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show that there was a small amount of common property, amounting only to $499, in the estate of Jennie McCauley undisposed of by her will. This appears from the first paragraph of the decision, where it is pointed out that the distributable value of the estate is $67,000, and the total value of the property disposed of by will amounts to $62,000. The conclusion therefore properly followed that Jennie McCauley died intestate as to the small amount of community property, which would therefore descend, under the rules of succession, to the relatives of her husband, she having left no next of kin.

SHAW, J. Action to foreclose an alleged lien for materials sold by plaintiff to defendant Miller for use in the construction by him, as contractor, of a building for defendant Kennedy. Miller made default. Kennedy answered, and upon trial judgment was entered for said defendant. The appeal is by plaintiff from an order overruling its motion for a new trial. No record was made of the contract, which was for a sum exceeding $1,000.

Two questions are presented: First, was the lien filed within the time required after the completion of the building, as provided

For these reasons the order appealed from in section 1187, Code of Civil Procedure? If is affirmed.

We concur: MELVIN, J.; LORIGAN, J.

(28 Cal. A. 780)

NATIONAL LUMBER CO. v. KENNEDY et al. (Civ. 1771.)

not, did the acts and conduct of Kennedy as owner of the building estop him from urging such ground as a defense to the action?

The court found that the building was fully completed on October 15, 1909, but that no notice of its completion was ever at any time filed with the county recorder; that plaintiff's claim and notice of lien 'was not filed

(District Court of Appeal, Second District, Cal- until March 15, 1910, which was 151 days ifornia. Nov. 13, 1915.)

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after the completion of the building; that Kennedy did not, between November 3d and November 15, 1909, as alleged in the com

That after a building was completed and occupied by the owner, a skylight proved defec-plaint, or at any time, state to plaintiff that tive and was remedied, does not show that the building was incomplete until the skylight was repaired.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. 8$ 190, 192-207; Dec. Dig. 132.]

2. APPEAL AND ERROR 1011 REVIEW FINDINGS.

A finding of the court on conflicting evidence will not be disturbed on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. 1011.]

3. MECHANICS' LIENS 132-TIME OF FILING NOTICE OF COMPLETION.

Code Civ. Proc. § 1187, declares that the owner of any building must, within 10 days after its completion, or 40 days after cessation from labor upon any unfinished contract, file with the county recorder a notice thereof, that a failure to file such notice shall estop the owner and persons deraigning title from him from asserting, in foreclosure of a mechanics' lien, the defense that the lien was not filed within time, and that all claims for liens "must be filed within 90 days after completion." Held, the failure of the owner to file the notice of completion will not excuse a materialman's failure to file his lien claim within 90 days after completion, such provision fixing the ultimate time within which liens may be filed.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 190, 192-207; Dec. Dig. 132.]

said building was not complete according to the plans and specifications; nor is it true that plaintiff delayed filing its claim of lien because of any statements or representations made by Kennedy.

As we understand appellant's brief, it attacks all of these findings, except that as to defendant's failure to file a notice of the completion of the building.

[1] That the building was fully complete and occupied on October 15, 1909, is conclusively shown by the evidence. The only reason suggested for claiming otherwise is the fact that a skylight put in by the contractor proved defective, and later, some time in January, 1910, the defendant's tenant, being authorized so to do, employed another workman who installed a skylight in place of the one originally put in under the terms of the contract by Miller, the cost of which substituted skylight was, some time in March, paid for by Kennedy.

[2] Appellant, basing its contention upon the case of Hubbard v. Lee, 6 Cal. App. 602, 92 Pac. 744, insists that the acts and conduct of Kennedy estop him from basing any defense to the validity of the lien on account of its not being filed within time. In support of this theory plaintiff offered testimony to the effect that in response to a letter requesting him so to do, Kennedy, some time between Action by the National Lumber Company against James Kennedy and another. There November 3d and November 15th, called at was a judgment for the named defendant, its office, and in a conversation with its and from an order denying new trial, plain-nished to Miller, and wherein the filing of a agents concerning the bill for materials furtiff appeals. Affirmed. lien being mentioned, he asked them not to

Appeal from Superior Court, San Bernardino County; Frank F. Oster, Judge.

