COCHRAN et al. v. LOS ANGELES COUNTY. (L. A. 241.) (Supreme Court of California. June 9, 1897.) STATE SCHOOL-EXPENSE OF KEEPING INMATES LIABILITY OF COUNTIES.

St. 1889, p. 111, §§ 16-18, provide that any infant, betweon 10 and 16 years of age, convicted of or charged with a crime, may be committed to the reform school. Section 20 provides that the board of trustees may receive into the institution infants between the ages of 10 and 18 on the written complaint of parent or guardian, for reasons stated. Section 24 provided that such board should determine the expense per month of taking care of each infant committed "under the provisions of section 20 of this act," and, when any infant was committed at the instance of a parent, the cost of keeping and transportation should be paid by such parent or guardian, unless, for good cause, said board otherwise ordered, in which case such expense should be borne, one-half by the county from which the infant was committed, and the remaining one-half by the state. Such section was amended by St. 1893, p. 328, by omitting the quoted clause, and by adding a clause that "where a minor who has no parent, who is able to pay such expense, is committed, it shall be borne, one-half by the state, and one-half by the county." Held, that the county must pay one-half the expense of keeping all minors committed from it, for any cause, whose parents are unable to pay such expense.

Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; Lucien Shaw, Judge.

Action by William G. Cochran and others, trustees of the Whittier State School (a body corporate), against Los Angeles county (a public corporation). From a judgment in favor of plaintiffs, defendant appeals upon the judgment roll. Affirmed.

J. A. Donnell, Dist. Atty., and F. R. Willis, Dep. Dist. Atty., for appellant. McLachlan & Cohrs, for respondents.

BELCHER, C. This is an action brought by the trustees of the Whittier State School against the county of Los Angeles to recover the sum of $3,064.05, with interest thereon, being one-half of the cost of keeping and taking care of certain minors committed to said school under the provisions of the Whittier State School act. The defendant demurred to the complaint, and, the demurrer being overruled, answered. The case was then tried, and judgment rendered in favor of the plaintiffs, according to the prayer of the complaint. From that judgment defendant appealed upon the judgment roll; and its only contention is that the complaint did not state facts sufficient to constitute a cause of

action, and hence its demurrer should have been sustained. It is alleged in the complaint "that, at the instance and under and pursuant to the judgments and orders, duly made and given, of the superior court of said Los Angeles county, there were committed to said Whittier State School the following minors, hereinafter named, who were inmates of said school under the commitments of said court, and were received at the dates, and cared for during the times and periods, set opposite their names respectively," and "that none of said minors were committed at the instance or on complaint of any of their parents or guardians or protectors respectively, but were committed by said superior court of defendant county, in each case, after complaint or information or pending investigation by the grand jury of said Los Angeles county, and while criminal charges were made against said minors re spectively, and each of them was committed other than under section 20 of said acts hereinbefore mentioned."

In 1889 an act was passed by the legislature to establish in Los Angeles county an institution to be known as the "Reform School for Juvenile Offenders." St. 1889, p. 111. Sections 16, 17, and 18 of the act provide that any boy or girl, between the ages of 10 and 16 years, convicted or charged with the commission of a crime, may be committed to the institution. And section 20 provides that the board of trustees may, under such rules as they may prescribe, receive into the institution, whenever it may be convenient so to do, infants, between the ages of 10 and 18 years, committed to its custody by any judge of a superior court, on the written complaint of the parents or guardian of the infant for reasons stated. Section 24 provides: "Said board of trustees shall, with the approval of the governor, estimate and determine as near as may be the actual expense per month of keeping and taking care of each infant committed to said institution, under the provisions of section 20 of this act, not including the use of the grounds and buildings, and shall include a statement of such estimated price in each biennial report to the governor. When any infant is committed to said institution at the instance of his or her parent or guardian, or other protector, the cost of keeping said infant, including the cost of transporting to and from the institution, shall be wholly paid by such parent or guardian, unless, by reason of the poverty of such parent or guardian, or other good cause, said board of trustees shall otherwise order and direct; in each case such expenses, including the cost of transportation, shall be borne onehalf by the county from which such infant is committed, and the remaining one-half shall be borne by the state. In 1893 the act was amended in several respects. St. 1893, p. 328. The name of the institution was changed to that of the "Whit

