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Cal.) LOWER KINGS RIVER RECLAMATION DIST., No. 531, 0. PHILLIPS.

633

proceedings, and in them any defense going according to benefits is not practically attain. either to its validity or amount could be able, and may be only approximated, even by pleaded. * In them he may set forth, competent and honest assessors or commisby way of defense, all his grievances;" citing sioners. Yet any material overrating of benReclamation Dist. No. 108 v. Evans, supra. efits and consequent assessments, injurious to It is not pretended that the defendant had the taxpayer, and not within the maxim de any opportunity to be heard as to the pro- minimis, may be pleaded and proved as priety or legality of the assessment before a defense to an action to enforce the assessthis action was commenced; but it is claim- ment, whether such overrating be the result ed that, having been heard as to the pro- of fraud, negligence, or incompetence of the priety of the formation of the district, and commissioners; for it would be no recomthe inclusion of his lands therein, the order pense, and but poor consolation, to the landof the board of supervisors including his owner who has been overtaxed without a lands is conclusive of the legality of the sub- hearing to be assured that the unlawful bursequent assessment of them. But the legal- den put upon him was the result of an honest ity of no subsequent assessment was in ques- judgment of incompetent or negligent comtion, or, could have been questioned, before missioners. And the issue as to this should the supervisors on the hearing of the peti- be determined by the tribunal of original jution for the formation of the district. While, risdiction (whether a court or a board of as we have seen, the order of the board of equalization) according to a satisfactory presupervisors was conclusive, as against the ponderance of evidence, allowing just weight defendant, that the district including his to what may appear to have been the honest lands was lawfully organized, it was not, and judgment of the commissioners. could not have been, so far-reaching as to 3. I think defendant's land is sufficiently touch the question whether subsequent as- described in the assessment list. Although sessments would be lawfully imposed accord- the abbreviations used are not those ordinari. ing to benefits.

ly used, they are such as are uniformly used It is further contended that defendant's de- in that list, and must have been understood fense is a collateral attack upon the determi- by all taxpayers who examined them. For nation of the assessment commissioners, and example, the W. 12 of S. E. 14 of section 28, therefore not permissible. Conceding it to be Tp. 17, is described thus: "W.2 of S. E.4 of a collateral attack (which I think questiona- Sec. 28, Tp. 17;” and by such abbreviations ble), yet a collateral attack is precluded only all subdivisions of sections in the list are dewhere the judgment, order, or determination scribed. attacked was, or may be presumed to have 4. It is contended by appellant that F. A. been, the result or effect of due process of Blakely was disqualified for the office or polaw, which implies that the party against | sition of commissioner to view and assess the whom such judgment, order, or determina- land, for the reason that he was interested in tion was rendered or made was heard, or bad the matter of those assessments. But the an opportunity to be heard, in his defense. only evidence of his interest is that at the But where it does appear and cannot be time he was appointed commissioner, and presumed that such party was heard, or had during the time he acted as such, he was the

opportunity to be heard, any judg- secretary of the board of trustees of the disment, order, or determination against him is (trict, receiving a salary. He owned no land without due process of law and void; and, in the district, and had no pecuniary interest consequently, may be attacked collaterally. I that could have been affected by the assessThat the Political Code provides no oppor- ments, though he received his appointment to tunity for the owner of the land assessed to the office of secretary from the trustees of the be heard as to the equality of assessments ac- district, who owned a majority of the land in cording to benefits, except in defense of the the district, and held that office at their action for the enforcement of such assess- pleasure. The law (Pol. Code, 3456) rements, is not doubted, and has been so de

