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bilities would be affected by the alleged nuisance. But whatever the rule may be in such an action, it is quite evident that where, as here, the injury is to property and it is shown to have been direct and substantial, the fact

that other neighbors made no complaint would neither mitigate the damage nor justify appellants' acts.

[13] Another of the defendants' witnesses was asked on his direct examination how the chicken-pens on other nearby ranches compared with those kept by defendants in respect to their sanitary conditions. Plaintiff's counsel objected to the question upon the ground that it was immaterial and irrelevant and upon the further ground that no basis for a comparison had been shown. In sustaining the objection the court was clearly correct. It would be no defense to defendants if they could show that other persons were committing a nuisance. Moreover, respondent has not complained of unsanitary conditions; he complains only of the dust raised by the scratching of the chickens. We find no error in the record.

The judgment is affirmed.

We concur: WORKS, J.; CRAIG, J.

ing and filing of findings of fact and conclusions of law. Application denied.

Dixwell L. Pierce, of Sacramento, for appellants.

A. C. Huston, Jr., and Harry L. Huston, all George T Kern, Dist. Atty A. C. Huston, of Woodland, for respondent.

FINCH, P. J. This is an application for an order in the above-entitled cause, now on appeal in this court, directing the judge of the trial court to certify "whether said petitioners in said proceeding before said superior court therein waived the making and filing by said superior court of its findings of fact and conclusions of law upon the issues of fact tried in said proceeding.”

Petitioners applied to the trial court for a writ of mandate requiring respondent to call an election for the determination of the question of the formation of a joint union high school district, to be composed of the following school districts: "Davis Joint, Montgomery Joint, Fairfield and Plainfield." In such application it is alleged that a petition was theretofore filed with respondent, "signed by a majority of the registered electors in each of said four school districts," praying for the formation of a joint union high school district. The answer denies that the petition "was signed by a majority

COVELL et al. v. LEE, Superintendent of of the registered electors in each of said

Schools of Yolo County. (Civ. 2907.) (District Court of Appeal, Third District, California. Sept. 25, 1924.)

1. Appeal and error 660(1)—On motion for direction to trial judge, instrument treated as judgment, as agreed by parties.

Both parties to cause pending on appeal, agreeing, on application of appellants for order therein directing trial judge to certify whether they waived findings, that a paper in the cause, signed and caused to be filed by the trial judge, constitutes a judgment, it will be so treated. 2. Trial 393 (1)-Same document may include findings and judgment.

Findings of fact and judgment based thereon may be included in the same document.

school districts." No other issue was raised by the pleadings.

Section 1728 of the Political Code, as amended by St. 1917, p. 712, requires that such a petition be signed by "a majority of the registered electors, residing in each❞ of the school districts sought to be organized into a high school district. The cause was tried and in due time the trial judge signed and caused to be filed a paper, denominated "decision of court," which is in the form of an opinion, except for the last paragraph. thereof, which reads as follows:

"It is therefore ordered that the petition for an alternative writ of mandate herein be and the same is hereby denied and that the respond3. Appeal and error 659 (6)—In view of find-ent have and recover her costs incurred in this ings no need to order trial judge to certify to proceeding." waiver.

Trial court having made findings of fact, no presumption arises that appellants waived findings on any issue, so no purpose would be served by granting their application for order to trial judge to certify whether they waived findings.

[1] Petitioners treated the foregoing paper as a judgment and have appealed therefrom. In respondent's points and authorities in. opposition to appellants' motion it is said:

"In their points and authorities appellants cite the Estate of Yorba, 176 Cal. 166, 167 P. Mandamus by C. A. Covell and another 854, to support the proposition that the docuagainst Harriet S. Lee, Superintendent of ment signed by the trial court constitutes a judgment in the action. With this view we Schools of the County of Yolo. Petitioners, agree because it is apparent that it was inwho appealed from adverse judgment, ap-tended as such when we read the concluding ply for order directing W. J. Redding, Judge paragraph of the document. * **The judgof the Superior Court of Yolo County, to ment filed by the trial court contains sufficient certify whether petitioners waived the mak-findings of fact."

(230 P.)

