iff of the city and county of San Francisco | against an order of final distribution in under a judgment of the superior court favor of Edward E. Gehring. From an order thereof adjudging him guilty of contempt of refusing to entertain the contest, contestant court. The application is addressed to the appeals. Affirmed. Chief Justice, and not to the court.

[1] The petition is defective in that it does not state whether any prior application has been made to any court for a writ in regard to the same detention or restraint, and, if there was any such application, does not show the proceedings therein. Section 1475, Penal Code. As a matter of fact, a prior application in regard to the same detention or restraint was made by petitioner to this court, as our records show, on December 1, 1915, and such application was denied by the court on December 2, 1915. Not only was such application in regard to the same detention or restraint, but the grounds of the former application were the same as those now urged, with a greater degree of elabora

tion.

Carl L. Lindsay and H. C. Lucas, of Oakland, for appellant. Burton Jackson Wyman, of Oakland, for respondent. Gutsch & Lempke, of San Francisco, for residuary legatee.

HENSHAW, J. [1] Elizabeth Wenks died testate, disposing of all her property by will. Joseph Wenks, appellant, is her stepson, the son of her predeceased husband. During his lifetime that husband conveyed to her a piece of real property. No administration was had upon the estate of the husband of Elizabeth Wenks. Upon her death his son appeared and filed a contest in the matter of the final distribution of the estate, alleging that his father, the husband of Elizabeth, in his lifetime conveyed to Elizabeth certain [2] While it may be that under certain real property which was community propercircumstances the court itself might feel war-ty; that the character of the property as ranted in entertaining a second application community property was not changed by this from a party regarding the same detention or conveyance, and that it remained the comrestraint, it is manifest that no single mem-munity property of the two spouses until the ber of the court, be he Chief Justice or As-death of the husband; that after the death sociate Justice, is warranted in granting a of the husband Elizabeth sold this property, writ where the same has been denied as to and that the property of her estate for which the same detention or restraint by the whole distribution is sought is the proceeds of this sale. The court refused to entertain the contest or to hear the proffered evidence in support of these allegations.

court in bank.

The application to me for a writ of habeas corpus is denied.

In re WENKS' ESTATE.
WENKS v. GEHRING.
(S. F. 7315.)

(Supreme Court of California. Dec. 22, 1915.)
1. EXECUTORS AND ADMINISTRATORS

314

ORDER OF DISTRIBUTION-SCOPE OF RELIEF. Where appellant as heir of his father sought to reach property which he claimed was the community property of his father and testatrix, who was the father's second wife, such claim should either be asserted by an action by appellant as heir or by the administrator of the father's estate, and cannot be presented on objections to an order of distribution of the estate of the testatrix.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1274-1297; Dec. Dig. 314.]

2. EXECUTORS AND ADMINISTRATORS 314ORDERS OF DISTRIBUTION-CONTESTS-COMMUNITY PROPERTY.

Civ. Code, § 1386, subd. 8, authorizing, in a proceeding for the distribution of the property of a decedent, contests arising out of the community property, applies only in case of intes

tacy.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1274-1297; Dec. Dig. 314.]

Department 2. Appeal from Superior Court, Alameda County; William S. Wells, Judge.

In the matter of the estate of Elizabeth Wenks, deceased. Contest by Joseph Wenks

In this the court was clearly right. Appellant had abundant opportunity to establish the facts which he here asserts by appropriate action as an heir of his deceased father, and it was his duty to have brought or to have caused the bringing of such an action either by himself as heir or by the administrator of his father's estate. His claim here presented is a claim of title adverse to that of the estate, and "the law does not contemplate or provide for the distribution of property or money in the hands of the executor or administrator to persons who may claim adversely to the estate, but leaves all such questions to be determined by an action on behalf of or against the executor." Estate of Rowland, 74 Cal. 523, 16 Pac. 315, 5 Am. St. Rep. 464.

[2] Moreover, section 1386, subdivision 8 of the Civil Code, upon which appellant apparently bases his right to be heard, is applicable only to cases of intestacy. Estate of Brady, 151 Pac. 275. Here the deceased died leaving a will disposing of all of her property. No support can be found for appellant's position in Estate of McCauley, 138 Cal. 546, 71 Pac. 458. There the court declared that under this section, in case of intestacy, the named relatives of the spouse first deceased are heirs so far as concerns the common property of the spouse last dying intestate. The decision then proceeds to

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

For these reasons the order appealed from in section 1187, Code of Civil Procedure? If is affirmed.