the board of supervisors by which the cided (Reclamation Dist. v. Hagar, 66 Cal. district was formed to "appoint three com54, 4 Pac. 945; Hagar v. Reclamation Dist. missioners, disinterested persons, residents of No. 108, 111 U. S. 701, 4 Sup. Ct. 663); nor the county in which the district or some part does any other law provide for such oppor- thereof is situated, who must view and assess tunity. Therefore there is no ground upon upon the lands situated within the district a which it can be presumed that defendant was charge proportionate to the whole expense heard or had an opportunity to be heard, and and to the benefits which will result from it does not appear that he was heard. It fol- such works." I think Blakely was a “disinlows that, he is to be denied a hearing in terested person" in the sense of this section defense of this action, he will be deprived of of the Political Code, and that the most that his property without due process of law, con- can be properly said against his appointment · trary to section 13, art. 1, of the constitution is that, if his relation to the board of trustees of this state, and the fourteenth amendment of the district was known to the board of suof the constitution of the United States. As pervisors at the time he was appointed, the shown in the opinion of Mr. Justice Field, appointment was injudicious, because the apbove cited, absolute equality of assessments pointee, under such circumstances, was liable

an

to a suspicion that he might be improperly in- 2. Assignments of error, on motion for new fluenced by members of the board of trustees trial, that the court erred in rendering judgment

in favor of defendant, when the decision and of the district.

judgment should have been for plaintiff, will be For the error in excluding evidence offered disregarded under Code Civ. Proc. $ 659, beby the defendant, as above stated I think the cause of being a mere general objection to the

final judgment. judgment and order should be reversed, and the cause remanded for a new trial.

Commissioners' decision. Department 1.

Appeal from superior court, Tulare county We concur: BELCHER, C.; SEARLS, O. William W. Cross, Judge.

Action by Lower Kings River Reclamation PER CURIAM. For the reasons given in District, No. 531, against P. C. Phillips to the foregoing opinion, the judgment and or- recover an assessment by such district upon der are reversed, and the cause remanded for defendant's land, situated therein. From a a new trial.

judgment in favor of defendant, and denial of a new trial, plaintiff appeals. Affirmed.

S. C. Denson and Bradley & Farnsworth, LOWER KINGS RIVER RECLAMATION

for appellant. Daggett & Adams, for re DIST., NO. 531, v. PHILLIPS et al. (No. 18,344.)"

spondent. (Supreme Court of California. March 11,

VANCLIEF, C. The plaintiff is a corpora1895.)

tion purporting to have been organized under Department 1. Appeal from superior court,

provisions of Pol. Code, $ 3446 et seq., for the Fresno county: M. K. Harris, Judge. Action by the Lower Kings River Reclama

reclamation of swamp and overflowed lands tion District, No. 531, against P. C. Phillips and situate in the counties of Fresno and Tulare, others. There was a judgment for plaintiff,

the proceedings for the formation of which and defendants appeal. Reversed.

were initiated by petition to the board of suDaggett & Adams, for appellants. S. C. Denson, for respondent.

pervisors of the county of Fresno. The ob

ject of this action is to recover from defendPER CURIAM. This cause being, in all re- ant an assessment of $1,098.18, levied upon spects, similar to that of Reclamation Dist. v.

a tract (267 acres) of his land situate in the Phillips (No. 18,341, this day decided) 39 Pac. 630, the judgment and order herein appealed county of Tulare, where this action was tried. froin are reversed upon the authority of that The complaint is in the ordinary form, specase, and the cause remanded for a new trial. cially alleging all facts necessary to show

that the district was duly organized, that the

assessment was properly levied, and that de LOWER KINGS RIVER RECLAMATION fendant had refused to pay the assessment:

DIST., NO. 531, v. WOOD, (No. 18,343.)* but was not verified. The answer of the de(Supreme Court of California. March 11,

fendant admits that he is the owner of the 1895.)

land alleged to have been assessed to him, but Department 1. Appeal from superior court,

denies all other allegations of the complaint. Fresno county; M. K. Harris, Judge.

It then alleges, substantially, the following Action by the Lower Kings River Reclama

further defenses: (1) That the lands assesstien District, No. 531, against George Wood. There was a judgment for plaintiff, and defend

ed to him are not, and never have been, ant appeals. Reversed.

swamp or overflowed lands, but always have Daggett & Adams, for appellant. S. C. Den

been high and dry lands originally owned by son and Bradley & Farnsworth, for respondent. the government of the United States and ner

er granted to the state of California; and PER CURIAM. This canse being in all re operts similar to that of Reclamation Dist. v.

