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settled by our decisions that one attempting / of the amount to which they were so entitled, to rescind a transaction on the ground of for no one could undertake to determine that fraud is not required to restore that which, amount in the absence of such an accountin any event, he would be entitled to retain. ing. A restoration of the property received See Matteson v. Wagoner, 147 Cal. 739, 743. by them, viz., the possession of the property 82 Pac. 436, and cases there cited. This is and the title thereto, subject to the trust upon the theory that the defendant could not deeds and other incumbrances, upon the respossibly have been injuriously affected by the toration of the property received by Pietra failure to restore, and the plaintiff might be; from them, namely, the $30,000 and th: 61 for he might not be able to again collect the bonds, would not have reimbursed them as amount from the defendant, if it should be to any portion of the amount so expended. so restored to the defendant. One of the ex We think, too, that they were entitled to look ceptions recognized in Kelley y. Owens, supra, to this property for such reimbursement, and is where, without any fault of plaintiff, there for protection against such outstanding bonds have been peculiar complications which make as could not be recovered, and, consequently, it impossible for plaintiff to offer full restora entitled to retain possession of it for that tion, although the circumstances are such purpose until the amount due them could that a court of chancery may by a final de be determined and their rights protected in cree fully adjust the equities between the a proceeding in which the rights of Pietra parties. See, also, Thackrah v. Haas, 119 U. also could be fully guarded. In addition to S. 499, 7 Sup. Ct. 311, 30 L. Ed. 486; Wills v. this, we think it sufficiently appears from the Porter, 132 Cal. 516, 521, C1 Pac. 896. Another allegations of the complaint that Pietra himexception recognized by this court is that of self was, at the time of the commencement of the case where the taking of an account is this action, unable to restore certain of the necessary for the ascertainment of the sum to property received by him from the plaintiffs, be repaid. or the sum is to be liquidated by an namely, certain of the bonds of the corporaadjudication based on evidence of facts in tion which had been transferred to otber dependent of the terms of the contract itself. parties. As is said by plaintiffs' cou , the

In such a case, as the plaintiff cannot de facts of this transaction are exceedingly comtermine in advance of the suit the amount | plicated, and it is very clear that the terms by him to be repaid, an offer to refund such upon which a rescission should be had, and sum as shall be decreed is a sufficient offer the property received restored, can only be to do equity. Sutter St. R. R. Co. v. Baum, determined upon a judicial investigation, in 66 Cal. 44, 4 Pac. 916. The authorities fully which the rights of all the parties can be fulsustain the proposition that an offer to re ly guarded. We are therefore of the opinion store before action is not essential where the that the circumstances shown by the comrights of the other party can be fully pro- plaint fully justify the failure of plaintiffs to tected by the decree, and such restoration offer to restore possession of the property becannot be made without injuriously affecting fore the commencement of the action, and the rights of the party seeking rescission, or bring the case within those classes of cases the relative rights of the parties in the event in which no such offer is necessary as a conof a rescission cannot be determined without dition precedent to action. an accounting. The statute itself dispenses Under the facts of this case, it is clear with the necessity of such an offer, where the that there was no undue delay on the part other party is himself unable to restore whát of plaintiffs in moving for rescission. Their he has received. In such event an offer on delay of some three months in commencing the part of the rescinding party would be a this action was fully excused by the allegavain thing, and the respective rights of the tion showing the commencement of a similar parties can be fully guarded by the decree. suit in the United States Circuit Court under