R. L. Horton, of Los Angeles, for appellant. file any lien on the property, that the buildE. H. Jolliffe, of Ontario, Cal., for respondent.ing was not yet completed, and that Miller

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

would pay the bill. With reference to this conversation, one of plaintiff's witnesses, who at the time represented it, testified as follows:

"Q. And you didn't file your lien because you expected I. S. Miller to take care of the amount coming to you? A. Yes, sir. Q. That is the reason you did not file your lien? A. Yes, sir. Q. Didn't Mr. Kennedy tell you that I. S. Miller had the money to settle these claims and would settle them, and for you not to file any lien? A. Yes, sir. Q. And on that account you didn't file any lien? Now, isn't that the exact reason? A. Yes."

lien must be filed within ninety days after the completion of any building, improvement, or structure." In support of its contention, appellant cites the case of Robinson v. Mitchel, 159 Cal. 581, 114 Pac. 984. But there the court, with reference to this latter clause, say:

"This would seem to fix a time limit within which all liens must be filed regardless of whethe: the owner has filed his notice of completion or not. But this question it is not necessary here to resolve."

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Clearly the purpose of the provision was to In addition to the general effect of plain- give to persons interested therein notice of tiff's evidence being weakened by this testi- the completion of the work, in order that they mony, the defendant Kennedy denies that he might in due time file their claims of lien. ever said the building was not completed, Filing the notice of completion is not mandabut, on the contrary, stated to plaintiff that tory, but failure to file it extends the time the building was completed, and that I. S. for filing claims of lien for a period of 90 Miller had the money to pay their bill and days after the actual completion of the work. told them to go and see him. Conceding that The Legislature deemed such period ample plaintiff's testimony, if believed by the court, time for otherwise obtaining information as might have constituted an estoppel against to the time of completion. The provision defendant, nevertheless there was a sharp that "all claims of lien must be filed within conflict between the evidence on behalf of ninety days after the completion of any plaintiff and that given by defendant, as to which the determination of the court thereon must be deemed final. In the Hubbard Case, as here, the owner neglected not only to record the contract, but also to file for record the notice of actual completion of the work as required by the statute, and it was sought to prove that not only the owner, but the architect, repeatedly stated and represented to the materialman and lienor that the buildings were not completed, and that he had not accepted them and would not until certain other work was done, and that plaintiff, relying thereon, had delayed filing his notice of lien, to all of which the court sustained objections, and it was held to be error. The facts in the case at bar easily distinguish it from the Hubbard Case.

building," could serve no purpose other than
to terminate the time within which the claim
of lien might be filed. Such is the plain im-
port of the language used. As found by the
court, the building was completed about Oc-
tober 15, 1909. In the absence of the filing
of notice of its completion, plaintiff had until
about the middle of January within which to
file its lien, which, as stated, was not filed
until March 15th thereafter.
It appears
from the record that plaintiff's agents passed
the building daily, and from October 15th
knew that it was occupied and had every
appearance of being completed. In our opin-
ion, the findings of the court attacked are
fully sustained by the evidence.

Since the plaintiff was not entitled in any event to enforce its claim of lien, the alleged

rejection of testimony could in no event have
been prejudicial to the rights of plaintiff.

The order appealed from is affirmed.
We concur: CONREY, P. J.; JAMES, J.

(28 Cal. A. 789) HILBORN v. BONNEY et ux. (Civ. 1777.) (District Court of Appeal, Second District, California. Nov. 13, 1915.)

14-FRAUD-MON

[3] Appellant next insists that, notwith-errors due to rulings upon the admission and standing the expiration of more than 90 days, to wit, 151 days, following the completion of the building, it nevertheless was entitled to file its notice of lien by reason of the provisions of section 1187, Code of Civil Procedure, to the effect that the owner may, within 10 days after completion of any contract, or within 40 days after cessation from labor thereon, file for record in the office of the county recorder of the county where the property is situated, a notice setting forth the date when the same was completed, or on which cessation from labor occurred. The section further provides that "in case such notice be not so filed, then the said owner and all persons deraigning title from or claiming any interest through him, shall be estopped in any proceedings for the foreclosure of any lien provided in this chapter from maintaining any defense therein, based on the ground that said lien was not filed within the time provided in this chapter" followed by this proviso: "That all claims of

ELECTION OF REMEDIES
EY JUDGMENT.

Defendant fraudulently procured the conveyance of plaintiff's property to him in exchange for worthless stock. Plaintiff instituted an action at law to recover damages against defendant for fraud, in which she obtained a judgment. Meanwhile, defendant had sold plaintiff's land and invested the proceeds in land upon which defendant's wife filed a declaration of homestead. Plaintiff then instituted the present action to have the declaration canceled as a cloud on the property purchased with and representing the property fraudulently obtained from her which obstructed an execution under her money judgment. Held, that plaintiff, hav

ing elected to pursue her remedy at law for dam-es against him, the conveyance of her propages for the fraud, was estopped from again proceeding on the same facts for equitable re[Ed. Note.-For other cases, see Election of Remedies, Cent. Dig. § 16; Dec. Dig. 14.]

lief.

