Sacramento daily record-union., 1889-09-04
LAWS UNCERTAINTIES.
THE SUPREME COURT DECIDES MANY
KNOTTY POINTS.
Decisions Filed Yesterday in a Large
Number of Appealed Cases,
with Varying Results.


lower Court gave judgment for the defend
ant, and to the other lots gave judgment
for the plaintiffs, from which Judgment
the appeal is taken by the defendant The
evidence was not brought up. The defend
ant contended that upon the findings the
Judgment should have been for him. The
Supreme Court affirms the judgment ap-
pealed from.
THE WILL OF THE PEOPLE GOVERNS
Gibson (respondent) vs. The Board of
Supervisors of Trinity County-In Octo.
Der, 1888, the Board of Supervisors of
Trinity county ordered general election,
at which the question of the issuance of
county bonds to the amount of $4,000, for
mitted. AT the said election, more than
two-thIrds.of the qualified electors voting
thereat voted in favor of the issuance of
said bonds, but at several precincts a large
number Of the ballots cast for the issuance
of said bonds we're not counted, so that at
the canvass of the Board of Supervisors of
the votes returned, it appeared that there
was not two-thirds majority in favor of
the bonds, as required by the Constitution
and the Statute. Thereupon the Board
made an order declaring that the PROPOSE
ton to issue the bonds was lost. The
plaintiff then brought this action against
the Board, praying that the order of said
Board be annulled. The lower Court found
all the averments of the complaint to be
true, and entered judgment decreeing that
the issuance OF the bonds was carried. The
Board then appealed from the Judgment
The Supreme Court atfirms the Judgment
A SACRAMENTO JUDGMENT AFFIRMED.
?ounglove (appellan0 VS.. Steinman-
This was suit to enjoin the enforcement
OF an assessment of the stock of a corpora
uon on the grounds that the meeting of the
Board OF Directors at which the assessment
was ordered was not legally called, and
That the assessment was not made for any
OF the purposes allowed by law. A trial
was had in the Superior Court of Sacra-
mento county, which resulted in findings
and judgment in favor of the defendants.
The case was appealed, but the Supreme
Court attirms the judgment.
THE LOWER COURT ERRED.
P. T. Mcclure and J. A. Mcclure (ap-
pellants) VS.. John G. Colyear and Amanda
Colyear, his wife-The defendants demur-
rer TO plaintiffs complaint was sustained
with leave to plaintiffs to amend. For
their failure to do so within the time
granted, their default was entered and
judgment in favor of the defendants was
thereupon rendered, from which plaintiff
appeals. In regard to this case the Supreme
Court says:
The complaint expressly AYERS that both
defendants knew of and always acknowl-
edged the rights of plaintiffs until within
sixty days next before the commencement
OF this action. The demurrer was sustained
on the ground that the complaint was in
definite and uncertain; but we think it suf-
hclently certain TO put the defendants to
their answer. The judgment is reversed
and the cause remanded for further pro-
ceedings"
NEW TRIAL ORDERED.
C. 9. Smith tarpellant vs.. E. H. Smith.
The Supreme Court says "a rehearing
was granted IN this case, and the same has
been reargued, but we adhere to our former
decision and adopt the former opinion of
Commissioner Hayne as the opinion of the
Court. The judgment and order are re-
Versed as to the northwest quarter of Sec
ton IL, township 2 south, range lS east,
and the cause remanded for a new trial as
10 said property, and said Judgment and
order are in all respects affirmed the ap-
pellant 10 recover one-half of the costs on
appeal" beatty, G. j., and Thornton, j.,
dissenting.l
WATER RIGHTS CASE.
Wilson vs. Devine-The question in this
case is, whether the Judgment in a prior
action is an estoppel in this. In the first
tearing out his dam and interfering with
the diversion of twenty-five inches of the
stream at his dam. Judgment was rem
dered for 81 damages, with an Injunction
restraining the defendant from interfering
with plaintiffs dam. The case is gone
into with minuteness, and the Supreme
Court concludes that the Superior Court
erred IN denying TO the defendant the right
to prove prior appropriation above plain
. n Il in L
snow that his right to such prior appropri-
alton had not been litigated in the former
action. The judgment is reversed.
A NONRESIDENT MAY BE An EXECUTOR.
In the matter of the estate of Emeline Y.
Brown, deceased-EmelineY Y Brown died
on the 10th of February. 1855. and at the
time OF her death was resident of the city
OF Philadelphia She left real property
situated in the city of Sacramento of the
value OF about $4,000. She left duly
executed will, disposipg of all her properly
TO certain legatees who were non-residents
OF this State. In her will George A West
was named as sole executor. The will was
duly admitted to probate on February q.
1883, in the Orphans Court of Phiadelphia,
and letters testamentary were issued to said
west On October 6, 1858, copy of the
Will and the probate thereof, duly authenti-
Gated, was filed in the Superior Court of the
county of Sacramento, and E. A Burr, a
resident OF that county, filed apetition ask
ing that letters of administration, with
the will annexed, be issued to him. s. B.
Smith, the Public Administrator, also filed
similar petition. Afterwards George A.
Mest hied his petition, stating that he de-
sired to act as executor of the will in the
state OF California. The petitions were heard
together, and an order was made admitting
the will to probate and directing the issu.
ance OF letters of administration, with the
VIII annexed, 10 S. B. Smith, the Public
Administrator. The petition of West was
denied, because of his being nonresident
of the State
In due time West moved the Court TO
set aside the order, denying his petition
and granting that of Smith, and for new
trlal, on the ground that the decision was
not justified by the evidence. The Court
granted the motion, and Smith appealed
from the order.
The Supreme Court says THE record
presents but single question of decision.
VIZ; Us person who is named in a will as
the executor thereof but who is a non
resident OF this State, and has never been
therein, for that reason alone ipcom
petent to be appointed executor of the will
mere After reviewing the provisions of
the Code OF Civil Procedure relating to pro-
ceedlngs In Probate Courts, the Supreme
Court says that the lower Court properly
granted his (WeSrs) motion for q new trial.
and the order is affirmed
AN EJEcTMENT SUIT.
John NJ. Ward tsppellant) VS.. JuJius @
aatthews-This was an action in eiectment
brought by plaintiff to recover possession
OF $50 acres of land. The judgment OF the
lower Court is affirmed.
PROPERTY SOLD USvDER JUDGMENT.
McShane (respondent) VS.. Carter ct al
This IS suit to enjOin the defendant, Car
ter Sheriff of Nevada county from selling
the property Of the plaintiff under judg,
ment obtained by the defendant, Smith,
against the Nevada Reservoir Ditch Com
pany, from which plaintiff derived his title. |
The Court below gave judgment for the
plaintiff when the case came up, ard the
defendant appeals. The Supreme Court, |
Tor various reasons, dismissed the appeal |
irom the judgment. as i; was taken too |
late, and the order denying the motion for |
neT iIisl IS reversed and the cause re- |
manded.
An IEL-ADvEED DEFENDANT.
u