that defendant's grantor purchased said land Phillips (No. 18.341, this day decided) 39 Pac. directly from the government of the United 630. having been tried upon the same evidence, States as not being swamp or overflowed the judgment and order herein are reversed upon

lands, but duly segregated therefrom by the the authority of that case, and the cause is remanded for a new trial.

government surveys. (2) That the commissioners appointed to view and assess said

lands were not disinterested persons; that (5 Cal. Unrep. 776) LOWER KINGS RIVER RECLAMATION

one of them, F. A. Blakely, was interested, DIST., NO. 531, v. PHILLIPS.

and therefore disqualified to act as such com(No. 18,363.)

missioner, because he was secretary of the (Supreme Court of California. March 11,

board of trustees of plaintiff under a salary 1895.)

at the time he was appointed, and during ali

the time he acted, as such commissioner. (3) MOTION FOR NEW TRIAL-ASSIGNMENT OF ERRORS. 1. Assignments of error, on a motion for a

That the commissioners did not view the new trial, in sustaining objections to and refus

lands of defendant, and did not assess them ing to receive certain evidence, will be disre- in proportion to the whole expense of the garded where they are not supported by the rec- works and to the benefits resulting from such ord, which shows that the court overruled all objections to add admitted such evidence.

works; but, on the contrary, arbitrarily as

sessed the lands of the defendant without re 1 Reversed in banc. See 41 Pac. 337.

gard to any benefit to them resulting from 2 Reversed in banc. See 41 Pac. 337.

said works; and that said works do not and

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ers.

will not benefit defendant's lands in any form, fact undoubtedly support the judgment. I or to any extent whatever. Other defenses, therefore think the order and judgment apmore or less technical, were pleaded, but need pealed from should be affirmed. not be considered. While the court found that the district was duly organized, it found We concur: BELCHER, C.; SEARLS, C. for the defendant upon all other material issues, and thereupon rendered judgment in fa- PER CURIAM. For the reasons given in vor of the defendant.

the foregoing opinion, the order and judgThe plaintiff has appealed from the judg- ment appealed from are affirmed. ment and from an order denying its motion for a new trial. On the appeal from the order, counsel for appellant contends that the court erred in matters of law, and that the LOWER KINGS RIVER RECLAMATION evidence is insufficient to justify the findings DIST., NO. 531, v. HAMES et al. of fact. The motion for new trial was made

(No. 18,364.) on a statement of the case, which contains (Supreme Court of California. March 11, only the following specifications of error ei

1895.) ther in law or in fact: "The plaintiff now Department 1. Appeal from superior court, assigns the following errors of law occurring Tulare county; William W. Cross, Judge. upon the trial: First. The court erred in sus

Action by the Lower Kings River Reclamation

District, No. 531. against T. J. Hames and othtaining defendant's objections to the assess

There was a judgment for defendants, ment list offered in evidence by plaintiff, a and plaintiff appeals. Affirmed. copy of which is contained in the foregoing S. C. Denson and Bradley & Farnsworth, for statement, and designated 'Exhibit N.' Second. appellant. Daggett & Adams, for respondent. The court erred in sustaining defendant's ob

PER CURIAM. This case is similar in all jections to and in refusing to receive in evi

respects to that of Reclamation Dist. v. Phillips dence the original assessment list of Lower (No. 18,363, this day decided) 39 Pac. 634. UpKings River Reclamation District, No. 531,

on the authority of that case the judgment and

order appealed from in this case are affirmed. as made and returned by F. A. Blakely, W. J. Newport, and Frank Laning, commissioners appointed for that purpose by the board of supervisors of Fresno county. Third. The

(27 Or. 66) court erred in ruling and deciding that the

SABIN V. MICHELL et al. assessment roll offered in evidence was indefi- (Supreme Court of Oregon. March 12, 1895.) nite, and that the same did not contain suffi.

Suit AGAINST ALLEGED PARTNERS - ERROR AS TO cient descriptions of the real estate therein de- PARTNERSHIP-EFFECT ON ATTACHMENT-GARscribed or attempted to be described. Fourth.

