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use; the right of the city to erect the pro- scription of the property an exception which, posed library on the public park to be limit- if inserted, would have excluded from the ed to its use solely for public library pur- description certain territory embraced withposes. The judgment is reversed, and the in the lines of a tract described in the deed cause remanded for a new trial.

by metes and bounds. The court found that The appellant is entitled to costs on ap- the mistake was made as alleged and gave peal.

judgment for the reformation of the deed as

prayed for. The principal contention upon We concur: SHAW, J.; AXGELLOTTI, the appeals, which are taken from the judgJ.; SLOSS, J.; MCFARLAND, J.; BEATTY,

ment and from the order denying a new trial, C. J.; IIENSHAW, J.

is that the evidence does not sustain the find ing or judgment. In July, 1901, the plaintiff

executed to the defendant a lease, for the (150 Cal. 21)

term of seven years, upon certain described LOS ANGELES & R. R. CO. et al. v. property. The lease contained a clause to the NEW LIVERPOOL SALT CO.

effect that, at any time during the term the (L. 1. 1,0.97.)

defendant, at its option, might purchase of (Supreme Court of California. Oct. 11, 1906.) the plaintiff the leased premises for the price 1. REFORMATION OF IXSTRUJEXTS - LEASE

of $12.500. In May, 1902, the defendant electCONSTRUCTION-MISTAKE.

ed to buy the property in pursuance of the A lease granted premises, described on a option. The deed in controversy was executblue print attached, reserving from the said "leased premises" that portion lying between

ed in compliance with the obligation to conthe tracks of the L. Railroad, as shown on vey, which, by the exercise of the option, besuch blue print, and also reserving a strip of came operative and binding upon the plainland 10 feet on either side of said railroad

tiff. There is no pretense on the part of the tracks. Another clause granted the lessee an option to purchase the said "leased premises"

defendant that there was any new or addiat a certain price. Held, that the saving clause tional agreement, or modification of the old was not a reservation of an easement merely, agreement, whereby the plaintiff became but reserved from the operation of the lease the fee of the portion reserved, and, such reser

bound to convey any other property, or greatvation having been omitted from a deed exer'uted er quantity of land, than was embraced in on the exercise of the option, the grantor was the option. The claim of the defendant is entitled to have the mistake corrected.

that there was no mistake; that the option [Ed. Note.-For cases in point, see Cent. Dig.

covered the entire tract of land, including vol. 42. Reformation of Instruments, $$ 69-71.]

that reserved or excepted from the descrip2. SAME-DEFENSES-NEGLIGENCE. A lease, having attached thereto a plat of

tion in the lease, and that it was, therefore, the premises, contained an option for sale, on in precise accord with the intention of the the exercise of which the plat and lease were parties and necessary in order to comply sent to an abstract company by the grantor's attorney with instructions to prepare a certifi

with the option agreement, that the space of cate of title, and also a description for inser

ground reserved from the operation of the tion in the deed. The description written on a lease, should be conveyed to the defendant slip of paper was returned to the attorney,

upon the exercise of the option, and that the but, in some unexplained manner, an exception or reservation mentioned in the lease was not

exception, or reservation, which constituted inserted in such description, and with this part of the description in the lease, was purmistake it was copied into the deed by the posely and properly omitted from the deed. typist. Held, that the negligence was not so Unless this construction of the option congross as to constitute a neglect of legal duty, or forfeit the right of either party to relief from

tract is correct, there can be no doubt that the mistake by reformation of the deed.

there was il mistake, and that the evidence Department One. Appeal from Superior amply supports the findings and judgment.

