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is hereby ordered and adjudged that the defendant's answer or were in conflict with the said portion of said decree be, and the same

testimony, and there was also evidence opposea is, hereby annulled accordingly. And it is

to the general finding, it was proper for the

court to grant plaintiff a new trial. hereby ordered and adjudged that until the

[Ed. Yote.--For cases in point, see rol. 37. further order of the court the defendant Cent. Dig. Vew Trial, $$ 133-143.] hereby be, and he hereby is, wholly reiiered 2. APPEAL-NEW TRIAL-REVIEW. and exempted from paying any sumi what

The clis retion of the trial court in grantever to the plaintiff as alimony or as allow ing a new trial for insufficiency of the evidence ance for her support." In thus "annulling"?

will not be disturbed, except in cases of mani

fest abuse. that portion of the decree the court exceeded

3. I'LEADING-VARIANCE. its jurisdiction. The decree which was Where an objection to the sufficiency of rendered in 1896 was a determination of the complaint to entitle plaintiffs to the profit the rights of the parties, and had become

made by defendant on a sale of certain property

presented at most a mere question of variance, final, except as the power was reserved to

the court was authorized to disregard the same the court by section 139 to modify "from by Code Civ. Proc. $469. time to time" that portion directing the par.

Appeal from Superior Court, Los Angeles ment of alimony. By that decree the court

County: N. P. Conrey, Judge. adjudged that the plaintiff was entitled to

Action by IIenry J. Crocker and others alimony from the defendant; but the effect

against William M. Garland. From an orof an order annulling this portion of the

der granting plaintiffs' motion for a new decree would be to vacate and set aside that

trial, defendant appeals. Affirmed. portion of the court's adjudication, and leave the decree as if the court had omitted to Clarence A. Miller and George J. Denis, make any provision for her support, and for appellant. Hunsaker & Britt, Mastick, the parties would thereupon be in the po Van Fleet & Mastick, and Edward F. Treadsition presented in Ilowell v. Howell, supra;

well, for respondents. whereas, the only authority given to the court by section 139 is to modify this por SMITII, J. This is an appeal from an ortion of the decree "from time to timne" as

der granting the plaintiffs' motion for a new the court may deem just in view of any trial. changed circumstances of the parties. The The suit was brought by the plaintiffs for closing paragraph of the order by which the damages for fraud of the defendant, commitcourt orders that the defendant be "wholly ted by him while acting as their agent for released and exempted” from the payment the sale of the land described in the comof alimony "until the further order of the plaint. The nominal purchaser was one court" is inconsistent with the provision of Schweppe, with whom the defendant as plainthe order annulling that portion of the tiffs' agent had made a contract of sale Audecree which provides for the payment of gust 21, 1901, for the sum of $23,000, and to alimony, but is in accordance with the pro whom a deed of conveyance, executed to him visions of section 139, and in direct har as grantee by the plaintiffs and placed in esmony with the findings of the court. crow for delivery on receipt of the purchase

7. The appellant has assigned as error money. was delivered on the 16th day of Octomans of the rulings of the court upon the ber. Schweppe had executed a prior unreadmission of evidence at the hearing; but corded deed of the land to one Hinman; but we are of the opinion that the appellant the land was shortly afterwards reconveyed suffered no prejudice thereby, and that the to him, and by him conveyed to one Earl by conclusion of the court was in 110 respect deed of date November 12, 1891. It is alaffected by its rulings on such ohjertions. leged in the complaint that Schweppe was

The cause is therefore remanded to the not the real purchaser; that he was an insuperior court, and that court is directed timate associate and blood relation of the de to modify its order by eliminating therefrom fendant and Hinman, who was his fatherall the provisions purporting to annul any

in-law, and by agreement with the defendant portion of the original decree of December permitted him to use their names in the 19, 1896, and, as so modified, the said order transaction, but that in truth they had no shall stand affirmed. Each party to pay

interest in the purchase, but took the deeils its costs incurred upon this appeal.

