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as against the person who holds it. Recog- er, on this account legislate on this subnizing the force of this principle, Harding | ject. The statute declares that the proviattempted to show his right by proof of the sions of the chattel mortgage act shall extend trust deed, the sale under it, and his pur- to all deeds of trust whicn have the effect of chase. There was a claim that what he did

a mortgage upon personal property. That at the ranch in Park county when he went this particular instrument had that effect to demand the property gave him control of does not admit of doubt. If the cattle had the cattle in Eagle, which were taken by the been dissevered from the ranch, and there sheriff under his attachment, and held under had been two instruments executed to sean execution at the time this suit was cure the bonds,-one a trust deed upon the brought.

realty, and the other a chattel mortgage upThe first matter to be determined respects on the herd,-nobody would have presumed the statute which has been quoted. There to question the operative force of the mort. was contention in the argument that the in- gage act upon the instrument. That both strument which is the foundation of John- species of property are included in one deed son's title was not a chattel mortgage, and can make no possible difference when the did not come, either by its description or its statute says that if such an instrument is character, within the definition of this class intended to operate as a mortgage or lien upof security. It is likewise insisted that the on the property it shall be held to be within nature of the property and the character of its provisions. We are thus driven to the the bonds secured by the instrument must conclusion that, in order to determine the necessarily take it out of the operation of rights of the parties, we must look to the act this act. Whatever force there may be in and its judicial construction, and the instruthe suggestion that, because the bonds ran ment which the parties have executed, to for 10 years, the property could not be pre- settle the controversy. served intact for that period without a prac- The mortgage deed is clearly invalid under tical destruction of the security, we are not the act as it has been construed by the suat liberty to consider these matters in the

preme court and by this. It will be obresolution of the inquiry. This would be served the corporation attempted to mortjudicial legislation which nothing short of a gage its entire herd, as well as the 7,000 public necessity would warrant, and it may head included in it, which was the limit to be doubted whether any emergency would which it must always be maintained during justify it. There is no analogy between cat- the life of the security. It is practically contle and the rolling stock of a railroad. In ceded that 7,000 was not the exact number, the latter case this sort of property is an in- but there were cattle outside of it, and of tegral part of the road, and absolutely essen- necessity there would be more if the herd tial to its successful operation and mainten- increased. The parties agreed that the mortance as a railroad. The road itself runs gagor should have the right to dispose of through many counties; the property is in both cattle and horses from time to time, one county to-day and in another to-morrow, as the cattle should reach the stage of beef, and often travels the circuit of the entire or as the horses should become unproductive state. For these as well as other reasons and useless, and apply the proceeds to its which will readily occur, this sort of prop- own use and benefit. Such a provision has erty has never been regarded as coming been uniformly held by the courts of this within the provisions of chattel mortgage state to be absolutely repugnant to the proacts in states where the question has been visions of the statute, and necessarily void raised as to the necessity to observe the pro- as against attaching creditors. As this court visions of such statutes in the recording of said, speaking by the writer of this opinion: railroad transfers and securities. There is "By the terms of the attempted contract, the no such practical difficulty with a herd of cattle company had the right to use and encattle. The herd can be kept in the limits joy the property and dispose of it in the orof the county which is the home of the cor- | dinary methods, and it was under no obliporation, the instrument may be recorded in gation, by the provisions of the security, to whatever counties the cattle may run, and account to the mortgagees for the proceeds all statutory limitations can be regarded in of what might be sold. Such a mortgage the construction of the instrument. The has been adjudged invalid as to all existing only difficulty springs from the duration of creditors, who are permitted to assert its inthe mortgage. If it ruis for 10 years, and validity as against any but bona fide purthe mortgagors are compelled to keep the chasers for a valuable consideration.” As it same identical cattle, this duty would in was well put by the learned justice of the some measure destroy the value of the se- supreme court who delivered the opinion curity, because the age of the herd would which first established the law in the state render it practically unsalable. This seems (Wilson v. Voight, 9 Colo. 614, 13 Pac. 726). a very substantial impediment when par- “when the mortgage stipulates, either in the ties desire to issue corporate bonds running mortgage or out of it, that the mortgagor for a period of years, and to provide for may sell the very thing composing his setheir payment out of a herd then in the curity, and retain the proceeds, he thereby corporate ownership. We cannot, howev- destroys every vestige of a valid statutory or common-law mortgage, and leaves him- Action by P. Henry against J. L. Merguire self in no better position than if it had not and others as executors. There was a verbeen executed. Besides, the inevitable tend- dict for plaintiff, and he appeals from an orency of the transaction is disastrous to oth- der granting defendants' motion for a new er creditors of the mortgagor; for the effect trial. Reversed. is to hinder and delay such creditors while