(District Court of Appeal, Second District, Cal- until March 15, 1910, which was 151 days

That after a building was completed and occupied by the owner, a skylight proved defec-plaint, or at any time, state to plaintiff that tive and was remedied, does not show that the building was incomplete until the skylight was repaired.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. 8$ 190, 192-207; Dec. Dig. because of any statements or representations 132.1

As we understand appellant's brief, it attacks all of these findings, except that as to A finding of the court on conflicting evidence defendant's failure to file a notice of the comwill not be disturbed on appeal.

would pay the bill. With reference to this lien must be filed within ninety days after conversation, one of plaintiff's witnesses, who at the time represented it, testified as follows:

"Q. And you didn't file your lien because you expected I. S. Miller to take care of the amount coming to you? A. Yes, sir. Q. That is the reason you did not file your lien? A. Yes, sir. Q. Didn't Mr. Kennedy tell you that I. S. Miller had the money to settle these claims and would settle them, and for you not to file any lien? A. Yes, sir. Q. And on that account you didn't file any lien? Now, isn't that the exact reason? A. Yes."

the completion of any building, improvement, or structure." In support of its contention, appellant cites the case of Robinson v. Mitchel, 159 Cal. 581, 114 Pac. 984. But there the court, with reference to this latter clause, say:

"This would seem to fix a time limit within which all liens must be filed regardless of whether the owner has filed his notice of completion or not. But this question it is not necessary here to resolve."

*

*

Clearly the purpose of the provision was to In addition to the general effect of plain- give to persons interested therein notice of tiff's evidence being weakened by this testi- the completion of the work, in order that they mony, the defendant Kennedy denies that he might in due time file their claims of lien. ever said the building was not completed, Filing the notice of completion is not mandabut, on the contrary, stated to plaintiff that tory, but failure to file it extends the time the building was completed, and that I. S. for filing claims of lien for a period of 90 Miller had the money to pay their bill and days after the actual completion of the work. told them to go and see him. Conceding that The Legislature deemed such period ample plaintiff's testimony, if believed by the court, time for otherwise obtaining information as might have constituted an estoppel against to the time of completion. The provision defendant, nevertheless there was a sharp that "all claims of lien must be filed within conflict between the evidence on behalf of ninety days after the completion of any plaintiff and that given by defendant, as to which the determination of the court thereon must be deemed final. In the Hubbard Case, as here, the owner neglected not only to record the contract, but also to file for record the notice of actual completion of the work as required by the statute, and it was sought to prove that not only the owner, but the architect, repeatedly stated and represented to the materialman and lienor that the buildings were not completed, and that he had not accepted them and would not until certain other work was done, and that plaintiff, relying thereon, had delayed filing his notice of lien, to all of which the court sustained objections, and it was held to be error. The facts in the case at bar easily distinguish it from the Hubbard Case.

building," could serve no purpose other than
to terminate the time within which the claim
of lien might be filed. Such is the plain im-
port of the language used. As found by the
court, the building was completed about Oc
tober 15, 1909. In the absence of the filing
of notice of its completion, plaintiff had until
about the middle of January within which to
file its lien, which, as stated, was not filed
until March 15th thereafter.
It appears
from the record that plaintiff's agents passed
the building daily, and from October 15th
knew that it was occupied and had every
appearance of being completed. In our opin-
ion, the findings of the court attacked are
fully sustained by the evidence.

We concur: CONREY, P. J.; JAMES, J.

HILBORN v. BONNEY et ux. (Civ. 1777.) (District Court of Appeal, Second District, California. Nov. 13, 1915.)

Since the plaintiff was not entitled in any event to enforce its claim of lien, the alleged [3] Appellant next insists that, notwith-errors due to rulings upon the admission and standing the expiration of more than 90 days, rejection of testimony could in no event have to wit, 151 days, following the completion of been prejudicial to the rights of plaintiff. the building, it nevertheless was entitled to The order appealed from is affirmed. file its notice of lien by reason of the provisions of section 1187, Code of Civil Procedure, to the effect that the owner may, within 10 days after completion of any contract, or within 40 days after cessation from labor thereon, file for record in the office of the county recorder of the county where the property is situated, a notice setting forth the date when the same was completed, or on which cessation from labor occurred. The section further provides that "in case such notice be not so filed, then the said owner and all persons deraigning title from or claiming any interest through him, shall be estopped in any proceedings for the foreclosure of any lien provided in this chapter from maintaining any defense therein, based on the ground that said lien was not filed within the time provided in this chapter" followed by this proviso: “That all claims of

ELECTION OF REMEDIES
EY JUDGMENT.

