection of such in that particular conferred upon it by the taxes by such regulations, consistent with statute, to successfully resist the force of the the general laws of the state, as it might special demurrer upon the point. Counsel for

deem prudent to adopt. The act, as we have appellant does not question the sufficiency of į seen by express language, provides that if the the allegations of the complaint to show that

tax collector is called upon by the constituted

i the tax collector of Alameda county was the authorities of the corporation to collect the official to whom the sanitary board, under its taxes, he must conduct and perform that power under the law, committed the duty of i duty "in the same manner as he collects the collecting the taxes, but declares that the tax county taxes,” and that "all the provisions collector, for aught that is shown by the com of the laws of the state as to the collection of plaint, might have acted in the matter of the

taxes and delinquent taxes, and the enforcecollection of the taxes under the provisions

ment of the payment thereof, so far as apof a system established by the sanitary board

plicable, shall apply to the collection of taxes itself, and which might be altogether differ

for sanitary purposes," and that he and his ent from those of the system by which the sureties on his ollicial bond "shall be respontax collertor must be governed in the dis sible for the due performance of the duties charge of his duties as a tax gatherer under imposed upon him by this act." The Legisthe general laws of the state. It is therefore lature itself, it thus clearly appears, has exclaimed that it was the duty of respondent to pressly pointed out how and in what manner have shown by the pleaded facts that the sani. the tax collector of the county shall gather tary board did not adopt a system of its own, such taxes when called upon to perform that as it is provided it may do by the law, or duty by the sanitary board. The statute conthat the tax collector was not, if such were tajns no language which can be interpreter the fact, chirged with the duty of collecting or construed into giving the board any power the tilses in a mode or manner different from whatever to authorize, when the duty of colthat prescribed for the collection of state and lecting the sanitary taxes is imposed upon

the county tax collector, a departure from the deed executed by the tax collector to the demode prescribed by the statute itself for the fendant was and is void. collection of such taxes by substituting there Counsel for appellant contends that refor, through an order or regulation of its spondent, by proceeding in this action under own, another and different plan or mode by section 3412 of the Civil Code, is "seeking to which that duty shall be performed by that enforce the wrong remedy,” and that, inasofficer. In other words, the Legislature itself much as the facts pleaded show the deed held having prescribed the method and manner of by defendant to be void and therefore no title collecting such taxes by the tax collector of under it acquired by appellant, the remedy of the county, there is no power in the sanitary respondent was under section 738 of the Code board to modify, amend, or in any particular of Civil Procedure. Some authorities are change the provisions of the law respecting cited by counsel which he contends support that subject.

this suggestion. But the point is technical The complaint charges that the proceedings in the extreme, even if it be admitted that, in the matter of the sale of property for the strictly viewing the proposition, it might be delinquent taxes, which were required to be held that there is some merit in it. There is, taken by the tax collector by sections 3764, however, in our opinion nothing in the con3765, 3766, and 3769 of the Political Code, as tention. Section 3112 of the Civil Code prothose sections read in the year 1891, when the vides that "a written instrument, in respect Legislature passed the law for the creation to which there is a reasonable apprehension of sanitary districts, were not followed or that if left outstanding it may cause serious observed by that officer. The sections men- | injury to a person against whom it is void or tioned provided for the sale of property upon voidable, may, upon his application, be so which taxes were delinquent to individuals adjudged, and ordered to be delivered up or See St. 1885, p. 326, c. 218. The Legislature canceled.” Section 738 of the Code of Civil of 1895, however, made a radical change in Procedure provides for actions to quiet title the system of selling property for delinquent by persons against others who claim an estaxes and by said amendment authorized and tate or interest in real property adverse to required that all such property should be them. The remedy here invoked appears to sold to the state. It is obvious, from the be peculiarly appropriate to the facts as facts stated in the complaint, that there is pleaded in the complaint. Besides, an action no pretense that the property involved here under section 738, Code Civ. Proc., could acwas sold in pursuance of the provisions of complish in effect nothing more or nothing the law upon the subject of tax sales as less than the object of the present action. amended by the Legislatures of 1895 and 1897. Other points are discussed, which, under It is also alleged that the requirements of the views expressed in this opinion, it is un section 3785 of the Political Code (Deering's necessary to consider. Annotated Codes and Statutes), as it exist The judgment is affirmed. ed and read prior to said amendments of We concur: CHIPMAN, P. J.;

J.; BUR. 1895 and 1897, making it the duty of the pur

NETT, J. chaser of property at tax sale, or of his assignee, to serve upon the owner or occupant

(5 Cal. App. 562) of the property 30 days prior to the time of

VISHER v. WILBUR. (Civ. 317.) the redemption of the property a notice, (Court of Appeal, Third District, California.

