The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1896-06-18
Object of the Grant Declared Net
to Be a Pertinent
Issue.
HIS AMMUNITION EXHAUSTED.
Argument for the. Plaintiffs Comes
to a Sudden and Unexpected
Termination.


the opposing counsel into peaceful slum-
Der. The Deputy Sheriff found refuge in
newspaper and his Honor, who admitted
that he had to listen because he was paid
for it, rubbed his eyes and Kept awake.
The associate counsel for the Noes was uri-
der no obligation to listen. Splivalo dozed
while Koscialowski talked on.
He opened his remarks at the forenoon
session by briefly reviewing his argument
of the day before. This consisted of more
or less general statement of the Mexican
law in regard to community property.
Continuing he said:
''We have seen by the old laws that
while grant or donation may be made to
the husband or head of the family, yet it
was not to be considered as his separate
property"
Then he again reviewed the objects of
the colonization act under which this
grant was made. He proceeded to analvze
and discriminate between the words used
in the act with a nice particularly, the OBJ
ject being to prove that the act was made
with view OF investing the property in
the head of family for the benefit OF the
family. After the speaker had gone over
this ground half dozen times his Honor
evidently grew weary.
81 think, Mr.. Koscialowski, ~ said the
court, There is no dispute about the in
tent of the Mexican Government 10 grant
the land for the benefit of the MANS fam
lily. The only question is in whom was
the title vested? In this case it is admit-
ted the title was vested in Noe, so all we
need to discuss is his right to convey"
Lane suggested that his Honor be not
misled into the belief that because Noe
petitioned for the property for himself and
family, this fact in any degree invested it
in the will.
His Honor said he understood that the
Intention of the Mexican Government in
making the grant was not of particular
Importance. The question before the
court was: What have the California
courts held to be the effect of such a
grant?
Lane said they had decisions to show
that such grant was not held to invest
any community interest, but was merely
the separate estate of the grantee.
This statement of the court virtually
went to the essence of much of the conten-
ton. A large part of Koscialowski's argu-
ment was to the effect that the intention
of the Mexican Government was to grant
this property for the benefit of the family,
and his argument was directed toward
proving this intention.
Koscialowski then entered into dis
cussion of cases which he held supported
his position. The attorneys for the de-
PENDANTS failed to agree with him on the
application of the cases, as well as on the
facts and law set forth in them, and they
frequently interrupted with corrections.
The case of Noe VS.. Carr, decided IN 1860,
in which the facts were very similar to
those in the present case and in which Noe
was defeated, was cited to shcw that there
were three classes of donations under the
Mexican law, and the grant now under
consideration could not possibly be
brought within any of them. The OBJ
ject o. this argument was to show that,
the grant not being gift. would not even
under the community law as now under
stood in California be separate property.
Lane again interrupted at this point to
ask question. Mr.. Kocalowski showed
some Impotence at the interruption. IF
your Honor will prevent these frivolous
interpretations, he said, ~ will promise
the gentlemen that l will finish at least by
tomorrow night, or perhaps by to-mor-
row noon.''
The assembled attorneys looked blank
at this. do l understand" asked Null
laney, that at the best this argument will
not be completed before tomorrow noon /?
If so we ought TO know it so we can go
away until it is over"
Van Duzer suggested that some limit
should be put on the plaintiffs, or at least
that they be restricted to the discussion of
material points.
~ intend to allow Mr.. Koscialowski to
maze this argument in his own way" said
the Judge. "If you gentlemen don't want
to listen to it, there is nothing to prevent
your going away. / am paid to listen
TO it."
"That's So" said Mullaney, as he
reached for his hat. A number of the de-
PENDANTS counsel went out with him.
Koscialowski then proceeded to draw
the fine distinctions between the different
classes of Mexican donations. From
scholastic point of view it was doubtless in
terestine. but the attorneys were I'M
appreciative. Judge McKinstry listened
with panied expression upon his face.
The venerable jurist was evidently trying
to grasp the full purport of the niceties of
Mexican law to which the court was be-
ing treated. AS he listened the unrest
upon his countenance became more evil
dent. Then. with a sigh, he gave up the
task and Joined the majority, who were
now outside.
Mr.. koscialo wski stated that he had de-
voted great deal of research to the study
of these distinctions and of the Mexican
community law in general. He declared
that the Supreme Court. in some of its de-
cisions, evidently had not fully considered
the early law upon which these grants
were founded and so they should not be
taken as authority in this case.
Then he delyed still deeper into the COM
munity laws of Mexico. He cited Spanish
and civil law writer's extensively to show
that the interest of husband and wife was
partnership interest, and all property