We think it is manifest that this case falls the misapprehension that Pietra was a citiwithin the exceptions to the rule as to restor zen of California, and the dismissal of the ation or offer to restore. If their claims in same by the court upon the plea made by him regard to the contract were well founded, that he was a subject of the kingdom of Italy. plaintiffs were entitled. upon delivery to Pie If we concede that notice of rescission was a tra of the property transferred to them, to re condition precedent to action, we are of the ceive, not only the money and obligations they opinion that such action in the Circuit Court had given therefor, namely, the $50,000 and was a sufficient notice to satisfy all requirethe 61 bonds of the corporation, but also such ments as to this action. amounts as they had properly expended in As we read the brief of counsel for the de the management of the property in accord fendants, it is not contended that the comance with their contract with Pietra, who plaint fails to state a cause of action against had himself received all the proceeds. They any defendant, other than as to the matters were entitled to be reimbursed for all hereinbefore discussed, except as to defendamounts they had properly expended under ants Power and Foster as trustees under the their contract with Pietra, and thus put in trust deed. It is claimed that, as the supthe position they occupied at the time of plemental and amended complaint shows that, entering into the same. An accounting was after the commencement of the action, they undoubtedly essential to the determination sold the property to Pietra under the terms


of the trust deed, and so far as appears, in necessary, the costs of bringing them in and full accord therewith, and delivered posses keeping them in shall fall on the plaintiffs. sion thereot to him, and no longer make any We think, however, they are proper parclaim thereunder, such complaint fails to state ties to the action, although they have divested a cause or action against them. Herein coun themselves of title to and possession of the sel fail to note the distinction between a com property. They are charged with complicity plaint and a supplemental complaint. Al in 'the frauds perpetrated and in the conthough in this instance they are both incorpo spiracy by which it was carried out. It is rated into one document, styled an "amended possible that, upon the accounting, the presand supplemental complaint," and the supple ence of the trustees in court, or the continued mental complaint is distinguished only by be jurisdiction of the court over them, may be ing contained in separately, but consecutively necessary to fully accomplish the relief neces. numbered paragraphs, they are, nevertheless, sary to protect the plaintiffs, or to enforce to be considered as separate pleadings. The their rights. Their expenditures as trustees complaint, whether original or amended, can will necessarily come under review, and cerproperly speak only of things which occurred tain claims made by them as trustees or either before or concurrently with the con

otherwise must needs be settled and promencement of the action. The office of a sup

vided for, if found just, and they are proper plemental complaint is to bring to the notice parties to any investigation of those subof the court and the opposite party things

jects. which occurred after the commencement of The joinder of Scott as a plaintiff was not, the action, and which do or may affect the

under the rules prevailing in courts of equity, rights asserted and the relief asked in the a fatal misjoinder. It is true that the coraction as originally instituted. If, upon the

poration plaintiff is the only party shown to conditions existing when the action was be be entitled to affirmative relief, and that it gun, Power and Foster were proper parties

is the party in whom the cause of action is to the action, they do not become improper

vested: but it appears that the plaintiff Scott parties, in the sense that they were improp

holds bonds of the plaintiff corporation of erly joined, by reason of the fact that after

the face value of $3.000, which were alien the action was begun they parted with their

upon the property, and $50,000 of its stock, interest in the subject-matter and thereby

and that in order to effect a complete rescisterminated their liability. The propriety or

sion it may become necessary or desirable to necessity of joining them was a matter which

have this stock and all these bonds produced the plaintiff's were obliged to determine when

and canceled, or transferred to the defendant the action was begun. Having been properly

Pietra, and this is a part of the relief asked.

Scott offers to deliver them up for that purjoined as parties, as matters then stood, they

pose, or for any disposition of them which the are proper parties to the action thereafter, until something occurs which dispenses with

court may deem proper. He would be a proptheir further presence, in which case the

er party defendant, in order to answer as proper course is to dismiss the action as to

to any title he may have to them, or to op

pose or advocate any proposed disposition of them, and not to sustain a demurrer to the complaint because of the supposed improper

them; and, if some disposition of them is es

sential to complete relief, he would be a joinder. In such a case the sufficiency of

necessary party. He, of course. took them a complaint, with respect to the question of

with knowledge of the facts, except the althe proper joinder of all the parties original

leged fraud of the defendants. If he desires ly included, is to be determined by reference

now to make common cause with the plaintiff to the facts existing and disclosed by the com

corporation, which is for many purposes his plaint at the beginning of the action. At the

agent, and in which he holds the majority of time this action was begun Power and Foster

stock, and makes profert of the stock and still held the title to the property involved

bonds for the purposes of the suit, it is imin the action, and they were properly joined.