We are of the opinion that the option canCourt, Los Angeles County; D. K. Trask,

not be so construed. The description of the Judge:

land leased is as follows: "Situate at RedBill by the Los Angeles & Redondo Rail

ondo Beach in the county of Los Angeles, road Company and others against the New Liverpool Salt Company. From a judgment

state of (alifornia, and being a portion of

the property known as and called the 'Pacific and from the order denying a new trial, de

Salt Works Tract,' a portion of said tract fendant appeals. Affirmed.

hereby leased being more specifically delineatPurcell Rowe and J. S. Chapman, for ap- ed and descriherl upon the blue print hereunto pellant. Borden & Carhart, for respondents. attached and made a part hereof, the said ·

leased premises being inclosed in red lines SHAW, J. This is an action to collect a upon said annexed blue print and consisting mistake in a deed executed by the plaintiff's of two parcels, the larger of which contains, to the defendant. The plaintiff Redondo Im- as shown upon said blue print, 17.07 acres of provement Company was merely a nominal land and the smaller of said parcels, as shown party to the deed as well as to this action. upon said blue print, containing 2.31 acres of In mentioning the plaintiff in this opinion, land; saving and reserving from the said we refer only to the railroad company.

Trased premises that portion thereof lying The mistake alleged to have been made between the tracks of the Los Angeles & Redconsisted of the failure to insert in the de- ondo Railway Company, as shown on said

blue print, and also saving and reserving a 422, 62 Pac. 596. There is, therefore, no strip of land twenty feet in width, being ten foundation for the defendant's contention that feet on either side of the center line of said the evidence is insufficient to prove a misrailroad tracks as the same are now con- take in the preparation and execution of the structed, excepting, however, such portion of deed. It is not important to determine whethsaid twenty-foot strip so reserved as is at er it was a mutual mistake, or a mistake of the date of this indenture occupied by the plaintiff alone, known or suspected by the building or vats of the said lessee.” The defendant. The complaint was in two counts option clause, so far as material, is in these and alleged the mistake in both forms. If words: “It is further agreed that at any time either was proven the plaintiff was entitled during the existence of this lease the said to the relief given. lessee

* shall have, and it is hereby There is no merit in the objection that granted an option to purchase the said leased the mistake was due to the forgetfulness of premises at the price of $12,500 to be paid in the attorneys and officers of the plaintiff who gold coin of the United States at the date drew and executed the deed, or by their of the conveyance of said real property unto neglect in failing to compare the description said lessee by said lessor.” (The italics in in the deed as prepared, with that in the both clauses are our own.)

lease. The course of decision in this state The claim of the defendant that the term has not been entirely consistent on the gen“leased premises” in the option clause was eral subject of the effect of neglect as a therein used in the same inaccurate sense reason for refusing relief in equity. The which appears to have been given to it where decisions in Hawkins v. Hawkins, 50 Cal. 558, it is used in the reservation clause in the de- Senter v. Senter, 70 Cal. 619, 11 Pac. 782, Metscription, and, consequently, that the option ropolitan L. A. v. Esche, 75 Cal. 513, 17 Pac. covered the entire area inclosed in the red 675, and Crane v. McCormick, 92 Cal. 181, 28 lines, including the railroad tracks, is shown Pac. 222, are cited by defendant as authority to be untenable by the context, the surround- for the proposition that a written contract will ing circumstances and the conduct of the par- not be reformed in equity on the ground of ties, as well as by the natural meaning of the mistake at the instance of a party who neglectwords. Conditions in the lease require the ed to read the instrument when he had a full lessee to "maintain on said leased premises" opportunity to do so before its execution, the present salt plant, and also require of the and the defect is of such a character that he lessee a certain method of operation of the could easily have discovered it if he had read "leased premises," and provide that, upon a it with attention. The cases do not sustain breach of the conditions, the lessor may re- the proposition to the full extent necessary sume possession of the "leased premises." to its application to the present case, alIn each of these instances the phrase does not though some expressions might seem to go embrace the excepted area. The lessee did so far as that. Hawkins v. Hawkins was not take possession of the railroad tracks, criticised and explained in Wilson v. Moriarand claimed no right to do so, until long after ity, 88 Cal. 213, 26 Pac. 85. It was not, the execution of the deed in question, and technically, a suit to correct a mistake in the lessor operated the tracks continuously the written contract for the sale of the grain during the whole of the intervening period. in question. It was an action to cancel the The short section of the tracks included with. | writing and to recover a balance due on the in the red lines was but a small part, in alleged previous verbal contract of sale. The length, of the spur tracks of the plaintiff, and preliminary statement of facts, made by the was absolutely necessary to the use of the reporter, if correct, would seem to make a part extending beyond these lines and which clear case of mistake of one party known would be cut off from connection with plain- | to the other, in which case, under the printiff's main line if plaintiff were prevented ciples stated in sections 3399 and 3102 of the from crossing the land with its cars. Its Civil Code, the plaintiff might have had the traffic over these spur tracks was important written contract corrected, and might have and valuable. The short pieces of track with- recovered the balance that would be due in the red lines would be of no substantial according to its terms as revised. Such revalue to the defendant. The saving clause lief was not asked, and the opinion, which in the description is not a reservation of an is very general in its terms, seems to treat easement, merely, over a part of the leased the cause of action as one founded upon alpremises. Its effect is to save and except | leged fraud, and applies the principle that, from the operation of the lease the fee of the before entering into a contract, one must area' between the tracks and for 10 feet on use the opportunities open to him to discover each side of the center thereof, and hence the the facts affecting it, and, if he negligently lease did not transfer any estate in that part fails to do so, he cannot obtain relief from of the space inclosed in the red lines. That the fraud which, by his neglect, he suffered space formed no part of the leased premises, to be practiced upon him. It does not hold and was not covered by the option clause that the failure to read a contract with giving the right to purchase the premises sufficient care to perceive a mistake in its actually leased. Sears v. Ackerman, 138 Cal. terms will, of itself, prevent relief by way 586, 72 Pac. 171; Butler v. Gosling, 130 Cal. of a correction of the mistake. In Senter V.

