Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1890-03-01
TOO MUCH POLITICS.
HOW CONGRESSMAN CLUNIE LOST HIS
CASE IN COURT.
Decisions Filed by the Supreme Court
Yesterday in Two Sacramento
and Other Cases.

The following Supreme Court opinions
were filed in Deputy Clerk Williams Office
IN this city yesterday, for the Sacramento
District:
Allen Towle ct al. (respondeats) vs..
Thomas ]. Ciunie ct 81. This was an ac-
ton brought by plaintiffs, as partners,
| against the defendants, as partners, under
the firm name of the Sacramento Ware
house Company, TO recover the sum of
| 1924 OF, for goods, wares, merchandise,
lumber and building material sold by
| plaintiffs 10 defendants at their request. At
| the trial all the parties to the cause were
present except defendant Clunie, who
| neither appeared in person nor BY attorney
judgment passed for plaintiffs against the
! defendants for the amount demanded De
| tendant ClunIe afterward made a motion
| for new trial and motion 10 vacate the
| judgment, both of which were denied.
| The Supreme Court says that this case
| involves the same questions considered IA
the case OF McGuire vs.. Drew Given below,
and the Judgment is therefore affirmed.
THE N CURE cLUNIE CASE.
James Mcclure respondent VS.. n. l..
| Drew T. J. Clunie Ell al. This appeal is by
! 7. J. Clunie, alone, from q judgment rem
! dered against himself and co-cefeudants, as
| partners, in an action prosecuted by plant
| ifs npon an account for material furnished
| to and work done for defendants; also IRON
an order denying him new trial. and an
order refusing TO vacate the judgment.
! Defendant ClUnie's nrst motion for new
| trial was on the grounds of the irregularity
of the proceedings of the trial accident or
! surprise which ordinary prudence could
| not have guarded against; insutticiency Of
the evidence TO justify the decision and
| that the same wss against Law. The second
motion was upon tine ground of mistake,
inadvertence, surprise and excusable me-
glect.
The facts relied upon to establish acct
| dent, surprise or excusable neglect may be
briefly STATED as follows;
At a general election in this State on No
vember 6, 1888, appellant was 8 candidate
| for Congress in the Fifth Congressional
District, embracing g portion of the city
and county OF San Francisco. The contest
was very close between himself and his
competitor, and in consequences his pre-
| sence in the city on that day, and almost
continuously until November 3d. was
necessary, in order that he might see that
| the returns we're properly canyassed and
| declared. Having previously succeeded in
obtaining from counsel for plaintiff post
ponement of the trial until after the day of
the election, on account OF bis political en-
gagements, and relying upon bis former
success, be requested another posiponement
| by letter, which the counsel for plaintiff,
on November 3ih, telegraphed he could
not accede to.
Thereupon the appellant notified the
| Judge before whom the case would come
that he (appellant) could not be present on
the 18th, and in the same telegram de-
manded jury trial, believing that the
Judge, upon the receipt Of the telegram,
would order jury and pospone the trial to
some other day for that purpose. The APP
psllant was the only witness who could
prove the facts constituting his defense.
Appellants brother, at 9:15 o'clock in
the forenoon of November 14th, by tele-
graph, requested the law firm OF Johnson.
| johnson q Johnson of Sacramento 10 move
for jury IN and continuance of this and
the case of ToWle Bros. & Co. vs. Clunie ct
al. In compliance with this request, which
was not received by them until after 10
o'clock in the forenoon, they, or one of
them, went to the Courtroom and found
both cases on trial, and, apparently for this
reason, made no demand or motion.
E. ]. Dryer, an attorney-at-law at Sac
ramento, also on the same day, shortly
after 10 o'clock in the forenoon, went on
behalf of appellant to the Courtroom for
the same purpose, and finding both cases
on trial took no action. The Supreme
Court afirms the judgment of the lower
Court and says:
The omission on his part to appear or
| secure representation at the trial amounted
| to negligence, and unless it was excusable
he is not entitled to any relief upon that
ground. Now, it may be that the condi-
| ton of the election returns were such that
| it was to the interest of the appellant to
/ remain in San Francisco from the day of
election until November %. 1888. in order
to ascertain the true result Of the election,
| but we have been referred to no law, and
know of none, that required him person.
| ally to watch and guard the canvassing of
| the election returns. On the contrary, We
! must presume that the Canvassng Board
would have properly performed its duty
without his presence, from which it fol-
lows that appellants presence at the can
wasting of the election returns was q mat
| ter of choice, aud not necessity and he,
| having chosen to consider his interest in
| the election of more concern than his in
| terest in this action, cannot now avail him.
| self of his neglect OF the latter as something
! that ought to be excused.
Regarding the demand for q jury trial
made by telegram to the Judge, sent by
| the appellant the day before the day of
| trial, il is sufficient to say that even if the
Judge had ordered jury upon the receipt
of the telegram, yet by reason of the fail
IRE of the appellant to appear in person or
by counsel at the trial. the Court was au
thorized to dispense with jury"
The opinion was written by Commits
sioner Gibson.
ToLL-RoADs AND PUBLIC RIGHTS.
McMullen vs. Leitch ct ais. This was a
San Joaquin county case. The Court says
The Court is of the opinion that when the
toll-road in question was constructed in
1867 by a corporation formed under the
Act of 1858, If became public highway by
dedication, subject to the right to collect
tolls for limited period. This period has
expired, but the dedication to the public
remains. Neither the plaintiff nor the
corporation which constructed any road, on
the termination of the franchise to collect
tolls, had any interest for which either OF
them can demand compensation.
1.-The judgment and order are reversed
and the cause remanded, with directions to
the Court below to enter judgment for the
defendants"
A SAN JOAQUIN INSURANCE CASE.
q. G. Farnum ct ais. (appellants) vs.. The
Phoenix Insurance Company-a San Joa-
quin county case. The action is upon a
policy of insurance, and the appeal is from
Judgment of nonsuit. The Supreme
Court reverses the judgment and saysi
'As it appears from the bill of excep-