material to the other defendants whether he While the sustaining of a demurrer on this

is plaintiff or defendant. A court of equity ground is often a convenient way of exclud

can mold its decree to suit the exigencies of ing a party from further participation in the

the case, and may determine the ultimate case, practically equivalent to a dismissal,

rights of the parties on either side as beand therefore to be deemed harmless error, it

tween themselves or the opposing party and is not the technically correct method of deal

render a decree accordingly. 15 Ency. of ing with the proposition that such party is Pl. & Pr. 672, 673. Inasmuch as the effect of no longer interested in the outcome of in

ining him as plaintiff was to avoid the cost action, nor liable to judgment therein. Such of service of process upon him, if he was al joinder is not a matter of which the other

necessary or proper party, it was to that exparties can complain, unless it causes addi tent beneficial to the defendants, if the plaintional cost to them. 15 Ency. Pl. & Pr. p. 698. tiffs should prevail and recover their costs. We can perceive 10 harm that can result from It is unnecessary to consider further the their retention as parties, especially in view question of the misjoinder of parties. The of the power of the court to adjust the costs distinct relief asked as to some of the deso that, if their presence proves to be un fendants is incidental to the main case, and

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necessary to effect a complete settlement of 2. MUNICIPAL CORPORATIONS-OFFICERS-VAthe matters involved in the transaction sought CANCY IN OFFICE-CONVICTION OF FELONY.

Under the provisions of the charter of San to be rescinded. All of the defendants were

Francisco that an office becomes vacant when properly joined. There is really but one the occupant is convicted of a felony, there is a cause of action stated, and hence there is no vacancy in the office of mayor when a verdict of misjoinder of causes of action.

guilty has been entered on trial of the mayor

for a felony, and the board of supervisor's has, A motion to strike out certain parts of thie

on the judgment thereon being certified to them, complaint was sustained. It is alleged in declared the office vacant, though an appeal from the complaint that certain sums were paid

the judgment is perfected and a certificate of by the plaintiff on account of the transaction,

probable cause granted.

3. SAME-REMOVAL OF MAYOR'S SECRETARY. including interest to the defendant Pietra,

The secretary of the mayor of San Francisexpenses of operating the ranch, and expen co, who holds his position only during the mayor's ses of agents transacting the business, and pleasure, is removed when, after his appointthat certain claims are outstanding against

ment, a vacancy in the mayor's office oceurs,

and the mayor elected to the vacancy appoints the said plaintiff for similar expenses and another secretary. other expenses incurred in the enterprise,

In Bank. Petition of Harry G. McKannay some of which are in dispute, and that all

for mandanus to Samuel W. Horton, auditor these moneys were paid out and tliese liabili

of the city and county of San Francisco. ties incurred in good faith, while the plaintiffs believed the false representations com

Peremptory writ ordered. plained of to be true, and before discovery W'm. B. Kollmyer, for petitioner. Maurice of the falsity thereof. These matters are all L. Asher (Wm. II. II. lart, of counsel), for material to the accounting, to which the respondent. plaintiff corporation, under the facts alleged, is entitled, and were proper, though not ab

BEATTY, C. J. This is a petition for it solutely necessary, subjects of averinent to writ of mandate to compel the allowance of lay the foundation for that part of the relief. a claim for salary of the secretary of the The court erred in striking out these allega- | mayor of San Francisco. There are two pertions. It also erred in striking out the al sons claiming to be mayor de jure of the legations of paragraph 121,4 of the complaint, city, and each is assuming to act in that can containing a statement of some of the facts | pacity. Each has appointed a secretary, both constituting diligence on the part of the of whom have presented claims for salary for plaintiff in promptly prosecuting the action. the month of July, 1907. The auditor call

