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of the court at its court room, and engaged court. The distinction between those matin the trial of a cause then pending in said ters which could be heard in court and those department, upon the motion of the attorney which could be heard at chambers arose for the defendant, made and signed an order from convenience, rather than from any dispensing with any undertaking upon said other cause, but they were limited to the appeal, which he returned to said attorney, subsidiary and incidental steps in practice and it was on the same day filed with the and procedure, leaving to the court the juclerk, but no record thereof was ever made dicial determination of the issues presented in the minutes of the court. The respond. | by the pleadings, and which formed a part ent now moves to dismiss the appeal for the of the record. The term "court," as used want of an undertaking, upon the ground in the Code of Civil Procedure, means some that an order dispensing with an under times the place where the court is held, taking on appeal can be made only by the sometimes the tribunal itself, and sometimes court, whereas the foregoing order was the individual presiding

the trimade by a judge, and not by the court. bunal, and in many cases is used synony.

A court is a tribunal presided over by mously, as well as interchangeably, with one or more judges, for the exercise of such "judge;" and whether the act is to be perjudicial power as has been conferred upon formed by the one or the other is generally it by law. Blackstone, following Coke, de to 'be determined by the character of the fines it as "a place where justice is judi act, rather than by such designation. Seccially administered," (3 Bl. Comm. 23;) but it tion 166 provides that a judge “may, at is also essential that this place be designated chambers, grant all orders and writs which by law, and that the person or persons who are usually granted in the first instance upare authorized to administer justice be at

ex parte application;" and section that place for the purpose of administer 1004 provides that orders made out of court ing justice at such times as may be also may be made by the judge of the court in designated by law. The times fixed by law any part of the state. Prior to the adopfor the transaction of judicial business are tion of the present constitution there were called "terms,” and the periods between the fixed terms in this state for the transaction end of one term and the beginning of the of judicial business by the several district next are called "vacations." These "terms" courts, and any act done by a court after vary in different jurisdictions according to its term had ended was void. Bates F. the statutes by which they are fixed; in Gage, 40 Cal. 183. Upon the adoption of some states ending at fixed dates, and in the present constitution, all terms of court others continuing until the commencement were abolished, and by its provisions (article of a succeeding term. Formerly, in Eng. 6, § 5) the superior courts are always open, land, there were four terms of court in each and (section 6) in San Francisco there may year, and their duration was so fixed that be as many sessions of said court at the there were only 91 days in each year dur same time as there are judges thereof; and ing which the courts could be in session. “the judgments, orders and proceedings of As the judicial business increased, it became any session of the superior court, held by impossible to transact it all within these any one or more of the judges of said courts periods of time, and there grew up the prac respectively, shall be equally effectual as if tice of hearing many matters "out of court” all the judges of said respective courts pre with the same effect as if heard while the sided at such session." Under the present court was in session; but the matters which constitution of this state, therefore, whenwere thus heard were only such as per ever a judge of the superior court is present tained to causes pending in court, and which at the place designated for the transaction were of a nature to expedite or facilitate of judicial business, and there assumes to the judicial disposition of the pending cause, transact such business, his acts may be conto which they were merely subsidiary or sidered as the acts of the court of which collateral. At a later day the practice arose he is a judge. of hearing and disposing of such matters There is no provision, either in the conat certain hours during "term time" while stitution or by statute, which requires the the court was not in formal session, and presence of any other officer than the judge subsequently certain hours of each day were to constitute a court, or to authorize the fixed, at which one of the judges would transaction of judicial business, nor is there hear these matters while the court was actu any provision of law which requires all the ally in session. The motions and orders thus orders of a court to be entered at length in made were said to be heard and disposed its minutes in order that they may be effect. of "at chambers," for the reason that they ive; and by section 1003, Code Civil Proc., were heard by the judge at his chambers, every direction of a court or judge is an rather than in the court room, but the term order, whether it be merely made in writ"chambers" finally became extended so as ing or entered in the minutes. If it is not to include any place, either in or out of the entered it should, however, be filed, in order court room, at which a judge may hear ap that it may form a part of the records in the plications or make orders while the court case. The county clerk is ex officio the clerk 18 not in session, in matters pending in that of the superior court of his county, and his