v. Senter, the mistake as to the description could have been discovered if read with atof the land was induced by false statements. tention. Albany C. S. I. v. Burdick, 7 N. Y. of the defendant to plaintiff concerning the 46; Story v. Gammell (Neb.) 94 N. W. 982; same, and was held that the plaintiff was Andrews v. Gillespie, 47 N. Y. 487; San entitled to have the correction made. Haw- Antonio V. McLane (Tex.) 70 S. W. 201; kins v. Hawkins is cited and is declared to Kelley v. Ward, 94 Tex. 289, 60 S. W. 311; be not in point. In Metropolitan L. A. v. Lloyd v. Phillips (Wis.) 101 N. W. 1092; TayEsche, the alleged mistake was made by lor v. Glen. Falls I. Co. (Fla.) 32 So. 887; sureties in a bond for the performance by Kilmer v. Smith, 77 N. Y. 226, 33 Am. Rep. the principal of certain duties to the obligee 613; Synder v. Ives, 42 Iowa, 162. during a term of office. The obligee was There was, it is true, some negligence on not aware of any mistake on the part of the the part of the plaintiff in the case at bar. sureties, and accepted the bond and allowed But it was an inadvertence of a character the principal to continue in its service upon which will sometimes occur in the conduct the faith of it. There was, therefore, neith of men of prudence and caution. The plat er mistake nor fraud of which the sureties and lease were sent to an abstract company could complain. Crane v. McCormick was by plaintiff's attorney with instructions to a similar case and the facts were declared prepare a certificate of title and also a denot to make out a case of mutual mistake. scription for insertion in the deed. This was

