154 PACIFIC REPORTER (Cal. iff of the city and county of San Francisco | against an order of final distribution in land, for appellant. [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-ing that his father, the husband of Elizabeth, tion. testate, disposing of all her property by will. No administration Elizabeth Wenks. Upon her death his son was had upon the estate of the husband of of the final distribution of the estate, allegappeared and filed a contest in the matter real property which was community properin his lifetime conveyed to Elizabeth certain community property was not changed by this ty; that the character of the property as [2] While it may be that under certain circumstances the court itself might feel warranted in entertaining a second application from a party regarding the same detention or restraint, 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 conveyance, and that it remained the comsociate 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 court in bank. contest or to hear the proffered evidence in sale. The court refused to entertain the support of these allegations. The application to me for a writ of habeas corpus is denied. In re WENKS' ESTATE. (Supreme Court of California. Dec. 22, 1915.) 1. EXECUTORS AND ADMINISTRATORS 314ORDER 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.] 314 2. EXECUTORS AND ADMINISTRATORS 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 intestacy. [Ed. Note.-For other cases, and Administrators, Cent. Dig. §§ 1274–1297; see Executors Dec. Dig. 314.] Department 2. Appeal from Superior Court, Alameda County; William S. Wells, Judge. 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 or to have caused the bringing of such an father, and it was his duty to have brought action either by himself as heir or by the administrator of his father's estate. claim here presented is a claim of title adHis verse 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 action on behalf of or against the executor." all such questions to be determined by an Estate of Rowland, 74 Cal. 523, 16 Pac. 315, 5 Am. St. Rep. 464. [2] Moreover, section 1386, subdivision 8 of parently bases his right to be heard, is apthe Civil Code, upon which appellant applicable only to cases of intestacy. Estate of Brady, 151 Pac. 275. Here the deceased died leaving a will disposing of all of her proplant's position in Estate of McCauley, 138 erty. No support can be found for appelCal. 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 In the matter of the estate of Elizabeth the common property of the spouse last dyWenks, deceased. Contest by Joseph Wenksing intestate. The decision then proceeds to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes show that there was a small amount of common property, amounting only to $499, in the estate of Jennie McCauley undisposed of by her will. This appears from the first paragraph of the decision, where it is pointed out that the distributable value of the estate is $67,000, and the total value of the property disposed of by will amounts to $62,000. The conclusion therefore properly followed that Jennie McCauley died intestate as to the small amount of community property, which would therefore descend, under the rules of succession, to the relatives of her husband, she having left no next of kin. SHAW, J. Action to foreclose an alleged lien for materials sold by plaintiff to defendant Miller for use in the construction by him, as contractor, of a building for defendant Kennedy. Miller made default. Kennedy answered, and upon trial judgment was entered for said defendant. The appeal is by plaintiff from an order overruling its motion for a new trial. No record was made of the contract, which was for a sum exceeding $1,000. Two questions are presented: First, was the lien filed within the time required after the completion of the building, as provided For these reasons the order appealed from in section 1187, Code of Civil Procedure? If is affirmed. We concur: MELVIN, J.; LORIGAN, J. NATIONAL LUMBER CO. v. KENNEDY et al. (Civ. 1771.) not, did the acts and conduct of Kennedy as owner of the building estop him from urging such ground as a defense to the action? The court found that the building was fully completed on October 15, 1909, but that no notice of its completion was ever at any time filed with the county recorder; that plaintiff's claim and notice of lien was not filed (District Court of Appeal, Second District, Cal- until March 15, 1910, which was 151 days ifornia. Nov. 13, 1915.) 1. MECHANICS' LIENS 132 - BUILDINGS COMPLETION. after the completion of the building; that Kennedy did not, between November 3d and November 15, 1909, as alleged in the comThat 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 said building was not complete according to building was incomplete until the skylight was the plans and specifications; nor is it true repaired. that plaintiff delayed filing its claim of lien because of any statements or representations made by Kennedy. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 190, 192-207; Dec. Dig. 132.] 2. APPEAL AND ERROR 1011 FINDINGS. REVIEW A finding of the court on conflicting evidence will not be disturbed on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. 1011.J ING-NOTICE OF COMPLETION. Code Civ. Proc. § 1187, declares that the owner of any building must, within 10 days after its completion, or 40 days after cessation from labor upon any unfinished contract, file with the county recorder a notice thereof, that a failure to file such notice shall estop the owner and persons deraigning title from him from asserting, in foreclosure of a mechanics' lien, the defense that the lien was not filed within time, and that all claims for liens "must be filed within 90 days after completion." Held, the failure of the owner to file the notice of completion will not excuse a materialman's failure to file his lien claim within 90 days after completion, such provision fixing the ultimate time within which liens may be filed. [Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. 