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ceased went to the house of defendant, and 3 Rice, Ev. 8 209. The statutory privilege that he, as a physician, received her there, was not conferred to shield a person charged and did all he could to relieve her sufferings with the murder of another (People v. Harand save her life. To sustain his theory, ris, 136 N. Y. 418, 33 N. E. 63); and it cerdefendant called as a witness Dr. R. D. tainly was not intended to be used as a Johnson, who was a licensed physician, and weapon against one charged with crime." was willing to testify. No objection to his That decision was made in department 1 of testifying was interposed by the prosecution, the court, but a hearing in bank was afterbut the court said: "If what has come to wards asked for and denied. The decision him has come purely in a professional way, is clearly applicable to this case, and dethe declared policy of the law would exclude cisive of the question in hand; and, on the it here, whether it be objected to or not. It authority of it, the judgment and order apis my duty to exclude it, if that is so." Then, pealed from shoud be reversed, and the addressing the witness, the court asked: "Is cause remanded for a new trial. it so that all you know has come to your knowledge in the course of your profession, We concur: VANCLIEF, C.; SEARLS, C. as to the physical condition of the woman, and you are called upon to tell what you PER CURIAM. For the reasons given in found out as her physician, is that all you the foregoing opinion, the judgment and or. know?" Answer: “Yes, sir." Again the der appealed from are reversed, and cause court asked: “And whatever you know

remanded for a ne.v trial. about the deceased woman, is it or not the fact that whatever you know was informa- BEATTY, C. J. I concur. Section 1321 of tion you obtained in attending her as your the Penal Code is as follows: “The rules for patient?" Answer: “Yes, sir." Thereupon determining the competency of witnesses in the court excluded the evidence of the wit- civil actions are applicable also to criminal ness, and said: “You cannot be examined, actions and proceedings, except as otherdoctor. You can retire." Counsel for de wise provided in this Code." What, then, fendant then made the following offer: “We are the rules for determining the competency offer to prove by Dr. R. D. Johnson that this of witnesses in civil actions? The general lady called upon him. We offer to prove rule is prescribed in section 1879, Code Civ. what her condition was at that time by a Proc., as follows: “All persons, without expersonal examination which she requested ception, otherwise than is specified in the next him to make. We offer to prove that he two sections, who having organs of sense, made the examination. We offer to prove can perceive, and perceiving can make known what he found; and then we offer to prove their perceptions to others, may be witnesses. that he refused to attend her, and that he Therefore, neither parties nor other persons told her certain things. We offer to prove who have an interest in the event of an acall this, and what her condition was at that tion or proceeding are excluded; nor those time, and that it was prior to the time that who have been convicted of crime; nor perthis lady went to Dr. West's." The court: sons on account of their opinions on matters Very well. I rule it out." An exception of religious belief; although in every case was reserved, and these rulings all assigned the credibility of the witness may be drawn as error.

in question, as provided in section eighteen Shortly after this case was tried, the case hundred and forty-seven." This, then, is the of People v. Lane, 101 Cal. 513, 36 Pac. 16, rule: That all persons, without exception, was before this court, and in the decision otherwise than is specified in the next two thereof it was said: “It is urged that the sections, may be witnesses. And the only court erred in allowing the prosecution to question is to determine what is otherwise cross-examine Dr. Danforth as to the nature specified in those sections which read as folof the complaint for which he treated the lows: Section 1880: "The following perdefendant. It is claimed that the testimony sons cannot be witnesses: (1) Those who was irrelevant, immaterial, and incompetent, are of unsound mind at the time of their being a privileged communication between production for examination; (2) children unpatient and physician. There is no merit in der ten years of age, who appear incapable the contention. The rule as to privileged of receiving just impressions of the facts recommunications between patient and phy- specting which they are examined, or of sician does not apply in criminal cases. The relating them truly; (3) parties or assignors chapter on “Witnesses" in the Civil Pro- of parties to an action or proceeding, or perceuure limits the rule to civil actions (section sons in whose behalf an action or proceed1881, subsec. 4); and the Penal Code, which ing is prosecuted, against an executor or adexpressly preserves the rule as to husband ministrator upon a claim, or demand against and wife in the chapter determining who may the estate of a deceased person, as to any be witnesses in criminal actions, makes no matter of fact occurring before the death of mention of physician and patient. Freel v. such deceased person." Section 1881: Railway Co., 97 Cal. 40, 31 Pac. 730. At “There are particular relations in which it common law the rule as to physicians was is the policy of the law to encourage confinot observed in either civil or criminal cases. dence and to preserve it inviolate; therefore,

man.