tier State School," and the purpose for which it was established was declared to be "the discipline, education, employment, reformation and protection of juvenile delinquents in the state of California." Section 24, as amended, is as follows: "Said board of trustees shall, with the approval of the governor, estimate and determine, as near as may be, the actual expenses per month of keeping and taking care of each minor committed to said institution, not including the use of grounds and buildings, and shall include a statement of such estimated price in each biennial report to the governor. When any minor is committed to said institution at the instance of his or her parent or guardian, or other protector, the cost of keeping said minor, including the cost of transportation to and from the institution, shall be wholly paid by such parent or guardian; unless, by reason of the poverty of such parent or guardian, or other good cause, said board of trustees shall otherwise order and direct; in such case such expenses, including the cost of transportation, shall be borne one-half by the county from which such minor is committed, and the remaining onehalf shall be borne by the state; and in every case where a minor who has no parent, guardian or other protector, who is able to pay the cost of transportation to and cost of maintenance at said school, is committed thereto, such cost of transportation and maintenance of such minor shall be borne one-half by the state and the other half by the county from which said minor is committed.

It is contended for appellant that the meaning and import of section 24 was not changed by the amendment in any material respect; that, in so far as the section still imposes upon counties the burden of paying one-half of the expense of the transportation and maintenance of minors, it refers to the class who are incorrigible or abandoned and indigent, and are committed under the provisions of section 20, and not to the criminal class who are committed for violation of the penal statutes of the state. It will be observed, however, that in the amended section the words "under the provisions of section 20 of this act" are entirely omitted, and it is made the duty of the board to estimate the expense of keeping each minor committed to said institution. If the legislature had intended to charge the counties only with the expense of keeping minors committed under the provisions of section 20, no reason is perceived why those words were eliminated from the section as originally passed. Again, there was added by the amendment the clause: "And in every case [not merely in the case of incorrigibles, etc.] where a minor who has no parent, guardian or other protector, who is able to pay the cost of transportation to and cost of maintenance at said school, is committed thereto, such cost shall be borne one-half by

the state and the other half by the county," etc. This language seems plain and unequivocal, leaving no room to doubt that the legislature intended to impose upon the counties the burden of paying one-half of the expense of keeping all minors committed to the institution, for any cause, whose parents, guardians, or other protectors were unable to pay such expense. That the legislature was authorized to pass such an act and impose such burdens upon the counties was, in effect, held in Society v. Reis, 71 Cal. 627, 12 Pac. 796. It follows that the demurrer was properly overruled, and the judgment should be affirmed.

We concur: SEARLS, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is affirmed.

(117 Cal. 545) ALISON et al. v. GOLDTREE et al. (L. A. 104.) 1

(Supreme Court of California. July 10, 1897.)

RES JUDICATA.

Where an accounting was had against a trustee at the instance of certain of the beneficiaries before a court having jurisdiction of the subject-matter and the parties, the judgment therein was res judicata as against the trustee, where no demand was made to distribute the funds, though all the beneficiaries were not parties to such accounting, the judgment roll of the former case not showing that the omitted beneficiaries were within the jurisdiction of the court.

Department 2. Appeal from superior court, San Luis Obispo county; V. A. Gregg, Judge.

Action by Jane Alison and others against Isaac Goldtree and others. Decree for complainants, and Goldtree appeals. Affirmed.

Ernest Graves and E. P. Cole, for appellant. Lyrick & Deering and Louis Lanny, for respondents.

HENSHAW, J. This action is in equity, and is brought by the plaintiffs as beneficiaries, under an express trust created by the will of Jonathan Thompson, deceased, against defendant Isaac Goldtree, as trustee of the trust, to compel an accounting from and after the 2d day of October, 1892, and for the removal of the trustee. The defendants other than Isaac Goldtree were brought in, as claiming some beneficial interest under the trust. Proper allegations were made, showing that, in another action against this trustee for an accounting, it was adjudged and decreed that there was due to the trust from him the sum of $12,154.68. By this earlier action the transactions of the trustee were passed upon by the court from the inception of his duties to the 2d day of October, 1892. It is pleaded that this judgment is a final de termination of the trustee's responsibility down to the date last mentioned, and for that reason the accounting is asked only for the period of time that has since elapsed. From

1 Rehearing denied.

the judgment obtained against him in the former action, Goldtree took his appeal, and the decision of the matter, with many of the facts pertinent to this consideration, will be found set forth in Re Thompson's Estate, 101 Cal. 349, 35 Pac. 991, and 36 Pac. 98, 508. Defendant Goldtree, for answer, denied the validity of the former judgment pleaded against him, and undertook to set forth all of his transactions and dealings with the trust, from the beginning of his connection with it to the present time. Such portions of his answer as contain these matters were upon motion stricken out. Upon trial the judgment was admitted in evidence against him, and was treated by the court as determinative of all matters pertaining to his relations with the trust, down to the date of the judgment. Goldtree therefore was not allowed to make proof of any of these antecedent transactions. The court found that there was due from Goldtree to the trust the sum of $12,194.21, and ordered his removal from office. From this judgment, and from the order denying him a new trial, he appeals.