88 190, 192-207; Dec. Dig. 132.] Appeal from Superior Court, San Bernardino County; Frank F. Oster, Judge. As we understand appellant's brief, it attacks all of these findings, except that as to defendant's failure to file a notice of the completion of the building. [1] That the building was fully complete and occupied on October 15, 1909, is conclusively shown by the evidence. The only reason suggested for claiming otherwise is the fact that a skylight put in by the contractor proved defective, and later, some time in January, 1910, the defendant's tenant, being authorized so to do, employed another workman who installed a skylight in place of the one originally put in under the terms of the contract by Miller, the cost of which substituted skylight was, some time in March, paid for by Kennedy. [2] Appellant, basing its contention upon the case of Hubbard v. Lee, 6 Cal. App. 602, 92 Pac. 744, insists that the acts and conduct of Kennedy estop him from basing any defense to the validity of the lien on account of its not being filed within time. In support of this theory plaintiff offered testimony to the effect that in response to a letter request Action by the National Lumber Company ing him so to do, Kennedy, some time between against James Kennedy and another. There November 3d and November 15th, called at its office, and in a conversation with its was a judgment for the named defendant, and from an order denying new trial, plain-nished to Miller, and wherein the filing of a agents concerning the bill for materials furtiff appeals. Affirmed. lien being mentioned, he asked them not to R. L. Horton, of Los Angeles, for appellant. file any lien on the property, that the buildE. H. Jolliffe, of Ontario, Cal., for respondent. ing was not yet completed, and that Miller 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 whethe 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 Since the plaintiff was not entitled in any event to enforce its claim of lien, the alleged rejection of testimony could in no event have The order appealed from is affirmed. HILBORN v. BONNEY et ux. (Civ. 1777.) [3] Appellant next insists that, notwith-errors due to rulings upon the admission and standing the expiration of more than 90 days, to wit, 151 days, following the completion of the building, it nevertheless was entitled to 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 Defendant fraudulently procured the consection further provides that "in case such veyance of plaintiff's property to him in exchange for worthless stock. Plaintiff institutnotice be not so filed, then the said owner ed an action at law to recover damages against and all persons deraigning title from or defendant for fraud, in which she obtained a claiming any interest through him, shall be judgment. Meanwhile, defendant had sold plaintiff's land and invested the proceeds in land estopped in any proceedings for the fore- upon which defendant's wife filed a declaration closure of any lien provided in this chapter of homestead. Plaintiff then instituted the presfrom maintaining any defense therein, based ent action to have the declaration canceled as on the ground that said lien was not filed a cloud on the property purchased with and repwithin the time provided in this chapter"-from her which obstructed an execution under resenting the property fraudulently obtained followed by this proviso: "That all claims of her money judgment. Held, that plaintiff, hav EY JUDGMENT. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes lief. [Ed. Note.-For other cases, see Election of Remedies, Cent. Dig. § 16; Dec. Dig. 14.] 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 re- 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 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. 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 is sued 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 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: 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 made at any time before the entry and docketjudgment against the homesteader, or because ing 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.) 1. APPEAL AND ERROR 874-RESERVATION OF GROUNDS OF REVIEW-NECESSITY FOR AP PEAL. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3478, 3480, 3481, 3484, 3530-3540; Dec. Dig. 874.] RESERVATION corporating therein the written contract as alleged by the defendant, and alleging other facts showing that the oral agreement under which the work was commenced was incor Where no appeal was taken from the judgment, 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. 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 insufficient to sustain the findings, the bill of exceptions 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, unchallenged, to support the findings. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. 548.] 3. APPEAL AND ERROR 1050-PREJUDICIAL 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.] [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 Action by C. H. Tingey against the Calla-is evidence as to the making of the contract han 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. Appeal from Superior Court, San Diego County; W. A. Sloane, Judge. A. J. Morganstern, of San Diego, for appellant. 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 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 whatsoever in opposition to the case presented 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 |