Appeal from Superior Court, Los Angeles County; John M. York, Judge.

Action by Grace A. Hilborn against Frank R. Bonney and Ella Bonney, his wife, to annul a declaration of homestead by the wife. Judgment for plaintiff, and defendants appeal. Reversed.

E. J. Fleming and S. L. Carpenter, both of Los Angeles, for appellants. Frank L. Muhleman, Jones & Evans, and Earl T. Miller, all of Los Angeles, for respondent.

SHAW, J. It appears from the complaint filed August 20, 1912, that plaintiff had theretofore, on August 9, 1912, in an action instituted against defendant Frank R. Bonney to recover damages for alleged fraud, obtained a judgment against him in the sum of $4,000, upon which she caused to be issued an execution and a levy thereof made upon certain real estate described as lot 22 of the Huston tract, in Los Angeles county, title to which real estate was at the time in the name of defendant Ella Bonney and upon which she, prior to the entry of the judgment against her husband, had filed a declaration of homestead. The complaint then alleges the fraudulent acts of Frank R. Bonney by means of which he induced plaintiff to convey to him certain real estate then owned by her in exchange for certain valueless corporate stock, which acts were made the basis of the action wherein judgment was rendered against him and in favor of plaintiff; that after thus obtaining such real estate from plaintiff he sold the same and invested the proceeds thereof in said lot 22 of the Huston tract, which, prior to the rendition of the judgment against him, he caused to be conveyed to his wife, Ella, who, as stated, filed a declaration of homestead thereon. The prayer of the complaint is to have this declaration canceled and annulled; the reason assigned therefor being that it constitutes a cloud upon the property, thereby obstructing plaintiff in enforcing collection of her judgment against Frank R. Bonney by sale of the property under execution so levied thereon. A general demurrer interposed to this complaint was overruled. Judgment went for plaintiff, from which defendants appeal.

The only question involved is the ruling of the court upon the sufficiency of the complaint. The theory of respondent (plaintiff here) is that since, as adjudged in the action wherein she had a judgment for damag

erty was obtained by the fraudulent acts of Frank R. Bonney, neither it nor lot 22,. bought with the proceeds of the sale thereof, could, as to her judgment, be the subject of a declaration of homestead by the wife; in other words, that by reason of the manner in which the property was obtained, it was impressed with a trust in favor of plaintiff. Conceding, upon the facts stated, plaintiff might have brought an equitable action to impress a trust upon the property or to have a lien declared thereon, and thus have obtained relief, she chose instead to sue at law for a money judgment. Having elected to pursue this course, we are unable to perceive that she has any greater or different rights with reference to the property than any other general judgment creditor of Bonney. The case presented is almost identical with that of Hanly v. Kelly, 62 Cal. 155, wherein it was said: '

held to have elected his remedy at law, and to be "Under such circumstances, plaintiff must be estopped from pursuing in equity the fund into the homestead."

To the same effect is Barker v. Barker, 14 Wis. 142; Fitzell v. Leaky, 72 Cal. 477, 14 Pac. 198; and Harding v. Atlantic Trust Co., 26 Wash. 536, 67 Pac. 222. Section 1240, Civil Code, provides that "the homestead is exempt from execution or forced sale, except as in this title provided," and section 1241 designates the circumstances which must exist in order to render a homestead subject to execution or forced sale in satisfaction of judgments obtained. The sale sought of the property is under an execution issued upon a general judgment, and, as stated, plaintiff's rights with reference to the homestead in no wise differ from the rights of any other general judgment creditor. Under the doctrine of election, she chose to assert her rights in an action for damages against defendant Bonney, thus electing to enforce her claim generally against his property, and is now estopped from again, upon the same facts, asking for equitable relief. In Fitzell v. Leaky, supra, the Supreme Court says:

"It (the homestead) is not invalid because made during the progress of litigation, which subsequently results in an ordinary money judgment against the homesteader, or because made at any time before the entry and docketing of such a judgment. The law authorizes a debtor to erect a barrier around the home, over which the sheriff, although armed with final process under such a judgment, cannot pass. With the policy of the law, or the abstract morality of a particular transaction, we have nothing to do. The doctrine bearing upon conveyances made to hinder, delay, or defraud creditors has no application to the creation of a homestead."

The judgment is reversed.

We concur: CONREY, P. J.; JAMES, J.