It has been frequently decided that the done, and the description, written on a slip mere failure of a party to read an instru- of paper, was returned to the attorney, but ment with sufficient attention to perceive in some way not explained the exception an error or defect in its contents will not mentioned in the lease was not inserted prevent its reformation at the instance of therein. It was copied into the deed by the the party who executes it thus carelessly. typewriter in this erroneous form. The atIn Higgins v. Parsons, 65 Cal. 280, 3 Pac. tention of all the parties was particularly 881, the plaintiff signed a contract believing directed to other features of the transaction that it contained a certain stipulation agreed and to other parts of the description, the The defendant knew that it did not

omission of the exception clause was not obcontain the stipulation and also knew that served by any of them, and all signed the the plaintiff believed that it did. The plain- deed believing that the description therein tiff had an opportunity to read the contract was the same as in the lease. The neglibefore signing. It is said that the condi

gence was not so gross as to constitute a tions on which a contract may be reformed neglect of legal duty, or forfeit the right are specified in section 3399 of the Civil

of either party aggrieved to relief from the Code, and that, as that section does not mistake. authorize the refusal of such relief because The judgment and order denying a new the party asking it might have discovered trial are affirmed. the mistake before signing, the court is not at liberty to exact such diligence as a condi

We concur: ANGELLOTTI, J.; SLOSS, J. tion. Perhaps the court there should have added that the carelessness did not constitute a neglect of legal duty, within the

(150 Cal. 31) meaning of section 1577 of the Civil Code. BELL V. SUPERIOR COURT OF CITY In Wilson v. Moriarity, 88 Cal. 213, 26 Pac. AND COUNTY OF SAN FRANCISCO 85, it was held that the neglect of the plain

et al. (S. F. 4,591.) tiff, when the lease was read to her by the (Supreme Court of California. Oct. 11, 1906.) notary, to pay sufficient attention to dis- Costs_TAXATION OF COSTS-PBOCEEDINGScover that it was for 10 years, instead of STATUTES. five years, as she supposed, was not sufficient

Code Civ. Proc. $ 1034, provides that a

party claiming costs awarded to him by the to defeat her action for its reformation in

appellate court must deliver to the clerk of that particular. In Sullivan v. Moorhead, the court below a memorandum of his costs, 99 Cal. 159, 33 Pac. 796, the deed was ex

etc. Section 1033 provides that a party claimecuted in compliance with a previous con

ing costs on recovering a judgment, must file

and serve a memorandum thereof on the adverse tract of sale, and in that respect it was

party, and if the latter is dissatisfied with the similar to the case at bar. The contract costs claimed, he may move to retax them. Held, was for the sale of lots 10, 11, 12, and 13 in

that a party seeking to have costs, awarded a certain block. The deed described the

generally in the appellate court, taxed in the

lower court, must comply with the provisions of land as lots 10, 11, 12, and "a part of 13." section 1033 with respect to the service of notice The plaintiff read the deed, but did not on the adverse party, as otherwise section 1034 observe the variance. The court said: "The

would be violative of Const. art. 1, § 13, pro

viding that no person shall be deprived of his fact of his having read the instrument would

property without due process of law, which not prevent the court from finding that it means a notice and an opportunily to be heard was made under a mistake.” There are

in the matter in which the judgment follows. many authorities from other states to the

Shaw, J. dissenting. effect that a written contract will be cor- In Bank. Writ of Review to Superior rected in equity, although the mistake was Court, City and County of San Francisco; patent on the face of the document, and J. C. B. Hebbard, Judge.

Petition for a writ of review by Teresa latter section does not, in terms, provide for Bell against the superior court of the city service of any notice on the adverse party and county of San Francisco and another. relative to such memorandum, and it is inWrit dismissed.

sisted by petitioner that, as he complied T. Z. Blakeman, for petitioner. Edmund

literally with the provision of that section Tauszky and Wallace A. Wise, for respond

by filing his cost bill within 30 days after ents.