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duties are fixed by statute, and are defined does not depend upon the entry of its orders
in section 111 of the county government act, by the clerk, but upon the fact that the or-
(St 1891, p. 322.) This statute, however, is ders have been made; and, whenever it is
intended to define his duties as a political shown that an order has been made by the
officer of the state, rather than to prescribe court, it is as effective as if it had been en-
or limit the functions or judicial powers of tered of record by the clerk." We hold,
the court. He is not, however, by this act, therefore, that, as the ord in question was
required to do more than to "enter a synop made by a judge, who at the time was at the
sis of all orders, judgments and decrees place designated for holding court, and in
prcper to be entered, unless the court shall the exercise of his judicial functions as a
order them to be entered at length.” By sec court, it was a sufficient compliance with the
tion 1052, Code Civil Proc., he is required provisions of section 946, and the motion to
to keep a register of actions in which he dismiss the appeal is therefore denied.
must enter the title of the action, "with brief
notes under it from time to time of all papers We concur: MCFARLAND, J.; PATER-
filled and proceedings had therein." He is SON, J.
also required to make in the minutes of the
court an entry of certain acts and transac-
tions had or done in the presence of the

PALMTAG V. ROADHOUSE et al. (No.
court by the parties to an action, such as

15,018.) their oral consent to a waiver of a trial by

(Supreme Court of California. Aug. 31, 1893.) jury, (section 631,) or of findings of fact, (sec

STATUTE OF LIMITATIONS ESTOPPEL TO PLEADtion 634,) or their agreement to a reference,

DEMURRER. (section 638 ;) and, in case of receiving a ver

1. The fact that a mortgagor was the gendict upon the trial of a cause by a jury, eral attorney of the mortgagee in other mathe is to make an entry of the time of trial, ters does not make the position of the mortthe names of the jurors and witnesses, and

gagor a fiduciary one, or render it anything but

adverse to the mortgagor's interest, as far as to set out the verdict at length, (section 628.) the mortgage is concerned, so as to estop him These, however, are matters wbich form a to set up the statute of limitations to an ac proper connection between the pleadings and

tion of foreclosure.

2. Under the California practice, when all the judgment, and, as they are a digression

the facts that defendant would be required to in the progress of a trial from the general prove to sustain his plea of the statute of limcourse of procedure designated for obtaining

itations appear on the face of the complaint,

defendant may take advantage thereof by de
a judgment upon the issues presented by the

murrer; but, to uphold a demurrer, the com-
pleadings, the legislature has deemed it prop plaint must show, not that the cause of action
er that they should be evidenced by a per may be barred, but that it is barred.
manent memorandum thereof. But these Commissioners' decision Department 2.
entries in the minutes are evidently intended Appeal from superior court, Monterey county.
for the guidance of the court in its further Action by Frederika Palmtag against
action in the cause, and cease to be of value George W. Roadhouse and Emma Road-
upon the entry of the judgment, for they house, his wife, to foreclose a mortgage.
form no part of the judgment roll, or “rec From a judgment for defendants, plaintiff
ord" of the judicial action of the court, (sec appeals. Reversed.
tion 670,) and cannot be used to impeach that