a person cannot be examined as a witness in Action by one Newman against one Buckthe following cases: (1) A husband cannot

Plaintiff had judgment, and defendbe examined for or against his wife, without ant appeals. Affirmed. her consent, nor a wife for or against her

Ash & Mathews, for appellant. A. J. Cluhusband, without his consent; nor can either,

nie, for respondent. during the marriage or afterwards, be, without the consent of the other, examined as to

PER CURIAM. The complaint is in the any communication made by one to the other, ordinary form for goods sold and delivered, during the marriage; but this exception does

and the answer contains only specific denials not apply to a civil action or proceeding by

of its allegations. The defendant failed to one against the other, nor to a criminal ac

appear at the trial, and judgment was rention or proceeding for a crime committed by

dered in accordance with the prayer of the one against the other. (2) An attorney can

complaint. Findings were waived, and the not, without the consent of his client, be ex

appeal is direct from the judgment, without amined as to any communication made by

any bill of exceptions. We find no error in the client to him, or his advice given thereon

the record, and the judgment is affirmed. in the course of professional employment. (3) A clergyman or priest cannot, without the consent of the person making the con

(106 Cal. 56) fession, be examined as to any confession made to him in his professional character in

BRADY v. TIMES-MIRROR CO. et al. (No.

19,381.) the course of discipline enjoined by the

(Supreme Court of California. Feb. 1, 1895.) church to which he belongs. (4) A licensed physician or surgeon cannot, without the con

ACTION AGAINST CORPORATION-JOINDER OF RESI

DENT OF ANOTHER County - VENUE-MOTION sent of his patient, be examined in a civil

FOR CHANGE-AMENDMENT OF COMPLAINT. action as to any information acquired in at

1. The right given by Const. art. 12, § 16, tending the patient which was necessary to to sue a corporation in the county of its princienable him to prescribe or act for the patient. pal place of business, or where the liability (5) A public officer cannot be examined as to

arose, is waived by the joinder as defendant of

a third person, who resides in another county; any communications made to him in official the latter having, under Code Civ. Proc. $ 395, confidence, when the public interests would a right to have the action tried in the county of suffer by the disclosure.” Obviously, section his residence.

2. In an action against a corporation and 1880 has no bearing on the question of the a third person, a motion by the latter for a admissibility of Dr. Johnson's testimony; and change of venue to the county of his residence the only provision of the following section

must be decided before plaintiff can be allowed

to dismiss the action as to such third person. that bears directly upon it is that contained in subdivision 4, which by its express terms

In bank. Appeal from superior court, San is limited to civil actions. Such, then, is the

Diego county; E. S. Torrance, Judge. rule and such its limitation as to physicians

Action by Mary Brady against the Timesand surgeons. Except in civil actions, they

Mirror Company and others. From an order may be examined as to information acquired denying a motion by defendants for a in attending a patient. The construction con- change of venue, they appeal. Reversed. tended for by respondent would simply elim- Henry T. Gage and Stephen M. White, inate from the statute the words “in a civil for appellants. 2. Montgomery & Son, for action," which the legislature has ex indus- respondent. tria made applicable to the privileges of a physician or surgeon, as is evident from the HARRISON, J. Appeal from an order fact that they are omitted in the clauses re- denying a motion to change the place of lating to attorneys, clergymen or priests, pub- trial. The plaintiff commenced this action lic officers, and persons sustaining marital in the county of San Diego to recover damrelations to the parties. This construction of ages from the defendants for the publication the statute is not only sustained by the plain- of a libel against her in the Los Angeles est rules of construction, but accords with Times, a newspaper which was circulated the common law, and with the interests of in the county of San Diego. The Times. truth and justice.

Mirror Company is a corporation having its

principal place of business in the county of I concur: VAN FLEET, J.

Los Angeles, and is the proprietor and publisher of the newspaper, and the defendant Otis is the chief editor and general manager

thereof, and also resides in the county of NEWMAN v. BUCKMAN. (No. 15,536.) Los Angeles. The summons in the action (Supreme Court of California. Feb. 13, 1895.)

was served on these defendants on the 20th REVIEW ON APPEAL.

of July, 1893; but on the 8th of August, beWhere no error appears in the record,

fore any appearance by them, the plaintiff having no bill of exceptions, on appeal from a filed an amended complaint. August 18th default judgment, the judgment will be affirmed. the defendants demurred to the amended

Department 1. Appeal from superior court, complaint, and at the same time filed an city and county of San Francisco.

