The record-union., 1891-03-29


IN BANK.
NEVADA SCHOOL DISTRICT,
Appellant,
b. n. SHoECRAFT EFT AL,
Respondents.
BY THE COURT.
Justice Sharpstein dissenting.1
This action is brought in the name of
the Nevada School District, and its pur-
pose is to have the court decree that the
defendants deliver all the lots, buifd-
ings and school-houses in the city
of Nevada, used for the purpose Of
conducting the public schools, into the
possession of George E. Shaw, J.
/. caldwell and n. Douglass, who claim
to have been recently elected School
Trustees of said district. The defendants,
all but two, are the persons who are the
regularly elected and acting School Di-
the Legislature approved March 25,
1874, entitled san Act to estab-
lish and define the powers and
duties of the Board of Educa-
tion of Nevada School District;" and the
other two are ianitor and watchman under
said other defendants. The point relied
on by appellant is that said act of March
25, 1874, under which the Board of Edu-
cation of Nevada City has been acting for
more than sixteen years is unconstitu-
tional and totally void. We do not think
that the position taken by appellant is
tenable.
There was nothing in the old Constitu-
ton which prevented special legislation
Meade VS.. Watson, 81 Cal. 59D: and, there
fore the fact that when the said Act was
passed Section 1888 of the Political Code
provided that "the number of School
Trustees for any school district, except
where city boards are otherwise author
lied by law, shall be three" did not pre-
vent the Legislature from subsequently
creating the Nevada district. The latest
expression of the legislative will on the
special subject in hand controls.
The provision of the present Constitu-
ton that the Legislature shall not pass
local or special laws in certain cases, ap-
plies to future and not to past legislation.
(Ex parte Burke, SO Cal. g.
Neither do we think that the Act is
void because inconsistent with any of the
provisions of the present Constitution.
The judgment is affirmed.
Filled at San Francisco March 10, 1891. 1
Appeal from the Superior Court of San
Francisco County, Department No. II
L. III. Reardon, Judge.
For appellant, G. III. Perry.
For assignee and respondent, Pierson
and Mitchell.
IN BANK.
H \ H Has5s@s=ss %s5s5s e Co.
This is an appeal by J. J. Rauer from
an order declaring H. Wierbitszky & Co.
insolvent debtors and appointing an as
signee. A motion was made by respond
ent on November %, 1890, to dismiss the
appeal on the grounds, among others,
that there is no certificate to the tran
script, and nothing to show that the pa
perS in what is called the transcript are
copies of the originals filed in the Supe-
rlor Court. On the same day appellant
suggested diminution of the record, and
moved this court for an order directing
the clerk of the lower court to attach to
the transcript proper certificate, which
motion was on said day granted. Since
then no such certificate has beeen fur
nished and no further step has been
taken by appellant. There being no GER
tificate to the transcript, the said motion
of the respondent is now granted and the
appeal is dismissed. MCFARLAND, j.
We concur:
DEHAvEN, J.,
SHARPSTEIN, j.,
PATERSON, j.,
HARRISON, j.
Filled at Sacramento March 20, 1S91.1
Appealed from tho Superior Court OF
Tehama County-Charles P. Braynard,
Judge.
For appellant, John F. Ellison and J.
T. Matlock.
For respondent, A. NJ. Mccoy, Clay w.
Taylor and Jackson Hatch.
IN BANK.
MASON, Respondent,
VS.. No. 14,OO1.
vEsrAL, Appellant.
This appeal is from the judgment and
from an order denying defendants mo-
ton for new trial. The suit was brought
against the Sheriff to recover for property
seized at the suit of l.. Newcomer against
James Gleason, who is brother of the
plaintiff. The answer denies the title and
possession of plaintiff. jusrifies under the
writ, and AYERS title in Gleason.
Plaintiff derives her title from Gleason,
and at the trial the controversy was as to
the validity of the transfer to her. The
questions raised relate almost entirely to
alleged erroneous rulings in the admis-
sion of evidence tending to establish the
bona fdes of the sale to plaintiff.
On the trial the plaintiff objected to the
testimony of defendant on this subject,
claiming that the answer did not raise the
issue of fraud, and now insists that if the
rulings complained of are erroneous they
are still not injurious for the same reason
1t is claimed that the insufficiency of
this answer is established by the cases of
Albertoli VS.. Branham 80 Cal. 633) and
Sukeford vs. Lord (25 Pac. Rep. 497).
In those cases, however, the defendants
did not content themselves with merely
denying the right of plaintiff, justifying
under writ, and avering title in the
debtor of the attaching creditor, but pro-
ceeded to charge the plaintiff with an at
tempt to assist the debtor in defrauding
his creditors. 1t is not necessary to set
up such defense. 1t has been held that
the defendant is not required to anticipate
the source from which plaintiff claims to
derive his title, but if he does proceed to
set up the acts of fraud which he charges
render plaintiffs title invalid, he must
state facts which are sufficient in law to
that end.
A sale made to hinder, delay and defraud
creditors is as to such creditors absolutely
void and not voidable merely. (Sec 3439
c. c.; Freeman on Executions, l36 Butler
VS.. Collins, Il Cal. 1881
When the defendant denies the plaint-
tff's title, and shows himself to be a
creditor, such evidence is admissible in
rebuttal of plaintiffs proof of title. 1t
shows such title invalid-that as to de-
fendant the transfer is void.
This question was expressly decided by
this court in Grum VS.. Barney (55 Cal. 25i)
and in Humphreys VS.. Harkey (55 Cal.
2S4), and decisions elsewhere accord with
son, 26 Minn. 9S5.
James Gleason was n witness for the
plaintiff, and gave evidence in support OF
nearly all the facts constituting PLAINTIFF
case. In rebuttal he was impeached by
evidence of statements made by him in
consistent with his testimony. ard By
showing that his reputation for truth was
bad. The plaintiff was then allowed
against the objection of defendant, tc
prove by other witnesses that he had also
made statements consistent with his