referred to for the use and benefit of the de

fendant; and that the defendant fraudulently We concur: IIALL, J.; COOPER, J.

represented to the plaintiffs that Schweppe was the real purchaser, which was believed

by them. The answer of the defendant al(7 Cal. Unrep. 275)

leges, in effect, that the real purchaser of the CROCKER et al. v. GARLAND.

property was the said Ilinman, and that the (Court of Appeal. Second District, California. deed was taken by Schweppe in trust for July 9. 1906.)

him and as his agent; that neither he nor 1. NEW TRIAL-FINDINGS-EVIDENCE.

any one except Ilinman had any beneficial Where, in an action against a broker for fraud in the sale of plaintiff's land, the findings,

interest in such sale; that the entire purwhich were in favor of the defendant, were

chase money of $25.000 was paid by Hinman; either in express conflict with the allegations of that the defendant had no interest whatever

87 P.-14

in the said sale of the said property or any portion thereof; that tbe plaintiffs knew and had reason to believe that Schweppe was not in truth or in fact the real purchaser of the land, but knew that the real purchaser was some person living "at or near Dunkirk, the residence of Hinman”; and that Hinman was known to them as the real purchaser from and after October 14th. The sale to Earl, it appears from the defendant's evidence, included a lot adjoining the plaintiffs', standing in the name of Schweppe, but belonging to the defendant, who had paid therefor the sum of $14,000. The aggregate purchase money received for the two lots was $60,000, of which $30,000 was paid to Hinman and the balance retained by the defendant.

The case was tried by a jury, who rendered a general verdict for the defendant, with special findings on certain questions submitted to them, among which were the following: (1) That the defendant did not conceal from plaintiffs the name of the real purchaser of the property; (2) that prior to the closing of the sale the defendant had no agreement with Hinman to the effect that the defendant should have the profits which might be made upon a resale of the property over and above the sum of $5,000; (3) that the real purchaser of plaintiffs' property under the deed was Schweppe; and (4) that the plaintiffs, prior to the closing of the sale, did discover who was the real person to whom the property was being sold. On the motion for a new trial, these findings, as well as the general verdict, were attacked on the ground of insufficiency of the evidence to sustain them; and the motion for new trial was granted on the grounds, so far as the sufficiency of the evidence is concerned, (1) that the evidence was insufficient to support the special findings enumerated, and (2) that by reason of the insufficiency of the evidence to sustain the special findings, it was insufficient also to sustain the general verdict; and the question is whether, on the record before us, these rulings of the court can be sustained.

With regard to the special findings, the first and third of the findings enumerated are in conflict with the express allegations of the answer; the fourth, if it can be construed as referring to Hinman, is without any evidence to sustain it; and the second is in direct conflict with the testimony of the defendant, who admits that he did have such agreement with Hinman prior to the closing of the sale. It is clear, therefore, that as to these findings, the ruling of the court cannot be disturbed. With regard to the general finding, it may be inferred from the special findings that it was based on the assumed fact that Schweppe was the al purchaser; and upon this, indeed, is based the principal argument of the appellant on this appeal, which is, in effect, that the functions of the defendant as agent of the plaintiffs ceased upon the execution of the con

