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A. W. Burrell, president of the company, was served with a simmons, but was in default. Jas. McGuire has some claim or interest.
Tried September 12, 1876,-at which it appeared that the contract price for the building was $19,780. It was completed November 16, 1978, and accepted by Quintana November 20th, but he claimed $3,518 damages for non-fulfilment of contract, and that when he paid all the contract price except the $2,000, he did so in good faith, and had no knowledge of the indebtedness of the Bridge: Company to the plaintiffs:—which the Court ruled out from the testimony. Judgment for plaintiffs for a foreclosure and sale, on September 13, 1876—with attorneys fees $100 and costs. Defendantis appealed November 28, 1876, on a Bill of Exceptions.
Harrison & McMurtry, attorneys for plaintiff and respondent.
OPINION BY THE COURT.
[Filed October 18, 1877.) MCGUIRE vs. QUINTANA.
OPINION BY THE COURT. The answer of the defendant was a general denial-nothing more. It was not competent for him to prove, under an answer of that character, what the buildings were not finished by the contractor according to the contract," etc. (Blithen vs. Blake, 44 Cal. R., 117-)
Judgment affirmed. Remittitur forthwith.
Filed November 3d, 1877. THE PEOPLE OF THE CITY AND COUNTY OF SAN
QUACKENBUSH. Appeal from Twelfth District Court, San Francisco. FINDINGS.-ASSESSMENT FOR CONSTRUCTION OF SIDEWALK8.—Held, that the
“diagram," as set forth in the findings, and sent up with the Record, is the only portion that can be considered on the appeal.
OPINION. BY THE COURT, The appeal is from the judgment, and the only question necessary to be considered is, whether the findings support the judgment. It is found by the court below that the assessment, upon which the proceedings are founded, contained no description of the property sought to be charged, except such as was contained in the “diagram"--a copy of which is in the findings. The resolution of intention was for the construction of sidewalks from Turk street to Grove street. Now, the diagram as set forth in the findings, does not show the locality of these streets, or either of them, nor does it contain any other reference by which the location or description of the premises could be seen. It is possible that the diagram set forth in the findings is not the entire diagram as prepared in the Superintendent's office, but, if this be so, the only portion we can con. sider is that sent up with the record.
Judgment reversed and cause remanded, with directions to render judgment for the defendant on the findings. Remittitur forthwith.
E. F. Preston, attorney for plaintiff and respondent,
Appeal from Twelfth District Court, San Francisco. ADVERSE POSSESSION-ADMISSIBLE TESTIMONY.
OPINION BY THE COURT. There certainly was evidence tending to show that defendant was in the adverse possession continuously of the premises in controversy, for more than five years from May, 1862. The judgment roll in the forcible entry case was admissible; as tending to show that such adverse possession continued at least until July, 1867. There was no error in refusing to give the instruction asked for by plaintiff.
Appeal from judgment dismissed and order denying new trial affirmed.
PEOPLE vs. BEVANS.
laid in the indictment. The plea of "not guilty" puts in issue all the material averments of the indictment.
OPINION BY THE COURT. The indictment charged the defendant with the larceny of a cow in Monterey county, and the plea was not guilty. The defendant moved for a new trial, on the ground that there was no evidence tending to prove that the crime was committed in that county.
The plea of not guilty puts in issue all the material averments of the indictment, including that of the locus delicti. (People vs. Parks, 44 Cal., 105. People vs. Manning, 48 Cal., 335.) After a careful examination of the evidence given at the trial, we find none which tends to prove in the slightest degree that the crime was committed in Monterey county.
In the trial of a criminal cause, it is so well understood in practice that it is incumbent on the prosecution to prove the locus delicti as laid in the indictment, that we can but express our surprise that through inadvertence or otherwise, this plain requirement of the law is so often neglected by the District Attorney, thereby retarding the administration of justice and imposing upon the county the expense of another trial and upon the courts a great additional labor.
Judgment and order reversed and cause remanded for a new trial. Remittitur forthwith.