affidavit of merits, and made demand in v.39P.no.2–14

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writing for a change of the place of trial to have to do would be to add another cause the county of Los Angeles. After the mo- of action to his complaint. It need not be tion had been argued, and while it was un- a genuine cause of action, and it would not der consideration, the plaintiff moved the matter whether the two causes of action were court for leave to amend her complaint by properly united or not, for the defendant dismissing the said action against the de- could not compel their separation by defendants Goodwin and Otis; and the court, murrer before moving for a change of venue, after hearing counsel for defendants in op- because he is required to take his proceedposition thereto, granted the motion, and the ings for such change at the time of answeramendment was entered in the minutes of ing or demurring." In Smith v. Smith, 88 the court. Thereupon the court denied the Cal. 576, 26 Pac. 356, it was held that if, motion of the defendants to change the place in an action affecting the title to real estate, of trial. From this order they have ap- the plaintiff also included in his complaint pealed.

a personal action against the defendant, the Section 395, Code Civ. Proc., gives to the defendant was entitled to have the action defendant in any personal action other than tried in the county of his residence. In those enumerated in the previous sections Sayward v. Houghton, 82 Cal. 628, 23 Pac. the right to have the action tried in the 120, it was held that the plaintiff could not county of his residence; and the residence deprive the defendant of this right by mereof a corporation is the county in which its ly joining with him, as defendants in the principal place of business is located. Cohn action, residents of the county in which the v. Railroad Co., 71 Cal. 488, 12 Pac. 498; action is brought, against whom no cause McSherry v. Mining Co., 97 Cal. 613, 32 of action was stated, or from whom no rePac. 711. Section 16 of article 12 of the lief was demanded. The same rule was laid constitution provides that "a corporation or down in Machine Co. v. Cole, 62 Cal. 318; association may be sued in the county where McKenzie v. Barling, 101 Cal. 461, 36 Pac. 8; the contract is made, or is to be perform- | Bailey v. Cox, 102 Cal. 333, 36 Pac. 630. ed, or where the obligation or liability arises, In the original complaint herein one Frank or the breach occurs; or in the county A. Stevens was made a codefendant with where the principal place of business of the appellants, but the only allegation with such corporation is situated, subject to the reference to him in the complaint is that he power of the court to change the place of "at all times was and is a San Diego correstrial, as in other cases." Under the provi- | pondent of said newspaper, residing in said sions of this section, if the action had been county of San Diego”; and it is recited in brought against the Times-Mirror Company the bill of exceptions that the amended alone, the plaintiff's right to have the action complaint is "in the same form as the origtried in San Diego would be undoubted inal complaint, save and except that Leon(Lewis v. Railroad Co., 66 Cal. 209, 5 Pac. ard Goodwin was substituted as a defend79); but, by including in the action other ant in said action in place of Frank A. defendants whose residence is outside of the Stevens.” It appears from the affidavit of county of San Diego, she waived the right Otis that Goodwin resides in the state of given by this provision of the constitution, Nebraska; but whether this is to be reand the motion of the defendants must be garded as referring merely to the date of determined by the provisions of the statute. the affidavit, as claimed by the respondent, The right of a plaintiff to have an action is immaterial, since the above allegation in tried in another county than that in which the complaint in no respect connects him the defendant has his residence is exception- with the plaintiff's cause of action, any more al, and, if the plaintiff would claim such tban if it had been alleged that he was a right, he must bring himself within the subscriber to the paper; and, as Goodwin terms of the exception. Section 392, Code has never been served with the summons Civ. Proc., provides that an action to re- or appeared in the action, the motion of the cover a penalty imposed by statute shall be defendants must be tested upon other tried in the county where the cause of action grounds than that of his having been named arose; but it was held in Ah Fong v. Sternes, as a party defendant. Sayward v. Hough79 Cal. 30, 21 Pac. 381, that if, in such an ton, supra; McKenzie v. Barling, supra. action, the complaint is so ambiguous that it Upon the complaint as it stood by this might be held to include a claim for other amendment, the motion of the defendants damages, or as stating another cause of should therefore have been granted. action, the defendant is entitled to have the It is claimed, however, by the respondent place of trial changed to the county of his that inasmuch as, subsequent to the making residence, the court saying: “It is the plain- | of this motion, the complaint was further tiff's own doing if the complaint be so amended under an order of the court by drawn. He cannot deprive the defendant which the corporation became the sole deof his right to a change of venue by the ad- fendant, the plaintiff has the same right, by dition of something to his complaint. If virtue of the foregoing section of the conthis were not the rule, it would be very stitution, to have the cause tried in the easy for a plaintiff to defeat the defendant's county of San Diego as if the action had right in the matter. All that plaintiff would been originally brought against the corpora

nesses.

