« PreviousContinue »
tached in such case, have you any change or without objection made or exception reserved correction to make in your testimony?” The
in the trial court. witness answered in the negative. The dis- We see no merit whatever in the objection trict attorney then asked: "You have no that the effect of the adherence to his testichange or correction to make?” and Cooper mony by Cooper, in the face of the informaanswered: "None." "None." This occurred in the
tion given him by the court as to the penalty presence of the jury. No objection or intima- for willful perjury resulting in the conviction tion that the same was not entirely satis
and execution of an innocent person was to factory was made by defendant in regard to strengthen that testiinony in the minds of the any of these questions, and no exception was
jurors. If such was the effect, which may be taken to the action of the court or district
conceded, it was due solely to the fact that attorney in the matter.
the jurors knew that the witness was testifyIt is now urged that the court had no right ing with actual knowledge as to the penalty to pursue this course of examination, for the
prescribed by law for perjury. This it was reason that it thereby intimated to the jury
entirely proper for them to know and take an opinion on the part of the court as to the
into consideration with all other matters gotruth or falsity of Cooper's evidence, and al
ing to the question of credibility of the witso that it was prejudicial to the accused, as it
ness, in determining the weight that should left with the jury the impression that the
be given to his testimony. witness had testified truthfully. Under our
We are unable to see any merit in the con
tention of defendant relative to the incident system, the trial judge is rigorously prohibited from 'action or words having the effect of con
we have been discussing. Everything done
by the court was in furtherance of the ultiveying to the jury his personal opinion as to
mate object of every judicial investigation, the truth or falsity of any evidence. The deter
viz., the eliciting of the truth-there was mination of questions of fact must be made
therein no intimation of opinion on the part by the jury free from the influence that
of the court adverse to defendant's interest knowledge of the trial judge's views thereon might have. If there was anything in the ac
--and the only effect thereof was to bring to
the attention of the jury a fact which it was tion complained of that would have the effect of intimating to the jury views on the part proper for them to know in determining the of the court as to Cooper's evidence, which
weight to be given to Cooper's evidence.
3. Many rulings of the trial court overrulwere adverse to defendant's interests, de
ing objections to questions asked the defendtendant would have good ground for com
ant on his cross-examination by the district plaint. We are, however, unable to see there
attorney are complained of, it being claimed in any intimation on the part of the court of
that such questions were not proper crossan opinion unfavorable to the defendant, and
examination for the alleged reason that they in favor of the evidence given by Cooper.
had no reference to matters about which he If, despite the court's express disavowal of
was examined in chief. Penal Code, $ 1323. an intent to intimate either way as to the
Defendant had testified very fully on his ditruth or falsity of the evidence given by
rect examination as to his conversations with Cooper, the statement made and questions
Cooper in the county jail, denying the truth asked by the court had the effect of convey
of Cooper's statements, and, testifying exing any intimation of opinion on its part,
plicitly in regard to the diagram made by such intimation was that the court was in
him showing the place of the homicide, said clined to doubt the truth of the evidence,
that he told Cooper at the time that he knew rather than to believe it. If it had been
nothing about the place or its whereabouts otherwise, there couid have been no occasion
of his own knowledge, and that he was drawfor making the statement and asking the
ing the diagram solely from his own recolquestions, for certainly it could not have
lection of a map that had been produced in been, and cannot now be, assumed by any one
the police court. This was in direct conflict from the nature of the statement and ques- with the evidence of Cooper as to the contions, that it was the desire of the court versations between them upon this subject. thereby to fortify and emphasize the evidence
Several of the questions asked on cross-exgiven by the witness. It may be that the amination of the defendant were devoted to necessary effect of the statement and ques- an effort to show by him that he did, at the tions was to intimate a doubt on the part of
time of the conversation with Cooper, know the court as to the truth of the evidence given
from personal observation as to the whereby Cooper, but in this there could be no in- abouts and character of the place. It may timation unfavorable to defendant, and he, be strongly argued that this was legitimate therefore, cannot complain. So far, there- cross-examination upon a matter concerning fore, as the remarks and questions of the which he had been "examined in chief," viz., court are concerned, there was no intimation his conversation with Cooper, for the reason of opinion upon the part of the court that that any answers to the questions asked which can be held to have been misconduct prejudi- tended to show such personal knowledge on cial to defendant's rights. It is unnecessary his part would impair the force of his direct to here determine whether the objections testimony as to what his statements to Coopnow made in this matter can be considered er were in this regard, and therefore would be legitimate cross-examination within the
(150 Cal. 6) rule laid down in People v. Gallagher, 100 MCANENY v. SUPERIOR COURT OF SANCal. 403, 475, 35 Pac. 80. It is not necessary,
TA CLARA COUNTY et al. (S. F. 4,009.) however, to decide this point, in view of the
(Supreme Court of California. Oct. 4, 1906.) answers given by the defendant to the ques
1. APPEAL-STAY OF PROCEEDINGS-EFFECT tions. By those answers he steadfastly de- ALIMONY-RECEIVERSHIP. nied any personal knowledge as to these mat- Though, under Civ. Code, $ 137, a superior ters, and the evidence elicited was of such a
court may require the husband, in action for
divorce, to pay temporary alimony, suit exnature that prejudice could not have been
penses, etc., and, under section 110, may ensuffered by defendant on account of such force payment or security therefor by the apcross-examination.