tract made by him with Schweppe on August 21st. But this argument assumes, not only that the contract was thus made to Schweppe as the bona fide purchaser, but that Schweppe continued to be ready and willing to perform the contract, and that in fact the deed was made to him as the real purchaser. But not only is this in conflict with the repeated and explicit allegations of the answer, but the evidence at least tends to show that the contract was in fact abandoned by Schweppe almost immediately after it was made, and that the defendant, after that, proceeded as the agent, not of Schweppe, but of the plaintiffs, availing himself of the contract with Schweppe merely for the purpose of gaining time to effect the sale at the price specified. The evidence may, indeed, be susceptible of a different construction; but, if it could be assumed that the issue was before the jury, a finding of the jury to the effect stated, approved by the court, would have been conclusive, and equally the action of the court in granting a new trial would be within its discretion. Here not only is the evidence bearing upon the question inconclusive, but the actual fact found by the jury and relied upon by the appellant is in conflict with the allegations of the answer. We do not doubt, therefore, that it was within the discretion of the lower court to set aside the general verdict on this ground. Nor upon a review of the evidence can we say, as a matter of law, that the court was not justified in granting a new trial on other grounds. We are of the opinion, therefore, that the order of the lower court must be affirmed, not only upon the special grounds above stated, but on the general ground that the discretion of the lower court in granting a new trial for insufficiency of the evidence will not be disturbed, except in cases of manifest abuse.

An objection is made by the appellant to the sufficiency of the complaint to entitle the plaintiffs to the profit made by the defendant by the sale of the property to Earl. But this, at most, was a mere question of variance, which it was within the right of the court to disregard (Code Civ. Proc. § 469 et seq.), and which in fact it did disregard in its instructions.

Other objections are urged to the instructions; but, as the case is presented to us, we do not deem it necessary to consider them.

The order appealed from is affirmed.

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tract is modified by parol, the statute is com and afterwards fully executed, by the terms plied with by the subsequent execution of the

of which it was agreed "that said remaincontract as modified. [Ed. Note.-For cases in point, see vol. 23,

ing oranges should be shipped east and sold Cent. Dig. Irauds, Statute of, 88 283, 284.]

at auction in the cities of New York and BosAppeal from Superior Court, Riverside

ton"; that the oranges were sold at auction County; J. S. Noyes, Judge.

pursuant to this agreement, “and were not

sold at ruling f. o. b. prices at Highgrove," Action by E. J. Oatman and others against R. A. Eddy and others. From an order

as stipulated in the original agreement; and

that defendants received therefrom as net denying plaintiffs' motions for a new trial, they appeal. Affirmed.

proceeds the sum of $1,326.34, and no more.

This finding seems to be fully supported by Purington & Adair, for appellants.


the evidence; and, if we understand it rightlier & Carnahan, for respondents.

ly, the position of appellants is that a con

tract in writing can be altered only by a con. SMITH, J. The suit was brought to re tract in writing, or by an oral agreement cover the price of plaintiffs' orange crop, al executed at the time of its inception. Civ. leged to have been sold under a contract be

Code, $ 1698. But we do not understand this tween plaintiffs and defendants, of date to be the law, and are of the opinion that the November 26, 1900, set out below. It was provisions of the statute are complied with found by the court that the plaintiffs were by the subsequent execution of the contract. indebted to the defendants in the sum of

We are also of the opinion that the modified $1,509.05, as the balance due them for ad

contract took the place of the original convances to plaintiffs over the receipts from

tract, and that it was correctly construed by sales and interest; and judgment was en the court. tered accordingly. The plaintiffs appeal from

The order appealed from is affirmed. an order denying their motion for a new trial.

We concur: GRAY, P. J.; ALLEN, J. The contract referred to above is as follows: "Riverside, Cal., November 26, 1.900. In consideration of the Highgrove Fruit Com

(4 Cal. App. 90) pany having this day advanced us the sum

JOHNSTON V. SUPERIOR COURT OF of three thousand ($3,000) dollars, on our

SACRAMENTO COUNTY. present orange crop at Highgrove, the receipt of which is hereby acknowledged, we have

