The San Francisco call., 1896-06-17
KOSCIAL LOWSKI ON
MEXICAN LAW.
He Cites Statutes of the
Time Before the
Bear Flag.
ALL THE TESTIMONY IN
Both Sides Are Now Relying
Upon Questions of
Law.
AN IMPORTANT JUDGMENT ROLL
Intellectual Struggle to Keep Out
- Evidence of a Former
Adjudication.

Argument on the Noe case has COM
menced. Attorney KoseialowsKi has en-
tered upon lengthy exposition of Mexican
law previous to the raising of the Bear
flag in California, and half score OF other
attorneys sat all yesterday afternoon be-
hind Notifications of ponderous-looklng
lawbooks and only waited a shadow of an
opportunity to shatter the plaintiffs with
all kinds of law from the time of Moses to
the session of the last Legislature.
When the case was called yesterday
morning Koscialowski stated that he had
reconsidered his desire to introduce further
testimony, and he was ready to rest his
case as far as the facts were concerned.
His main energies, he intimated, would be
directed to enIghtening the court on mat
ters of law.
Judge Sanderson, who has been natur-
ally embarrassed by the confusing array OF
Mexican verbiage which has marked the
testimony, requested Koscialowski to
state just what he considered be had
proved and also what he hoped TO show
was the law applicable.
In answer to the latter proposition the
attorney appealed to said that mar
rage, under the laws of Mexico, was CO.
partnership arrangement, and what was
given to a husband, even though it was
expressly given to him alone and without
consideration, was community property.
In regard TO the facts he said they had
shown the title in Noe, which was subse-
quently confirmed by United States
patent, and they alleged that the plain
tiffs were entitled to one-half interest in
that property as result of this title.
"Your proof" said Judge Sanderson,
''goes to show that you have title to the
entire property, while your complaint sets
up claim to only one-half. Nov, do
understand that you admit the convey
ance made by Noe of his half?"
The defendants attorneys looked up
hopefully at this. 1t has been their desire
all along to get this deed of Noe to Horner
in evidence. By so doing they hoped to
compel the plaintiffs to prove their title
from Noe. By the testimony which Kos
cialowskl and Splivalo had put in it might
be possible that each of the go defendants
would have to prove his title in court, and
this would be tedious proceeding.
Their hopes however, were doomed,
for Koscialowski stated they would ad-
nit nothing, and his Honor refused to rule
that there was material variance in the
allegations and the proof.
Judge McKtnstry then stated the case
which the defendants relied on. 81
might be Wiling" he said ito go farther
than some of the counsel and concede
that this property was by Mexican law
community property. The only tribunals
to which we can refer pronounce it sep
arate property. The old Mexican law is a
dead issue, as dead as the bodies OF those
whom it controlled who are now buried at
the Mission Dolores.
at is true that speaking of the different
kinds of concessions made by the Mexican
Government we refer to them as grants,
but the word donation, when used, had
particular significance. This kind of
grant, when coupled with certain condi-
tions, was more than forty years ago held
to be simply gift. This is important
only in view of the question which your
Honor has anticipated. If this was
mere gift to the husband it was the prop
erty of the husband, the Mexican law be-
ing similar to ours in that respect.
Further than this, even if this was
community property, it has been held re-
peatedly that by Mexican law the hus-
band had the full power of disposition,
and all conveyances made by him would
be entirely valid. If suit had been
brought against Noe within reasonable
time he might have been made to account
for his disposition of the proceeds of the
sale, but that was the only possible action"
The defendants then introduced judg-
ment roll of the case of Barry VS.. Roman,
which was tried in the old Twelfth Dis
trict Court. This case was practically the
same as that which is now being tried and
the defendants introduced the Judgment
in proof of former adjudication of the
action. Part of the land which is involved
in the present suit, however, was ex-
cepted in the suit of Barry VS.. Roman.
For this reason Splivalo objected on the
ground of irrelevancy. Judge Sanderson
said he supposed the defendants intended
to prove that part of the land which they
now claim to own was involved and he
overruIed the objection. Splivalo also OBJ
iected on the ground that the case had
never been tried, as it appeared from the
records it was consent Judgment. And
again he was overruled.
He tried one more tact to keep out the
Judgment. He objected on the ground
that it had not been proved bona-fide
court record. Judge Sanderson called his
attention to the fact that, upon the adop-
ton Of the State Constitution, the Supe-
rior Court became the regular successor of
the District Court, and the records of the
Twelfth District Court would be consid-
cred as part of the records of the Superior
Court, of which he could take judicial
cognizance. To all of which Splivalo ex-
cepted.
Charles w. Moor, chief deputy Re-
corder, was put on the stand to prove
records of covenant to convey made by
Noe to Charles B. Strobe. This covenant
was afterwards consigned to Horner, and
Noe conveyed direct to him. Mullaney
introduced these documents and his col
league. Judge Freeman, objected to their
introduction as irrelevant Splivaio, who
had developed into chronic objector,
seconded the objection.
Splivalo objected to the deed ON the
ground that it was not deed in fee
simple, but conditional deed, the per-