It is urged as a fundamental error, pervading the whole case, that the judgment in Re Thompson's Estate, supra, was treated by the court as valid, subsisting, and a finality between these parties litigant, when in law it was absolutely void; that, therefore, the court erred in striking out the portions of defendant's answer, erred in allowing the judgment to be admitted in evidence against him, and erred in forbidding him to treat his dealings with the trust as open to complete hearing and settlement in this action. This is predicated upon the very familiar principles of equity procedure that it will not permit litigation by piecemeal, and that, in an accounting upon a trust, all of the beneficiaries of the trust are necessary parties, coupled with the facts that in the former case not all of the beneficiaries under the testamentary trust were before the court; that the absence of the others was not accounted for nor explained. Therefore, it is urged, the judgment could not operate by way of bar or estoppel to the rights of defendant Goldtree to make a full showing of his dealings with the trust property. It is certainly the general rule, as appellant contends, that in an action in equity against a trustee for an accounting the beneficiaries of the trust are necessary parties; and, where the absence of any of them is shown by the trustee, the court will order them brought in, and will refuse to proceed until they are before it, or, should it so proceed despite the legal protests of the trustee, the decree will be reversed upon appeal. But the rule in such a case is a rule of convenience. It is designed for the protection of the trustee himself, in order that he may not be subject to harassment by further litigation at the instance of the omitted beneficiaries, who would not be bound by the former judgment. Thus, it is said in Barbour on Parties (page 555): "lf

a party omits to object either by plea, answer, or demurrer for want of parties who are only necessary to protect him from further litigation, the court may refuse to sustain the objection at the hearing, and, if the objection be not raised upon the record or by a demurrer ore tenus, it will not be a ground for a reversal of the decree." In Dias v. Bouchaud, 10 Paige, 445, the learned chancellor (Walworth) draws the distinction with his usual clearness: "I think the defendants would have had the right to insist in relation to a part of the relief prayed for by the bill that such persons should have been made parties, so as to make the account of the trust and of the application of the trust property conclusive upon them, and that he might not be compelled to account a second time to them in relation to the same matter; but a person may be a necessary party, within the meaning of the rule requiring all persons interested to be made parties, although the proper decree may be made as to the subject-matter of the litigation in his absence, if the defendant makes no objection; and in such a case, if the defendant neglects to make the objection by plea, answer, or demurrer, of the want of parties who are only necessary to protect him from further litigation, the court, in its discretion, may refuse to sustain the objection at the hearing, or to require the cause to stand over to add new parties in that stage of the suit." So, here, in Re Thompson's Estate, an accounting was had at the instance of certain of the beneficiaries, though not of all, against the trustee. It was decreed that the court had jurisdiction of the subject-matter of the litigation, and the determination of the court was that there was due to the trust from Goldtree a large sum of money. It was not attempted in that action to distribute the fund among the beneficiaries, or to determine their respective interests therein. In the action at bar all of the beneficiaries were present. The major portion of them, by their bill, adopt the determination of the court in the former action as stating the true amount due to the trust, and bind themselves accordingly. As to them, then, there is no possibility to Goldtree of future embarrassment or litigation. Such of the beneficiaries as are made defendants do not object to the introduction of the former judgment, but consent to and are likewise bound by it.

There are, then, these facts presented: First. That, upon direct appeal from and attack upon the judgment in Re Thompson's Estate, objection was made in this court for the first time to the absence of necessary parties to the proceedings in the trial court, and the objection was not held valid. Second. As declared in the opinion upon the former case, the court had jurisdiction of the subject-matter of the litigation. Third. Its judgment was but a determination that there was due to the trust from the trustee a certain sum of money, and this determination did not attempt to ap