the filing of the remittitur, that is all that the

law required of him, and he was entitled to LORIGAN, J. This is a petition for a execution; that not only is no notice rewrit of review. On November 19, 1901, in quired to be given by that section, but that the case of Teresa Bell v. Mary E. Pleasant the section itself contains no specific proet al., on appeal to this court, the judgment vision for retaxing costs, and that if illegal and order of the superior court, denying the or excessive items of costs are charged, apmotion of plaintiff for a new trial, was re- plication must be made to this court for reversed (Bell v. Pleasant, 115 Cal. 410, 78 lief, or an independent action in equity be Pac. 9.7. 104 Am. St. Rep. (1), and the brought for that purpose. But this court has cause remanded to the superior court for a nothing to do with the particular items of new trial, with costs alloweel said plaintiff on costs to which a party may be entitled under appeal. On the day plaintiff filed the remitti- a judgment rendered therefor by this court. tur from this court in the superior (ourt, she The effect of our judgment is simply that also filed in said court a memorandum duly a party is entitled to costs. What they are, verified of her costs on said appeal, amount- the specific amount which he would be ening to the sum of $269.30, and subsequently titled to have fixed or allowed therefor, are had an execution issued thereon as upon a matters to be determined by the trial court judgment, as provided by section 1034 of the to which the cause is remanded, or to which ('ode of Civil Procedure. Upon the issu- the remittitur runs. The determination of ance of said execution, the defendants served that court on the subject necessarily constiand filed a notice of motion in said action for tutes the definite and specific judgment conan order of the superior court striking from cerning which the general right to recover the files thereof the memorandum of costs of was declared by this court. There is no proplaintiff, and to vacate and annul the said vision of law authorizing this court to tax execution. Said motion was based upon the or retax the costs it allows on appeal from ground that neither said memorandum of a judgment, or order of the superior court, costs allowed on appeal, nor notice of the fil- either reversed or affirmed. That is a matter ing thereof had ever been served upon de- solely for consideration in the lower court. fendants, and supported the motion by an And, it is true that section 1031 does not affidavit showing the fact of such nonservice, provide for any right of the party against which was not controverted. Upon the hear- whom costs are claimed to have them retaxing the superior court made an order grant- ed. The section, as literally construed, proing said motion, and struck out said meino- vides neither for a notice of the filing of the randum of costs, and vacated and annulled cost bill, nor for any right to the adverse said execution. Thereupon this proceeding party to be heard concerning the legality or was commenced by plaintiff to have these propriety of any of the items in it. And orders of the superior court, striking out said herein rests the vice of the section if it is memorandum of costs and quashing said ex- to be construed as contended for by plaintiff, ecution, set aside and annulled as in excess that there is no provision in the law requirof its jurisdiction.

ing notice of the filing of the memorandum, Proceeding now to a consideration of the or affording defendants a right to be heard matter on its merits. In the chapter in the concerning its items, because, under such cir. Code of Civil Procedure on "Costs," it is cumstances, costs are imposed and the judgprovided by section 1033 thereof, stating its ment for them obtained without affording provisions generally, that a party in whose any right or opportunity to defendants to be favor judgment is rendered, and who claims heard in the matter. Any and all kinds of costs, must file and serve a verified mem- illegal and excessive charges may be made. orandum thereof upon the adverse party No authority is conferred on the court by within a given time, and that if the party the section to revise them. The memoranso served is dissatisfied with the costs claim- dum is simply filed with the clerk, and exed, he may, within a certain time, inove to ecution therefor may immediately be issued retax them. Section 103+, immediately fol- and the property of defendants taken upon lowing, provides that "whenever costs are such execution under judgment for costs obawarded to a party by an appellate court, if tained against them without notice. It hardhe claims such costs, he must, within thirty ly needs to be suggested that if the section

after the remittitur is filed with the in question is to be so construed, that it is clerk below, deliver to such clerk a mem- violative of the constitutional provision orandum of his costs, verified as prescribed (Const., art. 1, § 13) that no person shall be by the preceding section, and thereafter he deprived of his property without due process may have an execution therefor as upon a of law which is held to mean upon notice judgment." It will be observed that this and an opportunity to be heard in the matter

in which the judgment follows. Ilovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215. There is nothing in the point that the defendants may have their action in equity. Certainly it has no force here. If the order or judgment for a specific amount of costs under the section referred to is void for want of notice and an opportunity to be heard, the method adopted here is a proper proceeding for annulling it, and it is immaterial what other redress, if any, defendants might have.