Since both parties are agreed that such | 3. Divorce 245(3)—Court held not to have paper constitutes a judgment it will be abused its discretion in denying motion to treated as such without further inquiry. In such paper appears the following:

"It appears from the evidence that thirty out of fifty-four registered electors residing in said Plainfield school district signed the petition. Three of these petitioners filed written requests with respondent for the withdrawal of their names from the petition. Such requests were directed to the respondent in her official capacity and were presented to her before the petition was presented to or filed with the respondent. In considering the sufficiency of the petition, the respondent eliminated the names of said three petitioners ** * and determined that the petition was signed by but fifty per cent. of such electors."

[2, 3] Treating the foregoing as a finding, it is responsive to the only issue made by the pleadings. Whether such finding is sufficient or is supported by the evidence are questions which do not arise here. It has been held that findings of fact and the judgment based thereon may be included in the same document. Locke v. Klunker, 123 Cal. 231, 239, 55 P. 993. Since the court has

made findings of fact, no presumption arises that appellants have waived findings upon any issue in the case, and hence no purpose would be served by granting appellants' application.

The application is denied.

We concur: PLUMMER, J.; HART, J.

JACOBS v. JACOBS. (Civ. 4971.) (District Court of Appeal, First District, Division 2, California. Sept. 22, 1924. Hearing Denied by Supreme Court Nov. 20, 1924.)

1. Divorce

286 Jurisdiction of court awarding alimony not determined on facts arising subsequent to entry of decree.

Jurisdiction being determined as of time that it is exercised, where decree awarding alimony is attacked on ground that award was in excess of court's jurisdiction, appellate court cannot look to affidavits and consider facts that have arisen subsequent to entry of decree. 2. Divorce 286-Decree awarding wife permanent alimony although denying her divorce not disturbed, where court's lack of jurisdicdiction does not appear from face thereof.

Under Civ. Code, §§ 136, 137, decree awarding permanent alimony to wife although wife was not granted a divorce, will not be disturbed on husband's motion to modify it on ground of lack of jurisdiction, where it does not appear on face of decree that parties were not living together at time decree was entered, nor, if separation existed, through whose fault it occurred.

modify decree awarding wife permanent alimony, although divorce denied either party.

Court held not to have abused its discretion in denying motion to modify decree awarding wife permanent alimony, though denying her divorce, where husband's written offer of reconciliation was apparently merely for purpose of establishing grounds for motion, and wife's testimony that offer was refused because of his intolerable conduct was not refuted by him.

4. Divorce 294-Where divorce denied elther party, court may make such order for custody and care of minor children as may seem necessary.

The welfare of minor children being of paramount concern in case where divorce denied either party, court may, under authority of Civ. Code. §§ 136, 138, make such order for their custody, care, etc., as may seem necessary or proper.

5. Divorce 303(3)-Court held not to have abused its discretion in denying motion to modify decree awarding custody of minor children to wife, although divorce denied either party.

tion in denying husband's motion to modify de

Court held not to have abused its discre

cree awarding custody of minor children to wife, although divorce denied either party, on husband's showing of written offer of recon

cilation.

6. Divorce 222-After time for appeal from decree, court has jurisdiction to award wife counsel fees to resist husband's motion to modify alimony order.

Where after rendition of decree husband applies for modification of alimony order, under Civ. Code, §§ 137, 139, court may award wife counsel fees to resist such motion, although time for appeal from decree has expired.

Appeal from Superior Court, City and County of San Francisco; Frank J. Murasky, Judge.

Suit for divorce by Myra F. Jacobs against Manuel J. Jacobs, in which defendant filed a cross-complaint. Divorce denied either party. From an order denying defendant's motion to modify decree, and awarding counsel fees to plaintiff in resisting defendant's mo tion, defendant appeals. Affirmed.

Henry B. Lister and R. W. Gillogley, both of San Francisco, for appellant. Mary R. Schwab, of San Francisco, for respondent.

NOURSE, J. Plaintiff commenced this action for divorce and for the custody of the minor child of the parties. The complaint alleged cruelty on the part of the husband. Defendant filed a cross-complaint alleging cruelty and desertion. An answer was filed to this cross-complaint denying all the allegations of cruelty, and also denying desertion

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 230 P.-14

quarrel with the rule announced in the Hagle Case, but insists that it is not applicable here because upon the face of the decree it does not appear that such was the intention of the trial court. It will be noted that the sole attack upon the decree, as disclosed by the notice of motion, was that the award of alimony was in excess of the jurisdiction of the court. Jurisdiction must, of course, be de termined as of the time that it is exercised. We cannot, therefore, look to the affidavit and consider facts that have arisen subsequent to the entry of the decree in order to determine the jurisdiction of the court at the time the decree was entered.

