cable to self-defense, the refusal of a requested Appeal from Superior Court, Alameda Hardie Lewis was convicted of manslaughter, and he appeals. Affirmed. fired in the car, that of the two remaining shots which reached the deceased the first was fired as he was fleeing or falling from the rear steps of the car, and the second while he was prostrate on the ground. This contention, and the inference deduced therefrom, formed the basis of a requested instruction which the court refused to give, and which in effect required a verdict of not guilty if the jury found as a fact, re A. L. Frick and Frank M. Carr, for appellant. Attorney General Webb, for the Peo-gardless of how many shots the defendant ple. LENNON, P. J. The defendant was tried upon an information charging him with the crime of murder, and was convicted of man slaughter. His appeal, which is from the judgment and an order denying a new trial, presents for determination the single point of the trial court's refusal to give a requested instruction upon the subject of self-defense, defendant claiming, in support of his plea of not guilty, that his acts were justified upon that ground. The circumstances leading up to the crime need not be related. With reference to the immediate facts of the killing which have any bearing upon the point under consideration, it appears from the evidence that the defendant fired at least five shots, three of which found lodgment in the body of the de fired into the body of the deceased, that the first shot was fatal and fired in necessary self-defense. Upon an examination of that portion of the record pertinent to the point presented, dence is fairly susceptible of the construcwe are unwilling to concede that the evition placed upon it by counsel for the defendant; but, even if it were conceded that the evidence shows all that counsel claims for it, the requested instruction was properly refused. Assuming that the instruction in question correctly stated the law, that it was free from the vice of being argumentative and in the nature of a special plea, which singled out and gave undue prominence to a particular phase of the case, it was in its ultimate analysis but a reitera tion of that portion of the charge of the court wherein the jury were told, in substance, ceased. Two of the latter shots inflicted onthat in deciding to what extent a man may ly superficial wounds which in no wise contributed to the death of the deceased. One go in resisting an assault he may act upon of the three shots penetrated and fractur- and will not be held to the same strict acthe circumstances as they appear to him, ed the skull of the deceased, and was necescountability for an error in judgment or for sarily fatal. The shooting commenced in a Pullman car which was standing in the West the use of force disproportionate to the imOakland yards of the Southern Pacific Rail-pending danger as one who is not required to act quickly. road Company, and, when it ceased, the deceased was lying on the ground at or near the end of the car. The defendant did not take the stand to give his version of the difficulty, and, as none of the witnesses testified exactly as to what occurred during the affray, it is difficult to say when and where, whether in the car or out of it, all of the several shots which took effect were fired. It is certain, however, that at least one shot was fired at the deceased while he was lying on the ground, but whether this last shot reached its mark is not made manifest by any direct evidence. It is the contention of counsel for the defendant that, considering the nature of the wounds and the course of the bullets, the evidence fairly indicated that the two men must have been standing in an upright posi tion and about on a level when the shot which caused the wound in the head was fired, and that the defendant must have been at an elevation above the deceased when the two shots which inflicted only superficial wounds were fired. From this assumption of fact it is inferred that the fatal wound in the head was inflicted by one of the shots No complaint is made that the charge of the court as a whole did not completely and correctly cover every phase of the case, including the law and the evidence applicable to the defendant's claim of self-defense; and therefore it cannot be said that the refusal of the trial court to give the particular requested instruction prejudiced the defendant or tended to his prejudice in respect to any of his substantial rights. The judgment and order are affirmed. We concur: KERRIGAN, J.; HALL, J. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes the determination that the evidence did not justify the findings. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. 8 1195.*] 2. MUNICIPAL CORPORATIONS (§ 408*)-RETROACTIVE STATUTES. Appeal from Superior Court, Los Angeles County; Frederick W. Houser, Judge. Action by H. P. Lantz, as administrator with the will annexed of the estate of George Locke, against J. E. Fishburn and Walter M. Rheinschild, as special adminisAct Feb. 27, 1893 (St. 1893, p. 36), making trator of the estate of George Rheinschild, assessment bonds conclusive evidence of the deceased. From the judgment and an order regularity of all proceedings had prior to the making of the certified list of assessments, af- denying a motion for a new trial, plaintiff fected a right of property, and was not a mere and defendant Rheinschild appeal. Order derule of evidence, so that the amendment of 1899 nying new trial affirmed, and judgment re(St. 1899, p. 40), making such bonds prima fa-versed and remanded, with directions to en cie evidence only, did not apply to bonds, the gun before the amendment was enacted. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 408.*] See, also, 91 Pac. 816. Charles Lantz, for plaintiff. J. L. Murphey, 3. MUNICIPAL CORPORATIONS (§ 339*)-PUB- for defendant Rheinschild. IMPROVEMENTS-SPECIFICATIONS-CON LIC DITIONS. A provision in the specifications of street improvements that the contractor shall be responsible for all damage to water pipes, etc., under the street, and liable for damage to fences, trees, etc., was not objectionable, so as to vitiate bonds issued for special assessments. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 339.*] 4. LIMITATION OF ACTIONS (§ 167*)-BAR OF PERSONAL ACTION-EFFECT AS TO LIEN. Civ. Code, § 2911, provides that a lien is extinguished by the lapse of the time within which an action can be brought under the principal obligation. Act Feb. 27, 1893 (St. 1893, p. 36), provides that assessments for street improvements shall be a first lien upon the property affected until the bonds issued for its payment and the accrued interest thereon shall be fully paid. Held that, as the only remedy for enforcing payment of assessment bonds is by public sale of the property, that remedy is not barred by failure of the city treasurer or the bondholder to bring a personal action against the property owner within the period of limitations applicable to such action. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 651-653; Dec. Dig. & 167.*] 5. CONSTITUTIONAL LAW (§ 169*)-IMPAIRMENT OF CONTRACT-STATUTES AFFECTING REMEDIES. An amendment of Act Feb. 27, 1893 (St. 1893, p. 36), enacted in 1899 (St. 1899, p. 40), required notice of sale of property to satisfy a street assessment bond to be published for only two weeks, instead of three weeks, as provided by the original statute, and also provided that the cost of publication and 50 cents for a certificate of sale should be collected by the city treasurer. Held, that the amendment worked a mere change of remedy, and did not impair contractual obligations, so that it would apply to sales, made after it became effective, in street improvement proceedings terminated before its enactment. JAMES, J. After decision heretofore rendered in this action by this court, a rehearing was granted. Upon a re-examination of the case, we are satisfied with the conclusions expressed in our former decision, except as to the matter discussed in the concluding paragraphs of the opinion filed, and we therefore adopt, as stating our present views, the major portion of that opinion, which is as follows: "This action was brought to secure a decree quieting title to lots 7 and 9, in block 4, of the Brooklyn tract in the city of Los Angeles. The trial court by its judgment determined that the fee title was held by the estate of George Locke, subject to liens of defendant Rheinschild, acquired under street improvement proceedings. Plaintiff has appealed from the judgment, and from an order denying his motion for a new trial, and there is also an appeal taken by defendant Rheinschild from the judgment. The appeals of the two parties are presented on the same transcript. "Under the proceedings for the improvement of Bridge street, assessments were levied against the two lots mentioned, the assessment on lot 9 being for the sum of $452.90, and that against lot 7 for the sum of $148.22. Under the proceedings for the improvement of Echandia street, an assessment for the amount of $105.43 was levied against lot 9. The ordinance of intention for the improvement of Bridge street was adopted on May 19, 1893, and that for the improvement of Echandia street was adopted March 15, 1893. In accordance with the provisions of the act, bonds Nos. 20 and 21 were issued on June 19, 1894, on account of the improvement of Bridge street, and bond No. 4 was issued on January 12, 1894, on account of the Echandia street assessment. The term of the bonds was for 10 years from their date, with annual payments required to be made as is provided for by the bond act. On May 26, 1900, defendant Rheinschild, then [Ed. Note.-For other cases, see Municipal the owner of bonds Nos. 20 and 21, there Corporations, Cent. Dig. §§ 1296-1298; Dec. not having been paid any part of the prinDig. 581.*] cipal or interest installments which had [Ed. Note.--For other cases, see Constitutional Law, Cent. Dig. §§ 478-481; Dec. Dig. 8 169.