It is suggested, too, that the section itself was notice to the defendants that within 30 days after the filing of the reinittitur the plaintiff might file a memorandum of costs, and that it was the duty of defendants to look out for such filing, and, if they questioned the items of the memorandum, to file a motion to retax costs. But, if we assume that the section is itself notice, still the constitutional objection is not obviated, because there is nothing contained in section 1034 conferring any right upon the adverse party to question the tax bill, by either a motion to retax, or in any other manner. He is giren no right whatever to be heard, assuming that the section gives notice. He is given only a partial measure of his constitutional rights-notice—but the right to be heard before a judgment which may deprive him of his property on execution thereunder is made is not given him at all. Hence the claim of petitioner as to the section giving notice, does not obviate the constitutional difficulty, which the failure to confer any right upon the adverse party to be heard, presents. In view of our discussion so far, relative to section 1034 alone, this situation presents itself, that, while this court is authorized under the law to award costs upon appeal, and the lower court to which our mandate runs, is the tribunal where they are to be specifically ascertained, yet the judgment of this court as to such award is rendered ineffectual because no provision is made, in the section in question under which such costs are to be ascertained, for notice to the party sought to be charged with their payment, or an opportunity afforded him to be heard in the lower court relative to them; in effect that if the right of the prevailing party to have his costs on appeal fixed and an execution issued therefor depends solely upon the provisions of section 1034, then no such right exists, as the section is unconstitutional on account of its failure to provide for notice and an opportunity for the adverse party to be heard. It is with extreme reluctance that courts feel constrained to hold any law unconstitutional, and only do so when no other alternative presents itself whereby it can be avoided. In the present case, however, we think that it can be avoided by treating sections 1033 and 1034 -sections found in the general chapter on "costs"-as analogous, as was done by the Supreme Court of Montana, where kindred

provisions of the statute of that state were before it for consideration.

In the state of Montana the Code of Civil Procedure there, in the general chapter concerning costs, contains provisions identical with the sections of our Code above referred to, and the same question presented here was presented to the Supreme Court of that state in a proceeding similar to this. Section 1867 of the Montana Code corresponds with section 1033 of ours, and the Montana Code section 1969 with section 1034 of this state. The same point was raised in the Supreme Court of Montana as raised here, namely, that section 1869 of the Montana Code (section 1034 of ours) in failing to provide for notice to the adverse party of the filing of the memorandum of costs and providing an opportunity for him to be heard relative thereto, was unconstitutional as depriving one of his property without due process of law. In discussing the points the court there said: “We do not think it necessary to hold section 1869 unconstitutional. The chapter of which this section is a part has to do with costs and the mode by which they may be collected. Section 1867 points out the mode to be pursued for the collection of costs in the district courts, and also in original proceedings in this court; at least it does not in terms apply to district courts exclusively. Section 1869 points out the mode by which they may be collected when awarded on appeal; but we think that all the analogies, as was stated in State ex rel. Hurley v. District Court, supra, 27 Mont. 40, 69 Pac. 244, require notice of the claim to be given under the provisions of section 1867, or that they should be denied. While the exact point now before the court was not raised in State ex rel. Hurley v. District Court, supra, yet what was there said as to the necessity of notice was not impertinent, and is wholly applicable in this case. This rule must govern or the conclusion is inevitable that section 1869 is iny:lid, and that parties have no means providel by which they may, collect costs awarded to them by this court on appeal. Section 1867 clearly does apply to proceedings in this court in some respects. We think it must be held to apply also to the method of claiming in the district court costs awarded by this court on appeal, and that the method pointed out must be pursued, else the court has no power to settle controversies in any manner concerning them. * * * Costs, as costs, are allowed only by statute and can be collected only by the method pointed out by the statute. Citing authorities. When, therefore, the party claiming costs has failed to claim them as directed by the statute, his right to them has not attached, and the court has no other power in the premises than to strike out and disallow them on motion of the adverse party. For these reasons we think that the district court, in proceeding to tax and allow any portion of the bill in controversy, was wholly without jurisdiction,

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