tion alone. Whether the Times-Mirror Com- , all judicial action in the cause determined pany would have been entitled to have the in the superior court of their own county. place of trial changed to Los Angeles coun- Whether the plaintiff is desirous to amend ty if the plaintiff, in amending her complaint his complaint so as to obviate the objections as “of course," under section 472, Code Civ. that have been pointed out by demurrer, or Proc., had left out all the other defendants, in other respects that may render it impervi. need not be considered. See, however, ous to attack, if such amendment can be Buell v. Dodge, 57 Cal. 645. In making made only upon the leave of the court, he that amendment, she retained both of the must wait until after the case has been appellants in the case, and sought from the transferred, and make his application to that court an order granting leave to further tribunal. This motion intercepted all judiamend the complaint by dismissing Otis cial action in the case, and suspended the and Gibson from the action after the ap- power of the court to act upon any other pellants had made the present motion. This question until it had been determined. Ab was a step in the proceedings which re- Fong v. Sternes, supra. quired judicial action to determine whether The action of the plaintiff was not taken It should be permitted, and which could in accordance with section 581, Code Civ. be taken only after the order of the court Proc., as suggested in the brief in behalf of to that effect had been made. The motion the respondent. Under the first subdivision therefor was made to the court, and, al- of that section, an "action" may be disthough resisted by the appellants, was grant- missed by the plaintiff upon the payment of ed by an order entered in its minutes. costs," if it is made “by entry in the clerk's When the defendants made their motion register"; but, until a judgment of dismisto change the place of trial, it was the duty sal is entered, the action is still pending of the court to act upon that motion, and against the defendant. Page v. Page, 77 either grant or deny it before taking any Cal. 83, 19 Pac. 183. None of the steps preother judicial action in the case. In Heald scribed by this section were taken in the v. Hendy, 65 Cal. 331, 4 Pac. 27, it was held present case. Instead thereof, the court that the court could not postpone action upon made an order directing the plaintiff to the motion until after an answer was filed, amend her complaint. The order is reversed. and the plaintiff had an opportunity to make a cross motion for the convenience of wit- We concur: McFARLAND, J.; GA

And in Hennessy v. Nicol (Cal.) 38 ROUTTE, J.; TEMPLE, J.; VAN FLEET, Pac. 649, where a motion for alimony bad J.; HENSHAW, J. been made prior to the appearance of the defendant, and where upon his appearance a motion was made by him for a change of

(106 Cal. 431 the place of trial, it was held that the plain

BANK OF ESCONDIDO V. SUPERIOR tiff had no right to have the motion for COURT OF SAN DIEGO. (No. 19,alimony first heard, and that the court had

486.) no authority to postpone the hearing of the

(Supreme Court of California. Jan. 31, 1895.) defendant's motion until after a compliance

APPEAL BOND–JUSTIFICATION BY SURETIES, with its order for the payment of alimony.

ESTOPPEL TO OBJECT. The statute requires the motion to be made

Where notice is given to the defendant "at the time" the defendant appears and

that sureties on plaintiff's appeal bond will jns answers or demurs. If he does not then tify before a justice at a specified time, defend. make the motion, he is not entitled to make ant, by not then appearing, waives the right te

assert that there is no justification, thongh oni it at any subsequent stage of the proceed

of the sureties previously withdrew from thi ings, even though the condition of the case

undertaking. may be such that, if it could be then made,

In bank. it would be granted. Machine Co. v. Cole,

Certiorari, upon relation of the Bank of supra. This necessarily implies that the mo

Escondido, to review the superior court or tion must be made and determined by the

San Diego's dismissal of an appeal, broughi court before it can hear or determine any

on the ground of its lack of jurisdiction. other motion in the case. If the defendants

Dismissed. are entitled to have their motion granted, they are entitled to have every motion or D. L. Withington, for petitioner. proceeding in the case heard before the superior court of the county of their residence. After the motion for a change of the HENSHAW, J. One W. C. Smith, ag. place of trial had been made, it was not com- grieved at an adverse judgment of the juspetent for the court to entertain or make | tice's court in an action wherein he was an order for the amendment of the com- plaintiff and the Bank of Escondido defendplaint in the matter of parties, any more ant, gave notice of appeal to the superior than in the matter of substantive averments. court, and in due time filed the requisite unIf, upon the case as it was then presented, dertaking. Two days thereafter one of the the defendants were entitled to have their sureties left with the justice a written no bution granted, they are entitled to have tice of withdrawal from the appeal bond,