14-FRAUD-MON

Defendant fraudulently procured the conveyance of plaintiff's property to him in exchange for worthless stock. Plaintiff instituted an action at law to recover damages against defendant for fraud, in which she obtained a judgment. Meanwhile, defendant had sold plaintiff's land and invested the proceeds in land upon which defendant's wife filed a declaration of homestead. Plaintiff then instituted the present action to have the declaration canceled as a cloud on the property purchased with and representing the property fraudulently obtained from her which obstructed an execution under her money judgment. Held, that plaintiff, hav

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[Ed. Note.-For other cases, see Election of Remedies, Cent. Dig. § 16; Dec. Dig. 14.]

Appeal from Superior Court, Los Angeles County; John M. York, Judge.

Action by Grace A. Hilborn against Frank R. Bonney and Ella Bonney, his wife, to annul a declaration of homestead by the wife. Judgment for plaintiff, and defendants appeal. Reversed.

ing elected to pursue her remedy at law for dam-es against him, the conveyance of her propages for the fraud, was estopped from again erty was obtained by the fraudulent acts of proceeding on the same facts for equitable relief. Frank R. Bonney, neither it nor lot 22, bought with the proceeds of the sale thereof, could, as to her judgment, be the subject of a declaration of homestead by the wife; in other words, that by reason of the manner in which the property was obtained, it was impressed with a trust in favor of plaintiff. Conceding, upon the facts stated, plaintiff might have brought an equitable action to impress a trust upon the property or to have a lien declared thereon, and thus have obtained relief, she chose instead to sue at law for a money judgment. Having elected to pursue this course, we are unable to perceive that she has any greater or different rights with reference to the property than any other general judgment creditor of Bonney. The case presented is almost identical with that of Hanly v. Kelly, 62 Cal. 155, wherein it was said:

E. J. Fleming and S. L. Carpenter, both of Los Angeles, for appellants. Frank L. Muhleman, Jones & Evans, and Earl T. Miller, all of Los Angeles, for respondent.

SHAW, J. It appears from the complaint filed August 20, 1912, that plaintiff had theretofore, on August 9, 1912, in an action instituted against defendant Frank R. Bonney to recover damages for alleged fraud, obtained a judgment against him in the sum of $4,000, upon which she caused to be issued an execution and a levy thereof made upon certain real estate described as lot 22 of the Huston tract, in Los Angeles county, title to which real estate was at the time in the name of defendant Ella Bonney and upon which she, prior to the entry of the judgment against her husband, had filed a declaration of homestead. The complaint then alleges the fraudulent acts of Frank R. Bonney by means of which he induced plaintiff to convey to him certain real estate then owned by her in exchange for certain valueless corporate stock, which acts were made the basis of the action wherein judgment was rendered against him and in favor of plaintiff; that after thus obtaining such real estate from plaintiff he sold the same and invested the proceeds thereof in said lot 22 of the Huston tract, which, prior to the rendition of the judgment against him, he caused to be conveyed to his wife, Ella, who, as stated, filed a declaration of homestead thereon. The prayer of the complaint is to have this declaration canceled and annulled; the reason assigned therefor being that it constitutes a cloud upon the property, thereby obstructing plaintiff in enforcing collection of her judgment against Frank R. Bonney by sale of the property under execution so levied thereon. A general demurrer interposed to this complaint was overruled. Judgment went for plaintiff, from which defendants appeal.

The only question involved is the ruling of the court upon the sufficiency of the complaint. The theory of respondent (plaintiff here) is that since, as adjudged in the action wherein she had a judgment for damag

held to have elected his remedy at law, and to be "Under such circumstances, plaintiff must be estopped from pursuing in equity the fund into the homestead."

To the same effect is Barker v. Barker, 14 Wis. 142; Fitzell v. Leaky, 72 Cal. 477, 14 Pac. 198; and IIarding v. Atlantic Trust Co., 26 Wash. 536, 67 Pac. 222. Section 1240, Civil Code, provides that "the homestead is exempt from execution or forced sale, except as in this title provided," and section 1241 designates the circumstances which must exist in order to render a homestead subject to execution or forced sale in satisfaction of judgments obtained. The sale sought of the property is under an execution issued upon a general judgment, and, as stated, plaintiff's rights with reference to the homestead in no wise differ from the rights of any other general judgment creditor. Under the doctrine of election, she chose to assert her rights in an action for damages against defendant Bonney, thus electing to enforce her claim generally against his property, and is now estopped from again, upon the same facts, asking for equitable relief. In Fitzell v. Leaky, supra, the Supreme Court says:

"It (the homestead) is not invalid because made during the progress of litigation, which subsequently results in an ordinary money judgment against the homesteader, or because made at any time before the entry and docketing of such a judgment. The law authorizes a debtor to erect a barrier around the home, over which the sheriff, although armed with final process under such a judgment, cannot pass. With the policy of the law, or the abstract morality of a particular transaction, we have nothing to do. The doctrine bearing upon conveyances made to hinder, delay, or defraud creditors has no application to the creation of a homestead."

