The herald., 1896-02-25
THE SUPREME COURT
Eight Opinions Received at the Office Of the
Clerk for Filing

THE SUPREME COURT
Eight Opinions Received at the Office Of the
Clerk for Filing
Eight supreme court opinions were re-
ceived at the office OF the clerk in this city
for filing yesterday. The most important,
in point of local interest, is that in the
case of Ex.City Marshal Lorbeer against
the counciImen of Pomona. The title of
this case is j. ". Lorbeer, respondent, vs..
e. H. Hutchinson, ct al, appellants, and
the judgment of the lower court is reversed
and the court directed to dismiss the pro-
ceeding. The opinion is written by Justice
Temple, coucurred in by Justices McFar-
land and Henshaw. This appeal is from a
Judgment of the superior court of Los An.
to set aside and annul the action of the
board of trustees of the city of Pomona
declaring vacant the Office of city marshal
on the 18th day of June, 1895, and in
electing and appointing to the vacancy
Thomas b. Atkinson. The writ may be
issued when an inferior tribunal. board or
officer exercising judicial functions has
exceeded the jurisdiction of such tribunal,
board or officer (section 1858 of the code
of civil procedurc). and the review cannot
be extended further than to determine
whether the tribunal, board or officer has
regularly pursued the authority of such
tribunal. board or officer (section 1914, c.
q. P.) The appointment Of city marshal
by the council of Pomona was not judi
cial act and cannot be reviewed by
certiorari (People VS.. Bush, 40
CAL, 344.) IL Lorbeer was lawfully
in Office the trustees could not by
declaring the office vacant, deprive him of
move from Office or by any judicial in
quiry to declare vacancy. If Lorbeer
failed to qualify the office was vacant,
and the trustees on being Informed of the
fact could appoint some one to fill the
office. They get such information just as
the governor and other executive officers
obtain similar information. The failure
to qualify, if he did so fail, ipse facto cre-
ated a vacancy. people vs.. Fleming,
100 Cal, 537.) In such case the board
could fill the vacancy without declaring
vacancy. So declaring was q part of the
order appointing, and does not indicate
judicial inquiry and determination. The
superior court, therefore, enormously is
sued the writ, and its judgment vacating
and setting aside the order of the trustees
of Pomona was without jurisdiction and
void. The judgment is reversed and the
court directed to dismiss the proceedings.
Following are the other opinions:
In the case of w. E. Witter, respondent,
VS.. the Mccarthy company. appellant, the
judgment and order of the lower court ap-
pealed from are affirmed. The opinion is
written by Commissioner Vanclief, con-
Cured in by Commissioners Belcher and
Hayes and affirmed by Justices Garoutte,
Harrison and Van Fleet. This is an action
to quiet tile alleged title Of plaintiff to an
undivided two-fortieths part of tract of
land containing about 130 acres in Los
Angeles county. The defendant, for want
of information or belief, denied plaintiff g
alleged title, and asserted title adverse to
that claimed by plaintiff. The court be-
low, without the Intervention of a jury,
found the facts and law in favor of plain
tiff and rendered its judgment accordingly.
The cases of G.. P. Lyman, respondent,
vs.. the Mccarthy company, appellant and
l.. A. Thompson, respondent, vs.: the Nc.
Carthy company, appellant, being in all
respects similar to the Witter case. are de-
cided by the court in conformity with that
opinion.
In the case of Wheeler, appellant, vs.
Donnell, respondent, the petition for a re-
hearing is denied by the court, which, how
ever, says: I'VE desire to say, however,
that the right of appeal OF defendant
charged by accusation under section 772
of the penal code is here involved. There
the latter clause of section 1S of article 4
Of the constitution may confer the right of
appeal upon defendant in such proceed
ing, and whether or not it has conferred
such right are to be considered as open
questions"
In tue case of z. B. Rosenberger. plain
tiff and respondent, VS.. the Pacific Coast
Railway company, defendant and appel
liant, the court in bank affirmed the judg-
ment and order of the lower court. This
cause was tried by the court and a jury, the
plaintiff had judgment, and the de.
fendant appeals therefron and from an
order denying a new trial. The plaintiff
claimed that he was employed by the de-
fendant as an accountant, for the period of
one year, commencing November "a,
1898. at q salary of $500 per annum,
payable in monthly installments of $3.50,
and that he was discharged without cause
March "a, 1894. This action was COM
months salary, from March "a to June "a
1898, amounting to $3.50, and for that
sum recovered judgment. The defense
was that the employment was not for any
definite time, and that his discharge was
justifiable because of his failure to give
bond for the faithful discharge of his
duties. The lower court held against both
propositions, which judgment is affirmed.
In the case of w. Il. Rogers, respondent.
VS.. A. r. Schulenberg ct al, appellants
the judgment and order of the lower court
is affirmed. The opinion is written by
Commissioner Belcher, concurred in by
Commissioners Haynes and Searles, and
affirmed by Justices Mcfarland, Temple
and Henshaw. This is an action upon a
non.negotiable promissory note for $34O
made by the defendant to one Thompson
and by him assigned to the plaintiff before
maturity, and involves no general princi.
pie.
In the case of D. o. Mccarthy. plaintiff
and respondent, vs.. the Mount Tecarte
Land and Water company, defendant, the
judgment and order denying appellants
molion for a new trial. appealed from, are
opinion is written by Justice Mcfarland
concurred in by Justices Henshaw and
Temple. The questions at issue relate to
accounts between the parties to the suit, in
which Mccarthy secured judgment fol
services rendered for $SO5O.O7.
Confirmed dyspeptics improve on food
prepared with Prices Baking powder.