The herald., 1893-08-18

contended that the superior court had
no jurisdiction to render the judgment
under which the sale was had3 and that
the execution issued thereon, and the
sale, were void and ineffective, to trans.
fer any title to the property sold. The
court rules against the appellant and
after quite a full discussion of the case
aairms the Judgment. @
sHIvFLY VS.. sEMI-TRoPIc COMPANY.
An opinion was also received in the
case of Henry L. Shively vs. The Semi
Tropic Land and Water company.
October 10, 1887, Lewis Shively pur-
chased tract OF land from the defen-
dant under written contract for the
sum Of $4,004. OF this 1884 66 was paid
in cash, the balance was to be paid in
three installments. the last payment be.
ing due on Ostober 10, 1889, and the de.
ferred payments, If not paid when due,
were to bear interest at the rate OF IL
per cent per annum until paid. The
frst payment was the only one made by
Shively, and nothing further was done
by either party to the contract until the
defendant April s, 1890, and after all the
payments were due, wrote a letter to
Shivsly, notifying Elm TO pay up or re-
turn the contract, or the defendant
would foreclose. Subsequently, the bal
aHce of the money not being paid, the
defendant sold the land to other parties.
Prior to the bringing of the suit Shively
assigned to the plaintiff. all his right.
title and interest in the claim and con-
tract and all sums Of money paid un-
der 1t.
The action was brought in October.
1891, and was In the nature OF an action
for money had and received, to recover
back the first payment made by Swartz
under the contract. Judgment went
for the plaintiff, and the appeal was
taken from judgment and order de-
nying motion for new trial.
The respondent rested his case upon
the claim that the appellant, having
sold the land to other parties, thereby
rescinded the contract and rendered
itself liable for the return Of the money
already paid. The appellant insistAd
that Shiveley's failure to pay the de-
ferred payments whom due, or demand
ed, was such q default on his part as to
relieve appellant from any further obli-
CATION toward him. 1g sa -
The court holds that when the de-
fendant treated the contract az re-
scinded and sold the land to other
parties, it became liable for the amount
OF money received from plaintiff, less
the actual damage suffered BY reason OF
plaintiffs breach of contract. The
judgment and order are therefore affirm
ed.
SANTA MONICA vs. EcKRRr.
An opinion was also received in the
case OF the town of Santa Monica vs.
Robert Eckert ct al. 1t was an action
brought by the town of Santa Monica,
in the recorders court, to recover the
amount Of license alleged to be due
from the defendants for keeping q sa-
loon, the amount of the license fee fixed
by the ordinance being $500.
In the complaint plaintiff alleged the
amount required to be paid to be $500,
bat remitted all In excess Of $299. 90, for
the Av0wed purpose Of giving the re-
corder's court Jurisdiction. Upon the
trial In that court defendants had iudg-
nent, from which the plaintiff appealed
to the superior court, and the trial in
that court resulted in q judgment for
plaintiff for the sum Of $299. 90 and costs,
from which judgment and an order
denying defendants' motion for q new
trial the defendants appealed.
Tho point principally relied upon by
appellant for . reversal is that the su.
psrior court had no jurisdiction to
the appeal, because, az they
the recorders court, from
which the appeal was taken, had no
ia risdiction. This contention was based
on the fact that the ordinance of Santa
Monica fixed the amount of the license
It 5000, sum beyond the jurisdiction
Of that court, and that plaintiff could
not legally remit any portion Of that
sum for the purpose of giving juris-
1iction.
After the appeal Was taken to the
court the defendants applied to
The supreme court for q writ of pro-
hibition to restrain the superior court
rom proceeding in the cause, upon the
ground that 1t had no jurisdiction. The
writ was denied, and respondent con.
ENDS that the denial was an adiudica-
lion, that the superior court had iuris-
liction Of the case brought into it by
appeal.
The supreme court, after discussing
the points, says that as the legality OF
The license tax was not involved and the
amount in controversy 10 less than $500.
It has not jurisdiction Of the appeal, and
therefore cannot consider the jurisdic.
Eion OF either of the courts below. The
court therefore dismisses the appeal.
An opinion was also received in the
case Of Charles A. Smith VS.. the Board
Of Supervisors of San Bernardino coun-
ty. 1t was an appeal from the judgment
Of the superior court of San Bernardino
county commanding the supervisors to
take action on the claim of plaintiff for
building bridge, fled October 27, 1891,
by approving or rejecting the claim.
Plaintiff filed claim against the
county Of San Bernardinp and it was re-.
jected BY the bosrd. Within one year
tom the dav when the liability occurred
the plaintiff fled second claim, based
upon the same contract. The super
visors refused either to reject or approve
it, upon the ground that the same claim
bad been previously rejected and the
law did not REQUIRE further action in the