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ments in the complaint as to defendant's vented from having a fair trial is equally cruelty are true, and all the denials, al- clear. Whatever weight the testimony of the legations, and averments in the answer and plaintiff might have with the court in supcross-complaint having reference to plain- port of the allegations of his complaint, it tiff's cruelty towards defendant are untrue," was clearly irregular for the court to deterand directed an interlocutory decree of di- mine the issues before it upon that testimony vorce to be entered in favor of the plaintiff without giving to the defendant a full opand against the defendant. The defendant

portunity to present her testimony, and to moved for a new trial upon the grounds of ir- give to it proper consideration in connection regularity in the proceedings of the court, with that of the plaintiff. And it was equalby which she was prevented from having a ly erroneous for the court, after refusing to fair trial, and that the evidence was insuffi- permit the defendant to give any testimony cient to justify the decision of the court. in support of the averments in her crossThis motion was presented and heard upon a complaint in reference to the plaintiff's cruelstatement of the case and affidavits of the ty, to find as a fact that those averments lefendant and her daughter properly au- were untrue. thenticated in a bill of exceptions. The mo- The bill of exceptions, authenticating the tion for a new trial was denied, and from affidavits, contains a subscript by the atthis order and from the judgment the de- torney for the plaintiff that it may be settendant has taken the present appeal.

tled by the court "plaintiff saving the objecIt is shown by the affidavits that after the tion that said affidavits were served and filed evidence on behalf of the plaintiff had been in violation of law and in violation of section given the defendant was called as a witness, 659 Code Civil Procedure, and on the furand testified in her own behalf, and that be- ther ground that all the matters therein confore she had concluded her testimony, and tained are set out in the answer and crosswhile she was still on the witness stand complaint of defendant, and present no new she was interrupted by the court, and in- or further evidence to justify the court grantformed by him that she had testified enough; ing a new trial.” No facts in support of that the court then and there, before she had this objection were stated or presented to the concluded her testimony or left the witness court, nor does it appear that any objection stand, granted the plaintiff a divorce, and to the affidavits was made at the time they denied the prayer in the cross-complaint; were presented, or when the motion for a that upon her counsel objecting thereto, and new trial was heard; and as the bill was informing the court that he had other wit- subsequently settled by the court without nesses in court, the judge informed him that reference thereto the objection cannot be conhe had the privilege to appeal to the Supreme sidered. The fact that the matters contained Court. In the statement of the case which in the affidavits are set forth in the answer was settled by the judge it is shown that and cross-complaint was not a matter of iufter the plaintiff had rested his case the objection. It was still necessary for the defendant offered herself as a witness on her defendant to establish the same at the trial own behalf, and after having given testimony of the cause by competent evidence. in contradiction of much of the testimony The judgment and order are reversed. of the plaintiff, and before her testimony was concluded, the judge interrupted her

We concur: COOPER, J.; HALL, J. saying: "That is enough. Let an interlocutory decree for the plaintiff be entered";

(4 Cal. App. 272) and upon her counsel stating to the court

DAWSON v. CERF. (Cir. 212.) "We have other testimony here," the court (Court of Appeal, First District. California. replied, "I do not care for it at all. Take

Aug. 30, 1906.) your exception. Take your interlocutory LANDLORD AND TENANT-RECOVERY OF Posdecree."

SESSION BY LANDLORD UNLAWFUL DEIn her affidavit the defendant also recount


Where the term of a lease expired on March ed in detail the testimony which she intended

15, 1904, but the lessee holding over continued to give for the purpose of overcoming the to pay rent monthly in advance on the first testimony on behalf of the plaintiff and in day of each calendar month, and the lessor support of the denials in her answer and the

served notice that an increased rent would be

demanded from January 15, 1905, and, on Janallegations of her cross-complaint, and which uary 3d, served on the lessee a demand for a testimony appears to have been clearly rele- half month's rent at the former rate and a half vant to the issues therein; and in the affi

month's rent at the increased rate, which was

refused, but the lessee tendered a month's rent davit of her daughter the latter states simi

at the former rate, the lessor could not maintain lar testimony which she would have given forcible entry and detainer, since, conceding if she had been permitted so to do. The mat- his contention that the lessee's inonth expired ter set forth in these affidavits was not con

January 15, 1905, so that his notice was suffi

cient under Civ. Code, $ 827, providing that in a tradicted, nor were there any counteraffida

lease from month to month, the landlord may, by vits filed on behalf of the plaintiff. That giving notice at least 15 days before the expirathese proceedings constituted an irregularity

tion of the month, change the terms of the lease

to take effect at the expiration of the month, no of the court is not open to dispute, and that,

part of the rent for the month beginning Januby reason thereof, the defendant was pre- ary 15th, would be due before that date.