It is not altogether clear that, under the provisions of section 136, conditions may not exist which would authorize a trial court to award alimony to a wife living apart from her husband, though grounds for divorce did not exist. In the Hagle Case the court said, 74 Cal. 608, 613, 16 P. 518, 520:

on the part of the wife and alleging that the separation, if constituting desertion, was caused by the cruelty of the husband. Trial was had upon these issues and the court found adversely to all the allegations of the complaint regarding the cruelty of the defendant; that all the allegations of the cross-complaint were untrue, and particularly, that the plaintiff had not deserted the defendant and that she had not lived "separate and apart from the defendant with intention to desert defendant." The court also found that the plaintiff was a proper person to have the custody of the minor child, a girl of about 6 years of age, and that the sum of $100 per month was necessary for the support of plaintiff and said minor child. The decree based upon these findings denied a divorce to either party, granted to the plaintiff the custody of said minor child, and awarded to her the sum of $100 per month "as permanent alimony for support of plaintiff and said minor child." No appeal was "It may be, that when the allowance was taken from this decree, but more than 6 made to Mrs. Hagle in the former action she months after the entry of the decree the de- was living apart from her husband through no fendant moved to modify it by striking there- fault of his, but that he was willing-indeed anxfrom all provisions with reference to the pay-ious-that she should remain away. In that ment of alimony for support of the plaintiff, case he could not refuse to comply with the as well as all provisions with reference to her absence from his house; but the indulorder made by the court, simply because of the custody of the minor child. Said motion gence of her husband in that regard for any was made upon the grounds that said por-length of time would not relieve the wife from tions of said judgment were in excess of the jurisdiction of the court and the motion was based upon an affidavit filed therewith in addition to the other records and papers on file in the action. In the affidavit it was alleged that since the entry of the judgment plaintiff had continued to live separate from her husband, and had refused to talk with him, or permit him to see the minor child on certain occasions. It was, and still is, the contention "Under the language of these sections it apof the affiant as disclosed by the facts al- pears that in a proceeding for divorce or mainleged in this affidavit, that the plaintiff treat- be awarded permanent alimony; and, on the tenance the wife, if entitled to a divorce, may ed said decree as a divorce, mensa et thoro. other hand, even if a divorce be denied, still, The trial court denied the motion to modify in the discretion of the trial court, if sound the decree, and at the same time, upon mo- reason exist therefor, the husband may be tion of plaintiff, awarded to plaintiff the sum compelled to provide for the support of his of $75 to enable her to engage counsel to re- wife. Conditions may be such as not to ensist said motion. The defendant has appeal-title the wife to apply for a divorce, and yet ed from the order denying his motion to mod- the circumstances surrounding her marital life ify the decree, and also from the order might be such as to render it obviously unjust to deny her all relief." awarding plaintiff counsel fees for defending the motion. The appeal is taken under the provisions of section 953a of the Code of Civil Procedure.

[1, 2] I. The first point urged by appellant is that the trial court was without jurisdiction to award alimony to the plaintiff where it appeared from the findings that grounds for divorce did not exist. Appellant rests entirely upon the decision of the Supreme Court in Hagle v. Hagle, 74 Cal. 608, 16 P. 518. where it is said section 136, Civil Code, "does not authorize the allowance of support for the wife, and at the same time a release from

her marital obligations to live with him when required, unless his conduct was such as the statute declares to be a lawful excuse for absence from the dwelling place."

In Broad v. Broad, 35 Cal. App. 646, 647, 170 P. 658, 659, the court in a case parallel to the case at bar said in discussion of sections 136 and 137 of the Civil Code:

In Lisenbee v. Lisenbee, 42 Cal. App. 567, 570, 183 P. 862, a similar decree was recognized in a decision sustaining the jurisdiction of the trial court to appoint a receiver to enforce it. Numerous cases could be cited where the general practice has been recognized, but where the question of jurisdiction was not raised.