pointment of a receiver or by other appropriate Outside of the testimony as to the Cooper
remedy, where defendant filed a bond to stay
proceedings pending an appeal from orders reconversations, defendant had testified on his
quiring him to pay temporary alimony, etc., the direct examinations simply as follows: "I superior court had no jurisdiction to appoint did not kill my brother-in-law, Joseph Blaise.
a receiver to provide security for the ultimate I never employed or tried to employ any one
payment of temporary alimony, etc., since Code
Civ. Proc. $ 946, provides that the perfecting to, or make any combination or agreement of an appeal shall stay further proceedings in with anybody to kill him." On cross-examin- the court below on orders appealed from and ation he was asked: “Where were you on the
matters embraced therein. night of January 10th of this year at the
[Ed. Note.--For cases in point, gee Cent. Dig.
vol. 2, Appeal and Error, $ 2208.] hour of 9 o'clock?” This time, according to
2. PROHIBITION -- GROUNDS — EXISTENCE the evidence, was about the time of the com
ANOTHER REMEDY. mission of the murder. This undoubtedly Code Civ. Proc. $ 1102, giving the superior was legitimate cross-examination as to the court authority to issue a writ of prohibition general statement made by defendant on his
to arrest proceedings of a tribunal exercising
judicial functions in excess of its jurisdiction, direct examination to the effect that he was
being limited by section 1103, providing that not the person who had committed the mur- the writ will not issue where there is a plain, der. See People v. Gallagher, supra. The speedy, and adequate remedy in the ordinary defendant having voluntarily testified in his
course of the law, the writ will not issue to
stay receivership proceedings to provide security own behalf became "subject to the same rules
for the payment of temporary alimony, etc., for testing his credibility before the jury by from orders for payment of which the husband impeachment or otherwise, as any other wit
has appealed, since the writ of supersedeas of
fered defendant a speedy and adequate remedy ness" (People v. Hickman, 113 Cal. 80, 86, 45
to stay the proceedings. Pac. 175), and it was therefore competent
[Ed. Note. For cases in point, see Cent. Dig. for the prosecution to show either by his vol. 40, Prohibition, 88 4, 5, 13.] cross-examination or the record of the judg- 3. SAME-JURISDICTION-ISSUES AND PROOF ment that he had theretofore been convicted REVIEW. of a felony. Code Civ. Proc. § 2051; People
Where a husband's petition for a writ of V. Arnold, 116 Cal. 682,687, 48 Pac. 803;
prohibition to stay receivership proceedings to
secure the payment of temporary alimony, from People v. Sears, 119 Cal. 267, 271, 51 Pac. 325; the orders for the payment of which he had People v. Meyer, 75 Cal. 383, 386, 17 Pac. 431. appealed, alleged that he was unable to procure
sureties for the amount of the bond required by The rulings of the court upon this point were,
the superior court to stay proceedings, and the therefore, not erroneous.