Appeal from Superior Court, City and thereafter up to January 1, 1905. During County of San Francisco; J. C. B. Hebbard, this time no other or different lease had been Judge.

made. The rent was paid monthly as before Action by George Dawson against Myrtile and at the same rate provided in the origiCerf. From a judgment in favor of plaintiff, nal lease. On December 22, 1901, the plaille defendant appeals. Reversed.

tiff served defendant with a notice in writJ. J. Burt, for appellant. B. L. Quayle, for

ing, of which the following is a copy: "San respondent.

Francisco, Cal., December 22, 1901.-Mr.

\syrtile Cerf: You will please take notice COOPER, J. Action of unlawful detainer.

that on and after January 15, 190.), the Findings were filed, upon which judgment

rent for the cigar stand at 3:21 California was ordered and entered for plaintiff for the

street, San Francisco, which stand you now restitution of the premises described in the

(Cupy, will be one thousand collars per complaint, besides rent and costs. This al

month, payable, as heretofore, in advance. peal is from the judgment on the judgment

Signedl George Dawson, 321 California, roll with a bill of exceptions. The facts, so

street San Francisco.” On January 3, 1905, far as necessary to be stated, are as follows:

the defendant tendered to plaintiff $80 as In February, 1.303, the plaintiff was in pos

rent for the month of January, being the session of a lot on the south side of Cali

amount of rent he had paid under the writfornia street, east of Sansome, having a

ten lease and the amount he had paid each frontage of 23 feet on California street by

and every month thereafter, but plaintiff

declined to receive the rent so tendered. On a uniform depth of 66 feet, together with the building thereon, 321 California street.

the last-named day plaintiff served a written under a lease from the Mutual Life Insur

demand upon defendant for $540, rent for ance Company of New York, which lease, by

January, 1905, consisting of the following

items: its terms, was to expire on the 15th day of March, 1904. During said month, and while January 1st to January 15th at $80

per month... plaintiff was so in possession of the prem

$ 40 00

January 13th to and including January ises, he leased or sublet a portion thereof 31, 1905....

500 00 known as the “cigar stand” to the defendant for the term of 1 year and 11 months, from

; $.310 00 February 1, 1903, to and including the 15th The demand stated that the defendant was day of March, 1904, which was the time required to pay the said sum of $510 as rent when the plaintiff's lease from the insurance for the month of January, otherwise to surcompany would terminate. The lease to de- render possession of the premises. After the fendant provided that the rent should be $80 expiration of three days, and on January 9, per month, payable monthly in advance. 190., this action was commenced. The lease contained the following clause: It is not necessary to pass upon the de“If said lessor shall hold said premises at fendant's contention that he had the right, No. 321 California street, as tenant or other- under his written lease, to continue it for wise, after March 15th, 1904, it is hereby such term as he night elect, nor upon the agreed for the parties hereto, their respective plaintiff's contention that defendant waived heirs, executors and assigns, that said lessee his right to another or fixed term by not shall have the privilege of retaining the exercising his right to elect before, or at the premises hereby demised upon the same time of, the expiration of the written lease. terms and conditions as are herein expressed, It may be conceded for the purposes of this for such term as said lessee may elect, low- case that the plaintiff's contention is correct ever not to exceed the term for which said to the effect that defendant was holding unlessor, his heirs, executors or assigns may der a tenancy from month to month, and hold said premises as aforesaid; and in no that his month would expire January 15, event to exceed a period of twenty years 190.), and yet the plaintiff cannot recover in from date hereof.” Defendant entered into tluis action. It is provided in section 827 possession and paid his rent according to the of the Civil Code that in a lease from month terms of his lease up to the termination to month the landloril may, by giving notice thereof, and there is no question raised as in writing at least 15 days before the exto the written lease during the time it was piration of the month change the terms of in force. Before the written lease expired, the leasо to take effect at the expiration on March 1, 1901, defendant paid to plain- of the month. In this case the plaintiff', in tiff the sum of $80, and received from him his notice, took the position that defendant's a receipt of which the following is a copy: month would expire, and now contends that "Rent must be paid in advance. Mch. 1, it did expire, on January 15, 1905. By the 1M. $80.00. Received from M. (erf eighty notice the terms of the lease were to be 0–100 dollars rent of cigar store :321 (al. · changed from and after January 15th to St. S. 1'., froin March 1st to April 1st, 1901. "one thousand dollars per month payable, as George Dawson.” The defendant continued heretofore, in advance.” It is therefore eviin possession and paid his rent to plaintiff, dent that, until the 15th day of January, receiving similar receipts for every month 1905, the defendant did not owe $1,000 rent