James Hall and Cross & Hall, for appel-
record. With the exception of orders in mat-

lant. S. F. Gell and John J. Wyatt, for re
ters of probate, (section 1704,) there is no

spondents.
provision in the Code of Civil Procedure
which requires the clerk to enter in his min SEARLS, C. This is an action brought
utes any order of the court made during to foreclose a mortgage given by the defend-
the trial of the cause, or at any time after ants, George W. Roadhouse and wife, to
issue and before judgment. The final action secure a promissory note for $1,550 and in-
of the court upon the issue made by the terest, made by said defendants, Roadhouse
pleadings, and which is a judicial determi and wife, The note and mortgage were
nation of that issue, is to be recorded by the dated March 25, 1885, and the note was pay.
clerk in the judgment book. Section 668. It able to Frederika Palmtag, or order, one
is essential, however, that the action of the year after date. The action was commenced
court be made a matter of record, in order July 9, 1890,-as may be seen, more than
that there may be no uncertainty as to what four years after the maturity of the note.
its action has been, and for this purpose it Defendants demurred to the complaint upon
is customary, as well as expedient, to have the givund, among others, that the cause
its acts entered in the minutes kept by the of action was barred by the provisions of
clerk; but if the order is formally prepared section 337 of the Code of Civil Procedure of
and signed by the judge, and made a matter the state of California Plaintiff, in her
of record by filing with the clerk, the same complaint, and with an evident view to avoid
end is attained as if it were spread at length the apparent bar of the statute of four years,
upon the minutes of its daily transactions. inserted in her complaint the following state-
As was said in Niles v. Edwards, 95 Cal. 47, ment: “That said defendant George W.
30 Pac. Rep. 134: “The action of the court Roadhouse is an attorney and counselor at

0

law, and engaged in the practice of law at the pleading shows it clearly open to the ob Salinas City, Monterey county, Cal., and that Jection. To uphold a demurrer for this plaintiff is a widow woman, residing at cause, the complaint should show, not that Watsonville, Santa Cruz county, Cal., and the cause of action may be barred, but that that the facts set forth in this paragraph It is barred. Where, from the pleading, the have existed for several years last past. question is left in doubt, an answer setting That, for about five years last past, said de up the plea should be resorted to. Farris y. fendant George W. Roadhouse has been act Merritt, 63 Cal. 118; Harmon v. Page, 62 ing as the attorney and confidential agent Cal. 448; Smith v. Richmond, 19 Cal. 477; for this plaintif, and plaintiff always had Barringer v. Warden, 12 Cal. 311. At comfull faith in his honesty and uprightness, mon law the statute of limitations can only and placed implicit confidence in his declara be interposed by plea, and could not be urged tions and advice to her. That at various upon demurrer to the declaration, although and sundry times between March 25, 1886, apparent upon its face. In equity the rule and March 25, 1890, defendant George W. was that, if all the facts which a defendant Roadhouse told plaintiff and wrote to plain would be required to prove to sustain his plea tiff that she need not trouble herself about appeared upon the face of the complaint, that note and mortgage, (meaning the note the defendant might take advantage of it by and mortgage set out in this complaint;) demurrer. We have substantially adopted that he would pay it before it outlawed, or the equitable mode of pleading, and with it words to that effect; and various and sundry the practice of permitting the statute of other statements of like import, all of which limitations to be interposed by way of de statements plaintiff fully believed and relied murrer in a proper case. In the present upon. That plaintiff is a woman not con case I am of the opinion that, admitting all versant with business affairs and matters, the facts of the complaint to be true, includand relied implicitly on the aforesaid asser ing those defectively pleaded, but not obtions of her agent and attorney. That de jected to, defendants were not entitled to fendant George W. Roadhouse was at all judgment upon the ground that the plaintimes herein mentioned the husband and tiff's complaint showed her demand to be agent of defendant Emma Roadhouse, and barred by the statute of limitations. It folacted in that capacity in all matters pertain lows that the judgment of the court below ing to said note and mortgage. That said should be reversed, and the court directed defendant Emma Roadhouse, as plaintiff is to overrule the demurrer to the complaint, informed and believes, and therefore alleges, with leave to defendants to answer. well knew each and every fact set out in this paragraph before March 25, 1890, and We concur: BELOHER, C.; VANCLIEF, agreed thereto and acquiesced therein." The O. demurrer was sustained by the court, and, plaintiff declining to amend, final judgment PER CURIAM. For the reasons given in was entered in favor of defendants, from the foregoing opinion, the judgment of the which judgment the plaintiff appeals.