NISHMENT-SUFFICIENCY OF RETURN. The court erred in finding and deciding in

1. The complaint alleged that the debt was

due by defendants as partners, and goods were favor of the defendant, when the finding and

attached as partnership property. Held, that decision should have been in favor of the the fact that one of the defendants was neither plaintiff. Fifth. The court erred in render- a partner nor liable for the debt was immaterial, ing judgment in favor of the defendant when

the goods being the property of the other defend

ant, who was liable. the judgment should have been in favor of

2. In an action against an alleged partnerthe plaintiff.” There is no warrant in the ship, an allegation that defendants M. and S., record for the first three of these specifica-doing business as partners under the name of tions, since it does not appear that the court signed their claim to plaintiff, is supported by

M., were indebted to certain persons, who assustained any objection to the assessment an instrument entitled “In the Matter of M., lists. On the contrary, the court overruled Falls City, Oregon,” and reciting that the suball objections thereto, and admitted both the

scribers assign to plaintiff their claims against

M., together with parol evidence that it was inoriginal assessment roll filed in the county tended to assign thereby claims against the conof Fresno, and a copy thereof filed in the cern doing business in Falls City under the name county of Tulare. Nor does it appear that

of M., whether the concern was a partnership

or the individual business of M. the court ruled or decided that the assess

3. Where one member of a firm, the other ment roll offered in evidence was indefinite, being out of the state, to secure certain creditnor that it did not contain sufficient descrip- ors executes to two of his clerks a bill of sale in tions of the real estate theruin described or

trust for them, without their knowledge or con

sent, and then closes the store, and the sheriff, attempted to be described, as stated in the

on his attempt to levy plaintiff's writ of attachthird specification of error. Neither the ment, is ordered by the clerks, who are in posfourth nor fifth assignment of error is a speci- session, not to take possession of the goods, unfication at all of any error in law "occurring tachment of the goods by serving garnishment

der threats of prosecution for trespass, the atat the trial,” or of any particular in which process on the clerks is warranted. the evidence is insufficient. Each is but a 4. A return of the sheriff, on attaching general objection to the final judgment.

property in the hands of third persons, recited

that he served a copy of the writ on L., together Therefore the statement on motion for new with “notice to garnishee," and a like copy and trial must have been disregarded (section 659, notice on D., and that the answer of each party Code Civ. Proc.), and the motion was prop

was attached to the return, and marked, Ex:

hibits A and C. The exhibits on which the anerly denied. On the appeal from the judg

swers were indorsed were copies of the writs, ment it is enough to say that the findings of having thereon a notice that all moneys, etc.,

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in possession of D. and L. were attached. Held, their answer, deny the alleged partnership
that the return, though it did not specifically between Michell and Shurtleff, as well as all
state that the sheriff attached certain property
by leaving a copy of the writ, together with no-

the other allegations of the complaint, and tice, with L, and D., and that they were in pos- allege that the property in question belonged session of the property, was sufficient as against to J. S. Michell individually, and that on the a subsequent attaching creditor with notice.

1st day of December, 1892, they commenced Appeal from circuit court, Polk county; certain actions against him, and caused the George H. Burnett, Judge.

property in question to be attached, and that Contest between R. L. Sabin and John S. the lien thus acquired is the only lien on said Michell and others to determine the priority goods, wares, and merchandise. Upon issues of attaching creditors. There was a judg- joined the cause was tried, resulting in a dement for the former, and the latter appeal. cree in favor of the plaintiff, from which Affirmed.

some of the defendants appeal. This is a suit to determine and enforce the right to priority of attaching creditors.