We have not been cited to any case in this state holding that the trial court is without jurisdiction to award alimony to an unoffending wife where she has been unable to establish grounds for divorce. The cases above

(230 P.)

denied because the wife is unable to establish, cree, we are unable to say from the record grounds therefor she may, under certain that the trial court abused its discretion in circumstances where the parties are separat- denying to make the modification. ed through no fault of hers, be awarded alimony for her support. It is not, however, necessary to determine a rule in this respect because upon the face of the decree here under attack it does not appear that the parties were not living together at the time of its entry. Furthermore, so far as it appears from the face of the decree the parties may have been separated through the fault of the husband as alleged in the answer to his crosscomplaint, while on the other hand, assuming, of course, that the parties were separated at the time of the entry of the decree, this may have been wholly without fault of either party but with the express desire and consent of the husband. In any event, it does not appear from the face of the decree that the court was without jurisdiction to enter the order.

[3] Assuming that the order is subject to modification, like one made under sections 137, 138, and 139 of the Civil Code, the appellant should have moved for modification for that portion of the order upon the grounds of the conditions which arose since the entry of the decree. From the arguments in the brief it would appear that the appellant had some such thought in mind when he served and filed his offer of reconciliation and alleged that the wife had refused to return to his home. But in this respect the application to modify the decree is addressed to the sound discretion of the trial court based upon a showing of the changed conditions. Upon the hearing of the motion the trial court had before it an affidavit alleging that an offer of reconciliation had been made and refused. This offer was then introduced in evidence and appears to have been carefully drawn with all legal formality for the purpose of establishing grounds for the motion rather than for effecting a reconciliation between the parties. Proof was made that it had been "served" upon the wife, and it was shown to have been indorsed by the husband's counsel before service. The appellant nade no effort to substantiate the allegations f the affidavit, and no showing was made at he was at any time ready and willing resume marital relations, or that he had n1e any effort to effect a reconciliation other than the service of this formal offer. Upon the hearing the wife testified that she had refused this offer because of the conduct of her husband subsequent to the entry of the decree, which she claimed to have been abusive and intolerable. No attempt was made by the husband to refute this testimony. The trial court no doubt believed that the offer had not been made in good faith, and that the separation continued to be with the husband's consent. Therefore, treating the motion as one to modify the de

[4, 5] II. The motion to modify the portion of the order relating to the custody of the child was also based upon a claim of excess of jurisdiction only. The jurisdiction of the court in this respect is expressly found in sections 136 and 138 of the Civil Code. The welfare of minor children being of paramount concern in cases of this kind, the court may, under the authority of section 136, as well as section 138, of the Civil Code, make such order for the custody, care, education, maintenance, and support of the minor child as may seem necessary or proper. Morrow v. Morrow, 60 Cal. App. 688, 692, 214 P. 239; Ex parte Gordan, 95 Cal. 374, 377, 30 P. 561. In the latter case the Supreme Court said:

"The power to compel the father to support his minor child does not depend wholly upon section 139 of the Civil Code. Whether he is with or without fault in the matters involved in the divorce suit, it is primarily his duty Civ. Code, to support his minor children. secs. 196, 197. The wife, by her fault, may husband, but she cannot forfeit the claims of forfeit her own claim to be supported by her their children."

There cannot, therefore, be any doubt as to the jurisdiction of the trial court to award the custody of the minor child to the wife, and to compel the father to pay for its support. Such an order is, under the express provision of section 138, subject to modification or vacation upon a showing made therefor, but even if we were to treat the motion in this case as one for the modification of that portion of the decree upon grounds other than the lack of jurisdiction to make it, we cannot say that the trial court abused its discretion in denying the motion when the only showing in behalf of the motion was the appellant's affidavit and his documentary offer of reconciliation.

[6] III. In the same notice the appellant has appealed from the order of the trial court awarding the respondent counsel fees for resisting the motion for the modification of the decree. The only argument in support of this portion of the appeal is that the decree had become final prior to the time the motion was heard and that there was, therefore, no divorce action pending. From this it is argued that the court was without power to award counsel fees to the respondent under section 137 of the Civil Code. The precise point has been ruled on adversely to appellant in Lamborn v. Lamborn, 190 Cal. 794, 214 P. 862, where the Supreme Court held that, because of the power to modify orders relating to alimony, a divorce case was deemed to be pending after the time for appeal had expired, so that the court had jurisdiction to allow the wife counsel fees to resist a motion for modification of the alimony or

der, and to prosecute an appeal from an or- plaint that, under the usage and custom of der reducing her alimny.