portion the funds among the beneficiaries. It was not a decree either calling upon the absent parties to act, nor yet did it prejudice them in any of their rights. Fourth. The judgment roll In the former case presented upon this appeal does not show that the omitted beneficiaries were within the jurisdiction of the court. And, finally, all the beneficiaries in the present action have accepted the former decree as to the amount due from Goldtree, and thus the latter is entirely relieved from all danger of embarrassment from future suits. The rule requiring all the beneficiaries to be parties being, as has been said, one of convenience for the trustee, to protect him from such future annoyance, and the trustee in the former action not having availed himself of his right to demand their presence before judgment was taken against him, he may not in this case be allowed to invoke it. For these reasons, it is held that the rulings of the court in the matters complained of were correct. In McPherson v. Parker, 30 Cal. 455, relied upon by appellant, the trial court overruled the demurrer brought by one creditor against the assignees for the benefit of creditors of an insolvent. The bill demanded an accounting and the payment to plaintiff of his pro rata share of the trust property. It did not, however, make the other creditors parties. The court very properly held upon direct attack, under the appeal of the assignees, that the bill should not have been retained, placing the decision upon the well-settled ground that the decree so obtained, at the instance of one creditor, in the absence of the other, would not be binding upon the creditors not parties, and, when complied with by the trustees, would not protect them against future litigation. But in this case the point was made in the trial court, and regularly brought before the appellate tribunal for review. In O'Connor v. Irvine, 74 Cal. 435, 16 Pac. 236, another case to which appellants look for support, action was brought by plaintiff to declare a trust, and compel the performance of it. The plaintiff, however, claimed the trust property in his own right, and to the exclu sion of another, who, it appeared, was an actual beneficiary therein under the trust. This court, in its opinion, quoted the provisions of the Code of Civil Procedure (section 389), to the following effect: "The court may determine any controversy between parties before it when it can be done without prejudice to the rights of others, or by saving their rights; but, when a complete determination of the controversy cannot be had without the presence of other parties, the court must then order them to be brought in." The gist of the decision is found in the following sentence: "In the absence of Selover as a party, a complete determination of the controversy, we think, cannot be had without prejudice to his (Selover's) rights." Such, however, was not the case presented by the bill in the Case of Thompson's Estate. There, as has been before pointed out, while all the beneficiarias were not par

ties to the action, they were all named in the bill as beneficiaries, and the only decree sought was a decree establishing the amount due from the trustee to the trust. The only injury which could result from the absence of certain of the beneficiaries was the danger of future litigation against the trustee at their instance. But the trustee's failure to present the point to the trial court was equivalent to a waiver of this rule designed for his benefit.

The allowance by the court of commissions to the trustee, and of attorney's fees for services rendered to him in this and the former litigation does not call for extended consideration. The trustee, upon this trial, testified that he managed the trust funds in all respects as he had formerly done. As to his former management, the court found that "he willfully mismanaged his trust, and had mingled the trust funds with those of a partnership of which he was a member, and had permitted them to be used in business for the partnership, and at no time kept the funds distinct from the funds of the partnership." Under this finding, it may not be held that the allowances were unreasonable. The judgment and order appealed from are affirmed.

We concur: MCFARLAND, J.; TEMPLE, J.

(117 Cal. 481) HIBERNIA SAVINGS & LOAN SOC. v. THORNTON. (S. F. 618.) 1 (Supreme Court of California. July 8, 1897.) MOTION FOR JUDGMENT ON PLEADINGS-ACTION ON NOTE-COMPLAINT CONSTRUCTION.

1. On a motion for judgment on the pleadings, the court cannot consider any matter outside of the complaint, or any defense thereto in the answer, but must determine the motion as it would a demurrer to the complaint on the same ground. 2. Where a complaint merely contains the ordinary allegations in an action on a note, and a copy of the note contains the clause at the end thereof, "This note secured by a mortgage of even date herewith," it does not appear from the complaint that the note is secured by a mortgage, so as to defeat the action on the note.

Department 1. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge.

Action by the Hibernia Savings & Loan Society against Charles O'Neill on a note. Defendant died pending the action, and R. S. Thornton, his executor, was substituted. From a judgment in favor of defendant on the pleadings, plaintiff appeals. Reversed.

Tobin & Tobin, for appellant. B. J. New man, for respondent.

HARRISON, J. Upon a former appeal in this action (109 Cal. 427, 42 Pac. 447) the judgment was reversed upon the ground that it appeared from the findings that the promissory note upon which the action was brought had been at the time of its execution secured by a mortgage upon real property, and that by reason of the provisions in section 726, Code Civ. Proc., the makers were 1 Rehearing denied.

not liable to an action upon the note, independent of a suit to foreclose the mortgage. When the cause again came on for trial in the superior court, the defendant moved for judgment upon the pleadings, upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The court granted the motion, and rendered judgment in favor of the defendant, reciting therein: "It appearing from said complaint that the promissory note set forth in the complaint is secured by mortgage, and that said complaint does not ask for or pray that the mortgaged property be sold, and the proceeds applied to the costs of said action, expenses of sale, and to the payment of the promissory note sued upon in this action, as provided by section 726 of the Code of Civil Procedure of the state of California," etc. From this judgment the plaintiff has appealed.