(Court of Appeal, Third District, California,

July 9, 1906.) agreed for the handling of same through said

PROHIBITION-GROUNDS FOR RELIEF-ADMISHighgrove Fruit Company on the following

SION OF EVIDENCE. terms and conditions: We agree to pick and

Writ of prohibition will not lie to prevent deliver our crop at Highgrove Fruit Com a court, in a proceeding for appointment of an pany's packing house, fruit to be delivered administrator, of which it has jurisdiction, ad

mitting evidence on the issue of kinship, that at times mutually agreed upon. Fiighgrove

deceased, to whom a petitioner for letters of adFruit Company agree to sell all fancy and ministration was married, had not, at the time choice grades oranges, at the ruling f. o. b. of the marriage ceremony, mental competency price at the time of shipment. Highgrove

to contract; this at most being error, for which

appeal furnishes adequate remedy. Fruit Company to receive for their services

(Ed. Note.--For cases in point, see vol. 40, for handling and selling said crop fifty (500)

Cent. Dig. Prohibition, SS 4-19.] cents per box. Highgrove Fruit Company

Petition by Josephine A. C. Johnston for further agree to render account sales at time of shipment. Also agree to advance

writ of probibition to the superior court two thousand ($2.000) dollars on December

of Sacramento county, P. J. Shields, Judge.

Writ denied. 10th, 1.900." There was sold under this contract, during the year 1900, 888 boxes of C. M. Beckwith and A. L. Shinn, for peoranges, about which there is no dispute, and titioner. White & Miller, for respondent. during the month of January and the first part of February, there was sold 2.094 hores,

MCLAUGHLIN, J. Petitioner and one about which there is no dispute, except that Frank A. Edinger are rival applicants for it is claimed by the appellants that the letters of administration of the estate of amount found by the court to have been re William Johnston, deceased. The petition of ceived by the defendants was too little by Edinger was first filed, and it is therein al$86.55; and on this point the finding seems leged that the sole heirs at law of said deto be sustained by the evidence. The princi ceased are two daughters and one son, all of pal, and, indeed, the only serious, question, whom have signed and filed a written request therefore, is as to the oranges sold subse that he be appointed administrator. The quent to the 25th day of March, 1901, amount- petitioner, however, in her answer to Edining to 4,068 boxes. As to these it is found by ger's petition, and in her application for letthe court: That prior to the 25th day of ters, alleges that she is the surviving wife March, 1901, the original agreement was of decedent, having been married to him modified by an oral agreement between the about two months prior to his death. Edinger, parties, made at the request of the plaintiffs, in his answer to her petition for letters of

administration, denies that petitioner was volved in every contest between relatives for

letters of administration, and if, in such conheirs at law, and further denies that she is tests, the trial court erroneously holds that a competent or proper person to have charge particular facts are relevant and pertinent to of his estate. The denials are specific, and the main inquiry, either as a matter of pleadare followed by affirmative allegations to the ing or proof such ruling amounts to no more effect that petitioner, since 1893, has been, than a mere error reviewable and correctible and now is, the lawful wife of one J. West through the ordinary remedy of appeal. AgasGoodwin, and that decedent for more than siz v. Superior Court, 90 Cal. 102, 27 Pac. 49; one year prior to his death was mentally im Mines d'Or v. Superior Court, 91 Cal. 102, competent, and being entirely without under 27 Pac. 532; Murphy v. Superior Court, 84 standing or capacity to comprehend or enter Cal. 596, 24 Pac. 310; Maurer V. Mitchell, into any contract was incapable of entering 53 Cal. 292; Bandy v. Ransom, 54 Cal. 88; into the marriage relation with petitioner. High on Extraordinary Legal Remedies, $8 Upon the issues thus made the cause came on 767, 767b, 770, 772; Works on Courts and for hearing before the respondent court, and their Jurisdiction, $ 81; and "The fact that a petitioner seeks, through the medium of the question of jurisdiction arises does not writ here applied for, to restrain the trial change the rule as to the adequacy of the court from hearing, determining, or receiving remedy by appeal”; Jacobs v. Superior evidence relating to the competency of de Court, 133 Cal. 366, 65 Pac. 826, 85 Am. St. cedent to enter into the marriage contract Rep. 204 with the petitioner.