The orders appealed from are affirmed.

We concur: LANGDON, P. J.; STURTEVANT, J.

ASSOCIATED FRUIT CO. v. SAN JOAQUIN FRUIT GROWERS AND SHIPPERS, Inc., et al. (Civ. 4854.)

(District Court of Appeal, First District, Division 1. California. Sept. 25, 1924.) Election of remedies 3(3)-No estoppel to sue for breach of contract to deliver grapes to sell on commission, by suing on note for accommodation advance made at execution of contract.

Plaintiff's right because of defendants' breach of contract to deliver grapes to him to sell on commission, is separate and distinct from his right because of their default on their note for an accommodation advance made by him on execution of the contract, so that, though the two claims might be. joined in a single action, bringing action and recovering on the note alone, does not estop plaintiff, under the doctrine of election of remedies, on the theory of this constituting a rescission by

him of the contract, to sue for nondelivery of

the grapes.

the trade in fresh grapes, a carload ordinarily contains 12 tons, and that under the contract defendants were bound to furnish 300 tons. Upon the execution of the contract plaintiff made an accommodation advance to defendants in the sum of $2,000, for which defendants gave their promissory note payable on October 1, 1922. The contract provided that an accounting should be made as soon as the grapes were sold and the amount due therefor collected, and that plaintiff might repay itself from such proIceeds the amount of such advances. The complaint then charges that defendants wholly failed and refused either to furnish grapes or to repay money.

It appears from the record that, prior to the institution of this proceeding, plaintiff had brought suit on the $2,000 note as soon as it became due, and recovered judgment thereon, and that this judgment has been The present acfully satisfied and paid. tion was brought for the recovery of the sum of $1,500, the commission provided for in the contract for the sale of the 300 tons of grapes. By way of plea in abatement, defendants set up plaintiff's recovery on the promissory note in the former action, which action they claimed amounted to a rescission which deprived it of any right of action in on the part of the plaintiff of the contract, damages for a breach of the contract which

Appeal from Superior Court, Fresno Coun- it otherwise might have. ty; D. A. Cashin, Judge.

Action by the Associated Fruit Company against the San Joaquin Fruit Growers and Shippers, Inc., and another. From judgment for plaintiff against defendant Dan K. Kazanjian, he appeals. Affirmed.

The trial court found that plaintiff had fully performed all of the terms, conditions, and covenants of the contract upon its part to be performed, and at the time for the delivery of the grapes was able, ready, and willing to receive the same, and throughout all the times mentioned duly offered to per

N. Lindsay South, of Fresno, for appel- form. It further found that neither of the lant.

defendants at any time delivered any grapes

George Cosgrave, of Fresno, for respond- pursuant to the terms of the contract but,

ent.

TYLER, P. J. Action to recover a commission provided for under a contract for the sale of certain grapes.

Plaintiff Associated Fruit Company is a corporation engaged, among other things, in marketing fresh grapes grown in the San Joaquin valley. Defendant San Joaquin Fruit Growers and Shippers is also a corporation conducting a like business, and defendant Dan K. Kazanjian is an individual who produces, buys, and sells fresh grapes. On February 20, 1922, the parties entered into a contract in writing whereby said defendants agreed to deliver to plaintiff during the month of September, 1922, 25 carloads of Muscat grapes in open lugs, which plaintiff agreed to sell for the account of said defendants, and for which services to be performed on the part of plaintiff defendants agreed to pay $5 per ton. It is alleged in the com

on the contrary, had failed and neglected to perform any of its terms with reference thereto. It also found in effect that plaintiff by its action in bringing suit to recover on the promissory note did not elect to treat the contract as rescinded. Judgment was rendered in favor of the San Joaquin Fruit Growers and Shippers, and against defendant Kazanjian, for the sum of $1,500 damages and costs, from which the latter ap peals.

His sole contention in support of his appeal is that because of the act of plaintiff in prosecuting an action for the recovery of the amount due on the promissory note, it is estopped to claim any other or further re lief. In furtherance of this contention we are cited to the cases of House v. Piercy, 181 Cal. 247, 183 P. 807; and De Laval v. United Cleaners' & Dyers' Co. (Cal. App.) 224 P. 766.

Those cases deal with the election of rem

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