The plaintiff moved to strike out of the not approve more than one claim, and, being cost bill of the defendants an item of $193.10

uncertain which is valid, refuses to approve for costs incurred in the taking of the depo either. Practically he takes the position of sition of a witness, H. G. Mirfin. The objec a stakeholder, willing to allow and certify tion to this item was that the deposition was the lawful claim as soon as it shall be detaken before any answer was filed, and while termined which is lawful. Recognizing the an issue of law upon a demurrer to the com difficulty of his position, the court, in orderplaint, on the ground that the facts stated ing the issuance of the alternative writ, didid not constitute a cause of action, was un rected service to be made of a copy of the . determined. There is no provision or rule writ, together with a copy of the petition, of law to the effect that a deposition may not upon John J. Boyle, the rival claimant to the be taken before an issue of fact has been office of secretary, and upon Eugene E. raised. The Code provides that a deposition Schmitz, who was the de jure and acting of a witness may be taken in an action at mayor at the time of his appointment. Actany time after the service of the summons ing upon this suggestion, said Boyle has made or the appearance of the defendant (Code himself a party to the proceeding by filing an Civ. Proc. $ 2021), and that either party has answer to the petition, setting forth the facts the right to obtain evidence in this manner upon which he founds his claim to be rightin the cases specified (Code Civ. Proc. $ 2031) fully in the exercise of the duties of the dis

The judgment is reversed, and the cause re puted office. The cause has been submitted manded for further proceedings in accord for decision upon demurrers to the answers ance with this opinion.

of respondent and Boyle, and upon facts
stipulated by the parties where not admitted

by the pleadings. (151 Cal. 711)

The case is as follows: At the general McKANNAY V. HORTON, Auditor. (S. F. election in November, 1905, Eugene E. Schmitz 4,856.)

was elected mayor of San Francisco for the (Supreme Court of California. Aug. 19, 1907.) next regular term of two years, and in pur

suance of said election he duly qualified and 1. MANDAMUS-QUESTIONS DETERMINABLE. There being no other speedy and adequate

entered upon the duties of the office on the remedy, the right to salary as secretary of the 8th day of January, 1906. Thereafter le mayor of a city may be determined by manda- ; continued to discharge the duties of the office mus, though the question of who is the mayor is incidentally involved.

without question until July 9, 1907. The [Ed. Note. For cases in point, see Cent. Dig.

fact tbat he was absent from the state on vol. 33, Mandamus, $ 38.]

two occasions during this period, and that

the president of the board of supervisors act to act depends, in some instances, upon writed at such times as mayor pro tem., is not ten orders of the mayor, have refused to act, material in this case.) On the 13th of June, unless upon concurrent orders from Schmitz 1907, in the superior court of San Francisco, and from Boxton or Taylor, and accordingly said Eugene E. Schmitz was found guilty of Schmitz has been certifying demands upon a felony—the crime of extortion—by the ver the city treasury. But Mr. Taylor, since he dict of a jury, and on July 8th he was sen succeeded Mr. Boxton, has refused to act in tenced by the judgment of the court to a conjunction with Mr. Schmitz in any official term of imprisonment for five years in the matter, and he alone is recognized by the state's prison at San Quentin. On the follow board of supervisors as the rightful incuming day the judge of the superior court, pre

bent of the office of mayor. On the day of siding in the department in which the trial his sentence—July 8, 1907-Schmitz took and and conviction of said Schmitz took place, in perfected an appeal to the District Court of obedience to the requirements of section 997 Appeal for the First District—the proper of the Political Code, caused to be delivered court-and at the same time applied for and to the board of supervisors a formal notice of obtained from the judge of the superior court said trial, conviction, and judgment, together a certificate of probable cause for his appeal, with a duly authenticated copy of the judg which is still pending and undecided. Therement as entered. On the same day, July 9,

after he continued and still continues to re1907, the said board of supervisors regularly

tain control of, and by his secretary, Boyle, adopted a preamble reciting the election of remains in possession of, the office at Post Schmitz, his assumption of the office of mayor, and Franklin streets, which, subsequent to his subsequent conviction of the crime of ex the earthquake and fire, and down to the 11th tortion, the judgment of conviction, and the of July, 1907, was the only office of the mayor fact that he was then actually confined in

