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cents.” And the county government act pro claim under the statute for the 670 miles vides: “The salaries and fees provided in traveled in making the arrest of McKinner, this act shall be in full compensation for all and also all that he claimed for making the services of every kind and description ren arrest of McFarlane, and that only his clai: dered by the officers therein named,

for the miles traveled which did not result provided further, that the board of super in any arrest was disallowed. In Brough. visors shall allow to the sheriff his neces ton v. County of Santa Barbara, 65 Cal. 257, sary expenses for pursuing criminals or trans 3 Pac. Rep. 877, the sheriff of that county acting any criminal business without the sought to recover, under section 9 of the boundaries of his county.” St. 1887, p. 207, statute of 1869–70, above quoted, a certain $ 211. In support of the first cause of action sum of money as “mileage" for traveling to it was shown that McFarlane and McKinney serve a warrant of arrest on one charge! were in the county jail, and escaped there with felony; and it was held that the stat. from during the night of November 25 or 26, ute did not allow mileage for traveling in 1889. On the morning of the 27th plaintiff different directions in looking for one started out hunting for them, having war charged with a crime who is not arrested. rants for their arrest, and continued such That case we consider directly in point, and hunting until December 14th. While so en decisive of the first cause of action in this gaged he traveled 940 miles, most of which It is true that McFarlane and McKinney traveling was outside of his county. After were subsequently found and arrested, but December 14th plaintiff discontinued his that fact, under the circumstances shown, hunting until January 9, 1890, when he start does not materially distinguish this case ed out again in quest of McKinney, and ar from that. It follows that the plaintiff was rested him in Rawlins, Wyo. In going and not entitled to recover for the miles traveled returning on this last trip he traveled 670 in his unsuccessful hunt, though possibly be miles within this state. Subsequently, in might have rightly claimed pay for his necesDecember, 1890, plaintiff started out again sary expenses. That question, however, does after McFarlane, and found and arrested him not arise here, as no such claim was pre in the town of San Marcial in New Mexico. sented for allowance. For this last service he afterwards presented In support of the second cause of action another claim against the county, and it was it was shown that between November 10, allowed and paid in full. The 919 miles and 1889, and January 5, 1890, a deputy of the 670 miles traveled as before stated, the first plaintiff went several times to Goshen and number, however, being duplicated, because Tulare, and arrested at the former place 18 the hunting was for two alleged criminals

and at the latter 49 different persons. The at the same time, constitute the plaintiff's arrests were all made without any warrants, claim as set forth in bis “Exhibit A;" and and it was admitted "that the plaintiff went the only question is, was he entitled to a to Goshen without any knowledge of ans larger allowance on it than was made by the crime having been committed by any of bcard of supervisors? Plaintiff testified: the defendants in any of the said cases, and “During the time I did this traveling, hunt that while at Goshen he arrested each of ing for McKinney from and including No said defendants, and took each of said de vember 27, 1889, to December 14, 1889, I did fendants to Visalia, where he swore to a not arrest McKinney or have him in my cus complaint before the justice against each tody. These places where I traveled in hunt of said defendants, upon which a warrant ing were several hundred miles from where was issued in each of said cases, which I finally arrested McKinney. Between the warrant was thereupon at said Visalia 14th day of December, 1889, and January 9, served by plaintiff upon each of said de 1890, I did not do any traveling in hunting fendants.” And there was a like admission for McKinney. It was nearly a month after as to the arrests made at Tulare. It was I did this traveling in hunting for McKinney further admitted that each of the defendants before I arrested him; nearly a month be named in the admissions was charged with fore I started out again to hunt him. * a misdemeanor. The deputy testified: "Some I arrested McFarlane some time in Decem of these parties were arrested for vagrancs, ber, 1890. I arrested him several hundred some for malicious mischief, and I think miles from the place where I did the hunting there were two or three for disturbing the for him as set forth in my complaint in 'Ex gpeace. .