Thos. S. Ford, for appellant. J. M. Walling the mortgagor makes way with the property

and W. H. Chickering, for respondents. and leaves the general aggregate of his indebtedness undiminished. Predicated upon these considerations is the view sustained, as BELCHER, C. This is an appeal by the we think, by the larger number and the bet- plaintiff from an order granting the defendter-reasoned cases, viz. that the existence of ants' motion for a new trial. The motion the facts mentioned, whether shown by the was made upon a statement of the case, and mortgage or by evidence aliunde, wholly in- was granted upon the ground that “the evivalidates the transaction as to creditors." dence is insufficient to justify the verdict of In the Brasher Case, 10 Colo. 284, 15 Pac. the jury and decision of the court." 403, the court, by the learned commissioner The first point made for a reversal is that Mr. Macon, held "that the agreement to sell the statement was not presented for settleinvalidates the mortgage as to creditors and ment within the 10 days prescribed by law, incumbrancers; and this effect takes place and hence it formed no legal basis to supat the moment of the delivery of the instru- port the motion, and the order granting the ment. It is not necessary to this effect that motion was erroneous. Upon this point the any of the property be sold under the power. statement shows the following facts: “The The transaction is vitiated ab initio, as to proposed statement was served on plainall the property upon which it is attempted tiff, November 21, 1893, and on November to create a lien, by the reservation of such 28th the plaintiff served his proposed amend. right, and not by the exercise of it.” It is ments. Thereafter, and within five days thus plain it is the law of this state that a after November 28, 1893, the defendants mortgage like that from which Johnson de- served notice on plaintiff that said proposed rives his title is invalid as against creditors, amendments were not accepted, and that and cannot prevail in a contest concerning said proposed statement, and the proposed the property. Wilson v. Voight, 9 Colo. 614, amendments thereto, would be presented 13 Pac. 726; Brasher v. Christophe, 10 Colo. to the court for settlement on December 11, 284, 15 Pac. 403; Harbison v. Tufts, 1 Colo. 1893. On said December 11th, when preApp. 140, 27 Pac. 1014; Wile v. Butler (Colo. sented, the plaintiff objected to the settleApp.) 34 Pac. 1110.

ment of said statement on the ground that If, in our judgment, the present case by its presentation was not made in time, and said proof was not brought so clearly within the objection was overruled by the court, and purview of these decisions, we might be the said statement settled, the plaintiff excalled upon to decide some other questions cepting." And the order granting the moof considerable difficulty which are suggest- tion states that plaintiff's counsel“opposed ed in the briefs of counsel. Since our con- the motion on the merits, and on the ground clusion respecting this matter entirely deter- that the said statement was not presented mines the rights of the parties, we do not for settlement within the statutory time,” deem it necessary to consider or decide these and excepted to the ruling of the court, other questions. For the error which the Section 659, subd. 3, Code Civ. Proc., procourt committed in rendering judgment for vides: "If the amendments be adopted, the the plaintiff, this case must be reversed and statement shall be amended accordingly and remanded. Reversed.