June 20, 1907.) giving the date of sale, the amount of property sold and the amount for which it was

1. APPEAL - REVIEW-HARMLESS ERROR-ADsold, etc., were not complied with. The de

MISSION OF EVIDENCE.

Where it is established that an action is murrer of course, admits all the material barred by the statute of limitations, evidence allegations of the complaint to

to be true. that may have been offered in response to the The failure or omission of the tax collec

issues on the merits becomes of no consequence,

and errors in admitting or rejecting such evitor, as charged in the complaint, to com

dence are without prejudice to the party against ply with all the provisions of the statute whom made. prescribing the proceedings essential to ef [Ed. Note.-For cases in point, see Cent. Dig. fecting a sale of property for delinquent

vol. 3, Appeal and Error, $ 4035.] taxes, is fatally defective to a valid sale 2. LIMITATION OF ACTIONS-SUFFICIENCY OF

ACKNOWLEDGMENT. thereof. “All proceedings in the nature of

A claim filed against a decedent's estate assessing property for the purpose of taxa showing that at one time claimant was indebted tion and in laying and collecting taxes there

to decedent, but that through expenditures made of, are in invitum, and must be stricti juris."

by claimant for decedent there was a balance

due claimant, was not an acknowledgment of Weyse v. Crawford, 85 Cal. 196, 24 Pac. 735; indebtedlness to decedent, reviving a barred cause Hearst v. Eggleston, 55 Cal. 365; Shipman v. of action for the same, notwithstanding the exForbes, 97 Cal. 574. 32 Pac. 599; Gwynn v.

penditures may have themselves been barred or Dierssen, 101 Cal. 566, 36 Pac. 103 ; Merced

constituted a demnand otherwise not enforceable

against the estate. County v. Helm, 102 Cal. 159, 36 Pac. 399;

3. SAME. Dranga v. Rowe, 127 Cal. 509, 59 Pac. 914. A declaration in writing cannot revive a It will thus readily be perceived that the sale barred cause of action, unless it contains an exhere was no sale at all under the law and

press promise to pay the debt or an acknowl

edgment from which a promise may be implied, it necessarily follows that the purported tax and such acknowledgment must be a direct aud

unqualified admission of an existing debt the its of the case, and, as we have suggested, debtor is willing to pay.

has no force in its application to the evi[Ed. Note.--For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, 88 599, 600.]

dence bearing upon the special plea in bar.

It is only the statement of a cardinal rule On petition for rehearing. Petition de of evidence to say that any competent proof nied.

was admissible which would show or tend to For former opinion, see 90 Pac. 1065.

show that the debt declared upon was created HART, J. It is conceived proper in deny at such point of time with reference to the ing the petition for a rehearing herein to time of the commencement of the suit as add to what has been said in the main opin

would bar a right of action thereon. And the ion that, from our original examination of defendant, if he so elected, could entirely the record in this cause, we felt justified ignore the issues involving the merits of the in concludirg that the trust theory of the case, and rely solely upon his special plea complaint was adopted for no other reason in bar. The record in this case discloses no than to obstruct the successful interposition errors in the rulings of the court admitting of the statute of limitations against plain evidence directed to the issue tendered by the tiff's right of action. We concluded, from special plea. what we conceived to be a painstaking ex The point made by appellant in his origamination and careful analysis of the com inal argument, and vigorously renewed in his plaint, that the facts pleaded, with the ex petition, that the filing by the defendant ception of a few general averments amount against the estate of a claim, showing that ing to mere conclusions of the pleader, fail at one time defendant was indebted to the ed to show the transaction between the de deceased, but that through disbursements of ceased and the defendant to have been of a certain moneys for and on behalf of deceased fiduciary nature. The evidence, as disclosed by the defendant, the latter became a credby the record, fully sustains this conclusion. itor rather than a debtor of the deceased, We were convinced that the relations, if, is an acknowledgment of the debt, and reindeed, any at all existed at the time of stores to plaintiff a right of action for the Visher's death, between the defendant and same, is, we think, without merit, and so the deceased, were merely those of ordinary plainly did it so appear to us in our original rebtor and creditor, bearing none of the es