*] 6. MUNICIPAL CORPORATIONS (§ 581*)-AsSESSMENTS-SALE-TITLE OF PURCHASER. The title of a purchaser of property sold upon a default in payment of street assessment bonds, pending issuance of deed, becomes absolute, unless the right to redeem is exercised within the time prescribed. which the bonds were issued, contained a theretofore matured, gave notice to the city | quired into, because the act of 1893, under treasurer of the city of Los Angeles that default had been made, and then elected to declare the whole sum of principal and interest of said bonds due, and directed the city treasurer to sell lots 7 and 9 to satisfy the amounts due upon said bonds. Notices of sale were published, and a sale was had thereafter, at which defendant Fishburn was the successful bidder, and to whom a certificate of sale was issued, followed by a deed upon the expiration of the period for redemption. Default had also been made in the payment of the installments due upon bond No. 4; but no notice thereof was given to the city treasurer until June, 1907. Defendant George Rheinschild performed the work of improvement upon the streets mentioned under a contract regularly awarded to him. The complaint in this action was filed on March 6, 1902. Defendants in their answer set up the various proceedings had for the improvement of Bridge and Echandia streets, and claimed title to the lots under and by virtue of the sale made as before mentioned, and the deeds issued thereunder. The first trial of the action in the superior court on the issues so made resulted in a judgment in favor of plaintiff, and the de-bonds conclusive evidence of the regularity fendants appealed therefrom. The appeal was heard in this court and decided on May 29, 1906. See Lantz v. Fishburn, 3 Cal. App. 662 [91 Pac. 816]. It was there held that all of the bonds were regularly issued, but that the sale of the property made to satisfy payments delinquent thereon was void because of irregularity in the notices given, et cetera. The case was remanded for a new trial. [1] "The questions, as to the validity of the bonds, and the validity of the sale made of the property, were fully considered, and the determination of this court, as thereon announced in that decision, became the law of the case. Klauber v. San Diego St. Car Co., 98 Cal. 105 [32 Pac. 876]. This, notwithstanding the fact that in the order made thereafter, denying the application for a rehearing, it was recited that the decision of the court rested upon the determination that the evidence was insufficient to justify the findings. The original opinion as filed was not modified, and for that reason we think it was controlling upon the court upon a retrial as to all other matters therein considered, and which were presented and properly involved upon the appeal. [2] "Counsel for plaintiff suggests that the decision, wherein the validity of the bonds was treated of, and wherein it was held that any defects in the specifications could not be considered, in view of the decision of the Supreme Court in the case of Chase v. Trout, 146 Cal. 350 [80 Pac. 81], should not be deemed conclusive of that question. In the decision in the case of Chase v. Trout, supra, it was held that the matter of the irregularity in the specifications could not be in of the proceedings up to a certain point is given a reasonable and fair construction by holding that it was the intention of the Legislature to affect a right of property, and not to establish a mere rule of evidence. Cook v. Cockins, 117 Cal. 140 [48 Pac. 1025]. [3] The clause in the specifications to which attention is directed, to wit, that 'the contractor shall be responsible for all damages to water pipes, gas pipes, sewers and other underground improvements of the street; he shall also be held liable for damages done to fences, trees, etc.,' does not embody such a condition as was considered objectionable in the case of Blochman v. Spreckels, 135 Cal. 662 [67 Pac. 1061, 57 L. R. A. 213], and Woollacott v. Meekin, 151 Cal. 701 [91 Pac. 612]. The property affected by the assessment proceedings was described as is required by the act of 1893, and that description was sufficiently definite and certain, and the ordinances of intention appear to have been properly published and posted. "It was determined by the former decision in this case that the sales made of the lots, because of delinquency in payments of the installments and interest due on bonds Nos. 20 and 21, were invalid. It does appear that the proceedings were regular and valid up to and including the notice given by the holder of those bonds to the city treasurer, demanding that a sale be made of the property to satisfy the amounts due. [4] "The money collected from the property owner is set apart in a special fund from which the bonds are paid, and the bonds on their face, following the form prescribed by the statute, provide that payment of amounts due thereunder shall be made exclusively from that fund. There is no authority given to the city treasurer or to the bondholder under the street bond act to bring any action to compel payment from the property owner of the amount of the assessment; the only method of enforcing payment provided for is that of subjecting the property to a public sale. Therefore no statute of limitations is made to run against the collection of the assessment by such means. This observation is made in view of the point urged by appellant Lantz that the liens of the bonds have been extinguished. In support of that contention, he cites section 2911, Civil Code, which provides as follows: 'A lien is extinguished by the lapse of the time within which, under the provisions of the Code of Civil Procedure, an action can be brought upon the principal obligation.' By express provision of the bond act (Stats. 