The herald. [microfilm reel] (Los Angeles [Calif.]) 1893-1900, 1898-12-06
THE SUPREME COURT
FIVE CASES ARE DECIDED BY
THAT TRIBUNAL
OHIO STREET ASSESSMENT
Blunders of City Council-Weineke's
Bondsmen Must Make Good Pub
lie Funds at San Diego

An action was brought some time ago
nv Della w. Chase against the city treasurer
of the city and county of Los Angeles and
M n Sheldon to restrain the treasurer
from selling a lot on Ohio street TO pay
tic amount claimed to be due by Sheldon
on bond for street work. A prelimin-
arv Injunction was finally dissolved ana de-
PENDANTS had Judgment, from which PLAIN
tiff appealed, as also from the order as
solving the injunction
In a decision, which arrived in this city
Yesterday. the supreme court reverses
the order dissolving the injunction and the
Judgment in favor of defendants, ana re-
uands the cause for new trial. In coming
TO such decision, the court says:
ut is well settled as a general rule that
where an officer is about to sell real prop
ertv to enforce the collection of delinquent
tax the equity court will interpose to re-
strain the sale if, when consrnnmated, 1t
would cast cloud upon the title
The test is held to be as to whether the
owner would be required on action in
eiectment brought by the adverse party,
founded upon the deed, to offer evidence
to defeat a recovery.
II is pointed out as well settled that
court will not restrain the sale Tor taxes
whom If is apparent that the sale would be
void on the face OF the proceedings upon
which the purchaser must necessarily rely
to make out a prma facie case to enable
him to recover under the sale The statute
is held to make the assessment lien upon
the property of plaintiff, and so also the
bond issued upon non-payment, and 1t Is
further set forth that there is nothing upon
the face Of the assessment or the bond to
show that the lien is not in all respects
valid
It being obvious that to defeat such an
assessment or such a deed the plaintiff
would have to resort to evidence extraneous
of any recitals in it, the case is brought
directly within the test as to what constl-
tutes a cloud upon the title of the lot I'm
question 1t is held that the issuance OF the
bond gave the contractor no greater or
better lien than he had under the assess
ment and warrant. Failure of the city
council to comply strictly with the law in
ordering the street work done is pointed
out. and numerous defects in process are
considered by the opinion. In certain vital
particulars the assessment is held to have
been void. on account of which the demurrer
should have been overruled as those defects
were cited in the complaint and should have
been regarded.
Accordingly the cause is remanded. both
the Judgment and order dissolving the IN
junction being reversed.
A CASE IN EQUITY.
A decision by the supreme court in bank
affirms the Judgment of the superior court
of San Diego county in the case of John
Winchester trustee, plaintiff and appellant,
against Hiram Mabury, Bryant Howard and
o. S. IVtherby, defendants and respond
ents. This was an action brought by plain
tiff as assignee of some of the creditors of
the Savings bank of San Diego county
against defendants as directors of the bank
for certain sums OF money alleged to have
been misappropriated by Bryant Howard.
who was president, treasurer, etc. Of that
institution. Maybury and Witherbv were
made parties defendant on the grounds of
their joint liability as directors. under the
constitutional provisions. Maybury de-
INJURED to the complaint and the demurrer
was sustained by the court below and judg
ment was rendered for defendants. From
that judgment the plaintiff appealed.
1t was conceded that the alleged liza
bility of the respondents rested entirely
upon the clause of the state constitutions,
which read as follows: THE directors or
trustees Of corporations and iointstock as
sociations shall be jointly and severally LA
BILE to the creditors and stockholders for all
moneys embezzeled or Incorporated by
the officers of such corporation or joint
stock association, during the term of office
of such director or trustee"
The court below sustained the demurrer
upon the ground that the action should be
one in equity and for the benefit of all the
creditors, and the decision just rendered
holds it to have been properly sustained
on that ground.
ATTACHMENT CONTROVERSY.
In a decision received at the office of the
deputy supreme court clerk yesterday, the
cause appealed from San Louis Obispo
county and entitled j. W. Lilienthal and
others against 5. d. Ballou and John Or
man. was considered This was an action
to recover stock of goods formerly owned
by Phillips Bros. & Co. There was trial
by jury and verdict and judgment was for
plaintiffs. Defendants appealed from the
Judgment and from an order denying a new
trial.
The goods in question were attached at
The suit of creditors of Phillips Bros &
Co., and were held under the attachment
for several weeks by the sheriff While
so held by him they were transferred by
the company to plaintiffs, who were trus-
tees for all their creditors except defendant
Orman, who afterward attached the goods
as the property of Phillips Bros. & Co., and
Orman and Balou, the sheriff who served
the attachment, were defendants in this
action just decided by the supreme court.
Thorough examination of the record in
the case showed that there was really only
one question to be determined, that being
whether the following instruction of the
court to the Jury was correct or erroneous;
IF you should find from the evidence that
when the property in controversy was
transferred to the plaintiffs by Phillips
Bros. & Co. said property was not in pos
session OF Phillips Bros. & Co., but was in
the possession of the sheriff of this county
then it is not necessary for you to pass
upon the question of whether or not there
was an immediate delivery or actual or
continued change of possession of the prop
erty. If, however, you should find that
when said property was transferred it was
in possession of Phillips Bros & Co.. then
You must pass upon the question of imme
date delivery and an actual and continued
change OF possession
The supreme court holds that the instruc-
ton was correct, and accordingly affirms the
decision.
CALIFORNIA BANK CASE