The right of a defendant to move for judgment upon the pleadings, when the complaint fails to state a cause of action, is well settled in this state. King v. Montgomery, 50 Cal. 115; Kelley v. Kriess, 68 Cal. 210, 9 Pac. 129; De Toro v. Robinson, 91 Cal. 371, 27 Pac. 671. Upon such motion, however, the court cannot consider any matter outside of the complaint, or any defense thereto in the answer, but the motion is to be determined upon the same principles as would be a demurrer to the complaint upon the same ground. All the facts alleged in the complaint are admitted for the purposes of the motion, and the court is to determine whether these facts constitute a cause of action. If the necessary facts are contained in the complaint, the objection that they are defectively set forth, or are in an ambiguous or uncertain form, will be unavailing. There must be an entire absence of some fact or facts essential to constituting a cause of action. The complaint in the present action contains the ordinary allegations in an action upon a promissory note. It alleges the making of the note by the defendant and his wife, setting forth a copy thereof, the demand for its payment after maturity, that no part of it has been paid, and prays for judgment. The defendant, however, contends that by reason of the clause at the end of the promissory note, viz. "This note secured by a mortgage of even date herewith," it appears from the complaint that the note was secured by a mortgage, and therefore the complaint fails to show a right to maintain a separate action upon the note. There is, however, no averment in the complaint that the note was secured by a mortgage, and the recital to that effect in the note cannot, as matter of pleading, be treated as the equivalent of such averment. It is only by inference or argument from this recital that it can be assumed that a mortgage was ever executed, and the rule is as much in force under the Code as at common law that argumentative pleading is not permis

sible.

"Matters of substance must be alleg ed in direct terms, and not by way of recital or reference, much less by exhibits merely attached to the pleading. Whatever is an essential element to a cause of action must be presented by a distinct averment, and cannot be left to an inference to be drawn from the construction of a document attached to the complaint" (Burkett v. Griffith, 90 Cal. 532, 27 Pac. 527); and for the purposes of pleading the rule is the same, whether the instrument is set forth by copy in the body of the complaint, or is attached thereto as an exhibit. The defendant might have demurred to the complaint on the ground that it was doubtful or uncertain therefrom whether in fact the note was secured by a mortgage, but, in the absence of such demurrer, the complaint was sufficient to sustain a judgment by default for the amount of the note. In the answer the defendant has set forth affirmatively that the note was secured by a mortgage, but, as we have seen, this allegation could not be considered in determining the matter. Neither were the matters shown at the former trial or upon the appeal available in support of the motion, since the reversal of the judgment was by reason of the facts found by the court upon the trial of the cause. This motion for judgment on the pleadings was made in the absence of the plaintiff's counsel, but the grounds upon which it was to be determined were not changed by this fact. The plaintiff afterwards moved to set aside the judgment, on the ground of excusable neglect, but its motion was denied, and it has also appealed from that order. As the reversal of the judgment has the effect to give to the plaintiff the relief sought by that motion, it is unnecessary to consider the merits of the motion upon this appeal. The judgment and order appealed from are reversed.

HUELLMANTEL v. HUELLMANTEL et al. (S. F. 609.) (Supreme Court of California. June 25, 1897.) DIVORCE TO WIFE--ASSIGNMENT OF HOMESTEADDURATION-PROPERTY RIGHTS OF HUSBAND.

1. Under Code Civ. Proc. § 146, subd. 4, providing, with reference to a divorce on the ground of extreme cruelty or adultery, that, "if a homestead has been selected from the separate property of either, it shall be assigned to the former owner of said property, subject to the power of the court to assign it for a limited period to the innocent party," such "limited period" cannot exceed the life of the innocent party.

2. A wife, who had claimed a homestead in a lot which was the separate property of the hus band, was granted a divorce on the ground of extreme cruelty, and was assigned half of the lot as a homestead, "for herself, her heirs and assigns, forever." The husband had previously con veyed the entire lot to a third person. The hus band and the grantee were satisfied with the conveyance. The decree of divorce required the