for the month commencing January 15, 1905. aged 12 years, Inez, aged 10 years, MarNor did he owe $500 for one-half of the guerite, aged 8 years, and Hugo, aged 6 years month. The terms of the lease were not -and for one-half of the community propto be changed until January 15th, at which erty, alleged to have been of the value of time the $1,000 was to be due for the month $60,000. The court made findings, and caused commencing at that time. According to the to be entered a decree on the 17th day of demand made here $300 was claimed of the April, 1902, granting plaintiff a divorce, the defendant before plaintiff claims that the custody of the minor children, and awarding lease had been changed, and not only this, her the sum of $30,000 as permanent alimony but the suit was commenced before the for her support, being the amount prayed for change of the lease was to take effect. If in the decree, and which was one-half of the the notice had stated that the rent would be community property. This decree gave no $1,000 per month payable semimonthly in directions its to the education of the minor advance, the $500 for the latter half of the children, and made no provision for their month of January and the first half of the maintenance or support, but gave to plaintiff month, under the changed terms of the lease, their “sole care, custody, control, and poswould not have been due until the 15th day session.” It is has never been appealed of January, 1903. At the time this action

from, and has become final. On August 25, was commenced the plaintiff had been tender- 1902, but a little over four months from the ed more than the amount that was due under date of the decree, plaintiff filed her peti. the tenancy by which the defendant was hold- tion, in which she set forth that the original ing. He could not recover under the changed decree made no provision for the mainteterms of the lease until it took effect as nance, support, care, ('ustody, or education of changed.

said minor children, or any of them, and that The judgment is reversed.

they are still minors. The petition further

stated that each of the said minors was withWe concur: HARRISON, P. J.: HALL, J.

out means, but contained no statement as to the plaintiff's means, or as to the $30,000) she had received from the defendant under

the decree, and concluded with a prayer that (4 Cal. App. 264)

the court order the defendant to pay the plainCALEGARIS v. CALEGARIS. (Civ. 159.)

tiff the sum of $.30 per month each for the (Court of Appeal, First District, California.

care. (ustudy, and education of said minors. Aug. 24, 1906.)

It appeared at the hearing that the minor's DIVORCE-DECREE-MODIFICATION.

were all in plaintiff's custody. living in her Where plaintiff in a suit for divorce prayed

house, and attending the public schools. It for the custody of her four children and onehalf of the community property, she could not

also appeared that the defendant married afthave a decree granting all of her prayers sub

er the de re, and now has another family to sequently modified, so as to include directions

support. After the hearing, and on the 13th to defendant to pay plaintiff a certain sum

day of October, 1.902, the court made an order monthly for the care, custody and education of the children, notwithstanding Civ. Code, $ 139,

modifying the judgment and decree of divorce providing that the court may, before or after by directing the defendant to pay to plaintiff judgment, give such direction for the custody, the sum of $1.5 per month each from said date care, and education of the children as may seem necessary and proper, and may at any time

"for the future care, custody, and education vacate or modify the same.

of each of said four above-nanied minor chil[Ed. Note.-For cases in point, see vol. 17,

dren." Cent. Dig. Divorce, $ 803.]

The respondent relies upon the provisions Appeal from Superior Court.

of section 1:38. Civ. Code, and the order must

City and County of San Francisco: Tlios. F. Graham,

find support, if it can he supported at all, Judge.

under the provisions of this section, which at Petition by Elvira ('alegaris against Josenii

the time it was made provided as follows: Calegaris to modify judgment in divre

"In an action for divorce the court may, beaction. From an order modifying the july

fore or after juilgment, give such direction

for the custody, care and education of the ment, defendant appeals. Reversed.

children of the marriage as may seem necesP. F. Dunne and O'Connor & Hirsh, for

sary or proper, and may at any time vacate appellant. John J. Barrett, for respondent. or modify the same.” Under this section the

(ourt may, after the judgment, vacate or modis COOPER, J. This appeal is from 'an ify any provision therein which gives a direcorder purporting to modify a judginent and tion for the ('listoily, care, or education of decree of divorce by directing defendant to the minor children of the marriage. The pay to plaintiff the sum of $60 per month for primary purpose of this section is that the the future care, education, and support children of the marriage shall be properly four minor children.