(28 Cal. A. 777)

the parties depended upon a writing which was set up as an exhibit attached to the answer. In the course of the trial plaintiff was

TINGEY V. CALLAHAN CONST. CO. (Civ. 1761.)

(District Court of Appeal, Second District, Cal- allowed leave to amend his complaint by inifornia. Nov. 13, 1915.)

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3478, 3480, 3481, 3484, 3530-3540; Dec. Dig. 874.]

corporating therein the written contract as alleged by the defendant, and alleging other facts showing that the oral agreement under

1. APPEAL AND ERROR 874-RESERVATION of Grounds oF REVIEW-NECESSITY FOR APPEAL. Where no appeal was taken from the judg- which the work was commenced was incorment, orders overruling a demurrer to an amend-porated in the writing which was signed at ed complaint and denying a motion to strike out a later date, but before the alleged compleportions thereof, will not be considered on ap- tion of the work; that at the time the prepeal from an order denying a new trial. liminary negotiations were closed it was agreed that the contract should be reduced to writing; and that the delay occasioned in that regard was because of the failure of the defendant to prepare the writing. There was a demurrer to this amended complaint and a motion to strike out portions thereof. However, these points cannot be considered, as no appeal was taken from the judgment. Under our practice the taking of such an appeal is necessary before questions of the kind suggested would be presented for review. See Stewart v. Stewart, 156 Cal. 651, 105 Pac. 955, and cases therein cited.

2. APPEAL AND ERROR 548- RESERVATION OF GROUNDS OF REVIEW OBJECTION TO EVIDENCE-SPECIFICATION.

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Where various exceptions were taken to the introduction of testimony, which were again urged in the briefs on appeal, the general point being made that the evidence heard was insufficient to sustain the findings, the bill of exceptions containing no particular specification pointing out the weakness of the testimony as to any of the facts in issue, the question of the propriety of the evidence was not presented where there was sufficient evidence, unchallenged, to support the findings.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2433–2440; Dec. Dig. & 548.]

3. APPEAL AND ERROR

1050-PREJUDICIAL

ERROR-ADMISSION OF EVIDENCE. Errors in receiving testimony cannot be deemed to have been prejudicial to defendant when, disregarding the incompetent matter, enough remains in the record to sustain the cause of action as alleged in the complaint.

[Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. 1050.]

[2, 3] At the trial various exceptions were taken to the introduction of testimony, which objections are again urged in the briefs of counsel on this appeal. The general point is made that the evidence heard was insufficient to sustain the findings of the court. In the bill of exceptions there is no particular specification, as is required, which points out the weakness of the testimony as to any of the facts in issue. The objection that a sufficient specification is lacking is not answered by saying that it is the claim of appellant that there is no evidence upon which to sustain the decision of the trial court, for there Action by C. H. Tingey against the Calla- is evidence as to the making of the contract han Construction Company. Judgment for and the entering upon the work, which stands plaintiff, and from an order denying its mo- undisputed and unchallenged. We may say tion for new trial defendant appeals, pre- that there is some evidence shown in the recsenting the appeal upon a bill of exceptions.ord to sustain all of the findings of the trial Order denying motion for new trial affirmed.

Appeal from Superior Court, San Diego County; W. A. Sloane, Judge.

A. J. Morganstern, of San Diego, for appellant. Crouch & Harris, of San Diego, for respondent.

JAMES, J. Judgment was awarded plaintiff in this action. The defendant appealed from an order made denying its motion for a new trial and presents the appeal upon a bill of exceptions.

[1] The action was based upon a contract whereby plaintiff's assignor agreed with the defendant to do certain excavating and grading work for a specified sum per cubic yard. The cause of action was stated in brief form, it not appearing from the allegations thereof whether the contract sued upon was written or oral. The defendant by its answer, after denying that plaintiff's assignor had performed the work described in the complaint, alleged that the contractual relation between

judge. The defendant offered no testimony whatsoever in opposition to the case presented by the plaintiff. An examination of the evidence, as the bill of exceptions presents it, shows, we think, sufficiently that the claim of the plaintiff was just and that he was entitled to enforce his demand. Any errors committed by the court in receiving testimony cannot be deemed to have been prejudicial to defendant's right to a fair trial, when, disregarding the incompetent matter, enough remains in the record, as we conclude there does, to sustain the cause of action as alleged in the amended complaint. In other words, it is not shown in this case that there has been a miscarriage of justice within the meaning of the constitutional amendment.

The order denying the motion for a new trial is affirmed.

We concur: CONREY, P. J.; SHAW, J.