then presented to the judge who tried or heard the cause for settlement, or be de

livered to the clerk of the court for the (106 Cal. 142)

judge. If not adopted, the proposed stateHENRY V. MERGUIRE et al. (No. 18.328.) ment and amendment shall, within ten days (Supreme Court of California. Feb. 25, 1895.) thereafter, be presented by the moving parAPPEALABLE ORDERS--STATEMENT Ox MOTION FOR ty to the judge, upon five days' notice to NEW TRIAL-SETTLEMENT.

the adverse party, or delivered to the clerk 1. A settlement by the court of a statement of the court for the judge; and thereupon on a motion for a new trial is not an appealable order, within Code Civ. Proc. $ 939, subd. 3,

the same proceedings for the settlement of providing for an appeal "from any special order

the statement shall be taken by the parties, made after final judgment."

and clerk and judge, as are required for the 2. Under Code Civ. Proc. $ 659, subd. 3,

settlement of bills of exception by section prescribing the time within which a statement on a motion for a new trial, when proposed

650. * When settled, the statement amendments by the adverse party are not shall be signed by the judge or referee, adopted, must be presented to the court for set- with his certificate to the effect that the tlement, a delay of three days is fatal.

same is allowed, and shall then be filed with Commissioners' decision. In bank. Ap- the clerk." The respondents contend that peal from superior court, Nevada county; the settlement of the statement was an apJohn Caldwell, Judge.

pealable order, and that, as it was not appealed from, appellant cannot on this ap- notice was that the papers would be prepeal raise the point now presented. And sented on December 11th, three days after in support of this position section 939, subd. the prescribed time, and on that day when 3, Code Civ. Proc., and several cases, are presented objection was made that the prescited. The section of the Code relied upon entation was not in time. The language provides that appeals may be taken from embodied in the statement clearly imports several enumerated orders, and “from any that the papers were presented for settlespecial order made after final judgment." ment on December 11th, and not before. The settlement in question was in these But if, as claimed, they were in fact prewords: “The foregoing engrossed statement sented before that day, they were presented on motion for new trial is correct, and is without the required notice, and such preshereby settled and allowed." This did not, entation was insufficient. Besides, if they in our opinion, constitute a special order had been so presented, that fact would probmade after final judgment. It was simply a ably have been clearly stated, after the obcertificate, and not an appealable order. jection was made that they were not preThe cases cited are not in point. In no one sented in time. The question then arises, of them was it held that an appeal could be had the court below a right to consider the taken from such a certificate. The case cit- statement, and upon it to grant the motion ed which is most nearly in point is that of for a new trial? In Wills v. Rhen Kong, 70 Stonesifer v. Kilburn, 94 Cal. 33, 29 Pac. 332. Cal. 548, 11 Pac. 780, the appeal was from an In that case it was held that an order refus- order refusing a new trial. In that case the ing to settle a bill of exccptions was ap- defendant, having duly served his proposed pealable, and counsel says: "Clearly the statement on motion for a new trial, to which converse of the proposition must be equally the plaintiff had duly served amendments, law." But this does not, in our opinion, fol- presented the same to the judge for settlelow. When a judge refuses to settle a bill ment 14 days after the service of the amendof exceptions or statement, there is no rec- ments. No notice was given to the plaintiif ord on which the motion for new trial can of the presentation. The judge refused to be considered in the trial or appellate court, settle the statement, because it had not been and the only remedy is by appeal or man- presented in time, and because no notice of damus. When, however, the judge settles the presentation had been given, and the the bill of exceptions or statement the record order was affirmed. In Bunnel v. Stockton, is made up; and if, on its face, it shows that 83 Cal. 319, 23 Pac. 301, the appeal was the statute was not followed in preparing from an order denying a new trial, upon the the record, then that fact may be urged in ground that the statement was not served the lower court, and on appeal in the su- and filed in time, and the order was affirmed. preme court, as a reason why the motion for The court said: “The moving party must new trial should be denied. There are many prepare and serve his statement within the cases so holding, but, without reviewing the time allowed by law for that purpose, or it authorities, we think it sufficient to quote cannot be settled, or, if settled, cannot be from Mr. Haynes' work on New Trial and considered, either at the hearing of the moAppeal (section 146, p. 409), where he very tion or on appeal.to this court." In Connor clearly and succinctly states the law as fol- v. Road Co., 101 Cal. 429, 35 Pac. 990, the lows: "The objection when so reserved is appeal was from an order denying the de. to be urged when the statement is present- fendant's motion for a new trial. In that ed for settlement as a reason why it should case it appeared that the proposed statement not be settled. If the judge overrules the and amendments thereto were not presented objection, and proceeds to settle the state- to the judge for settlement until seven ment, the party must have his objection and months after the amendments were served, the matter in its support incorporated in the and the plaintiff objected to the settlement statement. When so incorporated, it may upon the ground that the presentation was be urged as a reason why the motion should not in time. This objection was, however, be denied, both in the lower court upon the overruled, and the statement settled. The hearing of the motion, and in the supreme court said: “The delay of seven months court upon appeal from the order granting in presenting the statement and amendor refusing the motion.”

ments to the judge for settlement is wholRespondents further contend that it does ly unexplained. The settlement having not appear from the statement that the pro- been objected to on the ground that it was posed statement and amendments were not too late, ‘it became the duty of appellant to presented for settlement within the 10 days incorporate in the bill [statement] the matprescribed by law. This contention cannot be ter, if any, going to excuse his apparent de. sustained. It appears that the plaintiff sery- lay; otherwise the exceptions, though seted his proposed amendments on November tled, cannot be considered here. Higgins v. 28th. The law required the defendants, with- Mahoney, 50 Cal. 444,'” The court then in 10 days thereafter, if the amendments were quoted the following language from Tregam. not adopted, to present the proposed state- bo v. Mining Co., 57 Cal. 503: "If a statute ment and amendments for settlement, upon absolutely fixes the time within which an five days' notice to the adverse party. The act must be done, it is peremptory. The act cannot be done at any other time, unless elaborate and seemingly needful exposition during the existence of the prescribed time of the elementary principles of law affecting it has been extended by an order made for negotiable instruments, this discussion fol. that purpose under authority of law,”-and lowed: "Mr. Stephens: I propose to prove added: "This language was used in rela- that the note was given to the Crockertion to the time within which a bill of ex- Woolworth Bank, and that they were a party ceptions might be taken under the statute, to the fraud. The Court: In what respect and is therefore applicable here. To hold was it a party? What did they do? Mr. that the statement may be settled when no Stephens: They took this note of Mr. Hayes steps were taken until after the expiration from J. W. Girvin & Co. The Court: Took of the ten days, the time for doing so not hav- it when? Mr. Stephens: After the note was ing been extended, and respondent objecting made. The Court: When? Mr. Stephens: thereto, would be a judicial abrogation of the I cannot tell you until I get the books of the statute.” Here no excuse for the delay is bank. The Court: Before it was due, or shown, and it can make no difference wheth- after it was due? Mr. Stephens: After it er it was for three days, or fourteen days, was due." Counsel for the defendant further or seven months. Under the decisions, it said that he would show that a fraud had must therefore be held that the court be- been committed by Girvin & Co. upon Mr. low had no right, on hearing the motion, to Hayes, in that no consideration had been consider the statement, and that it cannot given. “The Court: If you will undertake be considered by this court on appeal. The to do that, go on." The defen:lant, under other points made for reversal need not be this engagement of his attorney, was allowed noticed. The order appealed from should to testify and did testify to facts tending to be reversed.

show that, as between himself and the payee,

the note was obtained by fraud. Defendant We concur: VANCLIEF, C.; HAYNES, C. then rested his case. It was not shown, rior

attempted to be shown, that the bank was a PER CURIAM. For the reasons given in

party to the fraud, or that it took the note the foregoing opinion the order appealed

with notice, or after maturity. No word of from is reversed.

testimony to such import is in the record. The jury, after proper instructions, rendered

a verdict for defendant. This verdict the (4 Cal. Unrep. 976)

court, of its own motion, set aside, upon the FOOTE v. HAYES. (No. 15,800.)

ground of prejudice. That action constitut(Supreme Court of California. Feb. 27, 1895.)

ed the alleged error sought to be corrected ACTION ON PROMISSORY NOTE -- DEFENSES-FRIV.

upon this appeal. OLOUS APPEAL.

The evidence of fraud was only admissible 1. In an action by a transferee of a note, where defendant sets up want of consideration,

under the unkept engagement of counsel to but does not produce any evidence that plain- connect the bank with it. It constituted no tiff's transferror was a party to the fraud, or defense to the case as presented, and obvi. took the note with notice, or after maturity, a

ously served to awaken prejudice in the verdict for detendant should be set aside.

2. In view of the plain provisions of Code minds of the jury. Either there was the Civ. Proc. $ 662, and numerous decisions of the gravest misapprehension upon the part of the supreme court, an appeal taken on the ground

jury of the instructions, or it was influenced that trial courts have no authority to set aside verdicts is frivolous.

by prejudice. In either case it was the duty

of the court to set the verdict aside. Code Department 2. Appeal from superior court,

Civ. Proc. $ 662. But the especial point made Alameda county; W. E. Green, Judge.

by appellant in a brief containing no single Action by W. D. Foote against D. D. Hayes

citation to Code or case, and likewise urged on a promissory note. There was a verdict

in oral argument before this court, though refor defendant, and he appeals from an oriler

spondent's brief, containing the Code section setting it aside. Affirmed.

above mentioned, was with him, is found in John J. Stephens (Ben Morgan, of counsel), his declaration that "there is no provision in for appellant. A. A. Moore, for respondent. the statute granting to a court in a civil case

the right or power to set aside a verdict." HENSHAW, J. This action is on a prom- “Can a judge," it is asked, “set aside such a issory note, and was tried with a jury. verdict, upon the ground of prejudice of the Plaintiff', by his evidence, by the admissions | jury, in favor of a successful party?" And of the answer, and by the presumptions of for reply we are told that, “Echo answers in law which follow the possession of a prom- stentorian tones, 'No';" and this, notwithissory note bearing a general indorsement, standing the plain provision of the Code and established a satisfactory prima facie case. the numerous decisions of this court declaring A motion that the court instruct the jury to the duty of the trial judge under such cirrender a Yerdiet for defendant was made, cumstances. So much has been said to show and properly denied. The ruling was not the utter frivolity of the appeal. It works a excepted to. Defendant was then called to waste of the time of this court, and subjects the witness stand, and, after the court, for respondent to vexatious delay and expense. the benefit of his attorney, had made an The order appealed from is affirmed, and it is further adjudged that respondent have and recover from appellant damages in the sum of $200 as part of his costs.

Hopkins, 95 Cal. 347, 28 Pac. 265, and 30
Pac. 549. The judgment is affirmed.


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

(106 Cal. 327) (106 Cal. 151)


(No. 19,349.) 15,705.)

(Supreme Court of California. March 9, 1895.) (Supreme Court of California. Feb. 27, 1895.) CORPORATIONS-SALARY TO OFFICERS. CONVERSION-PLEADING AND PROOF OF TIME.

A salary, whether a proper one or not, Plaintiff need not prove the exact date voted by trustees of a bank to one of their numof a conversion, as alleged by him, provided ber as president, is unlawful, and he may be he shows that the tort was committed before compelled to account therefor in an appropriate the commencement of the action.

action, where he took part in the proceedings,

and his vote was essential to the adoption of the Department 2. Appeal from superior court, resolution. city and county of San Francisco; J. M. Sea

In bank. Appeal from superior court, San well, Judge.

Luis Obispo county; V. A. Gregg, Judge. Action by the Bancroft Company against

Action by I. G. Wickersham, a stockholder Samuel Haslett and others for conversion.

of a bank, for himself and other stockholdFrom judgment for plaintiff, defendants ap

ers, against James I. Crittenden and the peal. Affirmed.

bank, to compel Crittenden to account for John H. Dickinson, for appellants. George certain moneys received by him as president D. Collins, for respondent.

of the bank. From a judgment for plaintiff

and an order denying a new trial, defendants HENSHAW, J. Action for damages for appeal. Affirmed. conversion of a piano. Defendants pleaded Graves & Graves and Jas. L. Crittenden, that the piano was stored with them as ware

for appellants. Lippitt & Lippitt and Wilhousemen, and, after due notice to plaintiff,

coxon & Bouldin, for respondent. was sold to pay charges. They claimed that the sum of $10 was yet due on account of

PER CURIAM. This is an action brought such charges, and asked judgment for that

by a stockholder of a bank for himself and amount. The appeal is from the judgment

other stockholders to compel the defendant alone.

Crittenden to account, as president of said The action was commenced upon Novem

bank, for certain moneys received by him ber 14, 1892, and alleged the conversion as

for salary as such president, over and above of July, 1892. The court found that defend

the sum of $200 per month. Judgment went ants converted the piano to their own use for plaintiff, and said defendant and the upon February 21, 1891. The variance is im- bank-which was made a defendant-apmaterial, and not such as would warrant a peal from the judgment and from an order reversal of the cause. Code Civ. Proc. 88

denying a motion for a new trial. 470, 475. It was not necessary at

The general nature of the action appears law that the proofs should be in strict con- in the opinion of the court in Wickersham v. formity with the averment as to the date of Crittenden, 93 Cal. 17, 28 Pac. 788 (although the conversion. It was sufficient if, naming matters other than said salary were there a certain time before the commencement of involved), and need not be repeated here. the action, the proof established that the tort There were, no doubt, errors committed by was committed before the suing of the writ. the trial court in ruling upon the admissibili2 Saund. Pl. p. 1141; Gould, Pl. § 65; Rex ty of evidence. A mass of irrelevant docuv. Bishop of Chester, 2 Salk. 561; 1 Greenl.

mentary matter was admitted; but it did Ev. § 61 et seq. No greater strictness is re- no harm, because it did not obscure, nor in quired under our system. The findings are any way affect, the main fact upon which sufficient. They show that the piano came the case turns, namely, that the increase of into defendants' possession against plaintiff's the salary of the president depended upon will; that it was not stored because of plain- and was accomplished by his own vote as tiff's refusal to pay the lawful charges upon a trustee. This fact fully appears from the it, but was stored without authority; that evidence, and is unaffected by any rulings plaintiff demanded its return, and was re- claimed to be erroneous. As was said in fused; and that thereafter defendants con- Wickersham v. Crittenden, supra, the trusverted it to their own use. These facts sus- tees cannot“vote a salary to one of their num. tain the judgment, and negative the claim of ber as president, when he takes part in the defendants. Additional findings would not, proceeding, and his vote is essential to the cherefore, affect the judgment, nor afford adoption of the resolution. The right of defendants any relief. Robarts v. Haley, 65 Crittenden to withdraw the money of the Cal. 402, 4 Pac. 383; Malone v. County of Del bank as compensation for such services was Norte, 77 Cal. 217, 19 Pac. 422; Dyer v. Bro not increased by his causing to be spread gan, 70 Cal. 136, 11 Pac. 559; Diefendorff v. upon its records a resolution that be wight

Rehearing denied.

common dem

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