cared for, and the authority thereby given is The action was brought by plaintiff for a to be exercised in their interest. Crater v. divorce on the ground of desertion. She ask- Crater, 135 Cal. 634, 67 Pac. 1019. If no proed in the complaint for the care, custody, and vision in reference to the children is made possession of the minor children-Mario, in the original judgment, but by reason of

87 P.-36

their necessities, or for the protection of their interests, any judicial action is required in their behalf, it may be sought in an independent proceeding therefor. By the terms of the original decree herein, the care, custody, and control of the children were given to the plaintiff, and in the order appealed from no modification or change of the judgment in this respect has been made; and in awarding to her $30,000 of the community property, estimated at one-half thereof, and making no provision that the defendant shall contribute to the support or education of the children, it must be assumed that the court intended that he should not contribute to the plaintiff any portion of the expense incurred by her in caring or providing for them. See Parkhurst v. Parkhurst, 118 Cal. 18, 50 Pac. 9. The failure to provide in the original decree that defendant should pay any money to plaintiff for the care, custody, and education of the children had the legal effect of an adjudication as between them that he should not be required to make any payment therefor (Howell V. Howell, 104 Cal. 45, 37 Pac. 770, 43 Am. St. Rep. 70; Lamb v. Wahlenmeier, 144 Cal. 91, 77 Pac. 765, 103 Am. St. Rep. 66); and section 138, Civ. Code, above quoted, confers no authority upon the court to declare such obligation. "If the decree of divorce makes no provision for the maintenance of the children of the marriage, the court is without jurisdiction subsequently to make any order compelling either party to pay to the other for such maintenance." Shattuck v. Shattuck, 135 Cal. 192, 67 Pac. 45. Section 196, Civ. Code, declares: "The parent entitled to the custody of a child must give him support and education suitable to his circumstances.” When a parent is deprived of the custody of his child, and therefore of the right to its services and earnings, by summary proceedings, he is no longer liable, as a general proposition, for its support and education--per Temple, J., Ex parte Miller, 109 Cal. 643, 42 Pac. 428.

The order herein does not, however, in any way modify or purport to change the provision of the original decree relative to the care or custody of the minor children, nor does it give any “direction" as to their future care, custody, or education, except in so far as it orders the defendant to pay to the plaintiff $60 per month therefor. Not only does it fail to give any direction as to the education of the minors, but it does not even provide that the money which it requires the defendant to pay shall be expended in their education. It merely directs that the defendant shall pay to the plaintiff $60 per month for their "care, custody, and education.” thus imposing upon him a pecuniary obligation from which he had been exonerated by virtue of the original judgment in the cause. The order directs the money to be paid to the plaintiff. No direction is given as to the education of the minors, but a direction for the education of minor children

means something more than a mere order to pay money. The plaintiff is not even directed to send the minors to school, nor is it directed that they shall attend any school, or that they shall receive any education. As to whether or not they shall be sent to school, or educated in any manner, or at all, is discretionary with the plaintiff, The Code does not contemplate that a father may be directed to pay a monthly allowance for the education of a minor child to the mother, who receives no direction and is not by the order required to educate such child. The order, if it had made the allowance to the plaintiff for her own use and support, or for the use and support of the minors, would have been void as beyond the jurisdiction of the court, and it is none the less so although called by a different name. The plaintiff made no showing that any expense would be incurred in the education of said children, or in any way except for their support and maintenance, nor did she make any showing that she had not ample means therefor.

We are further of the opinion that the court, under the circumstances of this case, abused its discretion in making the order. The court, in view of all the circumstances, had given the plaintiff, by the decree of divorce, all the money and property that she asked for. It had also given her the custody of the minor children. The defendant had the right to suppose that the decree would end the litigation, and settle the property rights as between himself and the plaintiff. The plaintiff should have acted in good faith, and should have been satisfied with a decree giving her her just rights and all that she asked. There was nothing in the pleadings or proceedings in the original case to cause the defendant even to suspect that the financial matters between himself and the plaintiff had not been fully settled. He did not have any reason to believe that, before the time for appeal from the judgment would expire, the plaintiff would bring him into court again for more money. The plaintiff did not, at the time she procured the decree, have it in her mind to ask for more money, or, if she did, and did not disclose such intention, she was not acting in good faith. If the conditions of the parties had changed materially after the decree, or if the means allowed to plaintiff had been exhausted, or if the circumstances had been such as to call for aid from defendant to assist in the education of the minors, the question would have been different. As was well said in McKay v. McKay, 125 Cal. 65, 57 Pac. 677: “But the changes which may thus be made are limited to the cases and conditions expressed in the statute by which they are authorized."

The order is reversed, with directions to the court to dismiss the petition.