J. J. Balleray, for appellants. J. N. Teal, From the statement of facts as given in the

for respondent. complaint it appears that on and prior to the 28th day of November, 1892, John S. Michell BEAN, C. J. (after stating the facts). It and W. T. Shurtleff were partners doing busi- is contended for defendants that the alleganess under the firm name of John S. Michell; tion that Michell and Shurtleff were partthat certain wholesale merchants in Portland ners is not sustained by the evidence, but we had demands against said firm in the aggre- regard this question as immaterial. The gate sum of $2,746.91, which, on said day, complaint charges a joint and several liabilthey sold and assigned to this plaintiff, who ity, and it is admitted, as well as alleged, by has been ever since, and is now, the owner defendants that the stock of goods in controthereof; that on the 29th day of November, versy belonged to Michell, and the debt upon 1892, plaintiff commenced an action upon which plaintiff's attachment is based is said demands against Michell and Shurtleff against him; so that, if plaintiff has a cause as partners, and caused a writ of attachment of action against Michell, it is wholly immato be issued and delivered to the sheriff of terial, so far as defendants are concerned, Polk county, commanding him to attach and whether Shurtleff was liable with him as a safely keep so much of the property of de- partner or not. If the evidence failed to fendants in the writ as might be sufficient sustain the allegation of partnership, plaintiff to satisfy any judgment plaintiff might re- was still entitled to a judgment against Michcover in said action; that the sheriff duly ell, and, his property having been seized on executed said writ by attaching all the stock attachment, it was liable to sale to satisfy of goods, wares, and merchandise belonging such judgment. Fisk v. Henarie, 14 Or. 29, to and owned by John S. Michell and W. T. 13 Pac. 193; Faust v. Goodnow (Colo. App.) Shurtleff in the town of Falls City, by sery- 36 Pac. 71; Simpson v. Schulte, 21 Mo. App. ing a copy of the writ, together with a notice 639; Miles v. Wann, 27 Minn. 56, 6 N. W. specifying the property attached, on Willis 417; Congdon v. Monroe, 51 Tex. 109. Leavitt and J. J. Daly, who were then in pos- It is also claimed that there is a fatal varisession of said stock of goods; that just prior ance between the allegation and proof of the to the service of the writ, Shurtleff, who was assignment to plaintiff of the accounts upon in possession of the store, undertook to sell which this action is based. The complaint and deliver the stock of goods therein to alleges that on the 23th day of November, Willis Leavitt, in trust for certain creditors 1892, John S. Michell and W. T. Shurtleff, of Michell and Shurtleff, and that Leavitt doing business under the firm name of John and one J. J. Daly immediately took posses- S. Michell, were indebted to certain wholesion thereof; that such sale and delivery sale firms in Portland, and that said firms were made without the knowledge or assent of sold, transferred, and assigned their respecthe parties for whose benefit they are alleged tive accounts to this plaintiff, who ever since to have been made, and with an intent to has seen, and now is, she owner of the same. hinder, delay, and defraud the creditors of To prove the assignment the plaintiff offered Michell and Shurtleff, and especially this in evidence a written instrument entitled “In plaintiff and his assignors; that subsequent the matter of J. S. Michell, Falls City, Oreto said pretended sale and delivery and the gon," which recites that the subscribers there. service of plaintiff's attachment, Leavitt and to sell, assign, and set over and transfer to Daly surrendered possession of said goods, R. L. Sabin their claims against said Michwares, and merchandise to the defendant ell. The contention for the defendants is creditors in this suit, who caused the same that this instrument only tends to prove the to be attached in actions prosecuted by them assignment of demands against J. S. Michell against John S. Michell individually; and individually, and not against Michell and that the surrender of such possession was Shurtleffas partners. But the evidence made pursuant to an understanding between shows that the intention was to assign to Shurtleff, Leavitt, and Daly to defraud the the plaintiff the accounts and demands of the plaintiff, and defeat the lien acquired by vir- assignors against the concern doing business tue of his attachment. The defendants, by at Falls City under the name of J. S. Michell,