1893, p. 36), the amounts of the assessments are made ‘a first lien upon the property affected thereby, until the bond issued for the payment thereof, and the accrued interest thereon, shall be fully paid.' The power conferred upon the city treasurer to enforce payment in the same manner as a tax collector is authorized to enforce collection of delinquent tax assessments does not, as before noted, include any right to bring a personal action against the property owner. A tax collector has no such authority, although by the statutes of 1880, page 136, such a right is specially given to a city, county, or city and county. Section 2911, Civil Code, is therefore not applicable here, and it follows that the liens of the assessments against the property of plaintiff's testator have not been extinguished by limitation of time." [5] In the concluding portion of the opinion from which we have quoted, it was noted that, after this action had been decided upon, the former appeal, as herein before referred to, defendant Rheinschild, as the owner of the three bonds, had again given notice to the city treasurer, requiring that the property holden as security for the payment thereof be sold; this notice covering bond No. 4, which had not been included in the first notice of sale. Further, that the city treasurer had again proceeded with the sale of the property, but that the notice of sale was published for only two weeks, instead of three weeks, as required by the provisions of section 3766 of the Political Code; also that charges claimed against the property, and for which it was sold, included an item of $10 costs, for the collection of which no authority seemed to be given. Our conclusion was that the second sale was invalid, and that a new trial should be had, for the reason that the evidence was insufficient in that view to sustain the judgment. For the first time upon petition for rehearing, it was called to our attention that by the statute of 1899 the street bond act of 1893 was so amended as to require notice of sale to be published for two of such publication, and 50 cents for a certificate of sale, should be collected by the city treasurer. The amendatory act became effective before the sales were had, but after the proceedings for the improvement of the streets described had all been concluded. If the effect of the amendatory act was to work a change only in the manner by which a remedy was provided to be pursued, then the city treasurer was justified in giving only such notice, and in making such charges by way of costs, as the amendatory act provided should be given and made. On the other hand, if, by applying the amendatory provision to proceedings instituted prior to the adoption thereof, a right of property would be affected, and in consequence contract rights interfered with, then the amendatory act should be held inapplicable to the street improvement proceedings considered in this case. We are of the opinion that the amendment worked a mere change of remedy, and did not affect or impair contract obligations. As was said in the case of Mill & Lumber Co. v. Olmstead, 85 Cal. 84, 24 Pac. 649: "The authorities are numerous to the effect that a change of remedy, or in the time within which it must be sought, does not impair the obligation of a contract, provided an adequate and available remedy be left. Thus it has been held that an enactment reducing the time prescribed by the statute of limitations in force when the right of action accrued is not unconstitutional, provided a reasonable time be given for the commencement of an action before the bar takes effect. Terry v. Anderson, 95 U. S. 628 [24 L. Ed. 365]. In that case the court, by Waite, C. J., said: "The parties to a contract have no more a vested interest in a particular limitation which has been fixed than they have in an unrestricted right to sue. They have no more a vested interest in the time for the commencement of an action than they have in the form of the action to be commenced; and, as to the forms of action or modes of remedy, it is well settled that the Legislature may change them at its discretion, provided adequate means of enforcing the right remain.'" As to the matter of costs, the street act, as amended, provides for the collection of the cost of publication of notice of sale, which was not theretofore included in the charges to be made against the delinquent property. We believe that this provision also may be classed as one affecting remedy only. It may be likened to a case where, after judgment and execution issued in an ordinary action, but before execution sale, the Legislature had changed the amount of fees to be collected by the officer making execution sale. It could scarcely be contended, in the event that by such change the fees were increased in amount over those which such officer would have been entitled to charge at the time judgment was rendered or execution issued, that and that the increased charges could not be collected. [6] We conclude that the last sales made by the treasurer were legal and valid, and had the effect of vesting in Rheinschild, as purchaser, title to the property. Therefore, at the time the issues were made up in the action upon which the trial court based its judgment, there was no title left in the plaintiff, and no right, except the right to redeem within the time fixed by the street act. The title of such a purchaser, pending the issuance of a deed, is only qualified by this right of redemption, and unless such latter right is exercised within the limit fixed by the law, such title