court below is reversed, with directions to The doctrine of estoppel, invoked by appel- overrule the demurrer to the complaint, and lant against the defendants, cannot be main with leave to defendants to answer. tained. It is not made to appear that George W. Roadhouse occupied any fiduciary relation to plaintiff in the matter of the note and mortgage. His position as to that trans

DUNCAN V. GRADY et al. (No. 15,471.) action was adverse to the plaintiff, and the fact that he was her attorney in other mat

(Supreme Court of California. Sept. 14, 1893.) ters did not alter his status in this respect; APPEAL-TAKING FOR DELAY-DAMAGES. at least, it cannot be presumed to have done

When it appears by the uncontradicted 80, in the absence of express averments on

affidavit of respondent, on an appeal from a the subject.

money judgment, that the appeal was taken 2. The complaint stated facts sufficient to merely for delay, and that there was no pre

tense of any defense, the court, on dismissing constitute a cause for action, and the de

the appeal for failure to file a transcript, will murrer was evidently sustained upon the award respondent damages for appellant's theory that plaintiff's cause of action was abuse of the right of appeal. barred by the provisions of section 337 of

Department 2. Appeal from superior the Code of Civil Procedure, (statute limit

court, Fresno county. ing actions to four years.) The attempted

Action by one Duncan against W. D. Grady averment of facts in avoidance of the stat

and others. From a judgment for plaintiff, ute is not explicit and clear, and the com

defendants appeal. Dismissed.

demurrer upon the ground that the complaint w. D. Grady, for appellants. J. P. Strother,

was ambiguous, unintelligible, or uncertain; for respondent. but a demurrer to a cause of action, upon the ground that it is barred by the statute DE HAVEN, J. This is a motion to die of limitations, can only be sustained where miss an appeal because of the tallure of de

curly man:

PEAL.

à demaran should shop ay be barred to from the patients ibt, an air resorted to it

Harmon T. Popa chmond, 190 12 Cal 311. L.

limitations end could oxy:

declaration = In IT 2 ts which are

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tendants to ile a transcript within the time
prescribed by rule 2 of this court, and for CAMPBELL V. FREEMAN. (No. 18,135.)
damages. The appeal is from a judgment (Supreme Court of California. Sept. 12, 1893.)
rendered against defendants for the sum of

ABSOLUTE DEED AS MORTGAGE - RECORD ON AP
$1,233.35, and was perfected by the filing
of an undertaking on appeal on June 24, 1893, 1. Where a purchaser of land verbally
and no transcript on appeal has been filed agrees with another that, if the latter will loan
in this court; and it further appears from

bim the purchase price, the conveyance shall the certificate of the clerk of the superior

be made direct to the latter as security there

for and also for future advances, the conveycourt, dated August 23, 1893, that the de ance makes the lender a trustee and also a fendants have not requested him to certity mortgagee, and he has a lien for the amount to any copy of the record. Upon these facts,

advanced for the purchase and for the subse

quent advances. the appeal must be dismissed. At the time

2. In order to obtain a review of a ruling of giving notice of the motion to dismiss on the refusal of the court to allow amendment the appeal, the respondent also gave notice

of pleadings, the request and ruling must be that he would ask for damages upon the

incorporated in the statement, or brought up by

bill of exceptions.
ground that the appeal was taken only for
delay. This notice was based upon an affi-

Department 1. Appeal from superior court, davit of respondent, a copy of which was du

Fresno county; M. K. Harris, Judge. ly served upon appellants. This affidavit of

Action by Campbell against Freeman, adrespondent states that after the rendition

ministrator of A. G. Anderson, deceased, to of the judgment appealed from "execution

have a conveyance declared a mortgage. was duly issued in his favor for the levy

Judgment for plaintiff. Defendant appeals. and collection of the amount due by said