whether it was an individual or partnership; | iff's return on the plaintiff's writ of attachand the written assignment, it seems to us, ment is so defective as to render the attachwas sufficient to vest the title of such ac- ment nugatory as against the defendants, counts and demands in the plaintiff, and sus- who are subsequent attaching creditors with tained the allegation of ownership in him, notice. The sheriff, after certifying in his whether J. S. Michell was an individual or a return to the manner in which he attached partnership. The material and necessary is- certain real property, states that he served sue for plaintiff to prove, in urder to recover, a true copy of the writ, duly certified to by was the ownership of the accounts sued on, him, upon Willis Leavitt in person, together and this was met by the written assignment. with “notice to garnishee," and a like copy The allegation in the complaint that the ac- and notice upon Daly, and that the answer of counts were due plaintiff's assignors from a each of said parties is attached to, and markpartnership doing business under the name ed, respectively, Exhibits A and C, and made of J. S. Michell may very properly be held a part of the return. The exhibits referred as immaterial in this suit. The case of to, and made a part of the return, and upon Thompson v.Rathbun, 18 Or. 202, 22 Pac. 837, which Leavitt's and Daly's answers are incited by defendants, was an action on a dorsed, are copies of the writ, having thereon promissory note alleged to have been execut- a notice to the effect that all moneys, goods, ed and delivered to the Portland Savings credits, and effects, or any other personal propBank, which allegation, the court said, meant erty in the possession or under the control a note that was made payable to the Port- of said parties, belonging to the defendants, land Savings Bank by name, or some equiva- or either of them, are attached by virtue of lent expression, by which the bank could be the writ. It thus appears that the sheriff clearly identified as payee; and because the not only certifies that he served a copy of the note offered in evidence was not of that char- writ and notice of garnishment upon Leavitt acter it was held inadmissible. This was an and Daly, but he attaches to, and makes a entire failure of proof on a material allega- part of, his return, copies of the papers so tion of the complaint. But in the case at served, from which it appears that he combar the material allegation is proven by the plied with the statute by leaviņg a copy of evidence offered, and the failure, if any, is on the writ, and a sufficient notice specifying an immaterial issue.

the property attached (O'Brien v. Insurance It is next contended that neither Leavitt Co., 56 N. Y. 52), with the persons who were nor Daly was in possession of the store at in possession of the same; and hence the the time the garnishee process was served return, in our opinion, shows a sufficient comupon them.

Both the referee and the court pliance with the law to preserve plaintiff's below found to the contrary, and we think lien as against the defendants, whose attachthis finding is fully sustained by the testi- ments were issued and served with notice of mony. The evidence shows that Michell the service of plaintiff's writ. It is true, the was out of the state, and that Shurtleff, who officer does not certify that he attached cerwas in possession of the store, fearing an at- tain described property by leaving a copy of tachment, and desiring to prefer certain cred- the writ, together with a notice specifying itors, a short time before the sheriff arrived such property, with Leavitt and Daly, and at Falls City for the purpose of serving the that they were in possession of the same, and plaintiff's attachment, by the advice of Daly in this respect the return may be defective; conveyed the stock of goods to Leavitt by but he does show that he substantially combill of sale, in trust for such favored cred-plied with the law providing the manner in itors, without their knowledge or assent, and which personal property in possession of a subject to their approval, and immediately third person may be attached, and this is sufclosed the store, and delivered possession of ficient to preserve the lien as against subse. the keys to Leavitt and Daly, who were pres- quent attaching creditors with notice, which ent and claiming, with the consent and ac- is the only question for our determination at quiescence ’of Shurtleff, to be in possession this time. In such case the courts are not when the sheriff and plaintiff's attorney ar- critical as to the language used by the officer rived at Falls City, and who ordered the in making his return, and it is sufficient if it sheriff, under threats of prosecution for tres- can be fairly inferred therefrom that he has pass, not to attempt to take possession of the met the requirements of the law, and to this goods, nor force an entrance into the build- end it should receive every reasonable intending. Under such circumstances the sheriff ment and presumption. Murfree, Sher. $ 864; was, we think, justified in attaching the prop- Drake, Attachm. § 204; Wade, Attachm. $ erty by serving garnishee process upon Leav- 149; Ritter v. Scannell, 11 Cal. 238; Gov. itt and Daly, and the right of plaintiff thus ernor v. Gibson, 14 Ala. 331; Stoddart v. Mcacquired cannot now be defeated by these de- Mahan, 35 Tex. 258; Newton v. Adams, 4 fendants, although their possession may have | Vt. 437; Rowan v. Lamb, 4 G. Greene, 468. been solely for the purpose of preventing the We conclude, therefore, that plaintiff's lien seizure of the property by plaintiff under upon the property in controversy is prior in his attachment, and thus favoring the other point of time and in right to that of the decreditors, among whom are these defendants. fendants, and that the decree of the court be.

And, finally, it is contended that the sher-| low must be affirmed.

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