allegations were denied by the answer and the The usual contention is made that the dis- case was submitted without a trial of that istrict attorney, in his closing argument to the
sue, the Supreme Court could not determine
whether or not appeal afforded the husband a jury, went beyond the limits of legitimate ar
plain and adequate remedy against the receivergument to the prejudice of the defendant. ship proceedings. We find no support for this contention in the 4. SAME – PRESENTATION OF OBJECTION IN record. This is not a case like that of People ORIGINAL PROCEEDING. v. Cook (Cal. Sup.) 83 Pac. 43, where the dis
Where a husband appealed from orders of
the superior court requiring him to pay tempotrict attorney stated as a fact something
rary alimony, etc., a writ of prohibition would most prejudicial to the defendant, as to which not issue at his instance to stay receivership there was absolutely no intimation in the evi- proceedings to secure the ultimate payment
thereof, where it did not appear that he had dence. As was said in People v. Romero, 143
objected to the jurisdiction of the lower court Cal. 458, 460, 77 Pac. 163, 164: “Counsel has to appoint a receiver after appeal from the the right in the argument to fully state his orders, or that the court was informed of the views as to what the evidence shows, and as
filing of the undertaking to stay proceedings on
the appeal. to the conclusions to be fairly drawn there
[Ed. Note-For cases in point, see Cent. Dig. from.” In the case at bar, the district attor- vol. 40, Prohibition, § 66.] ney, in our judgment, did no more than this. The transcript on appeal discloses no other
In bank. Application of George B. Mcpoint requiring discussion.
Aneny for writ of prohibition against the The judgment and order denying the mo- superior court of Santa Clara county and tion for a new trial are affirmed.
Jackson Hatch and John E. Richards, for We concur: SHAW, J.; HALL, J.; HEN- | petitionér.
petitionér. H. E. Wilcox and D. M. BurSHAW, J.; LORIGAN, J.; SLOSS, J.
nett, for respondents.
SHAW, J. This is an original proceeding der these provisions a receiver may be apIn this court for a writ of prohibition to pointed either for the purpose of enforcing prevent further proceedings in pursuance payment of the alimony and expense monof an order of said superior court made in ey previously ordered paid, or for the purpose the course of an action for divorce therein of enforcing a previous order requiring the pending, wherein Mabel M. McAneny is plain- husband to furnish security for such payment, tiff and George B. McAneny is defendant, or for the purpose merely of providing such appointing Walter L. Crow receiver to take security. Petaluma Bank v. Superior Court, charge of the property of the defendant. 111 Cal. 495, 44 Pac. 177; Huellmantel v. Prior to the making of the order appointing Huellmantel, 124 Cal. 588, 57 Pac. 582; SharCrow as receiver the court had made an order on v. Sharon, 67 Cal. 202, 7 Pac. 456, 633, 8 in the action for divorce requiring the de- Pac. 709. fendant, George B. McAneny, to pay certain It must be admitted that the superior sums of money to the plaintiff for her ali- court had full jurisdiction' to grant the momony pending the suit and for her costs tion for a receiver at all times during its and counsel fees in the prosecution thereof, pendency, prior to the taking of the appeal and also a subsequent order for the payment from the order to pay alimony and costs of additional sums as alimony pending an and the filing of the undertaking to stay proappeal from the first order and for her ex- ceedings on said appeal. The stay of propenses upon such appeal. From each of ceedings on the alimony order, thus effected, these orders the defendant had appealed to operated as a supersedeas, and, during its the Supreme Court, and had stayed further operation, deprived the superior court of all proceedings on each order pending the ap- power to enforce the order appealed from, peal by giving the necessary undertakings. either by execution or by proceedings for The last order for alimony pending the ap- contempt, or through the appointment of a peal was made on February 12, 1906. No- receiver. Ruggles V. Superior Court, 103 tice of the motion for the appointment of a Cal. 127, 37 Pac. 211; State I. & I. Co. v. receiver and the notice of motion for alimony, Superior Court, 101 Cal. 150, 35 Pac. 549. etc., pending appeal were both served and If the order appointing the receiver in this filed on February 1st, and it was stated in case was an act in furtherance of the enforcethe former notice that the purpose sought to ment of the alimony order which was stayed be accomplished by the appointment of a by the appeal, it was prohibited by the statreceiver was the securing of the payment to ute, which in such cases forbids further proplaintiff of such sums as might be directed to ceedings upon the order appealed from and be paid to her for alimony, costs, and coun- matters embraced therein (Code Civ. Proc. sel fees. The order appointing a receiver $ 946), and it was, in a certain sense, in exwas made on March 8, 1906. The court or- cess of the jurisdiction of the court. Notdered that Crow be appointed receiver, and withstanding the limited scope and purpose directed him, as such receiver, to take charge of the order appointing the receiver in the and custody of all the money and property of present case, as expressed in the notice and said defendant, with certain immaterial ex- recited in the order, we think it was a step ceptions, and collect all rents, issues, and taken for the enforcement of the payment profits therefrom. This order recites the of the alimony and expenses allowed. State terms of the notice, stating the purpose for I. & I. Co. v. Superior Court, supra. The which the receivership was desired, as afore- fact that the custody is solely for the purpose said.