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and the justice informed Smith's attorney | justification is thus established which may of the action of the surety. On February be overcome at the instance and by the ex5th, within the five days limited by law, the amination of the exceptant. But, where no attorney of the bank excepted to the suf- counter showing is made against the suffificiency of the sureties; on February 6th ciency of the sureties, justification will be notice was given by Smith that the sureties deemed complete. The prima facie showing would justify before the justice at 2 o'clock by affidavit, says Mr. Abbott, "serves as jusp. m. of February 7th. At the time appoint- tification in case no exception is taken." 1 ed, Smith's attorney and the two sureties Abb. New Prac. & Forms, p. 432. The juswere present, as the respondent claims and tification, then, is a right accorded to the adas the justice seemingly understood, for the verse party, which he may either waive exdeclared purpose of justifying. The Bank pressly or be debarred from asserting, unof Escondido was not represented. Its at- der the well-settled rules of estoppel. Thus, torney failed to appear, and no continuance in Blair v. Hamilton, 32 Cal. 53, where the was sought. No examination of the sure- justice refused to swear the sureties in justities was held. The justice declared that fication, saying that both he and the exthey were satisfactory, and that he believed ceptant knew them to be good, to which the them sufficient. In his docket the record of exceptant assented, saying that he only the proceedings appears as follows: "Plain- served the notice because his attorney ditiff, by his attorney, A. H. Clency, appeared | rected him to do so, this court said: “That at 2 p. m. Sureties present. Defendant did the facts show a waiver on the part of the not appear.

The papers, together defendant (exceptant) of a justification on with transcript and bond as approved, trans- the part of the sureties does not admit of mitted to clerk of superior court." In the argument. To hold otherwise would enable superior court the bank of Escondido moved the defendant to take advantage of his own to dismiss the appeal, upon the ground of wrong. Nor does the capacity of the dethe lack of jurisdiction of that court. The fendant to make the waiver admit of demotion was denied, the court retained the bate." But while the waiver may be exaction, and the bank sued out this writ of press, as in Blair v. Hamilton, supra, it may review.

also arise through laches. The rule here is Whether or not the surety Nightingale had thus laid down: “In case of nonappearance the absolute right to withdraw from the un- on the part of the exceptant, the party givdertaking, whether he was present in the ing the undertaking may either rest on the justice's court for the purpose of justifying, default as a waiver of the exception, * as understood by the justice and claimed by or he may produce his sureties and take a the respondent, or merely because his office formal approval.” 1 Abb. New Prac. & was in the court room of the justice, as tes- Forms, 485. And in Ballard v. Ballard, 18 tified to by the surety and contended by pe- N. Y. 492, the court say: "The respondent titioner, are questions whose decision is un- or his attorney must be in attendance be necessary to this determination; for it clear-fore the judge when the bail appear, or he ly appears that petitioner, by his own laches, must necessarily lose the benefit of his exis estopped from asserting that there was ception. * * The presumption of waivno justification. The justification of sure- er arises solely from the conduct of the reties has its origin in the fear of the except- spondent in omitting to appear before the ant that the surety may not be financially judge." able to respond upon a breach of the obli- Nor is petitioner's cause aided by his congation, and its object, as was said in Stark tention that the surety Nightingale had v. Barrett, 15 Cal. 364, is to afford the ad- withdrawn from the undertaking, and that verse party an opportunity to test by per- respondent's failure to procure a new surety sonal examination the responsibility of the rendered the appeal void. Nightingale was sureties. The justification itself is the proof actually present at the time appointed for by the surety of his adequate pecuniary abil- | justification. Whether present for the purity. At common law, in the case of special pose of justification or not was a fact prebail, where exception was taken to the sure sented to the superior court, and there deties, they appeared for justification either in termined upon conflicting evidence. That person or by affidavit. If in person, and determination is not here subject to review. there was no opposition by counsel, they Buckley v. Superior Court, 96 Cal. 119, 31 justified, as a matter of course, by swearing Pac. 8; History Co. v. Light, 97 Cal. 56, 31 that they were housekeepers or household- | Pac. 627. Moreover, had petitioner perers, and respectively worth double the sum formed his duty by attending at the time sworn to after all their debts and demands set, and making it appear that Nightingale were paid. If by affidavit, as when they re- would not or could not justify, respondent sided at a distance, their affidavits to like would have been entitled to provide another effect were read as their justification. 1 and sufficient surety in his place (Code Civ. Tidd, Prac. (3d Ed.) p. 227. Under our prac- Proc. $ 978); and thus is presented an additice, this showing is made before presenta- tional reason for the application of the rule tion of the bond by affidavit of the sureties of waiver. Wherefore the relief prayed for (Code Civ. Proc. $ 1057); and a prima facie is denied, and the writ dismissed.

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