Green v. The Jackson Water Company.

between the 11th day of July, 1855, and the 10th day of March, 1856. The lien was filed in the county recorder's office of Amador county, on the 6th day of March, 1856. On the 30th day of October, 1856, plaintiff filed his complaint in the clerk's office of the District Court of that county, against the corporation, to enforce the lien, but no summons was issued thereon. On the 26th day of January, 1857, plaintiff filed an amended complaint, and summons was duly issued thereon and returned "served." The defendants making no appearance in said cause, a default was taken before the clerk. At the next term of the Court, (February Term, 1857,) J. B. Bayerque, by leave of the Court, intervened in the action-averring, in his petition of intervention, that he is the owner and in possession of the property upon which the plaintiff claims a lien, and that plaintiff has no legal lien on the same. He further avers that plaintiff did not commence this suit, to enforce the lien, within six months after the filing his lien in the office of the county recorder.

After the close of the testimony of plaintiff, the intervenor's counsel moved for a nonsuit, on the ground that this suit was not commenced within six months after the filing of the lien, which motion was overruled, and intervenor excepted. Judgment was given for the plaintiff, establishing the lien against the property. Intervenor moved for a new trial, which was denied, and he appealed to this Court.

W. W. Cope for Appellant.

1. The nonsuit should have been granted. Proof that the suit was commenced within six months after the lien was filed, was necessary to entitle the respondent to recover. Wood's Digest, 538, §6; Statutes 1855, 158, § 7.

2. The decision of the Court is not sustained by the law and the facts of the case. The lien claimed by the respondent, if it ever existed, expired and ceased to exist before the commencement of the suit to enforce it. The suit was commenced at the time of issuing the summons. Wood's Digest, 170, § 22; Burrill's Prac., 223, 227; Johnson v. Comstock, 6 Hill, 10; Edmonstone v. Thomson, 15 Wend., 554.

Smith & Hardy for Respondent.

Cited Wood's Digest, 170, § 22; Mechanics' Lien, Acts 1855, § 7.

TERRY, C. J., delivered the opinion of the Court-BALDWIN, J., and FIELD, J., concurring.

In this cause, suit not having been commenced until the time prescribed by the statute for the enforcement of mechanics' liens had expired, that portion of the judgment which gives a lien upon the property is reversed.

Magee v. Supervisors of Calaveras County.

MAGEE v. THE BOARD OF SUPERVISORS OF THE COUNTY OF CALAVERAS.

Where the board of supervisors of a county have canvassed the return of an election, and, in the exercise of their discretion, declared the result of an election adversely to a party claiming to have been elected, a mandamus will not lie, upon the application of such party, to compel the board to issue to him a certificate of election.

A certificate of election is not necessary to enable a party, claiming to have been elected, to bring his action by quo warranto.

Such certificate is only prima facie evidence of title to the office, not conclusive. Nor is it the only evidence by which the title may be established. It is the fact of election which gives title to the office, and this fact may be established, not only without, but against, the evidence of the certificate.

APPEAL from the District Court of the Fifth Judicial District, County of Calaveras.

The facts appear in the opinion of the Court. Defendants had judgment in the Court below, and plaintiff appealed.

Volney E. Howard for Appellant.

TERRY, C. J., delivered the opinion of the Court-BALDWIN, J., and FIELD, J., concurring.

This was an application for a mandamus to compel the supervisors of Calaveras county to issue to the plaintiff a certificate of his election as county treasurer.

By law, it is the duty of the supervisors to canvass the returns of the vote of their county, and to ascertain and declare for whom the greater number of legal votes are cast.

If they neglect this duty, the Court will award a mandamus to compel them to act; but can not control their action.

The defendants, as appears from the pleadings, had proceeded to canvass the votes, and in the exercise of their discretion declared the result of the election adversely to the claims of the plaintiff. In such cases, the plaintiff's remedy is not by mandamus. Where a discretion is vested in an inferior jurisdiction, and that discretion has been exercised, a mandamus will not be granted, because the Court has no power to control that discretion. (12 John., 416; 1 Cowen, 423; 6 Cowen, 392.)

In Hull v. Supervisors of Albany, (19 John., 259,) it was held that "where an inferior tribunal has discretion, and proceeds to exercise it, this Court has no jurisdiction to control this discretion by mandamus. But if subordinate public agents refuse to act, or to entertain the question for their discretion, in cases where the law enjoins upon them to do the act required, this Court may enforce obedience to the law by mandamus when no other legal remedy exists."

Vallejo v. Fay.

If the appellant is aggrieved by the action of the defendants, his remedy is in another form of action.

It is said, by counsel for appellant, the possession of the certificate of election is necessary to enable him to pursue his remedy by quo warranto. But this view, we think, is erroneous.

The certificate of election is merely prima facie evidence of title to an office; but it is not conclusive; nor is it the only evidence by which the title may be established. It is the fact of election which gives title to the office, and this fact may be established, not only without, but against, the evidence of the certificate.

Judgment affirmed.

VALLEJO v. FAY.

In an action of ejectment to recover possession of a large tract of land, where the defendant failed to appear, and the case was submitted to the Court, who found that plaintiff had title to the whole tract, and that the defendant was in possession of a part, sixty or seventy acres of the tract, without right: Held, that it was proper for the Court to enter judgment for the plaintiff for the possession of the whole tract.

APPEAL from the District Court of the Third Judicial District, County of Alameda.