of providing security does not change the A writ prohibition may be issued by this character of the proceedings. It is security court to arrest the proceedings of any tri- for payment, so that when the final act of bunal exercising judicial functions “when enforcement comes—that is, the actual apsuch proceedings are without or in excess of propriation of the money to the satisfaction the jurisdiction of such tribunal.” Code of the demand-the money will be ready for Civ. Proc. $ 1102. By section 137, Civ. Code, that purpose if enough has been secured, or power is given to the superior court in ac- the property will be in the receiver's hands tions for divorce to make orders requiring the for sale, if it is necessary to resort to a sale, husband to pay money to the wife for her and so it may be said to be a provision for support pending the action and for her ex- the better enforcement of the order to pay penses in prosecution or defense thereof.
alimony. It could have no other object than The orders in question, directing the pay- the ultimate enforcement of the payment. ments of money by the petitioner, were made It is therefore a proceeding, which was stayed in pursuance of the authority given by that by the undertaking for the stay of the prosection. By section 140 of the Civil Code ceedings on the order of February 12th grantit is provided that the court may require the ing further alimony and attorney's fees. husband to give reasonable security for mak- A writ of prohibition will not be issued ing any payments which the court may direct where there is a plain, speedy, and adequate to be made under the provisions of section remedy in the ordinary course of law. Code 137 aforesaid, "and may enforce the same by Civ. Proc. $ 1103. We have already seen the appointment of a receiver, or by any that the proceeding to appoint a receiver was other remedy applicable to the case." Un- a step toward the enforcement of the alimony
order appealed from, and that the effect of the stay bond on the appeal was to stay all proceedings on the order, or in the enforcement thereof. The petitioner has, therefore, a speedy and adequate remedy by means of a motion in this court in the matter of the appeal for a writ of supersedeas to stay the hand of the court below in any proceeding to enforce the order, whether judicial or ministerial. The writ of supersedeas “is frequently granted by this court for the purpose of staying proceedings in the superior court, When a review of the action of that court is sought in this court, either upon direct proreeding or on appeal, and is directed to the court whose action is under review, or to an oflicer of that court who may be about to enforce its judgment. * * * If, after such ilppeal, the court below seeks to enforce its judgment, this court will grant a special order restraining its action.” Dulin v. Pacific W. & C. Co., 98 Cal. 304, 33 Pac. 123. Such writs have been issued in the following (ases: Hoppe v. Hoppe, 99 Cal. 537, 34 Pac. 222; Painter v. Painter, 98 Cal. 626, 33 Pac. 183; Born v. Horstmann, 80 Cal. 452, 22 Pac. 109, 338, 5 L. R. A. 577; Baldwin v. Superior ('ourt. 125 Cal. 584, 58 Pac. 185; Anderson 1. Anderson, 123 Cal. 445, 56 Pac. 61; Brown 1. Rouse, 115 Cal. 619, 47 Pac. 601; IIubbaril v. University Bank, 120 Cal. 632, 52 Pac. 1070. This court has even gone so far, upon the granting of a writ of supersedeas, as to quash writs already issued out of the superior court and vacate sales already made in pursuance of the order of that court. Owen v. Pomona L. & W. Co., 124 Cal. 331, J7 Pac. 71. This remedy is more effectual and comprehensive than prohibition in all Cases where, as in this case, the acts of the party restrained are proceedings which are stayed by an appeal. The petitioner is also the appellant, and therefore has the right to apply for a supersedeas in aid of his appeal. We are aware that this court has sometimes granted relief by way of prohibition where the exercise of
of judicial functions were threatened in enforcement of the judgment stayed by an appeal. In the leading case of Havemeyer v. Superior Court, 84 Cal. 342, 24 Pac. 121, 10 L. R. A. 627, 18 Am. St. Rep. 192, the persons applying for the writ of prohibition were not parties to the action. It was considered doubtful whether they had the right to appeal, and, if so, whether the appeal would be of any value without a bill of exceptions, and hence that remedy was not deemed plain or adequate. Not being parties, they could not move for a supersedeas. In the case of State I. & I. Co. v. Superior Court, supra, and in other cases where prohibition has been entertained at the instance of a party to the appeal, the existence of the remedy by writ of supersedeas does not appear to have been called to the attention of the court, and the effect of such
remedy has not been discussed in the opinion.
