The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1899-08-03
SUPREME COURT DECISIONS

SUPREME COURT DECISIONS
SYLLABI.
q. A., No. 391-In Bank-Filed July
%, 1899
County of San Diego, respondent;
County of Riverside, appellant. Re
covery of moneys claimed to have been
received by defendant to the use of
plaintiff. Affirmed.
1t was claimed by the appellant that
only one presentation of the plaintin
claim before commencing suit was in
sufficient in view of the construction
placed upon Sections 43 and A of the
County Government Act Stats. OF
1898, p. 364). in Arbios VS.. County OF
San Bernardino, ITO Cal, 553. Held,
that neither that decision nor the law
case in which the entire claim mas
been rejected on the first demand for
allowance.
The assessment does not create the
lien. 1t is merely one Of the steps
for it's enforcement. The lien for the
taxes justly leviable upon the prop
erty Of a railroad company attaches
upon the first Monday of March in
each year. and the obligation to pay
necessarily accrueS at the same time,
if not earlier. Payment is not due I'M
til the assessment has been made, but
when that has been done and the
amount of the tax ascertained it is
payable to the county in which the
nj, tod of
when the lien attached.
An appellant cannot avail himself
of an error in the judgment which is
in his favor.
(Sac., No. 407-Department One-Filed
July q, 1899
F.. M. Powell, appellant; Bank OF
LemOOre ct al, respondents. Action
to redeem real estate sold to defend
ants under deed Of trust Affirmed.
Where a certain fact is alleged in
the complaint and not denied in the
answer, there is no issue upon that
point rendering a finding necessary.
If a writ of injunction is issued be-
cause of the untruthful allegations of
the party seeking it, he cannot be
heard to complain if the injunction is
violated. See c. c., 3,511. Also, L.
Pomeroy Eq. Jur., Sec. 397.
The issuing of an execution and the
sale of real property during the ex-
istence of preliminary injunction re-
straining the same renders the sale
voida BILE, and the execution and sale
may, under proper proceedings taken,
be set aside. Such sale is not, how
ever, void, and a deed made under it
confers valid title.
The appeal being upon the judgment
roll, the findings are assumed to be
supported by the evidence.
(Sac., No. 555-Department One-Filed
July 81, 1899
H. D. Wright ct al, appellants; La
fayette Eastlick ct al, respondents.
Contest over line dividing mining
claims. Reversed.
When juror has been guilty Of
misconduct during the course of a
trial, new trial will be granted
whether it is shown that his miscon-
duct had any effect upon the minds
of the other members of the jury or
to so analyze the mental operations of
the jurors as to determine whether, in
point of fact, the verdict would have
been the same if the trial had been
conducted as both parties had the
right to expect, according to law and
upon the evidence in court. For any,
even the least, intermeddling with ju-
rors verdict will be set aside.
(No. 1867. Department One-Filed
July %, 1899
John D. French, respondent; James
P. Mccarthy, appellant. Contract for
purchase of land. Affirmed.
Where the action is upon a contract
and its terms are set forth in the COM
plant, and the defendant has appeared
and answered. if there is any inconsist
ency or want of conformity between the
prayer of the complaint and the facts
set forth therein, the court is author
lied to permit an amendment to the
complaint. Nor does the failure to
make it formally upon the record nee
essitate reversal of the judgment The
record can be afterward corrected to
conform with the order permitting the
L.
Croker, xvii. Cal. Dec, p. 254.
If a party holds stock as collateral
security for an agreement, he is en-
titled to maintain an action upon the
agreement without any tender of the
stock, and may retain the stock until
the Judgment in his favor is satisfied.
Nor is it necessary that the judgment
should contain a promise that the stock
be surrendered upon such satisfaction
See Sonoma Valley Bank VS.. Hill. 80
Cal, 107. Also Allin VS.. Williams, 81
Cal. 403.
Is. F. No. 1,G01-Department Two
Filed July %, 1899
Estate of Susan Crooks, deceased APP
peal from order of distribution dis
missed.
The law does not warrant the distri-
button of an estate to an assignee as
security, but only to heirs, devisees and
their grantees.
A mortgage is not a conveyance but
only a contract by which property is
for the performance of an
act. An estate cannot be distributed
to MORTGAGE.
One not a party to an action or a
may sometimes appeal; but
in some way his interest must be made
to appear in the record and he be made
a party to the ruling appealed from.
IS F., No. 1,167 Department One
Filed July %, 1899
London and San Francisco Bank, re-
spondent; Louis B. Parrot eft al, de-
PENDANTS; Abby M. Parrot ct al, APP
pellants Recovery of overdrafts guar
anteed. Affirmed.