investigation of the record that we did not sential characteristics of a trust, except the feel called upon to give it extended notice bare fact, as alleged, of the possession of in the main opinion. Counsel, however, seems money belonging to the deceased by the de to give the question such serious considerafendant. Under this view of the record, the tion in his petition for a rehearing that we evidence, we think, irrefragably established a

feel justified in giving it briefly further atbar to the action under the terms of section

tention. The argument is that the items set 337 of the Code of Civil Procedure. Upon

forth in the claim and which show money the theory that the action was for money had to have been paid out for the benefit of the and received upon a stated account, any evi

deceased by the defendant and which were dence relevantly bearing upon the question

So set out in said claim as a set-off to any of the alleged bar was admissible. Of equal amount which might at one time have been soundness is the proposition that the moment

due deceased cannot be considered, because the court finds, upon sufficient evidence, that they had not been presented, as required by the claim that an action is barred by the

law, to the administrator of the estate of statute is sustained, and that such special

said deceased for allowance and payment; plea is therefore well taken, any evidence that "such claims cannot be pleaded in bar that might have been offered and received in of any action, or paid until they have been response to the issues upon the merits of the thus presented, and either allowed or discase, such evidence having no bearing what allowed"; that, therefore, the admission in ever upon the special plea in bar, is, whether said claim of the original indebtedness to improperly admitted or not, of no conse

the deceased constitutes an acknowledgment quence, and errors in the rulings of the trial from which the law will imply a promise to court in admitting or rejecting evidence so pay the debt, hence the right of recovery confined to the merits are without signif

thereon in the plaintiff is revived. The view, icance or prejudice to any rights of the

briefly expressed, as to this point in the origplaintiff or party against whom such rulings

ial opinion, was that there could be no such are made. But counsel argues in his peti

acknowledgment of an "outlawed" debt as tion that the errors of the trial court in the

would restore a lost right of action thereon, admission and rejection of evidence "become

where a party files or submits in writing the more apparent” if, as we have held, the

against another a claim, as to which an acaction is on an account stated, and adds:

tion could not be maintained for any legal “We have already pointed out in the petition

reason, saici claim showing a mutual account, that where an account is stated between the according to which it appears that at one parties thereto, it cannot be disputed, ques

time the claimant was indebted to the party tioned, modified, or changed, except for mis

against whom it is presented, but that the take or frau.l, which must be set up in the latter, at the time of the filing or submission pleadings." This contention goes to the mer. ' of such claim, is indebted to the claimant.

peals, the appeal was not lost, but wolle be transferred to the Supreme Court, as autacrized by Const. art. , $ 4.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, $ 1303.]

Appeal from Superior Court, Jono County ; J. D. Murphey, Judge.

Action by the Rickey Land & Cattle Company against C. P. Glader. From a judgment for defenılant, plaintiff appeals. Transferred to Supreme Court.

Jas. F. Peck, Wm. (). Parker, Alfred Chorty, and Chas. C. Boynton, for appellant. Richard S. Miner, for respondent.

it?

How can such a claim be construed to be an acknowledgment of an old debt when the defendant by the very nature of said claim in effect says: "Instead of being indebted to the plaintiff, the latter is indebted to me?" It must, of course, be (ler to the most tuse understanding that by filing the rain it was the intention of the deferlant to (0!:vey the notion that the plaintiff's intestate was indebted to him and not he to the estate. There is but one sensible interpretation of the language of the claim filed against the estate by the defendant, and that is that the defendant not only claims but in s!ibstance declares that he is in no way indebteil to said estate in any sum or amount whatsoever. The contention that the items in said claim purporting to have been expended for the benefit of deceased by defendant are barrell, or constitute an otherwise illegal demand upon the estate, cannot affect the determination of the question we are considering. Let it be granted that those items are barred, and that the defendant could not maintain an action upon them. The clecision of the question here can in no manner or degree be influenced by that fact. The sole question is as to the effect of the language of the claim so filed. Does it admit an old or any indebtedness, or does it deny