There is also the remedy by appeal by which the order can be vacated for mere error, as well as for excess of jurisdiction. The defendant has appealed from the order appointing the receiver, and in his petition he seeks to show that this remedy is ineffectual because the amount of the undertaking to stay proceedings thereon has been fixed at $30,000, and he avers that he is wholly unable to procure sureties for that sum. This allegation is denied in the answer, and, as the case has been submitted without a trial of the issue thus raised, we cannot decide whether or not this remedy is plain or adequate in this particular case.
Another objection to the sufficiency of the case made by the petitioner is that it does not appear that the objection to the jurisdiction of the court was ever brought to the attention of the superior court and an opportunity given to that court to recede from its position, a step which is usually a condition precedent to the right to a writ of prohibition in this court. There was not here, as in Havemeyer v. Superior Court, 84 Cal. 403, 24 Pac. 121, 10 L. R. A. 627, 18 Am. St. Rep. 192, a lack of opportunity to do so, nor is there anything in the record to show that the disposition of the lower court to persist in its course made it useless to object. The proceeding for a receiver was initiated at the same time as the application for additional alimony, and the court, as before stated, had full jurisdiction to proceed at all times prior to the appeal from the alimony order and the securing of the stay of proceedings thereon. The appeal from the alimony order was taken and the stay of proceedings thereon obtained on February 14, 1906. The application for a receiver was postponed from day to day by stipulation of the attorneys, and did not come on for hearing until March 8, 1906, at which time it was granted. There was therefore ample opportunity given to the petitioner to object to the jurisdiction of the court and to give notice to the court of the fact he had taken the appeal and obtained a stay of proceedings. It does not appear that the superior court was ever informed of the filing of the undertaking which operated to stay proceedings. Unless it was aware of that fact, it could have no knowledge that it was proceeding in excess of its power. This case therefore does not come within the exceptions or qualifications to the rule that objection must be made in the lower court which are noted in the opinion in Havemeyer v. Superior Court, supra.
The petition is denied.
We concur: MCFARLAND, J.; ANGELLOTTI, J.; SLOSS, J.; HENSHAW, J.; LORIGAN, J.
(149 Cal. 744)
streets of the defendant to the extent of 3 WESTERN UNION TELEGRAPH CO. v. miles of poles and 12 miles of wires. The deCITY OF VISALIA. (Sac. 1,413.)
fendant assessed for the year 1904 all these (Supreme Court of California. Sept. 25, 1906.) poles and wires and all other tangible prop1. TRIAL-FINDINGS OF FACT-CONSTRUCTION erty of plaintiff within said boundaries, and -SUFFICIENCY OF EVIDENCE.
all the taxes levied upon such property were An ordinance purporting to grant a privi- paid by plaintiff, but defendant for said year lege to a telegraph company to use the streets of the city for its poles, regulating the manner
also assessed plaintiff for “a franchise grantof sach use and the rights of the city and com
ed by the city of Visalia, $1,500," and levied pany therein, nowhere used the word “fran- a tax thereon of $30, and was about to levy chise.” The company's officer testified that the ordinance and its acceptance by the company
upon and sell all plaintiff's said poles and was not a "franchise," or understood to be
wires to satisfy said tax, when plaintiff comsuch, but a mere police regulation. Held, that menced this action to restrain such sale. a finding that a "franchise" was created there
Judgment went for defendant in the trial by should be construed as meaning that the ordinance and its acceptance by the company
court, and, from the judgment, plaintiff apoperated in law as a franchise, and not that
peals, bringing up the judgment roll and a a franchise was applied for and granted eo bill of exceptions. As respondent does not nomine.