The facts sufficiently appear in the opinion of the Court.

J. Clark for Appellant.

1. The judgment is erroneous, because not based upon a sufficient finding, and may, therefore, be reversed on appeal. Practice Act, §§ 174, 180; Brown v. Brown and Groves, 3 Cal., 111; Russell v. Aramudor, 2 Cal., 305.

2. The finding is insufficient to support any judgment, in that it did not describe the particular portion of the premises to which the defendant was in possession. Clay v. White, 1 Munf. Rep., 162.

3. Had the "sixty or seventy acres," mentioned in the finding, been sufficiently located or described, the judgment should have been for that part of the premises, and no more. Adams on Ejectment, 328, and notes and cases cited.

Stow and Brown for Respondent.

The judgment below is proper, and is supported by the foll ing authorities: Underwood v. Jackson, I Wendell, 95: man v. Doe, 2 Scam., (Ill.,) 251; Zeigler v. Fisher, 3 Bar. 365; 6 Barr, 483, Morton v. Funk; Little v. Bishop, 9 B.

Waldman v. Broder and Mahoney.

240; Doe on the demise of Saxton, 9 B. Monroe, 240; Winans et al. v. Christy et al., 4 Cal. R., 70.

BALDWIN, J., delivered the opinion of the Court-TERRY, C. J., and FIELD, J., concurring.

Ejectment to recover possession of a large tract of land, on which the defendant is alleged to have entered without title. The case was submitted to the Court, the defendant not appearing. The Court finds the plaintiff has title in himself to the whole tract, and that defendant is in possession of sixty or seventy acres, without any showing of right. Judgment is entered on this finding for possession of the whole tract, and of this the defendant complains, and now assigns it as error.

No dam

We see no error of which defendant can complain. ages are claimed; they are expressly waived. As the defendant was only in possession of a part, and held this without right, it no more injured him for judgment to go against him for all than for the part he occupied. The plaintiff was not bound to measure off and particularly define the spot of land the defendant trespassed upon in order to put him off, when a general finding against him answered the same purpose, and did him no injury. The defendant has not disclaimed as to any portion of the premises, either as occupying it or claiming a right to it, and the plaintiff is not held to know that the defendant did not claim the whole-which, it seems, he could have done, for he makes no defence-by as good a claim as that under which he seized a part. The authorities show that a finding and judgment like this is not erroneous in such cases. (Coleman v. Doe, 2 Scammon, 251; Little v. Bishop, 9 B. Monroe, 240.) Judgment affirmed.

WALDMAN v. BRODER, (SHERIFF,) LEWIS MAHONEY, AND ANN MAHONEY.

In an action of replevin by W., it appeared, on the trial, that the property sued for belonged to him and one F., a third party, and the jury returned a general verdict for the defendants, and the Court gave judgment for a return of the property to the defendants: Held, that there was no error in the judgment.

The legal effect of finding for the defendants, on the question of the plaintiff's right to the property, was to entitle the defendants, from whom the property was taken, to its restoration.

Where the execution-debtor owns property jointly with another, a sheriff, who has such execution, has the right to levy on such property, and take it into possession, for the purpose of subjecting it to sale.

APPEAL from the District Court of the Third Judicial District, County of Alameda.

Waldman v. Broder and Mahoney.

This was an action brought by appellants against defendants, for the recovery of specific personal property, which had been taken by Broder, as sheriff, în execution, at the suit of the defendants Mahoneys, against Freedman and Frank; Waldman, a third party, claimed the property, and brought this action, by way of replevin, to recover the same from the sheriff, Broder, who, in his answer, justified the taking under the execution.

On the trial, it turned out, as the jury found, that the property belonged to Waldman, the plaintiff, and Isaac Frank, one of the execution-debtors.

The Court charged the jury to the effect, that if they found that the plaintiff and Frank were owners of the property as partners, or joint-owners of it in any other capacity, the plaintiff Waldman could not recover in this action, and that they must find for the defendant, and they brought in a verdict generally for defendants. Appellants moved for a new trial, which motion was denied. Judgment was given against plaintiff for return of the property and costs of suit, from which judgment, plaintiff appealed to this Court.

S. B. McKee for Appellant.

1. The judgment of the District Court in this cause, is contrary to law, and not in conformity to the verdict of the jury. Practice Act, §§ 197, 177, 200; Ross v. Austil, 2 Cal. Rep., 192; Nickerson v. Chatterton, 7 Cal. R., 568.

2. The Court erred in refusing a new trial. Wright v. Bennet, 3 Barbour's Rep., 451.

Clarke and Pease for Respondent.

BALDWIN, J., delivered the opinion of the Court-TERRY, C. J., and FIELD, J., concurring.

We think there is no error in this record to the prejudice of the appellant; the jury having found a general verdict for the defendant in this action of replevin. The property, which had, under the previous proceedings, been taken from the defendants, was properly directed by the Court to be returned to the defendants. This right of return is not necessarily, or, perhaps, at all dependent upon any finding of the jury to that effect; but results as matter of right in the plaintiff, and a conclusion of law from the verdict for defendants. It is the right of the Court to state this legal conclusion as a portion of its judgment. The legal effect of a finding for the defendants on the question of the plaintiff's right to the property, is to entitle the defendants, from whom it was taken, to its restoration. Nor is there anything in the failure to give an alternative judgment for the value of the property. This omission might be complained of by defendants