Los Angeles herald., 1891-02-12
PICO VS.. OOHN.
THE SUPREME COURT DECIDES FOR
THE DEPENDANT.
An Old Case at Last settled-Casss in the
Superior and Justices CourtsNew
Suits.

Superior and Justices' Courts-New
Suits.
The final decision of the supreme
court in banc, affirming the judgment Of
the lower court, in the celebrated case
Of Pico vs. Cohn, was yesterday received
and placed ON file by Ben. G. Weir, the
local deputy clerk. The opinion Of
Chief Justice Beatty, which is con-
Cured in by Justices Mcfarland, Sharp
stein and Paterson, is q somewhat vol
luminous, but. remarkably interesting
document, as it contains complete re-
sumo OF the main points in the case.
For the benefit OF those who are not
fapiliar with the case, t..may be briefly
summed up as follows: 1t is suit in
equity to vacate and annul q final de-
cree In another action between the same
parties, on the ground that il was pro-
cured by fraud. III.
When the suit was first brought in
the superior court, the defendants de-
murrer to the complaint was sustained,
and Judgment was thereupon rendered
for the defendant, from which plaintiff
appealed. The principal question pre-
sented by the appeal and the only ques-
tion necessary to consider, is whether
the complaint taken as true, presents a
case emitting the plaintiff to the relief
demanded, or to any relief.
1t was alleged that in April, 1888,
plaintiff was the owner of several par
GELS of land in this county, then worth
over 5000, 900 and of still greater value
now. That, one parcel had been sold
under decree OF foreclosure and the
time for redemption was about to ex-
pife. That there were other pressing
liens resting on the whole property,
amounting with the sum necessary
to. redeem the parcel sold, to $62, 900.
That plaintiff was anxiOusly en-
deavoring to raise this money and
save bis property from sacrifice. That
one b. Cohn, since deceased, offered to
and did loan to plaintiff the necessary
sum, taking for security grant abso-
lutte in terms OF the incumbered prop
erty.
Within a month or two after the exc
cution OF this deed, plaintiff rendered to
Cohn $65, 900 and demanded a reconvey-
ance of his property, but the defendant
refused to do so, whereupon plaintiff
brought suit to compel him, alleging
that this deed was merely mortgage
given to secure the loan, to which Cohn
answered that the transaction was an
absolute sale. The superior court found
for plaintiff, but on motion OF defendant
q new trial was ordered and this order
was affirmed by the supreme court A
new trial was had before a different
judge, who ordered decree for the de-
fepdant, from which plaintiff appealed.
The supreme court, however, af-
firmed the decree of the low
er court, and it was to annul
this decree that the present action was
brought. 1t was alleged that fraud was
perpetrated in that at the date of the
original transaction old Pho Pico, who
was over 80 years of age, and unable to
speak or understand the English Ian
guage, confided his troubles to Cohn,
through the medium OF one Pancho
johnson, an interpreter, Who advised
the old man not to bother with his law
yers. Subsequently when the case came
up for trial johnson. who had evidently
been. bribed by Cohn, perjured himself
in testiiying for Cohn, and u was ON his
testimony as the only other person pres
superior court based its ruling. John
son died soon after the first trial, but
his alleged false testimony was.intro-
duced in the second trial.
The supreme court, after duly consid-
ering the .er, rendered its decision
in the following words:
1--WE think on the whole that it is SET
tied by the great weight of authority
that plaintiffs action cannot be sus-
tanned, and that the judgment Of the
superior court must be affirmed
.,a SUPERIOR COURTS.
The trial OF Luis Palma, the Italian
charged with having assaulted youth
named Cyrus Donate with intent to
commit murder, was resumed before
Judge Smith and jury in department
one yesterday, and occupied their atten-
tion all day. When court adjourned for
the day the testimony was all in for
both sides, and nothing remained but to
argue the case pro and con. As both
judge and jury were tired out with the
days labors, however, recess was had
until 10 O'Clock this morning, when ar
gument will ba heard.
In department two, yesterday, Judge
Clark was again occupied in the trial of
the cause of d. Ellsworth vs.. the Gallup
Coal company, for breach Of contract.
The plaintiff asks for damages to the
extent of csc, 900, and the facts in the
case as brought out in the testimony are
substantially as follows; In July, 1886,
the Gallup Coal company found them
selves with plenty OF coal but not suf-
ficient funds to put it successfully on
this market. Through correspondence
and their agent contract was made
whereby Colonel. Ellsworth was to dis
pose OF the coal shipped him by them
and to take charge Of the business here
for period Of ten years, unless the
company sold out before that time.
EllsWorth was so successful that they
couldn't get the coal here fast enough.
The coal filled the market here, and
finally Ellsworth was disposing OF 600 or
700 tons per month. In brief, the com:
pany in 1885, wanted to. crawl out of
their contract and thought they saw
way to do 30 by flooding Ellsworth
with moro coal then he could possibly
dispose Of and Offering to buy him out
The offer was refused, and the company
then refused to ship any more coal, thus
virtually breaking the ten years. con-
tract. The case will probably occupy q