SEPULVEDA vs. JOHNSTON.
W. T. McNEALY, Acting Judge. JUDGMENT IN EXCESS.
STATEMENT OF FACTS. Jesus D. Sepulveda, the plaintiff, compla'ns that, on November 1, 1872, the defendant, Geo. A. Johnson, received from her to "hold and invest for use and benefit of defendant"_$6,139.50; and on December 7, 1872, rendered an account which showed a balance due of principal $6,139.50, and interest $1,738,30_total $7,877.80 Defendant demurred, which was overruled, then answer
ed that a full settlement was made December 1, 1875, showing á balance due plaintiff of only $3,300,-of which defendant paid $300, by draft on Farmers & Merchant's Bank, Los Angeles, and gave two notes of $1,500 each, the only debt he owes plaintiff, and now offers to pay them.
Trial June 5, 1877,- at which defendant and witnesses were absent. Found that defendant had at a former trial paid $3000, and let the cause be continued for the balance in dispute. Find now due a balance of $4,200; and judgment given for that amount and that the two said notes be delivered up to defendant.
Defendant moved for new trial, on a bill of exceptions, claiming that he was informed that the trial was set for June 7th, and so believed and knew not to the contrary, till the evening of the 5th he learned by telegraph of the judgment. It was a mistake, and he has a good cause, etc., with affidavits of A. Johnson and J. G. Eastman. New trial denied, and appeal taken by defendant from the judgment and order on June 20, 1877.
V. E. & F. H. Howard, attorneys for plaintiff and respondent.
OPINION BY THE COURT. It is evident from the admissions in the pleadings and the findings made by the Court, that the plaintiff had judgment for too much money ; but the record as presented, does not enable us to determine the amount of the excess here. A new trial is, therefore, necessary.
Judgment reversed and cause remanded for a new trial.
WILKINSON vs. MERRILL.
tions of law and fact pertaining to purchase of State Lands, is conclusive as against the United States, and the plaintiff in this case.
OPINION BY THE COURT, Under the Act of Congress of July 23, 1866, it was a question for the Land Department, first, whether the State had selected th: land in controversy in part satisfaction of any grant made to the State by an Act of Congress; second, whether the State had disposed of the land to a purchaser in good faith under her laws; third, whether the land was within any of the exceptions by which lands are reserved from the validating effect of the Act; fourth, whether the defendant had proved up his claim before the Register and Receiver in
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the manner and within the time required by the validating Act. These were questions in which no one but the United States and the defendant were interested; and the Act of Congress confers upon the Land Department the jurisdiction to determine them. On deciding these questions in favor of the applicant claiming as a purchase from the State, it is made the duty of the Commissioner of the General Land Office to certify the lands over to the State for the benefit of the purchaser. The case shows that the selection by the State for the use of the defendant was approved by the Commissioner of the General Land Office and by the Secretary of the Interior, after proper investigation, and thereupon the land was duly listed to the State. Up to this point the rights of no third person had intervened, and the Land Department, 'to whom the decisions of all the questions of law and fact pertaining to the proceeding were specially confided, having decided in favor of their regularity and validity, the decision was conclusive as against the United States and is conclusive against the plaintiff, who subsequently attempted to acquire the title from the State.
Judgment and order reversed, and cause remanded for a new trial.
Hartman & Haley, attorneys for plaintiff and respondent.
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BAKER vs. CARRILLO.
OPINION BY THE COURT. An application has been made to us to recall the remittitur issued in this case, on the ground that a petition for a rehearing was prepared and forwarded within the proper time, but through the inadvertence or excusable neglect of the person to whom it was transmitted to be filed with the clerk, it was not, in fact, filed within the proper time nor until after the remittitur was issued. Accompanying the affidavit in support of the application, we have been furnished with copies of the petition for a rehearing, which it is proposed to file, in case the remittitur be recalled. We have examined and considered the petition for a rehearing and find nothing in it to shake our