becomes absolute. Duff v. Randall, 116 Cal. 226, 48 Pac. 66, 58 Am. St. Rep. 158. The trial court properly held that the proceedings had, with respect to all matters conferring jurisdiction upon the treasurer to make the second sales, were regular and valid. Upon these findings, the judgment should have been that defendant Rheinschild held title to the lots in question, subject only to the right of plaintiff to redeem within the time allowed by law. The order denying plaintiff's motion for a new trial is affirmed. The judgment is reversed, with directions to the trial court to enter judgment upon the findings in accordance with the views expressed in this opinion. We concur: ALLEN, P. J.; SHAW, J. RASSAERT et al. v. MENSCH. (Civ. 834.) (District Court of Appeal, Third District, California. Dec. 12, 1911.) 1. PARTNERSHIP (§ 344*)-ACCOUNTING AND SETTLEMENT-DISPOSITION OF ASSETS. Though generally a judgment cannot be entered against a partner in a suit for an accounting and settlement of the firm until the firm assets have been disposed of and a final balance ascertained, yet where the assets are of but little value which is ascertained, the court may award the assets to a partner, if he is willing, and charge the assets as cash, where, in the settlement, he is entitled to judgment against the copartners. [Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 813-818; Dec. Dig. § 344.*] 2. PARTNERSHIP (§ 344*)-FIRM DEBTS-LIABILITIES OF PARTNERS. The partners of a firm are each individually liable for the whole of firm debts after the firm assets are exhausted, and a decree in a suit between the partners that one partner shall pay firm debts is not binding on the firm credi tors. [Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 813-818; Dec. Dig. § 344.*] 3. PARTNERSHIP (§ 344*)-DISSOLUTION-ACCOUNTING-PAYMENT OF FIRM DEBTS. and render an accounting and adjudge that a partner shall pay the firm debts, the amount of such debts not being within the maxim "de minimis non curat lex." [Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 813-818; Dec. Dig. § 344.*] 4. APPEAL AND ERROR (§ 1032*)—QUESTIONS REVIEWABLE-RULINGS ON EVIDENCE. A party complaining of the sustaining of objections to questions asked witnesses must show that he was prejudiced by the ruling by showing that the matter sought to be brought out would have aided him. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4047-4051; Dec. Dig. § 1032.*] 5. PARTNERSHIP (§ 330*)-DISSOLUTION-LIABILITIES OF PARTNER TO COPARTNER FOR BREACH OF OBLIGATIONS-RECOVERY DAMAGES. OF ther hearing, in a suit for an accounting and An order dissolving a firm, pending a furfor a dissolution, does not preclude proof of damages to plaintiff arising from defendant's breach of the firm agreement and breach of duty in winding up the firm affairs, and plaintiff may show that defendant used some of the material of the firm in his private business which he charged to the firm, and that he recklessly conducted the firm business in a way to involve loss. [Ed. Note. For other cases, see Partnership, Cent. Dig. § 787; Dec. Dig. § 330.*] 6. PARTNERSHIP (§ 278*)-DISSOLUTION-EF FECT. A mere dissolution of a firm has no effect est in the firm property, or their power over on the property of the partners or their interexisting debts due to them or due from them, except they have lost the power of acting for each other any further than joint debtors or joint creditors may do. [Ed. Note.-For other cases, see Partnership, Cent. Dig. § 625; Dec. Dig. § 278.*] 7._PARTNERSHIP (§ 298*)-OBLIGATION PARTNERS-SPECIAL AGREEMENTS. OF Where there was no special agreement defining the powers of the partners after dissolution, each partner had a right to require, and, through equity, to compel, a final settlement and adjustment of all questions and property, and each had the same power as to this and all details connected with it as any other. [Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 680-686; Dec. Dig. § 298.*] 8. PARTNERSHIP (§ 280*)—LIQUIDATION-OB LIGATION OF PARTNERS. dating the business of the firm after the partA partner charged with the duty of liquiners had ceased to act as such, pursuant to an agreement, must so act as to conserve the interests of the partners, and a copartner could visit the place of business and learn of the manner in which the business was being wound up. [Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 631, 632; Dec. Dig. § 280.*] ($ 327*)-DISSOLUTION— 9. PARTNERSHIP BREACH BY PARTNER OF PARTNERSHIP AGREEMENT DAMAGES-PLEADINGS. A complaint, in a suit by a partner for the dissolution of the firm and for an accounting, which alleged that defendant had breached the firm agreement in that he had failed to furnish the money necessary to carry on the firm business, and that his conduct in the management of the business, departments of which were intrusted to different partners, caused dissensions and interfered with the orderly management of the business, resulting in damages in a specified A court of equity may not decree a dissolution of the firm and an accounting until the liabilities of the firm are adjusted to the satis faction of the creditors, and the fact that the firm debts are small, only amounting to $104.50, does not permit the court to dissolve the firm For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |