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PEAL.

recelve that amount as bis salary." This is to the bank for certain attorneys' fees in cerconclusive of the case in favor of respond- tain actions paid to Graves & Graves, attorent, and it is of no consequence whether the neys at law,-$1,000 at one time, and $512.50 salary was a proper one or not. Neither is at another time. The court below found in it necessary to examine into the other fea- favor of defendants as to the $512.50, but tures of the struggle between the appellant gave judgment for plaintiff for the $1,000 and respondent to obtain control of the man- and interest. Defendants appeal from the agement of the bank. The resolution raising judgment, and from an order denying their the salary of appellant was invalid, and that motion for a new trial. is the only matter necessary to be considered At the time the said $1,000 was paid to in the case. The complaint was sufficient, said attorneys, Crittenden was a stockholdbecause it set up the fact above stated. The er, trustee, and president of the bank; and case is one of those equity cases in which it is quite clear that the actions for the de there is no right to a jury. The judgment fense of which said attorneys were employed and order appealed from are atfirmed.

were actions in which Wickersham and Crittenden were the only real parties in interest,

contesting with each other, as stockholders, 006 Cal. 329)

for the control of the bank. The bank had WICKERSHAM v. CRITTENDEN et al.

no real interest in the contest. The services (No. 19,330.)

of the attorneys were rendered for the bene(Supreme Court of California. March 9, 1895.)

fit of Crittenden alone, and the value of such CORPORATION8-Action BY STOCKHOLDERS-AP services should have been paid by Critten

den, and not by the bank. The lower court, 1. An officer and stockholder of a bank will be required to account in an action by another

therefore, held correctly that he should acstockholder for attorney's fees which he pro

count to the bank for the money which he cured to be paid by the bank for attorney's serv- procured it to pay out to his own attorneys. ices rendered solely for his own benefit in a liti

Appellants contend that there is no evigation between himself and a third stockholder for the control of the bank.

dence showing that the money was ever 2. A contention on appeal that there is no actually paid to said attorneys, but the couri evidence to sustain a certain finding by the

so found, and there is no specification of court will not be sustained where the record contains a specification affirming the existence

want of evidence to sustain such finding of such fact, without any specification of want On the contrary, in the ninth specification of evidence to sustain the finding.

It is stated that "said board did fix and pay 3. Where the evidence shows, in an action by a stockholder against a bank, that a request

the compensation of Graves & Graves for of the directors to bring the action would have

their said services, and that said action of been useless, defendant cannot object that the the board of directors was subsequently rati. stockholder made no such request.

fied," etc. Of course, with such a specificaIn bank. Appeal from superior court, San tion, respondent was not called upon to see Luis Obispo county; V. A. Gregg, Judge. that the statement contained evidence of

Action by I. G. Wickersham, a stockbolder such payment. It is a verred in the comin the Bank of San Luis Obispo, for himself plaint, as a reason for not making a request and other stockholders, against the bank and of the directors of the bank to bring this acJames L. Crittenden, to compel Crittenden tion, that the directors were all under the to account for certain attorney's fees paid control of Crittenden, and acting in conby the bank, on the ground that the serve junction with him, and that such reques! ices were rendered for his benefit alone. would have been useless, and would have From a judgment for plaintiff and an order been refused; and it is contended by appeldenying a new trial, defendants appeal. Af- lants that the court erred in refusing to al. firmed.

low them to ask one of said directors if he Graves & Graves, and Jas. L. Crittenden,

was under the control of said Crittenden. for appellants. Lippitt & Lippitt and Wil

We think, however, that this ruling presents coxon & Bouldin, for respondent.

no ground for reversing the judgment, be

cause appellants at no time offered to prove PER CURIAM. In this case, as in Wicker- that, if such request had been made, it would sham v. Crittenden (No. 19,349; this day de have been granted. On the other hand, Crit. cided) 39 Pac. 602, there was a mass of ir- tenden and the bank (controlled, of course, by relevant evidence introduced by respondent. its trustees) contested the merits of the case, This evidence might be accounted for, per- claimed that the alleged wrongful acts uphaps, by a stipulation referred to in respond- on which the action is based were right, and ent's brief, wbich stipulation does not ap- tried the action upon that theory. Having pear in the transcript. But, as we said in thus shown that a request of the directors to the other case, this evidence does no harm, bring the action would have been futile, they because it does not affect the main features cannot now be heard to say that the respondof the case. This action was brought by ent should have made the futile request. Wickersham, a stockholder in the Bank of There are no other points necessary to be San Luis Obispo, for himself and other stock- noticed in addition to those noticed in said holders, against defendant Crittenden and case No. 19,319. The judgment and order the bank, to compel Crittenden to account are affirmed.

1 Rehearing denied.

(136 Cal. 324)

ing the amount of the compensation. Such GRANT v. SUPERIOR COURT OF LOS AN- an order cannot, by itself, injure any one; GELES. (No. 15,859.)

but if, in addition to the order fixing the CALIFORNIA BANK v. SAME. (No. amount, the court should order it paid out of 15,860.)

the fund in the receiver's hands, such order, (Supreme Court of California. March 9, 1895.)

under whatever name it might be designated,

would be a final judgment upon a collateral WRIT OF PROHIBITION-ORDER OF COURT FIXING RECEIVER'S COMPENSATION.

matter arising out of the action, and would An order of court fixing a receiver's com- be appealable by any party interested in the pensation, being subject to review upon appeal fund. Trustees v. Greenough, 105 U. S. 527; or certiorari, will not be arrested by a writ of

Thompson v. Lumber Co. (Wash.) 32 Pac. 536. prohibition.

Or, if the court should order either the origIn bank.

inal or substituted plaintiff to pay the comSeparate petitions of Lewis A. Grant and

pensation allowed, that would be a final the California Bank for a writ of prohibition judgment from which an appeal would lie. to arrest the proceeding of the superior court

If this order should not be appealable by reaof Los Angeles, granting an order fixing the

son of its amount being insufficient to confer compensation of Herman Silver, as receiver appellate jurisdiction upon this court, it could of the Los Angeles & Pacific Railway Corn

be reviewed either upon certiorari or upon pany. Writ denied.

an appeal from the order settling the reWhite & Munroe, for petitioner. Wellborn ceiver's account. Any attempt to enforce its & Hutton, for respondent.

payment could be defended upon the want

of jurisdiction in the court to make the order. BEATTY, C. J. These are separate appli- There is nothing in conflict with this view cations for writs of prohibition to arrest the in anything decided in Rochat v. Gee, 91 Cal. same proceeding in the superior court. In 357, 27 Pac. 670. The order held in that case an action commenced by or in the name of

to be nonappealable was merely a partial setthe California Bank against the Los Angeles tlement of a receiver's account, and was not, & Pacific Railway Company, a corporation, by its terms, made payable by any party, or and others (in which action it is claimed enforceable against any party by execution, Lewis A. Grant was afterwards substituted

or payable out of any fund. In other words, as the party plaintiff), the superior court ap- it lacked one essential element of a final pointed Herman Silver receiver of the prop. judgment. And it was conceded in that case erty of the corporation. This order appoint- that there might be an appeal by a party ag. ing Silver, it is conceded, was in excess of grieved from an order allowing the final acthe jurisdiction of the court, and void, as was count of a receiver before a final judgment decided here in another case, in which it in the action as between the original parties. was collaterally assailed. Smith v. Railway If we are right in the conclusion that any Co. (Cal.) 34 Pac. 212. The superior court party aggrieved by an order of the court dihas nevertheless made orders, from time to recting him to pay the receiver's compensatime, awarding compensation to Silver for tion, or directing payment out of a fund in his services as receiver, and recently, upon which he is interested, has an appeal from his petition, the California Bank and Lewis such order as from a final judgment in an inA. Grant, the petitioners in these proceed- dependent proceeding collateral to the main ings, were cited to appear before the superior action, and that he may stay all proceedings court and show cause why that court should upon such order pending his appeal by filing not make a further order fixing Silver's com- a proper undertaking, there can be no need pensation as receiver for a period of time of a writ of prohibition in such a case, and not covered by the orders previously made. it will not lie. See cases referred to in Hav. In response to this citation the petitioners ermeyer v. Superior Court, 84 Cal. 398, 24 appeared and objected to the proceeding up- Pac. 121. It is suggested, however, that an on the ground that, the original order appoint- order fixing the receiver's compensation in ing Silver receiver being void, the court had this proceeding might conclude the rights of no jurisdiction to allow compensation. This the petitioners as to costs to be included in objection having been overruled, these appli- the final judgment, or in a separate action by cations for the writ of prohibition were filed. Silver to recover the amount allowed. But We are of the opinion that, whether the pro- they certainly cannot be concluded by the orceeding which the petitioners seek to arrest der in any collateral proceeding or new acis or is not without or in excess of the juris- tion if the court has no jurisdiction to make diction of the superior court, the writ of pro- it, and if the court has jurisdiction to make hibition ought not to issue, for the reason the order for any purpose its proceeding can. that the petitioners have a plain, speedy, and not be arrested by prohibition. Writs de adequate remedy by appeal from any order nied, and proceedings dismissed. the court may make by which they could be injuriously affected. The only order We concur: HARRISON, J.; GAROUTTE which the court proposes to make is one fix- J.; McFARLAND, J.

(106 Cal. 320)

and, taken as a whole, we think it sufficiently PEOPLE v. MILLAN. (No. 21,150.) charges the offense to support a verdict and (Supreme Court of California. March 9, 1895.)

judgment. FALSE PRETENSES-INDICTMENT.

3. The remaining points of importance 1. Where an information charges the de

which are urged by appellant are opposed to fendant with having obtained a specified amount the views of this court as declared in People of money by fraud, a verdict finding him "guilty

v. Jordan, 66 Cal. 10, 4 Pac. 773, that case as charged” is not defective in not stating the

in principle being quite similar to the case at amount.

2. Under section 967 of the Penal Code, an bar. For the foregoing reasons the judginformation which charges one with obtaining ment is affirmed. money by fraud, but fails to allege a value to the money so taken, is good. 3. An information which charges the de

BEATTY, C. J., did not participate. fendant with having obtained money under false representations, but which does not directly allege his knowledge of their falsity, though de

(106 Cal. 286) murrable, is not fatally defective.

PEOPLE v. FITCHPATRICK. (No. 21,189.) In bank. Appeal from superior court, Ven- (Supreme Court of California. March 9, 1895.) tura county; B. T. Williams, Judge.

ASSAULT-INTENT TO COMMIT MURDER-SELF-DEJuan Millan, convicted of defrauding an

FENSE. other of money, appeals. Affirmed.

1. The verdict of a jury against the defend

ant under a plea of self-defense, where the eviCarroll Cook, for appellant. Atty. Gen.

dence is very close and the court has held that Hart, for the People.

it is sufficient to support the verdict, will not be disturbed upon appeal.

2. The defendant's right of self-defense PER CURIAM. The appellant was char

must be measured by the appearance presented ged with defrauding another of money by to him by the acts of his assailant; and evireason of certain false and fraudulent pre- dence of the latter's real intentions is immateri

al. tenses and representations, and upon being convicted has appealed to this court upon the Department 1. Appeal from superior court, judgment roll alone. Among other things the Humboldt county; G. W. Hunter, Judge. information charged that the prosecuting wit- B. Fitchpatrick, convicted of an assault ness was induced to loan the defendant, Mil- with a deadly weapon, appeals. Affirmed. lan, $831, lawful money of the United States,

E. W. Wilson and Frank McGowan, for upon the representations that two certain

appellant. Atty. Gen. Hart, for the People. bars of metal, which the defendant produced and turned over to the prosecuting witness as GAROUTTE, J. The appellant was charsecurity for the loan, were gold, when in fact

ged with the offense of an assault with inthey were but brass.

tent to commit murder, and was convicted of 1. The jury rendered a verdict in the fol

an assault with a deadly weapon. He aplowing form: “We, the jury, find the defend

peals from the judgment and order denying ant guilty as charged in the information." It his motion for a new trial. is now claimed that the verdict is substan

1. The defendant shot the prosecuting wittially defective in not finding the amount of ness with a pistol, the party shot having an money obtained by defendant from the fraud ax in his hand at the time. The trouble bepracticed. There is nothing in the point. tween these parties was occasioned by the The defendant is charged with obtaining erection of a fence by the defendant upon $831, lawful money of the United States, and the land of his tenant, the other party. Both he was convicted of the "offense charged.” men were angry and excited at the time of The verdict, when taken in connection with the shooting, and the defendant at the trial the information, becomes as certain as to the justified under the plea of self-defense. The amount of money obtained as if the amount party assaulted claims that he had no intenwere stated in the verdict in express terms. tion of using the ax to injure the defendant, There is no question of degree involved in but secured it, and had it in his possession, the offense of which the defendant was char- for the purpose of cutting down the fence. ged and upon trial.

After a perusal of the evidence, we believe 2. It is claimed that the information is it to be a close case upon the plea of selfdefective in failing to allege a value to the defense; yet, as a jury found against the money taken, but it is not demurrable in this defendant upon this plea, and as the court regard. The provisions of section 967 of the subsequently held the evidence sufficient to Penal Code are broad enough to include the support the verdict in this regard, we do not offense here charged, and the allegation is di- feel justified in disturbing the verdict for rectly in line with the provisions of that sec- lack of evidence. tion. Neither do we think the information 2. It is insisted that the court committed fatally defective in not containing a direct error in allowing the witness Campbell to allegation as to the lack of knowledge upon testify that Pape (the party shot), when ne the part of the defendant that the representa- was in his wagon, and in the road near the tions made by him were known to be false. house, and near the defendant, but without The information was demurrable upon this his hearing, said he was going to "cut that ground, but no demurrer was interposed; fence down." It is unnecessary to say whether or not this statement was a part of without a jury, and the court found that the the res gestae. Conceding it was not, still note had been indorsed to the plaintiff for the error of the court in admitting it was value prior to its maturity, and rendered necessarily harmless. What Pape's inten- judgment in his favor. The defendants movtions actually were was an immaterial mat- ed for a new trial upon the ground that the ter. What he actually intended to do with evidence was insufficient to justify the decithe ax which he held in his right hand was sion, and from the order denying their mo likewise immaterial. The defendant was lo- tion, and also from the judgment, they have cated between him and the fence, and appealed. At the trial the plaintiff introwhether he advanced with his ax to attack duced in evidence the promissory note set the fence or the defendant was not the ques- forth in the complaint, upon the face of tion at issue; but the question at issue was, which, at the left-hand end thereof, was how did Pape's acts appear to the defendant, written the names of the payees. No objecas a reasonable man? It was not a mat- tion was made to the introduction of this inter of fact, but a matter of appearance, strument when it was offered, and it is rewhich measured defendant's right of self-de- cited in the statement that the whole of the fense. For these reasons, Pape's prior state- face of the paper was read in evidence. No ment that he was going to cut down the other evidence was offered by either party, fence was immaterial and harmless evidence. except the computation of the amount of inEspecially is this made plain when we con. terest due upon the note; and the court rensider that the law was fully and fairly stat- dered its decision as aforesaid. The failure ed to the jury by the court, in accordance to deny the execution of the note rendered it with the principle we have just laid down. unnecessary to make any proof thereof, and,

3. Upon an examination of the record, we as the defendants offered no evidence in supfind the law bearing upon the charge stated port of the matters alleged in their special in the information fully and properly given defense, the only issue before the court was to the jury, and there appears to be nothing the indorsement of the note to the plaintiff. demanding a new trial of the case. For the The ordinary mode of indorsing a note is foregoing reasons, it is ordered that the by the indorser writing his name upon the judgment and order be affirmed.

back thereof, but the indorsement may be

made upon the face of the note with the Weconcur: HARRISON, J.; VAN FLEET, same effect as if made upon the back. BigeJ.

low, Bills & N. 135; Young v. Glover, 1 Ames, Bills & N. 228; Chitty, Bills, 227; Herring v.

Woodhull, 29 Ill. 92; Partridge v. Davis, 20 (106 Cal. 208)

Vt. 499; Haines v. Dubois, 30 N. J. Law, SHAIN V. SULLIVAN et al. (No. 15,738.) 1

259. In the case last cited the payee wrote (Supreme Court of California. March 8, 1895.)

his name under that of the maker, and it PROMISSORY NOTE-INDORSEMENT-REVIEW ON

was held to be a sufficient indorsement. SecAPPEAL.

tlon 3108 of the Civil Code declares: “One 1. An indorsement may be made upon the who writes his name upon a negotiable inface of the note with the same effect as upon the strument, otherwise than as a maker or acback. 2. The question of the genuineness of an in

ceptor, and delivers it with his name thereon, dorsement on a note, which was introduced in

to another person, is called an 'indorser,' and evidence in the lower court without objection, his act is called 'indorsement.'” The produccannot be raised for the first time upon appeal. tion of the instrument by the plaintiff was Department 1. Appeal from superior court,

evidence of its delivery to him, and, upon city and county of San Francisco; Jas. M. proof of the indorsement, of his right to colTroutt, Judge.

lect the same from the defendants. The obAction by Shain against Sullivan and an

jection that there was no proof of the genuother. From a judgment for plaintiff, and

ineness of the indorsement should have been an order denying a new trial, defendants ap

made when the instrument was offered in

evidence. peal. Affirmed.

Poorman v. Mills, 35 Cal. 121;

Burnett v. Lyford, 93 Cal. 117, 28 Pac, 855. Henry E. Highton, for appellants. Vin

If the objection had been made at that time, cent Neale, for respondent.

the plaintiff might have been able to meet it

with sufficient proof. A party cannot allow HARRISON, J. Action by the plaintiff as

evidence to be introduced at the trial withthe indorsee of a promissory note executed out objection, and afterwards upon an appeal by the defendants. A copy of the note is

make an objection which might have been set out in the complaint, and its execution obviated if he had made it when the eviis not denied by the defendants, but in dence was offered. The judgment and order their answer they deny the indorsement to

are affirmed. the plaintiff, and in a separate answer allege certain matters impeaching the consid- We concur: GAROUTTE, J.; VAN FLDET eration of the note. The case was tried J.

1 Rehearing denied.

(106 Cal. 216)
TUCK ». BOARD OF DIRECTORS OF
HOME FOR ADULT BLIND.'

(No. 15,767.) (Supreme Court of California. March 8, 1895.)

BLIND AsrloM-EXPULSION or Inmate.

An inmate of the Home for Adult Blind may be expelled therefrom for insubordination, in the exercise of the general supervisory power vested in the directors, without giving him notice or an opportunity to be heard, in the absence of any statute or by-law on the subject prescribing the grounds, mode, and requisites for the expulsion of inmates.

Department 1. Appeal from superior court, Alameda county; F. B. Ogden, Judge.

Application for a writof mandate to compel the directors of the Home for Adult Blind to reinstate, as an inmate thereof, the petitioner, Herbert C. Tuck, who had been expelled therefrom for insubordination. From an order denying such application, petitioner ap peals. Affirmed.

Reddy, Campbell & Metson, for appellant. Atty. Gen. Hart, for respondent.

GARVUTTE, J. This is an application for & writ of mandate to compel the board of directors of the Home for Adult Blind to reinstate, as an inmate thereof, the petitioner, Herbert C. Tuck. It appears by his petition: That he was once an inmate of the home, regularly admitted, and there remained some months. That, during his sojourn at the home, he led a sober and industrious life, and obeyed all the by-laws enacted by the board of directors. That, to petitioner's knowledge, no charge of misconduct of any kind whatever was made against him, either in writing or orally; and that he was never informed of any charge against him prior to the introduction and adoption of the following resolution, which resolution de prived him of the benefit of the home: "Re solved, that Herbert Tuck be, and he is hereby, removed and expelled from this institution for insubordination and conduct prejudicial to the discipline, good order, and interest of the home." That he has asked to be reinstated, but the board of directors has de nied his request. There appears to be no provision in the statute providing for the dismissal or expulsion of intractable inmates. Neither do we find any by-law of the board of directors outlining the course to be pursued by the board in ridding the home of disreputable and intractable persons. It would certainly be the more orderly and businesslike way that there should be by-laws governing the course to be pursued by the board in such cases, and also governing the inmates in their conduct and behavior in the institution. Yet such is not the case. But, even in the absence of both statute and by-law, we have no doubt that the board of directors, under its' general supervisory power over the Institution, has a right to suspend, dismiss, or expel resident inmates who have been

"Rehearing deniede

guilty of disorderly and disreputable conduct.

Petitioner's complaint appears to be that he was not only expelled from the bome without cause, but that he was expelled without a hearing, and thus deprived of any opportunity to make a defense to whatever charges may have been brought against him; and his counsel now claim that this course cannot be pursued, and that the expulsion was illegal, inasmuch as the petitioner, Tuck, had been legally admitted to the institution, and had become thereby entitled to its valuable privileges and benefits. Counsel asserts that, by virtue of his admission in the regular course, these valuable rights had attached to him, and had been so vested and fixed that he could not be deprived of them with. out notice and an opportunity to defend hi self. The principle of law contended for is sound, but it does not fit the case. The petitioner has no such right or interest in the home as that he cannot be deprived of its benefits without notice. The statute gives him no right to a hearing before he may be expelled, and, in the absence of such a stat. ute or by-law, he has no such right. The various acts of the legislature bearing upon the home say but little as to who may be entitled to admission, and nothing as to who may be expelled. As to expulsion especially, the whole matter seems to be left entirely within the control and discretion of the board of directors. By order entered upon the minutes of the board, it appears that the peti. tioner was guilty of insubordination and misconduct, and the action of the board must be deemed final and conclusive, as far as this court is concerned. We know of no appeal from such a finding of fact. It is further argued that the board had no power to dismiss, except upon the proof of the violation of some statute or by-law pertaining to the government of the institution. We do not deem this contention sound. It appears that petitioner was expelled for insubordination, and that is a serious offense in such an insti. tution. Rebellious conduct upon the part of inmates, if not stamped out, is fatal to the successful life of the institution; and, even in the absence of statute or by-law covering the facts of the particular case, the board of directors are amply clothed with implied powers sufficient to deal with the offender. For the foregoing reasons, the order appealed from is affirmed.

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