Affirmed. judgment, and, after a levy by the sheriff Frank H. Short and G. C. Freeman, for apupon sufficient property of defendants to pellant. Gayle & Coldwell, for respondent. have satisfied said judgment, defendant W. D. Grady, who was also the attorney for him HARRISON, J. In April, 1882, A. G. Anself and the other defendants, C. A. Owen derson, the appellant's intestate, being about and R. T. Owen, proposed to this affiant to purchase a tract of land, made a verbal to give a chattel mortgage to gain further agreement with the plaintiff that the plaintiff time upon said debt; that he referred him should loan him $800 with which to make the to his (affiant's) attorney, and that said Gra- purchase, and that the conveyance should be dy told this affiant, if he did not consent made by the vendor directly to the plaintiff, to said proposition, that they would take an who should hold the title as security for the appeal upon the judgment, and keep him out money so loaned, and also for all other monof the money for a year, and that he (affiant) eys which he should thereafter loan to or adwould only get seven per cent. interest upon vance for him, and that Anderson should the debt; that none of the defendants ever take possession of the property so conveyed. pretended to have any defense to the action, In pursuance of this agreement the conveynor any offset to the debt or judgment; ance was made to the plaintiff, and the purand that the only purpose of appeal in this chase money therefor was paid by the plaincase was for delay." This affidavit is not tiff to the vendor, and Anderson entered into contradicted, and, for the purposes of this the possession of the property, and remained motion, the matters therein stated must be in possession thereof until his death in 1889, taken as confessed by the defendants. The making valuable improvements thereon. Aftfacts stated in the affidavit are such as to er the purchase the plaintiff loaned other entitle the respondent to a judgment against sums of money to Anderson, and made paydefendants for damages. Buckley v. Stebbins, ments on his account, in pursuance of the 2 Cal. 149. Ordinarily, the rate of interest aforesaid agreement, amounting to $2,419, allowed by law upon a judgment will be for which, on the 6th day of June, 1889, he deemed a sufficient compensation to the judg executed to the plaintiff his promissory note. ment creditor for any delay occasioned by After this date the plaintiff made still other an appeal, and the mere fact that, in the payments for the account of Anderson, under opinion of this court, an appeal is ill advised, the said agreement, and after his death prewill not justify the imposition of damages; sented to his administrator a claim against but when it appears, as in this case, that there his estate, properly verified, for all of the has been an abuse of the right of appeal, aforesaid amounts, amounting to $3,116.50, and an attempt to wrest the law in relation which was allowed and afterwards approvthereto from its true object, and to use it ed by the judge of the superior court, and for a purpose for which it was never de filed with the clerk. The plaintiff brought signed, damages will be awarded. Appeal this action against the administrator, alleg. dismissed, and judgment in favor of respond ing the agreement between himself and Anent and against appellants for the sum of derson, and that by virtue thereof the land $100, damages and costs.

that had been conveyed to him was held in

mortgage to secure the payment of the said We concur: FITZGERALD, J.; MCFAR indebtedness, and asking for the sale thereof, LAND, J.

and payment of the said claim out of the v.34P.no.1-8

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proceeds thereof. Judgment was rendered in vance to him. It was competent for them his favor, from which the defendant has ap to make such an agreement, and the agreeDealed; claiming that the only effect of the ment, when made, had the effect to render transaction and agreement between the plain the conveyance to the plaintiff a mortgage tiff and Anderson was to create a resulting to secure the loans advanced to Anderson. trust in favor of Anderson, by which the “Any interest in property which is capable plaintiff held the land as security for only of being transferred may be mortgaged," the amount advanced for its purchase. (Civil Code, $ 2947;) and if the transfer is