At the time I arrested any hibit A.' *

* I arrested both McFarlane of the defendants at Goshen I did not have and McKinney in opposite directions from any knowledge or notice that any particular the places where I traveled in hunting for defendant had committed any offense before them as set forth in my claim marked 'Ex I started from Visalia. In each and all of hibit A;' not exactly opposite, but in a dif these cases the crime was committed at ferent direction. The arrest of McFarlane Goshen, after I arrived there, and was done by me was made nearly a year after the in my presence while there. I also state that time I traveled hunting for him, as set out each and all the defendants whom I arrested in my claim marked 'Exhibit A.'” It will be at Tulare were arrested by me for a crime observed that the plaintiff was allowed by committed in my presence at Tulare. I had the supervisors all that he was entitled to no notice or knowledge of any of these de

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tendants committing a crime before I start the petitions were given, and they were both ed to Tulare." The distance from Visalia to set for hearing at the same time, on JanuGoshen was eight miles, and to Tulare ary 14, 1893. At the time set for the heartwelve miles. In making up his claim, as ing, Phelps was sworn as a witness, and shown by "Exhibit B," plaintiff charged, and among other things testified: “I filed my penow insists that he is entitled to recover, tition for letters of administration on the mileage at the rate of 30 cents per mile 31st day of December, 1892, before I had ever from Visalia to the place of arrest, for each seen the deceased, before his burial, and beof the 18 and 49 persons arrested; and fore I had held the inquest on his remains. whether he was entitled to such mileage I had not at that time ever seen any of his or not is the only question which need be property or taken charge of it. I had made considered, the allowance made by the board no search for his will, except to talk with of supervisors being sufficient to cover all some one at Knight's Ferry through the telethe balance of his claim. As before stated, phone. I did not then know anything about the plaintiff was entitled to such fees only

his property. I have not taken charge of as were allowed by law. No statute or rule the property under an order of court, and of law is cited authorizing such a charge as have not had charge of it since the special that in question, and we know of none. It letters of administration were issued to J. D. seems clear, therefore, that this claim for Bentley. I wrote to Mr. Means to take mileage was properly disallowed by the su charge of the property, but I don't know pervisors, and improperly allowed by the

whether he did or not. I have never been court below. It follows that the judgment

in charge of it personally. I have not been and order must be reversed, and the cause

public administrator since the 3d day of remanded. So ordered.

January, 1893, and am not now." Other witnesses were also sworn and examined in behalf of both petitioners, and at the conclusion of the evidence the court made an or

der denying the petition of Phelps, and In re PINGREE'S ESTATE. (No. 18,186.)

granting that of Bentley. , From this order (Supreme Court of California. Oct. 13, 1893.)

Phelps appeals, and his contention is that inPUBLIC ADMINISTRATOR-RIGHT TO LETTERS.

asmuch as Pingree died, and he filed his pe A public administrator does not, by fil

tition, during his term of office, he became ing his petition for administration on an tate before the ending of his term of office, be

interested in the estate to the extent of his come entitled to administer thereon as against commissions, and was therefore entitled to the incimbent of the office at the time of the

administer upon it and recover the commisgrant of adıninistration.

sions, notwithstanding his term of office exCommissioners' decision. Department 2.

pired before his petition was heard; and, Appeal from superior court, Stanislaus coun

in support of this position, Rogers v. Hoberty; William 0. Minor, Judge.

lein, 11 Cal. 120, and In re Aveline's Estate, In the matter of the estate of W. C. Pin

53 Cal. 260, are cited. The Code names 10 gree, deceased. From an order refusing let

classes of persons who may be appointed to ters of administration to J. Phelps, and administer on estates, and among them are granting them to J. D. Bentley, the former public administrators. Section 1365, Code appeals. Affirmed.

Civil Proc. It provides that petitions for L. J. Maddux, for appellant. Eastin & letters of administration must be in writing, PATE Griffin, for respondent

etc., (section 1371,) and that any person in

terested may contest the petition, and may BELCHER, C. On the 30th day of De assert his own rights to the administration, cember, 1892, W. C. Pingree died intestate and pray that letters be issued to himself, in the county of Stanislaus, in this state. (section 1374;) and also that on the hearHe was a resident of the county at the time ing the court must hear the allegations and of his death, and left an estate therein, con proofs of the parties, and order the issuing sisting of real and personal property, of the of letters of administration to the party best value of more than $15,000. He had no rela entitled thereto, (section 1375.) A public adtives or heirs at law residing in this state. ministrator, like any other person, can adOn December 31st, the next day after the minister on an estate only when there has death of Pingree, J. Phelps, then the public been made to him a special judicial grant administrator of the county, filed in the su

of administration thereon. He does not, by perior court thereof his petition in proper virtue of his office, acquire the right to adform, asking that letters of adminstration minister upon any particular estate. Beckon the estate of the deceased be issued to ett v. Selover, 7 Cal. 216; In re Hamilton's him. On January 2, 1893, J. D. Bentley be Estate, 34 Cal. 464. The cases cited by apcame the public administrator of the county, pellant are only to the effect that where letand on the next day (January 3d) he, as ters of administration have been granted to such officer, filed in the superior court his a public administrator he may continue his petition in proper form, asking that letters administration of the estate after the exof administration on the estate of the said piration of his term of office, and until his deceased be issued to him. Due notices of authority is set aside or revoked by another

appointment. Those cases are not in point here. The appellant did not, by virtue of his office or by filing his petition, acquire any interest in the estate of Pingree, or in the commissions to be earned by administering upon it; and when his term of office expired he ceased to be one of the persons specially named to whom letters might be granted. It was his status at the time of the grant of administration, and not at the time of filing his petition, that determined his competency. The court did not, therefore, err in ordering that letters of administration on the estate be issued to Bentley as "the party best entitled thereto." The order, appealed from should be affirmed.

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ROAD CO. (No. 18,118.) (Supreme Court of California. Oct. 13, 1893.) Quo WARRANTO RESTRAINING COLLECTION OF


1. In an action in the nature of a quo warranto, brought by the attorney general, to have a certain road declared a highway, and to enjoin defendant from collecting tolls thereon, defendant's claim and exercise of the franchise being admitted, the burden is on defendant to show by what' warrant or authority such claim is made.

2. An averment in the complaint in such action, that "for more than six months last past defendant has had no franchise or right to demand or take toll,” is not an admission of the existence of such franchise or right previous to that period.

Commissioners' decision. Department 2. Appeal from superior court, Placer county; W. H. Grant, Judge.

Information in the nature of a quo warranto against the Volcano Canyon Toll-Road Company. From an order denying a new trial, defendant appeals. Affirmed.

Clitus Barber and John M. Fulweiler, for appellant. F. P. Tuttle and A. K. Robinson, for the People.

passengers or travelers upon said road for the privilege of passing over or along the same with their animals, or at all, or to establish or maintain any tollgate or other gate or obstruction thereon," etc. The answer ad. mits, by not denying, that the defendant claims and is exercising the disputed franchise, but denies that it is doing so without right, and avers that the board of supervisors of the county granted defendant a franchise to collect tolls upon the road, which has not expired.

This being an information in the nature of a quo warranto brought by the attorney general, and the fact that the defendant claimed and was exercising the disputed franchise being admitted, the burden was on the defendant to show by what warrant of authority it claimed and exercised the franchise. There was no attempt to show any warrant or authority whatever. The judg. ment, therefore, was proper.

The statement shows that but one witness was sworn, and that was one Bunker, wbo testified for the defendant. He testified that the road belonged to his wife, who took it as legatee under the will of witness' brother, and since they had owned it they had built a bridge, and repaired the road. That toll had always been charged for traveling the road. He also said they had never claimed to be incorporated, and that the name used as defendant was simply the name of the road, and was convenient for that purpose. Yet we are referred in the brief of appellant to a case in which this same name figured as a plaintiff in a case to compel the board of supervisors to fix the rate of tolls, which case was appealed to this court. Volcano Canyon Road Co. v. Board of Sup'rs of Placer Co., 88 Cal. 634, 26 Pac. Rep. 513. In that case it was said that the board, on that application, could not inquire whether the plaintiff was legally incorporated, or owned the road. It seems a very startling proposition that a person taking a name, apparently of a corpo rate body, and in his complaint asserting it to be such, can take possession of a public highway which was laid out and built, and is being controlled, by this very board, and compel that body to fix rates of toll, and allow the applicant to appropriate the highway, without the right to question the corporate character, although no such pretended body ever existed, or claimed to exist, save in the petition to have the rates fixed. Weaverville & M. W. R. Co. v. Board of Sup'rs of Trinity Co., 64 Cal. 69, is relled upon as authority for this proposition. But in that case it was proven and found that the plaintiff was an acting corporation, and it was simply held that in that proceeding this was sufficient and conclusive. In this case there are no persons acting under the name. There are no directors or officers, and no acts in corporate form.

As to the other proposition, it has been held in numerous cases that the board, when

TEMPLE, O. This action was brought to have a certain road in Placer county declared a public highway, and to enjoin defendant from collecting tolls thereon. Plaintiff had judgment, and defendant appeals from an order denying a new trial. It is averred in the complaint that defendant claims and is exercising the franchise of collecting tolls for the privilege of traveling upon and passing over the road, and is maintaining tollgates, thereby obstructing the road, and preventing its use and enjoyment by the public, except upon condition of paying toll to the defendant; further, "that, for more than six months last past, defendant has had no franchise or right to demand or take toll from

such application is made, may and should or some of them, reside at the commencement inquire as to the right of the applicant to

of the action." De Haven, J., dissenting. a franchise; and it has been held that, be

2. Code Civil Proc. $ 396, provides that if

the county in which the action is commenced is cause the board on such an application has not the proper county for the trial thereof the determined this right, an individual who is action may notwithstanding, be tried therein,

unless defendant demands in writing that using the road cannot question it. Turnpike

trial be had in the proper county. Held, that Road Co. v. Campbell, 44 Cal. 89. In Blood where the bill of exceptions recites that a "nov. Woods, 95 Cal. 78, 30 Pac. Rep. 129, it was tice in due form" of the motion by defendant said that all toll roads are public roads, and

for a change in the place of trial was filed, to some extent under the control of the

and no objection was raised to the absence of

a demand in writing, it will be presumed on board of supervisors, and that the roads up appeal that the notice included a proper deon which they may be required to fix rates

mand. Beatty, C. J., dissenting. of toll are those laid out and built as toll

In bank. Appeal from superior court, San roads under the provisions of the Code. This Bernardino county; John L. Campbell, Judge is not a proceeding for fixing rates, but an Action by Warner against Warner and an. inquiry on behalf of the state as to the au other. From an order changing the place thority of the defendant, if there be one, to

of trial, plaintiff appeals. Affirmed. collect tolls. No such right has been shown. It seems to be claimed that, in the allega

Rolfe & Freeman, for appellant. Wells, tion quoted from the complaint, it is ad

Monroe & Lee, for respondents. mitted that prior to six months immediately preceding the action the defendant had a

PATERSON, J. This is an action for a franchise. But this is not so. It is a very

divorce and a division of the community cautious statement, but is entirely consistent property. It is alleged that F. R. Warner, with the proposition that defendant never had

who is joined as a defendant with the husa franchise at any time. The pleader might

band of the plaintiff, received from the hushave contented himself with merely stating

band a fraudulent conveyance of certain the fact that the defendant was claiming and

real property, situated in San Bernardino exercising a franchise, and averred that it county, with the intent to defraud the plainwas without right, or he might have averred

tiff of her community interest therein. The the existence of a franchise at some time,

prayer is for a divorce, a cancellation of and shown that it had terminated, or been

the conveyance, and a division of the propforfeited. In the last case the facts showing erty fraudulently conveyed. The action was that it had ended or had been forfeited brought in the county of San Bernardino, should have been stated. The complaint the complaint alleging that the plaintiff had here, though containing some unnecessary

resided in the state for more than one year, statements, is quite sufficient for a complaint and in the county of San Bernardino for of the first character, but is insufficient for a more than three months, next preceding the complaint in the other class of cases. The commencement of the action. The court, corporate character of the defendant is ad on motion of the defendants, changed the mitted in the pleadings; still the evidence place of trial from San Bernardino to Los shows, beyond doubt, that there is no de Angeles county, upon the sole ground that fendant. It is nominis umbra, merely. I ad. the defendants were residents of the latter vise that the order be affirmed.

county. Appellant contends that under sec

tion 128 of the Civil Code an action for diWe concur: SEARLS, C.; VANCLIEF, C. vorce must be brought in the county of

the plaintiff's residence, and cannot be rePER CURIAM. For the reasons given in

moved therefrom except on account of the the foregoing opinion, the order appealed convenience of witnesses, or where it is from is affirmed.

made to appear that an impartial trial cannot be had, or that the judge of the county is disqualified from acting. The section re

ferred to, as originally incorporated into the WARNER V. WARNER et al. (No. 19,080.) Codes, provided that “a divorce must not be

granted unless the plaintiff has been a resi(Supreme Court of California. Oct. 10, 1893.)

dent of the state for six months next preCHANGING PLACE OF TRIAL-ACTION For Divorce. ceding the commencement of the action." 1. Civil Code, & 128, as amended by Act