(28 Cal. A. 774)

PEOPLE v. RIVERA. (Cr. 390.) (District Court of Appeal, Second District,

California. Nov. 12, 1915.)

mediately after the 20th of April Babcock missed the two animals hereinbefore referred to which belonged to Munz. Munz, being informed of their absence, began a search

1. LARCENY 55-EVIDENCE-SUFFICIENCY. in an endeavor to locate the animals. He In a prosecution for cattle theft, evidence held insufficient to warrant conviction. [Ed. Note.-For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. 55.]

2. CRIMINAL LAW 1036-APPEAL OBJECTIONS BELOW-NECESSITY.

Error cannot be predicated on the admission of evidence not objected to below.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1631-1640, 2639-2641; Dec. Dig. 1036.]

3. CRIMINAL LAW 829- EVIDENCE-IN

STRUCTION.

The refusal of requests covered by the charges given is not error.

Criminal
829.]

[Ed. Note. For other cases, see
Law, Cent. Dig. § 2011; Dec. Dig.
Appeal from Superior Court, Los Angeles
County; Charles Wellborn, Judge.

Joe Rivera was convicted of grand larceny, and, from the judgment of conviction and an order denying new trial, he appeals. Af

firmed.

H. A. Pierce, of Los Angeles, for appellant. U. S. Webb, Atty. Gen., and Robert M. Clarke, Deputy Atty. Gen., for the People.

went down upon the Rivera ranch and was proceeding, with the aid of a neighbor, to search in a thicket of willows that grew there. While so engaged, Joe Rivera, the appellant here, came hastily down to where the men were, appearing in an excited state. He cursed Munz and told him to "get off the place" and not to search there without a search warrant. Munz deemed it best to follow the advice of Rivera and proceeded at once to Lancaster, which was 20 miles away, where he procured a search warrant and came back and resumed the search. It was observed that a pathway which led into the thicket of willows had been covered with leaves (apparently for the purpose of giving it the appearance of not having been disturbed). Following this pathway into the thicket, Munz and his companion found evidences that something had been buried there, and they soon unearthed what appeared to them to be the entrails of two cows, the remains of an unborn calf, together with a cow's head. This cow's head bore a resemblance to the head of the larger cow which had been taken from Babcock's range. Shortly thereafter another neighbor, who was about to embark with his boat on the body of water known as Elizabeth Lake, noticed a gunny sack close to the shore and he took possession of it. In this sack was a hide, evidently that of a cow. Later another hide was found in a similar sack at the bottom of the lake near the shore. These hides were exhibited to Munz, who identified them, not only on account of the color of the hair which appeared clinging thereto, but because also of the fact that a brand appeared on the hides [1] As a principal contention involved in which he identified as being his own and one a consideration of the appeal is that the evi- which his family used in marking their catdence was insufficient to warrant the jury tle. Munz testified that the brand on the in finding a verdict of guilty, it will be prop- younger animal had only been placed there er to review briefly the testimony introduced about two months prior to the time of its by the prosecution as the typewritten record disappearance. Witness Chandler was the shows it: At the time of the alleged theft keeper of a hotel at the town of Elizabeth appellant resided at a ranch which appears Lake, which was about 2 miles northeast to have been owned or controlled by his from the ranch of appellant. Chandler tesbrother and codefendant. Several miles tified that on the night of the 20th of April, away was the ranch of complainant Munz. 1914, John Cassou came into his place, asking Shortly before the 20th of April, 1914, Munz if there were any cows in the yard. It was drove two cows, or rather a black cow and about 8 or 8:30 o'clock in the evening and the heifer which was alleged to have been very dark and cloudy; a rain was threatenstolen, onto a nearby range, where they were ing. Chandler testified that he took two left in charge of one Babcock. They were lanterns and went out into the yard, and that then upon an open range, and at about the he there saw a young cow or heifer of a fawn 20th of April they had come down near to color, and also a big dark-colored cow. (The Babcock's house, and he drove them back heifer which Munz claimed to have been into the hills where there was a small can- stolen from him by appellant was a lightyon and a spring of water. This point where colored Jersey heifer.) Witness Lindstrum he left them was approximately between was a next-door neighbor of Chandler's and 61⁄2 and 8 miles from the Rivera ranch. Im- as Chandler went out that night into his

JAMES, J. Defendant, together with Bert Rivera and John Cassou, was charged with having committed the crime of grand larceny by stealing a heifer belonging to Elias Munz. The theft of the animal was claimed to have been committed in the cattle-raising district of Los Angeles county, near Elizabeth Lake. Appellant was convicted of the charge and sentenced to serve a term of imprisonment in the state prison. He appealed from an order denying a motion for a new trial and from the judgment.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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