The record-union., 1899-03-23
SUPREME COURT DECISIONS.
SYLLABI
Is. F., No 15S9-In Bank-Filed March
1891

SYLLABL
Is. F., No. 15S9-In Bank-Filed March
2, 1899
People, by w. F. Fitzgerald, Attor-
ney General ex rel. Thomas Cluff, ap-
pellant; City of Oakland, respondent.
Held, that under the Act of lSS?
Stats. 1889, p. $3.50, there are no legal
obstacles to the annexation of sanitary
districts to an incorporated city. For,
as any territory may be annexed to
town or city to which it is contiguous,
unless it is part of an, Incorporated
town or city, territory embraced in a
sanitary district may be annexed; and,
If the statutes permits territory embrace
ed IN or covered by sanitary district
to be annexed to city-a municipal
corporation of a higher class and ca
pable Of exercising the same functions
as we'll as others essential to munich
pal government-such statutes contem-
plates, ex necessitate rel, cession OF
the powers of the inferior corporation
to the greater and a consequent disso-
luton of the former as a result of the
annexation
As the Legislature alone has the
must have power to prescribe the
terms, conditions and mode of annexa-
ton, and especially to provide that the
inhabitants of the annexed territory
shall not be deprived of any constitu-
iional right. Held, therefore, that it
was rightly enacted that the boundary
of the adjacent ward or wards should
be changed so as to include the added
territory, or that it should be made into
one or more wards, if thereby the num-
Der of wards to which the city is re-
stricted has not been exceeded.
The Act of 1889 authorizing the
change of boundaries is constitutional
and applies to cities having a freehold
ers' charter People VS.. City of Coro-
nado, 100 Cal, 81.
Is. F., No. S55-Department One-Filed
March 2, 1S99.)
Gustave Allstead, respondent; Will
lam Nicol, appellant. Specific perform
ance. Affirmed.
Even when a time is specified in the
contract for its completion, and there
is nothing special in it's objects or in
the subject matter, and the delay is
had not been in itself prejudicial to the
other party beyond the means of rep
aration, specific performance will be de-
creed. In some cases it has been held
that if the vendor has been able to pro-
cure and give a good title at the time
OF the decree, even though he could not
do SO at the commencement of the suit
the doctrines of the Equity Court will
be satisfied
Is. F., No. 916-Department One-Filed
March 2, 1899
Agnes M. Agar and John c. Agar,
respondents; James Winslow, appel
liant; Henry Siebe, ct al, respondents.
Unlawful detainer. Affirmed.
When there exists an election be-
tween inconsistent remedies the party
is confined to the remedy which he first
prefers and adopts. But, before one
can exercise preference between two
things both those things must have had
an actual existence A defendant,
therefore, cannot defend an action of
unlawful detainer on the theory that
the plaintiff in bringing a suit in eject
ment exercised his right of election be-
tween two remedies unless he make it
appear that both these remedies were
open to the plaintiff. If plaintiff was
mistaken and undertook to avail him
self of a remedy to which he was not
entitled this does not prevent him from
subsequently availing himself of rem
edy that he is entitled to under the
facts of the case
Is. F., No. 1016-Department One
Filed March g. 1899
n. c. Briggs, ct al, appellants;
James F. Breen, ct al, respondents.
Action for value Of professional SER
vices. Reversed.
Where there is an agreement that the
attorneys shall look for their fees to
the estate or an allowance therefrom
by the court, the executors are liable
personally to them for their reasonable
compensation.
Where the estate is not liable to the
attorney, the attorney is not person
interested in the estate
Section $40, c. C. P, provides: "Any
person may be made a defendant who
has or claims an interest in the con-
troyersy adverse to the plaintiff, or who
is necessary party to a complete de-
termination or settlement of the ques-
ton involved therein" Held, that this
language is broad enough to allow the
joinder of the administrator of a de-
ceased debtor or promisor with sur
vivors who were jointly liable with him
to the plaintiff
Is. F. No. S49-Department One-F'iled
March s. 1899
Nathalie G. Hochstein, respondent;
John G. f. Berghauser. etc al, respond
ents; Theo. Blackenburg, ct al, appel
lants. Appeal from interlocutory de-
cree in partition. Order reversed and
modified.
The heirs of a person are those whom
the law appoints to succeed to his estate
in case he dies without disposing of it
by Will In this State the heirs of per-
son to whom under Section 1884, C. c.,
his estate passes when not disposed of
by will are determined by the provisions
of Section 1856, c. c., and the use of
the term heirs" in an instrument of
conveyance to designate the persons in
whom the estate granted is to vest, will,
in the absence of any qualifying terms,
be construed to mean his heirs as thus
aScertained. See also in re Dobbel,
1O4 Cal, 432.
Is. F. No. 915-Department Two-Filed
March 6, 1891
City of Eureka, respondent. Mckay e
Co., appellants. Action in ejectment. Re-
versed.
Dedication is always question of in
tent, and the acts of the owner of prop
erty are sufficient to prove a dedication
only when thew q re euinciue of such IN