As amended by the act of March 10, 1891, March 10, 1891, providing that a divorce must it now reads that “a divorce must not be not be granted unless plaintiff has been a resident of the county "in which the action is

granted unless the plaintiff has been a resibrought three months next preceding the com

dent of the state for one year, and of the mencement of the action,". does not prevent a county in which the action is brought three change of the place of trial of an action for divorce to the county in which defendant re

months next preceding the commencement sides, since Code Civil Proc. & 395, provides

of the action." It is said it would lead that "in all other cases (excepting actions re to an absurdity to hold that a husband could lating to real property, for the recovery of penalties, and those against municipal corpora

compel his wife to bring an action in a tions and public officers, etc.) the action inust

county other than the one in which he be tried in the county in which the defendants. lived, in the county where she resides,

and afterwards, on his own motion, have methods of procedure. The legislature has, the causo removed to the county of his resi for the reasons suggested, provided that no dence; but in making this new provision divorce shall be granted unless the plaintiff the legislature was looking out for the in has resided in the county where the action terests of the public, as well as the inter is commenced for three months, but we look ests of the parties. Prior to the passage to the Code of Civil Procedure to determine of this amendment, reproach had been all questions relating to the place of trial. brought upon the administration of our di The inconvenience and injustice suggested vorce laws by the frequency of proceed- by appellant is more fancied than real. The ings commenced by complainants in coun cases in which the plaintiff will be put to in. ties where neither of the parties resided, convenience must necessarily be rare. Furthe purpose being generally to avoid noto thermore, when the question of inconvenience riety in the community where the plaintite is considered, it will be found not entirely was known, and in some instances to ob one-sided. A party desiring to secure a ditain a decree by collusion, or to vex the vorce may under the construction claimed defendant, or make it impossible or incon by appellant, by establishing a residence in venient for him or her to present a defense. a distant county, put the defendant to the It was the purpose of the amendment to trouble and expense of having the case tried correct this abuse. The state has an inter away from the place of his residence, unest in the result of such cases. The public less he can show inconvenience of witnesses welfare demands that the bonds of matri or disqualification of the judge. But all mony should not be lightly set aside, and such speculation has nothing to do with the there is less probability of successful collu matter. It is the duty of the court to give sion or unfair advantage where the parties effect to the law as it finds it, and not be have both resided and are known, than there led away from the rules of construction by is in a county where neither has resided,

considerations of inconvenience. It is suffiand which the plaintiff may select for the

cient for us to know that effect can be given purpose solely of procuring a divorce. It to both provisions by the construction which is true, before the amendment, a defend we give them, while the construction conant had the right to have the cause trans tended for would in effect nullify the pro ferred to his or her place of residence for visions of section 395, Code Civil Proc., so trial, and to this extent the defendant's far as actions for divorce are concerned. rights were protected; but the amendment It is further contended by the appellants tends to discourage the practice referred to, that the action, being one in part to set aside saves the defendant in a great many in

a fraudulent sale and conveyance of land, stances from the necessity and expense of necessarily involves the determination of a moving for a change of the place of trial, right or interest in real property, and there and renders It less probable that the parties fore comes within the provision of section will allege or admit grounds of divorce 392, Code Civil Proc. That section provides which their friends and neighbors know to that an action "for the recovery of real be false. Thus are the interests of not only property, or of an estate or interest therein, the defendant, but of the public, in a meas or for the determination in any form of ure protected.

such right or interest," must be tried in Section 128 inust be read in connection the county in which the subject of the acwith sections 395 and 397, Code Civil Proc. tion is situated, subject to the power of The former is a limitation as to the place the court to change the place of trial. The for the commencement of actions of divorce; object of the action, however, was not simply the latter provide for the place of trial. to procure the cancellation of the deed and The absurdity suggested is no greater than reconveyance of the property. Another and that which may arise under section 5, art. probably much greater object was to secure 6, of the constitution. That section provides a dissolution of the bonds of matrimony, and, that "all actions for the recovery of the pos so far as this last matter was the subject of session of, quieting title to, or for the en the action, the proper county for the trial forcement of liens upon, real estate, shall be thereof was the county of the defendant's commenced in the county in which the real residence. It has been held here that, if estate, or any part thereof, affected by such real and personal actions are joined in the action or actions is situated.” The plaintiff same complaint, the case falls within section may be morally certain that the action 395, Code Civil Proc., and must be tried in would have to be tried in another county, the county of the defendant's residence. either because of the convenience of the Smith v. Smith, 88 Cal. 572, 26 Pac. Rep. witnesses or disqualification of the judge, 356; Ah Fong v. Sternes, 79 Cal. 33, 21 and yet the action must be commenced in Pac. Rep. 381; Le Breton v. Superior Court, the county where the real estate is situ 66 Cal. 30, 4 Pac. Rep. 777. The defendant ated. It has been held here that there F. R. Warner might perhaps have insisted is no inconsistency between this section and upon the action being retained in the county the provisions of the Code relating to the of San Bernardino for trial, but, if any such place of trial. Hancock V. Burton, 61 Cal. right existed, he waived it by joining the 70. We do not look to the Civil Code for other defendant in the application for a

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