One of the pertinent questions involved in It is well settled that the writ of prohibi. the contest between petitioner and Edinger tion will not issue to arrest the proceedings is the relationship of the former to the deof an inferior tribunal, unless such proceed cedent. If she was decedent's wife at the ings are without or in excess of the juris time of his death, and is otherwise competent, diction of such tribunal, and there is no plain, then she is entitled to letters, and if she was speedy, and adequate remedy in the ordinary not his wife then she is a mere intermeddler. course of law. Code Civ. Proc. $$ 1102, This specific question was before the court 1103; Works on Courts and Jurisdiction, $ for trial and solution, and if the court erred 81, and cases cited; Maurer V. Mitchell, 53 in refusing to strike out that portion of EdCal. 292; White v. Superior Court, 110 Cal. inger's answer relating to the mental incom58, 42 Pac. 471. That the respondent court petency of the decedent at the time of the alhas jurisdiction of the probate proceeding leged marriage, and is likely to make similar and contest is admitted, and if it has such rulings in passing upon the admissibility of jurisdiction it certainly has power to hear evidence relating to such incompetency, we and determine every question relating to the can see no reason for holding that these parrespective claims of the applicants for let ticular errors of law cannot be as readily ters of administration. This petitioner seems

and adequately dealt with on appeal as other to concede, but contends that the court can

errors committed during the course of the not go behind the ordinary proof and authen hearing. The court having jurisdiction to tication of marriage to inquire into and pass make the rulings, the fact that it may have upon the mental competency of the decedent ruled erroneously does not oust it of jurisat the time the marriage ceremony was per

diction. Such errors can be reviewed at the formed, and many authorities are cited in same time and in the same manner as ordithe able and exhaustive arguments on this nary errors in ordinary cases, and the fact point. We think, however, that it would be that petitioner elected to base her objections improper for us to discuss or attempt to de on jurisdictional grounds cannot change the cide the interesting question thus presented, well-settled rule regulating the review and for even if the soundness of petitioner's correction of errors of law occurring during contention in this behalf be conceded, we are the course of a trial. The writ of prohibition thoroughly convinced that prohibition cannot will not be issued except in cases of extreme be invoked for the purpose of regulating the necessity, and it certainly cannot be used for course of a trial, or obviating the effect of the purpose of regulating the issues in a rulings made by a court engaged in trying pending cause and confining them to a particissues over which it has undoubted juris ular scope, or to test the correctness of ruldiction. That the respondent court has juris ings on motions to strike out the whole or any diction to deterinine wbich of the contending part of a pleading filed in a cause over which applicants is entitled to letters of administra the court has complete and unquestioned jution must be conceded. This being true, then risdiction. To tolerate such a practice would certainly the vital, essential, and controlling be subversive of the purpose of the writ question to be inquired into is the number of which is to restrain inferior tribunals and surviving heirs at law and the relationship bodies from inflicting wrong under the guise of each to the decedent, for in no other way of jurisdiction or authority which has no could the court determine which of the applis potential existence. It would invite intoler. cants was entitled to preference under section able delay and annoyance in every case where 1365, Code Civ. Proc. The questions of heir a jurisdictional question might, perchance, be ship and degree of kinship are necessarily in incidentally involved, and make this preroga

tive writ the medium through which appel CHIPMAN, P. J. Action to quiet title. It late courts could exercise supervisory con is alleged in the complaint that plaintiff Mrs. trol over inferior tribunals acting within the Jones is the owner, as her separate estate, of scope of their legitimate powers. We are not section 1, township 19 S., range 22 E., in unmindful of cases holding that prohibition Kings county, and also of all water ditches will issue even where an appeal lies, if the de passing across said land, except what is lay incident to an appeal will result in irrepa called the "Settlers Ditch"; that defendants rable injury or great and useless expense for claim some interest or estate in said premises, which petitioner cannot be compensated. But namely, the right to run water over said land in the case at bar none of these conditions in ditches now existing on said land, but that are shown. The court has jurisdiction of the said claim is without right, etc. persons of the contending applicants for let Defendants in their answer deny that ters, and of the subject-matter of the contest, plaintiff Mrs. Jones is or ever was the ownand even grossly erroneous rulings during the er of the water ditch mentioned in the comprogress of the hearing cannot oust it of plaint; allege that in 1897 one Mary Kirkjurisdiction nor vest this court with arbitrary endall was the owner of said land and at power to interfere with and direct the course

the same time one Mary Deardorff, wife of of such proceedings. The contest must pro