The rule is familiar that when, upon a made as security for the performance of an purchase of real property, the purchase mon obligation, it is, in equity, a mortgage, irre ey is paid by one person, and the conveyance spective of the form in which it is made. is made to another, a resulting trust imme A deed absolute in form may be given as diately arises against the person to whom the a security for future advances, without any land is conveyed, in favor of the one by accompanying obligation in writing, on the whom the purchase money is paid. The real part of the person giving the deed. Husheon purchaser of the property is considered as v. Husheon, 71 Cal. 412, 12 Pac. Rep. 410. the owner, with the right to control the title We cannot consider the refusal of the in the hands of the grantee, and to demand court to allow the defendant to amend his a conveyance from him at any time. The answer. The statement on motion for a same rule prevails if the money paid by the new trial does not show that he made such party taking the title is advanced by him as request, nor does it show any ruling of the a loan to the other, and the conveyance is court in reference thereto, and there is no made to the lender for the purpose of secur bill of exceptions containing any action of ing the loan; but in the latter case the pur the court thereon. The only mode in whicb chaser cannot demand the conveyance until it is brought to our attention is by certain he has paid the money advanced, and for documents printed with the transcript, but which the land is held as security. In such a which do not purport to be authenticated, case the grantee holds a double relation to except by the affidavit of his attorney. If the real purchaser,-he is his trustee of the a review of this ruling had been desired, legal title to the land, and his mortgagee for it should have been either incorporated into the money advanced for its purchase, and, the statement, or brought here by a bill of as in the case of any other mortgage which exceptions. is evidenced by an absolute deed, is entitled The objection to the allowance of an attor to retain the title until the payment of the ney's fee is not well taken. The note conclaim for which it is held as security; and tained an express provision for its payment, he may also enforce his lien by an action of and the issue made by the answer of the de foreclosure. The conveyance is none the less fendant was limited to the amount for which a mortgage because it was conveyed to him it could be allowed. It appears from the directly by a third party, to secure his loan statement that the evidence justified the to the purchaser for the amount of the pur finding by the court that this amount was chase money, than if the conveyance had reasonable. been made directly to the purchaser in the The conclusion that we have reached first instance, and the purchaser had then makes it unnecessary to consider the momade a conveyance to him, as a security for tion to dismiss the appeal. The judgment the money that he had previously borrowed and order denying a new trial are affirmed. with which to make the purchase. He is re

We garded as holding the land in trust for the

concur: BEATTY, , C. J.; GAprotection of the purchaser; but this rule is ROUTTE, J. not to be so extended as to enable the purchaser to work him an injury. Equity looks beyond the forms of a transaction, and shapes COLE v. WILCOX. (No. 19,168.) its judgments in such a way as to carry out (Supreme Court of California. Sept. 12, 1893.) the purposes of the parties to the agreement,

APPEAL-New TRIAL – APPLICATION -ExcrsABLE and to protect each of them against any un

NEGLECT-DISCRETION OF COURT. conscionable advantage to be derived from 1. The determination of whether the failthe apparent form in which their transaction ure of a party to procure additional time to has taken place. In the present case the

prepare a statement on which to apply for a

new trial was the result of excusable neglect title to the land which the plaintiff took from or mistake is within the discretion of the trial the grantor was held by him in trust for An court, and its findings are conclusive. derson. This was a trust created by opera

2. The objection that the statement of the

case prepared for settlement on which to move tion of law; but, contemporaneously with for a new trial, and the proofs in support of the creation of this trust, there was im the objection, should be made when the propressed upon the title, by virtue of the agree

posed statement is presented for settlement by

the court, rather than at the hearing of the pient between Anderson and the plaintiff, a motion, lien in favor of the plaintiff for the money 3. Granting a new trial because the judge which he had loaned him with which to ment is not supported by the evidence being

within the discretion of the trial court, in the make the purchase, and also for such other

absence of an abuse of that discretion the or moneys as he should afterwards loan or ad der will not be disturbed on appeal.

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