of San Francisco. He also has in his possesjail. They thereupon resolved that a vacancy

sion the mayor's official seal. existed in the office of mayor and that they The question we have to decide is: Who would proceed forthwith to elect a mayor to

is entitled to the salary of secretary to the fill the vacancy for the unexpired term. Im mayor 'for the last 21 days of July? But one mediately after passing this resolution they salary can be paid, and that is claimed at did actually elect Charles Boxton as mayor

the same time by McKannay, the appointee for such unexpired term, who immediately of Boxton, and by Boyle, the appointee of qualified, and on the 11th day of July took Schmitz. Each of the claimants has performpossession of the rooms in the city hall which ed the duties of the office so far as he has had been set apart by a resolution of the

been allowed to do so—Boyle in the service board of supervisors for the use of the mayor,

of Schmitz, and McKannay in the service of and designated as the office of the mayor of Boxton and Taylor. It is conceded to be the San Francisco, together with the records and duty of the respondent to allow the claim and papers therein. On the 9th day of July he direct its payment out of the city treasury, had appointed the petitioner to the oflice of when duly certified by the mayor that it is secretary, who on the same day duly com correct. Taylor has certified that McKanplied with all the legal conditions and re nay's claim for services from July 10th to quirements relating to the qualification of July 31st is correct, and Schmitz has certified such appointees and entered upon the dis that Boyle's claim for a full month's salary charge of the duties of the office. On the is correct. The question, therefore, reduces 16th of July Boxton resigned the office of itself to this: Who is mayor of San Francismayor, and on the same day Edward R. Tay co? lor was elected by the board of supervisors to With reference to this question Mr. Boyle fill the vacancy for the balance of the unex makes the preliminary objection that in this pired term. He immediately qualified, and proceeding by mandamus we cannot try the took possession of the office and records in title either of the secretary or mayor. We the city hall, and has since continued to act are not cited to any authority for the propoas mayor, retaining the petitioner in his serv sition that the title to an office cannot be ice as official secretary. In the meantime Mr. tried—that is, inquired into—when it is inSchmitz bas never conceded that his convic cidentally involved in a proceeding which a tion of a felony, or the judgment and sen third party has a right to institute. The doctence of imprisonment, as above stated, have trine which Mr. Boyle means to invoke is occasioned any vacancy in the office of mayor, more correctly stated in these terms: Title but, on the contrary, notwithstanding his con to an office cannot be determined in mandafinement in the county jail in the custody of mus, where there is another specific remely the sheriff, has been insisting on his con prescribed, or where there is another plain, tinued right to the office, and actually dis: speedy, and adequate remedy at law. This charging the duties of the office so far as un doctrine is very fully and learnedly discussed der the circumstances he has been able to do in People ex rel. Smith v. Olds, 3 Cal. 107, so. Some of the city officials have continued 58 Am. Dec. 398, where the subject, the rule, to recognize his authority as the rightful its reasons, and its limitations are elaboratemayor. Others, including the respondent, ly considered, and where it is shown to be whose duty it is to act, and whose authority merely a rule of procedure, even in cases

where it is sought to establish title to an of trol through his secretary of the premises ocfice by a judgment which will operate as an cupied by the mayor at the date of his con estoppel in favor of a claimant and agains. viction; but he is himself a prisoner in the an actual incumbent. Here, although we are county jail, where it is the duty of the sheriff obliged to decide, for the purposes of this to keep him closely confined. Nevertheless and like cases, who is de facto mayor of San his right to act is maintained by some at Francisco, we cannot determine, by a judg least of the other city and county officers ment which will operate as an estoppel be and by many private persons who resort to tween Dr. Taylor and Mr. Schmitz, who is him for the purpose of transacting official the de jure mayor, however little doubt there business. He also is in possession of the ofmay be as to the proper decision of that ficial seal used by bim up to the time of question. And as to the title of the secretary his conviction, while Dr. Taylor has been prowe are not required to determine that. When vided with a new seal. If these facts alone we have once decided who is de facto mayor, were considered, it might be difficult to dewe shall have no difficulty in determining cide which of the two is de facto mayor. But whose order the respondent must obey in the in such cases the layi aifords a rule of dematter of allowing such claims against the cision which in this case is not difficult of treasury as must be allowed on presentation application. There cannot be two de facto of the mayor's certificate that they are cor incumbents of one office at the same time, and rect. This whole question as to the right to