Samuel Deardorff, was the owner of the ceed even if the objectionable defense be elim- north half of section 8 in said township and inated, for the propriety and relevancy of range, and that defendant, together with one other questions raised by Edinger's answer

Oscar Deardorff, are now the owners therestand unchallenged. The delay incident to

of; that said Mary Kirkendall conveyed in such contest, and a probable or possible appeal said year by deed a right of way for a lateral from the order the court may make at its

ditch through her said land from the said close, cannot be avoided, and there is no

Settlers ditch, for the benefit of said land in apparent reason for holding that this case

said section 8, which deed was duly acknowl. falls within the exception to the general rule edged and recorded; that immediately thereforbidding interference by prohibition unless

after said Samuel and Mary Deardorff conurgent necessity demands such course.

structed it ditch along the right of way so The writ is denied.

deeded, and that "ever thereafter until about We concur: CHIPMAN, P. J.; BUCK

the first of January, 1904, they and their

successors and grantees of said land in said LES, J.

section 8 maintained and used said ditch in

conveying water to and upon said land": ( 1 Cal. App. 18)

that said deed provided that said ditch should JONES et al. v. DEARDORFF et al. be used to convey water to the lands in both (Court of Appeal, Third District, California.

said sections. A prescriptive right to said June 23, 1906.)

right of way is also pleaded; defendants also 1. APPEAL-RECORD-EVIDENCE-ADMISSION

pleaded the statute of limitations. By way REVIEW.

of cross-complaint defendants set forth the A specification of error to the admission of facts as above stated in their answer; ala deed in evidence cannot be reviewed where the record fails to show the ground of objection

leged that large and valuable crops of alfalfa made when the deed was offered, and it is not and pasturage are produced on said section inadmissible for every purpose.

by defendants by means of said ditch and 2. EASEMENTS WATERWAY IRRIGATION that the water carried through said ditch is DITCH. A right of way for an irrigation ditch, and

essential to the growing of said crops; althe right to receive water from or discharge the

leged that in January, 1904, plaintiffs against same on land, constitute easements which may the will of defendants wrongfully placed obiittach to other lands as incidents or appurte structions in said lateral ditch and diverted nances.

defendants' water therefrom to their ir3. SAME-APPURTENANT EASEMENT — DEEDSCONSTRUCTION.

reparable damage; and they pray, among A deed providing that the grantee should other things, for an injunction restraining not use an irrigation ditch except to convey wa

plaintiffs from further interference in the ter to the north half of a certain sertion for use thereon, unless by the consent of the gran

said ditch. tor, created an easement which, by use became Answering defendants' cross-complaint, appurtenant to such section, and was not a plaintiffs deny most of its allegations; allege mere easement in gross personal to the grantee.

that the said deed executed by Mary Kirken[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Easements, $$ 8-12.]

dall contained the following provision, to wit:

"The said water ditch is not to be used by Appeal from Superior Court, Kings Coun

S. F. Deardorff except for conveying of water ty; M. L. Short, Judge.

to the N. 1, of Sec. 8, said township and Action by Mrs. A. B. Jones and another

range, for use therein without the consent against John Deardorff and another. From a

of myself, nor for conveying water to any judgment for defendants, plaintiffs appeal. other person without my consent” and that Affirmed.

"such consent was never obtained from Mrs. R. J. Hudson, for appellant. E. T. Cosper, Deardorff or her grantee that the water runfor respondent.

ning in said lateral ditch should be used by

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