It seems to us that there can be no two sides to the question. A declaration in writing, in whatever form of language it may be made, cannot revive a right of action once barred, unless it involves an express promise to pay the debt, or an acknowledgment from which the law will imply a promise. And, as we have seen from an examination of the authorities cited in the main opinion, such acknowledgment must be clear, distinct, and direct—not vague, indeterminate, and uncertain. It will not be contended that the claim contains language expressly promising to pay the debt, to recover which the suit is brought, and, as previously suggested, the very nature of the document itself—the very intrinsic character of it, in purpose and effect-completely negatives the idea of an admission of any acknowledgment of an indebtedness to the deceased or his estate by the defendant.

The petition for a rehearing is denied.

We concur: CIIIPMAN, P. J.; BURNETT, J. (6 Cal. App. 113) RICKEY LAND & CATTLE CO. V. GLAD

ER. (Civ. 307.) (Court of Appeal, Third District, California.

July 10), 1907.) 1. COU'RTS-DISTRICT COURT OF APPEALS-JưRISDICTIOX--EQUITY CASES.

Under Const. art. 6, § 1. conferring exclusive jurisdiction in all cases of appeals in equity on the Supreme Court, a District Court of Appeals had no jurisiliction of an appeal from a judgment in a suit to restrain defonant from diverting the waters of a creek, without reforence to whether ihe judgment involved this merits of the controversy. 2. SAME--TRANSFER.

Where an appeal in an equity suit was erroncously taken to the District Court of Ap

CIIIPMAX, P. J. This cause was argued and submitted upon the unquestioneil assumption that this court had jurisdiction to entertain the appeal. Upon an examination of the record, it clearly appears that the action is in equity, being an action to restrain defendant from diverting the waters of a certain creek. Appellate jurisdiction in all cases in equity is given to the Supreme Court. Article 6, § 1, Const. Cal.

We have no doubt that this court is without jurisdiction to entertain an appeal involving the merits of the action, and it seems to us to be equally clear that we cannot entertain an appeal from any judgment entered in the case whether or not involving the merits of the controversy. Logically it would appear to be reasonable that if an appeal would not lie to this court from the judgment on the merits it cannot lie from any judgment growing out of the case. Otherwise there might be an appeal pending here by plaintiff from the present judgment and an appeal pending in the Supreme Court by defendant from the judgment on the merits.

In this view it becomes our duty to transfer the case to the Supreme Court, under article 6, § 4, of the Constitution. The appeal, though improperly taken to this court, is not lost. Id.

The cause and all the papers relating thereto are, under rule 32 (78 Pac. xiii), transferred to the Supreme Court. We concur: BURNETT, J.; IIART, J.

(6 Cal. App. 1) AMERICAN COPYING CO. v. LEILMANN

et al. (Civ. 371.) (Court of Appeal, Second District, California.

June 20, 19907.) 1. CONTRACTS CONSTRUCTION SEVERABLE CONTRACT

A contract whereby plaintiff agrees to print in its stamp directory ihe name and business of defendant, and to secure orders from at least 100 persons for portraits to be given free by se fendants on presentation of stamps worth $2), and whereby defendants agree to pay plaintiff $175 for 100 frames on the completion of the canvass, and to receive from plaintiT stamps to (arry out the scheme, paying therefor .50 cents per 100), and which stipulates that it is a part of the agreement that 100 persons shall ordor 111) frances, is not a severable contract, inil plaintif performing it in part is not entitled to recover, especially where it fraudulently altered orders for portraits procured by it.

El. Vote.-For cases in point, see Ceut. Dig. vol. 11, Contracts, $ 751.]