make any point as to the remedy asked by [Ed. Note.--For cases in point, see Cent. Dig. vol. 46, Trial, $ 871.]
appellant, we will assume, for the purpose
of this appeal, that the remedy is a proper 2. MUNICIPAL CORPORATIONS-USE OF STREETS -FRANCHISE TO TELEGRAPH COMPANIES
one and determine the case, as both parties WHAT CONSTITUTES.
seem to want it determined, upon its real An erdinance, to become operative on its legal merits. acceptance by a telegraph company, purported
The case was tried by the court, without to grant to the telegraph company a right to use the streets of the city for poles, provided a jury, upon a stipulated statement of facts. that such use was not exclusive, regulated the with leave to either party to introduce furmanner of such use, fixed the company's lia- ther evidence, and some further evidence bility for damages arising from an abuse thereof, and gave the city a right to use the poles.
was introduced by plaintiff. The character Held, that the other provisions contained in of plaintiff, and its rights, franchises, and the ordinance did not change its character immunities, have been before this court in from an attempted grant of a franchise.
other cases, and particularly in the case of 3. TAXATION-CORPORATIONS - FRANCILISES
the City and County of San Francisco y. The GRANT OF POWER ALREADY POSSESSED.
Act July 24, 1866, c. 230, 14 Stat. 221, Western Union Telegraph Company, 96 Cal. grants a certain telegraph company a franchise 140, 31 Pac, 10, 17 L. R. A. 301. It was deof constructing its lines along the post roads
termined in that case and is the law-that, of the United States. Rev. St. U. Š. § 3964, LU. S. Comp. St. 1901, p. 2707] provides that
by an act of Congress passed July 24, 1866, all public highways are post roads. Pol. Code, (14 Stat. p. 221, c. 230) and the subsequent $ 2018, declares that public highways are roads, acceptance of its terms by the appellant herestreets, and alleys laid out and dedicated to the
in, the appellant was granted the franchise public. Civ. Code. § 536, authorizes telegraph companies to construct their lines upon any pub
of constructing, maintaining, and operating lic road or highway. Heid, that a city ordinance its lines of telegraph over the public domain, purporting to grant to the corporation referred to
and across and under navigable waters, and in 14 U. S. Stat. a franchise to use the city streets for its poles was a mere attempt to
along the military and post roads of the give what the company already had, and did not United States, in such manner as not to (reate a franchise which could be taxed. obstruct or interfere with ordinary travel In Bank. Appeal from Superior Court,
thereon; that, by section 3961, Rev. St. of
the United States (U. S. Comp. St. 1901, p. Tulare County; W. B. Wallace, Judge. Action by the Western Union Telegraph 2707] it was provided—as Congress had the
right to provide that "all public roads and Company against the city of Visalia. From a judgment for defendant, plaintiff appeals.
highways while kept up and maintained as Reversed, and remanded with directions.
such are declared to be post roads," and by
section 2018 of the Political Code of this Brown & Wells, R. B. Carpenter, and
state it is provided that public "highways" Beverly L. Hodghead, for appellant. H. T.
are "roads, streets, alleys,” etc., laid out, Miller, for respondent.
erected, and dedicated to the public; that,
by said act of Congress, and its acceptance MCFARLAND, J. The plaintiff is a cor- by appellant, the latter became an instruporation organized under the laws of the mentality of the United States in carrying state of New York and engaged in the tele-out its govermental functions, and that, theregraph business. It has been in existence as fore, under the principle declared in McCulsuch corporation since before July 24, 1866. loch v. Maryland, 4 Wheat. 316, the franchises The defendant, the city of Visalia, is a mu- granted plaintiff by said act of Congress are nicipal corporation organized and existing not subject to state taxation, either directunder the laws of the state of California. | ly or indirectly. Therefore the respondent Plaintiff has numerous lines of telegraph run- had no authority to assess and tax any federning through many parts of California and al franchise enjoyed by appellant and exerother American states and adjoining coun- cised upon the streets of respondent. This tries, and one of its lines runs through the principle respondent admits, but it contends