where two are acting simultaneously, each decide incidentally upon the title to an office under claim of right, that one alone will be in a proceeding by mandamus was fully and recognized who appears to have the better carefully considered in Morton v. Broderick,

legal title. Morton V. Broderick, 118 Cal. 118 Cal. 481, 482, 50 Pac. 614, and the result

485, 486, 50 Pac. 644. For the purpose, thereof the decision there is the same as in the

fore, of determining who is mayor de facto case of People v. Olds, viz.: That the rule in

of San Francisco, we must inquire who apsuch cases as the present is, as above stated,

pears to be mayor de jure. merely a rule of procedure—the rule, that is

By the charter of the consolidated city and to say of our statute; that the writ of man

county it is provided that "an office becomes damus will issue only in cases where there is

vacant when the incumbent thereof dies, renot another plain, speedy, and adequate, or

signs, is adjudged insane, convicted o. a felspecially prescribed statutory, remedy. Code

ony or of an offense involving a violation Civ. Proc. $ 1086. The rule is not jurisdic

of his official duties,” etc. Article 16, § 10. tional, and its application to a particular case

And by section 996 of the Political Code it is involves only the exercise of sound legal dis

provided that “an office becomes vacant on cretion. In Morton v. Broderick, supra, it

the happening of either of the following was held, as it must be held here upon even

events before the expiration of the term : weightier considerations, that the gravity and

(1) The death of the incumbent. urgency of the situation afforded ample

(8) His conviction of a felon or of any ofground for holding that there was no other

fense involving a violation of his official duremedy adequate or available to relieve the

ties." It will be seen that with respect to situation except mandamus, which was ac

the case in hand the provisions of the charter cordingly allowed, notwithstanding the effect

and the state law are identical. Either, in must be practically to end the dispute as to

the absence of the other, would give the which of two rival bodies was rightfully the

same effect to any one of the enumerated board of supervisors of the city. The situa contingencies, including conviction of a feltion here is certainly as grave as it was then.

ony, that ensues in the case of the death of The government of the city must come to a

the incumbent; that is to say, the office ipso standstill if claims of public creditors cannot facto becomes vacant. People v. Shorb. 100 be paid, and many important matters essen

Cal. 540, 35 Pac. 163, 38 Am. St. Rep. 310; tial to the public welfare must be left un

People v. Brite, 53 Cal. 79. On the 13th of cared for, unless some person is recognized June, 1907, the verdict of guilty in People v. as properly entitled to exercise the varied and

Schmitz was returned and recorded; but we important functions pertaining to the office of

are not required to decide in this case that mayor.

the entry of a verdict of guilty constitutes This preliminary objection being disposed a "conviction" in the sense of the statute, of, we return to the question: Who is mayor for here a vacancy was not declared by the of San Francisco? Dr.

Dr. Taylor and Mr. board of supervisors, and Boxton was not Schmitz are each claiming to be at the same elected, until the 9th of July, after the entry time the de jure and de facto mayor. It of judgment on the Sth had been duly certiwill appear from the facts above stated that fied to the board. At that date certainly, if each has some claim to be the de facto mayor. not before, Mr. Schmitz was convicted. The Dr. Taylor is in possession of the offices pro- event had occurred which by the terms of vided for the mayor by the board of super the statute and of the charter vacated the visors-the governing body of the city and office. county-and is recognized by that board as It is contended, however, that the perfectthe rightful mayor. Mr. Schmitz is in con ing of an appeal from the judgment and the

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