2. SAME-RESCISSION.

! on each was stamped with a rubber stamp Where a party to a contract, bound to pro- the words. "Reserve for me one frame," and cure orders for portraits, only attempted to perform its agreement by procuring orders which

delivered to the defendants by the solicitor it fraudulently altered, the other party was not for plaintiff as and for the orders provided obliged to rescind to defeat a recovery.

for in the contract. The defendants thereupAppeal from

from Superior Court, Ventura on paid said sum of $175 for the frames, and County; Felix W. Ewing, Judge.

received the 100 picture frames. The words, Action by the American Copying Company "Reserve for me one frame" were not on said against Leon Lehmann and another. From orders when signed by the respective parties a judgment for defendants, plaintiff appeals signing the same, but were stamped thereon Afirmed.

between the time they were signed and the Shepherd of Barnes, for appellant. I. W.

time of delivery to the defendants, and the Stewart and Blackstock & Orr, for re

agent of plaintiff represented to defendants spondents.

that said words were placed thereon prior to

signature. The signers of said orders reTAGGART, J. Plaintiff appeals from pudiated said orders as altereil and refused judgment in favor of defendants.

to take or pay for said frames, and defendl'laintiff is an Illinois corporation, engaged ants notified plaintiff of such repudiation, in supplying trading stamps, and free en but plaintiff did not procure other or further larged portraits, and paid for frames there orders or canvass therefor, whereupon defor, to merchints desirous of increasing trade fendants ceased to use said trading stamps. by such methoils. Defendants are merchants The defendants received 23 books of said in the town of Oxnard, Ventura County, Cal. stamps and used is thereof. Judgment was

From the coinplaint it appears that plain for defendants for costs, and against their tiff and defeudants entered into a contract counterclaim for damages for loss of trade in writing, whereby the former agreed to because of failure of plaintiff to carry out the print the name and business of defendants in contract. its citizens' stamp directory, to canvass and Appellant contends that the contract is deliver to the homes of Oxnard and vicinity sererable, and that plaintiff is entitled to a copies of the stamp directory, explain the judgment for the 18 books at 50 cents per use of it, and to secure orders from at least 100 on the findings made. We cannot agree 100 persons for portraits, to be given free by with this contention. An examination of the defendants upon presentation of $25 worth of entire scheme discloses that the purpose and stamps. In consideration for this the defend intent of the contract as made was to secure ants were to pay to plaintiff $175 for 100 oval a return to the defendants of all the moneys frames, upon the completion of the canvass, which they obligated themselves to pay to anal to receive from plaintiff a suificient plaintiff, and thereby receive at no cost to amount of stamps to carry out the scheme themselves the advertising and patronage reshown in the contract, paying therefor 50 sulting from the scheme, while all the money cents per 100 for all stamps used, to make profits went to the plaintiff. By the contract weekly settlements, and to promptly return the signers of the orders were to bind themall redeemed stamps. The contract to con selves to trade $23 worth at defendants' store, tinue for two years. Upon the face of the pay $3 for the privilege, and receive nothing order for frames set out in the complaint in returu but the article which defendants appears the words: “This is part of the now say was worthless. The merchant was agreement that 100 persons are to order to receive the benefit of the patronage secured 100 frames." It is alleged in the answer, by the scheme, and in return was to advance and found by the court, that these words

$175 to plaintiff', which he was in time to were written in at the request of defendants. collect from the custoiner, be responsible and were intended to and did obligate the

for the balance of the $3 per frame, collect plaintiff to secure orders for 100 picture the same, and remit it to plaintiff. The reaframes to be purcliased from defendants at sons upon which the Supreme Court held the $ per frame, being the same frames which anti-trade stamp act inconstitutional wouli defendants purchased from plaintiff at $1.75

hardly apply to this scheme.

Ex parte per frame. The complaint further alleges a Drexel, 117 Cal. 703), 8? lac, 1-9, 2 L. R. A. full compliance with the contract by plain (N. S.) 5SS. Conceiling, however, that pultift, the delivery to defendants of 23 stamp

lic policy would not prevent a court of jusbooks of 5.000) stamps each, to be paid for at tice from enforcing such a contract if carthe rate of 30 cents per 100, and demands

ried out in good faith, an examination of judgment for $575. The court finds that the

the findings requires the consideration of plaintiff made a canvass of the town of the further fact of the false and fraudulent Oxnard, procured 124 orders for portraits, alteration of the orders by plaintif after proeach including an agreement to trade the curing the innatures thereto. One of the amount of $25 at defendants' store, each per moving considerations to defendants to enter son so ordering to receive an enlarged por

into the contract was the sale of the frames trait, (allel a "Demar portrait" in the order. at $3 cach, that they might thereby get their Tliese orders were signed by the respective money back. Yo such sales were made by persons giving them, and near the signature plaintiff. Nothing was done by it to comply

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