We concur: HARRISON, P. J.; HALL, J.

(4 Cal. App. 257)

missioners, in accordance with the provisions RODRIGUD' v. ROGERS et al. (Civ. 142.) of the charter, requested the civil service

commissioners to certify to the department (Court of Appeal, First District, California.

of elections the names and addresses of perAug. 24, 1906.)

sons standing highest upon the register of MUNICIPAL CORPORATIONS-EMPLOYHS-AP

eligibles. Plaintiff's me and one other POINTMENT-CIVIL SERVICE RULES.

were certified, and he was appointed to a poAn appointee, having taken the examination for ordinary clerks under a ciassification sition in the department of elections on the established by the civil service commission, as 20th day of September, 1900, and continued provided for in article 13 of the charter of the

to perform the duties thereof until the 13th city and county of San Francisco, who was anpointed to a temporary position in the oflice of

day of October, 1900, when his duties in the the board of elections under article 11 of the said department of elections were fully percharter, giving the board a right to appoint such formed and completed. It is alleged in the clerical assistants as might be necessary, and

petition "that the plaintiff, since his said later to other temporary positions in the office of the tax collector and auditor, under article certification and appointment, has performed, 4 of the charter, providing for the appointment when his services as such ordinary clerk of extra clerks in such offices, was merely an

have been required, the duties of such ordiextra clerk, whose employment ended when his services were no longer required, and on the

nary clerk in said department in the office termination of such employment the placing of of the tax collector and in the office of the his name on the register of eligibles, according auditor," but by the return to the writ it to the relative excellence of his examination,

appears that each employment has been by without regard to the priority thereof, along with persons taking the examination after his

virtue of a new certification and appointment. appointment to the position in the office of the

In May, 1903, another examination for apboard of elections, was not a discharge, in viola- plicants for positions as ordinary clerks was tion of the provisions of article 13 of the char

held, and thereafter the names of the successter relating to the appointment, term of employment, and discharge of civil service em

ful applicants at the second examination ployés.

were placed upon the register of eligibles

with the names of those who had successAppeal from Superior Court, City and

fully passed the first examination, all the County of San; M. C. Sloss, Judge.

names of applicants—those passing the first Petition for writ of review by Michael J.

and those passing the second examinationRodrigue against John W. Rogers and others

being placed on the one register of eligibles as civil service commissioners of the city

in the order of the relative excellence of and county of San Francisco. Judgment for

their examinations, without regard to prioriplaintiff, and defendants appeal. Reversed.

ty of examinations. It is this action of the P. V. Long, City Atty., and John T. Morris, civil service commissioners that is complainAsst. City Atty., for appellants. Chas. W. ed of by plaintiff. His name on the conSlack, for respondent.

solidated register came lower than on the

first register, and his contention is that by HALL, J. Plaintiff filed in the superior virtue of his appointment to a position he court of the city and county of San Francisco was removed from the register of eligibles; his petition for a writ of review as to cer- and became a permanent employé of the city tain proceedings taken by the civil service in the position of ordinary clerk. This concommissioners of the city and county of tention was sustained by the trial court, and San Francisco, and upon the return thereto the and hearing thereon judgment was rendered, us for review. Section 2 of article 13 of annulling the action of the civil service the charter provides that: “The commissioncommissioners in the respect complained of, ers shall classify all the places of employand this appeal is from such judgment. ment in or, under the offices and departments

In the month of February, 1900, the civil of the city and county mentioned in section service commissioners, in accordance with eleven of this article, with reference to the the provisions of the charter of the city and examinations hereinafter provided for. The county of San Francisco, classified all the places so classified by the commissioners places of employment in or under the oflices shall constitute the classified civil service and departments of the said city and county of the city and county, and no appointment mentioned in section 11 of article 13 of the to any such place shall be made except accharter, with reference to the examinations cording to the rules hereinafter mentioned.” provided for by said article. Among the Section 7 of the same article provides that: classes established was one designated as "From the returns of the examiners, or from "ordinary clerks," from which the extra clerks the examinations made by the commissioners, authorized by the charter to be appointed by the commissioners shall prepare a register certain officers are to be selected. Subse- for each grade or class of positions in the quently, in June, 1900, an examination was classified service of the city and county of the held for ordinary clerks, which was taken persons whose general average standing upon by plaintiff, and as a result his name was examination for such grade or class is not placed upon the register of eligibles for ap- less than the minimum fixed by the rules of pointment as ordinary clerk. Subsequently, the commissioners and who are otherwise elSeptember 19, 1900, the board of election com- igible. Such persons shall take rank upon

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