The judgment is reversed.

We concur: CONREY, P. J.; JAMES, J.

the parties depended upon a writing which was set up as an exhibit attached to the answer. In the course of the trial plaintiff was

TINGEY V. CALLAHAN CONST. CO. (Civ. 1761.)

(District Court of Appeal, Second District, Cal- allowed leave to amend his complaint by inifornia. Nov. 13, 1915.)

PEAL.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3478, 3480, 3481, 3484, 3530-3540; Dec. Dig. 874.]

corporating therein the written contract as 1. APPEAL AND ERROR 874-RESERVATION alleged by the defendant, and alleging other of Grounds oF REVIEW-NECESSITY FOR AP- facts showing that the oral agreement under Where no appeal was taken from the judg- which the work was commenced was incorment, orders overruling a demurrer to an amend-porated in the writing which was signed at ed complaint and denying a motion to strike out a later date, but before the alleged compleportions thereof, will not be considered on ap- tion of the work; that at the time the prepeal from an order denying a new trial. liminary negotiations were closed it was agreed that the contract should be reduced to writing; and that the delay occasioned in that regard was because of the failure of the defendant to prepare the writing. There was a demurrer to this amended complaint and a motion to strike out portions thereof. However, these points cannot be considered, as no appeal was taken from the judgment. Under our practice the taking of such an appeal is necessary before questions of the kind suggested would be presented for review. See Stewart v. Stewart, 156 Cal. 651, 105 Pac. 955, and cases therein cited.

2. APPEAL AND ERROR 548- RESERVATION
OF GROUNDS OF REVIEW OBJECTION TO
EVIDENCE-SPECIFICATION.
Where various exceptions were taken to
the introduction of testimony, which were again
urged in the briefs on appeal, the general point
being made that the evidence heard was insuffi-
cient to sustain the findings, the bill of excep-
tions containing no particular specification
pointing out the weakness of the testimony as
to any of the facts in issue, the question of the
propriety of the evidence was not presented
where there was sufficient evidence, unchalleng-
ed, to support the findings.

[Ed. Note.-For other cases, see Appeal and
Error, Cent. Dig. §§ 2433-2440; Dec. Dig.
548.]

ERROR-ADMISSION OF EVIDENCE. Errors in receiving testimony cannot be deemed to have been prejudicial to defendant when, disregarding the incompetent matter, enough remains in the record to sustain the cause of action as alleged in the complaint.

[Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. 1050.]

Appeal from Superior Court, San Diego County; W. A. Sloane, Judge.

[2, 3] At the trial various exceptions were taken to the introduction of testimony, which objections are again urged in the briefs of counsel on this appeal. The general point is made that the evidence heard was insufficient to sustain the findings of the court. In the bill of exceptions there is no particular specification, as is required, which points out the weakness of the testimony as to any of the facts in issue. The objection that a sufficient specification is lacking is not answered by saying that it is the claim of appellant that there is no evidence upon which to sustain the decision of the trial court, for there is evidence as to the making of the contract and the entering upon the work, which stands undisputed and unchallenged. We may say that there is some evidence shown in the record to sustain all of the findings of the trial judge. The defendant offered no testimony

Action by C. H. Tingey against the Callahan Construction Company. Judgment for plaintiff, and from an order denying its motion for new trial defendant appeals, presenting the appeal upon a bill of exceptions. Order denying motion for new trial affirmed. A. J. Morganstern, of San Diego, for ap-whatsoever in opposition to the case presentpellant. Crouch & Harris, of San Diego, for respondent.

JAMES, J. Judgment was awarded plaintiff in this action. The defendant appealed from an order made denying its motion for a new trial and presents the appeal upon a bill of exceptions.

[1] The action was based upon a contract whereby plaintiff's assignor agreed with the defendant to do certain excavating and grading work for a specified sum per cubic yard. The cause of action was stated in brief form, it not appearing from the allegations thereof whether the contract sued upon was written or oral. The defendant by its answer, after denying that plaintiff's assignor had performed the work described in the complaint, alleged that the contractual relation between

ed by the plaintiff. An examination of the evidence, as the bill of exceptions presents it, shows, we think, sufficiently that the claim of the plaintiff was just and that he was entitled to enforce his demand. Any errors committed by the court in receiving testimony cannot be deemed to have been prejudicial to defendant's right to a fair trial, when, disregarding the incompetent matter, enough remains in the record, as we conclude there does, to sustain the cause of action as alleged in the amended complaint. In other words, it is not shown in this case that there has been a miscarriage of justice within the meaning of the constitutional amendment.

The order denying the motion for a new trial is affirmed.

We concur: CONREY, P. J.; SHAW, J.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes