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located the corner simply by the course and BLACKBURN et al. y. NELSON. (No. 19,- distance given, then no question could arise 212.)

but that the corner should be 84 chains and (Supreme Court of California. Nov. 14, 1893.) 20 links west of P. R. No. 3; and the monuBOUNDARIES-MONUMENTS-COURSES AND DIS

ment having disappeared, and there being TANCES.

no oral testimony as to its former location, In order to locate an intermediate post the case is here presented as if no monument in a survey of land, which was run also by

marked P. R. No. 4" was referred to in the courses and distances, the footsteps of the surveyor should be followed, instead of taking a

patent. In locating P. R. No. 4, the court reverse course.

has followed the footsteps of the surveyor, Department 1. Appeal from superior

rather than to take the reverse course, and

run a north line from the common section court, San Luis Obispo county; V. A. Gregg, Judge.

There corner, and this is the proper course.

is no reason why the north line of the grant Action by D. D. Blackburn and others

From against Andrew Nelson to quiet title.

should be shortened to 75 chains and 59 a judgment for plaintiffs, defendant appeals. links, which is the point where appellant lo

cates P. R. No. 3, and thus contradict the Affirmed.

calls of the patent in this regard, in order Wilcoxon & Bouldin, for appellant. Graves

that the west line should run due south, and & Graves, for respondents.

conform to the calls of the patent. If the

west line of the rancho cannot run due south GAROUTTE, J. Action to quiet title.

without shortening the north line, then, as The appeal is taken from a judgment in between the two lines, the course of the favor of plaintiffs, and the only question in

west line must give way, for it runs to a volved is as to the location of the western

monument, and the monument is controlling. boundary line of the rancho Pasa de Robles.

The question here presented is elementary, The rancho was surveyed in 1859, and its

and we see no necessity for a citation of boundary lines, as far as it is necessary to authority. Judgment affirmed. examine them for the purposes of this case, are desoribed as commencing at a post We concur: HARRISON, J.; PATERmarked "P. R. No. 3;" then west 84 chains SON, J. and 20 links to a post marked "P. R. No. 4;" thence south 255 chains 87 links to the corners of sections 31, 32, 5, and 6. There is no dispute either as to the location of P. R.

WREN V. WREN. (No. 14,296.) No. 3, or the termination of the west line at (Supreme Court of California. Nov. 10, 1893.) the point where the four sections corner, HUSBAND AND WIFE-AGREEMENTS BETWEEN but the post marked "P. R. No. 4" is de

Wife's EARNINGS. stroyed; and this litigation is the result, for

1. Under Civil Code, $ 158, allowing hus

band and wife to enter into any engagement or the location of the corner where that post

transaction with each other respecting prop originally stood is determinative of the mer- erty, and section 159, providing that they may its of this case. The township of govern

by contract alter their legal relations to prop

erty, and section 160, making their mutual conment land lying immediately west of the

sent a sufficient consideration for such an aforesaid rancho was surveyed and section

agreement, a husband may relinquish to his ized in 1869, long after the title to the rancho wife his right in money to be earned by her in was settled, and its exterior. boundaries final

nursing and boarding a person, so that she may

therefor without joining him. Read v. ly located. Hence, if any conflict arises be- Rahm, 4 Pac. Rep. 111, 65 Cal. 313, explained. tween these respective surveys. the grant 2. She is not required in such case to alsurvey must prevail. Appellant contends lege that defendant had notice of the agree

ment between herself and husband when the that P. R. No. 4 should be located by running

services were rendered. north 255 chains and 87 links from the corner of the four sections mentioned. Re

In bank. Appeal from superior court, city

and county of San Francisco; Walter H. spondents insist that the northwest corner of the rancho should be located by running

Levy, Judge. west from P. R. No. 3 84 chains and 20

Action by Wren against Wren. From a links, and with this determination we agree.

judgment for defendant, plaintiff appeals.

Reversed. The northwest corner of the rancho is located by the patent at a post marked "P. R. Frank J. Sullivan, for appellant. Mich. No. 4." It is also located as being 84 chains Mullany and Wm. Grant, for respondent. and 20 links west of a post marked "P. R. No. 3." Hence, it is not only located by a DE HAVEN, J. The plaintiff, who is & monument, but by course and distance. The married woman, brought this action to recovlocation by monument is valueless, for the er $300 from the defendant for personal serv. monument has disappeared. Hence, the ices as a nurse, alleged to have been rendered course and distance is necessarily control. by her to him. At the time these services ling. If the patent had referred to no monu- were rendered, the plaintiff and lier husband ment at this corner of the rancho, but had were living together, and the defendant was

sue

an inmate of their house, but neither the the case of Riley V. Mitchell, 36 Vinn. & plaintiff nor her husband was under any 29 N. W. Rep. 588. Under section 4, e natural or legal obligation to care for the of the General Statutes of that state, (1871 defendant without charge. In addition to husband and wife are given the right to the foregoing facts, it is alleged in the com- “contract with each other as fully as if the plaint that, prior to the rendition of the serv- relation of husband and wife did not tIices mentioned, it was orally agreed between ist," except in matters concerning real estate; plaintiff and her husband that she should and the supreme court in that case held that have and receive all moneys earned by her in an agreement between husband and wife nursing defendant as her sole and separate that the latter might receive the compelsproperty. The superior court sustained a tion to be earned by her in nursing a boarddemurrer to the complaint, and thereupon ren- er in the family gave her the right to se dered judgment in favor of defendant.

earnings, and the consequent right to m2:3The sole question to be determined on tain an action for the purpose of collecting this appeal is whether the complaint shows the same. The court in that case said: that the earnings of plaintiff in nursing de- "While it may be true that a married worS fendant became her separate property, or will not, solely by virtue of the provisions in whether such earnings constitute community Gen. St. 1878, c. 69, § 1, be entitled to mules property, for which her husband alone has due from boarders or others earned by her the right to sue. The earnings of a wife in and about the keeping and management during marriage and while living with her of the family household, there can be po husband and in his house are community doubt that under section 4, same chapter, property, and, as such, are subject to the she may become entitled to receive the same management, control, and disposition of the by virtue of a contract between herself and husband; but the husband may relinquish her husband. We do not mean by this that to the wife the right to such earnings, and they may stipulate for a pecuniary compewhen he has done so they become the sep- sation to be paid by one to the other for pe arate property of the wife. This general forming the duties that pertain to the reisproposition is not disputed by defendant, tion, such as caring for and managing the but he contends that the agreement alleged family, and the household of the family, but in the complaint did not have this effect, confine the proposition to services rendered because it related to future earnings, some- to others, and compensation from others får thing not then in existence, and therefore such services." We think this may be re not the subject of a verbal gift. We do not, garded as a correct statement of the right however, regard this agreement as consti- given to husband and wife to contract wiú tuting a “gift," pure and simple, in the legal each other in relation to the savings of the sense of that term. Section 158 of the Civil wife by the sections of our own Civil Code Code provides that “either husband or wife above cited. It must be conceded that there may enter into any engagement or transac- is language found in the opinion of this court tion with the other, or with any other person, in the case of Read v. Rahm, 65 Cal. 343 4 respecting property which either might if Pac. Rep. 111, which seems to sustain the unmarried;" and section 159 of the same contention of defendant here that the al Code provides that a husband and wife leged agreement between the plaintiff and may by contract alter their legal relations her husband was in the nature of a gift, and as to property; and the succeeding section ineffectual for that purpose, because it re makes the mutual consent of the parties lated to future earnings. The following is thereto a sufficient consideration for such the language contained in that opinion which an agreement. Under these sections, there is relied upon by the defendant: "Theme can be no doubt that a husband and wife may can be no doubt that any indebtedness die agree between themselves, without any other from Welsh for board for himself and so consideration than their mutual consent, that was due to the community, nor could the hos money earned by the wife in performing band make a gift to his wife of his interest any work or service which does not devolve in what should be paid by Welsh for such upon her by reason of the marriage relation board in the future. He could not give that shall belong to her as her own, and, when which he had not yet aoquirel." The ques money has been earned by the wife under tion involved in that case relatert to the efsuch an understanding or agreement with fect of a deed made by the wife by the dire the husband, it is her separate property, tion of her husband in settlement of an inand she may maintain an action to recover debtedness due to the coinmunity, and the the same. An agreement between husband court held that such deed operated as a gn and wife by which the husband relinquishes from the husband to the wife. As this all ciaim to the earnings of the wife, is the only question before the court, it is er one which relates to the acquisition of prop- dent that its attentiou was not part cular's erty by the wife, and is an engagement or called to the different matter referred to in transaction respecting property, within the the above quotation, and what is there said meaning of section 158 of the Civil Code, cannot be regarded as an authoritative de above cited. This same question arose in cision upon the point presented here. The plaintiff was not required to allege in her months after the judgment in favor of plain. complaint that the defendant had notice of tiff, and that the order vacating the abovethe agreement between herself and husband mentioned order was made on July 29, 1892. at the time of the rendition of the services Plaintiff's motion to strike out defendant's mentioned in the complaint. This point was answer was heard and denied on July 29, also passed upon in the case of Riley V. 1892. It is difficult to conceive what lawful E Mitchell, 36 Minn. 3, 29 N. W. Rep. 558, and purpose could have been subserved by strik. we think was there correctly decided. It | ing out defendant's answer, and inspecting was held in that case that, when there is no his accounts with a third person, (Hannah question of set-off existing in favor of the Wittram,) or cven with the plaintiff, eight defendant against the husband at the time months after inal Judgment; and surely no of the rendition of the services, it makes no such purpose is made to appear by the bills difference whether the defendant was or was of exception. From aught that appears in not informed at the time that the wife, and the record, it would seem that plaintiff not the husband, was to receive the pay for should have moved to strike out defend. such services. Judgment reversed, with di- ant's answer, and to inspect his books be. rections to the superior court to overrule the fore judgment, if she was entitled to such demurrer to the complaint. The appeal from relief in that action. Had she done so, the the order sustaining the demurrer is dis- action of the court, if properly excepted to, missed.

might have been reviewed on appeal from

the judgment. As the record discloses no We concur: PATERSON, J: FITZGER- error, the orders appealed from should be ALD, J.; GAROUTTE, J.; HARRISON, J. affirmed.

We concur: BELCHER, C.; HAYNES, C.

MCFARLAND and FITZGERALD, JJ. For the reasons given in the foregoing opinion the orders are affirmed.

DE HAVEN, J. I do not think either of the orders appealed from an appealable order, but, as the practical effect of a dismissal of the appeals is the same as their affirmance, I concur in the judgment affirming the

same.

CLARKE v. BAIRD. (No. 15,178.) Supreme Court of California. Nov. 10, 1893.)

APPEAL-RECORD. On appeal by plaintiff from an order vacating an order for the inspection of books of account, and from an order denying a moion to strike out defendant's answer, no error 8 shown where the record states that final udgment was rendered for plaintiff several nonths before the order for inspection was nade, and before the motion to strike out, and he purpose of the order and motion at such i time is not disclosed. I Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; J. V. Coffey, Judge.

Action by Johanna F. Clarke, administrarix, against Andrew Baird. From an order 'acating an order for the inspection of books f account, and from an order denying a notion to strike out defendant's answer, laintiff appeals. Affirmed.

Alfred Clarke, for appellant. H. C. chaertzer, for respondent

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VANCLIEF, O. The transcript contains wo notices of appeal,-the first from an orer vacating “an order for inspection of cerain books of account,” made at the instance f plaintiff; and the second “from the order enying plaintiff's motion to strike out the nswer of defendant," on the alleged ground hat he had refused to give bis deposition in be case. The transcript consists of two bills f exceptions, one to each order appealed rom, but contains no part of the pleadings in ne action. It is stated in each of the bills of xception that “plaintiff recovered judgment (ovember 28, 1891,” but not even the subtance or nature of the judgment is stated. t appears that the order for the inspection ( hooks of account was an ex parte order, iade on July 15, 1892, seven and a half

ASEVADO et al. v. ORR et al. (No. 18,139.) (Supreme Court of California. Nov. 10, 1893.) INJUNCTION DAMAGES ACTION ON THE CASE

BOND-PLEADING-DEMURRER-Jury.

1. An action on the case will not lie for improperly suing out an injunction unless it is charged in the complaint as an abuse of the process of the court through malice and without probable cause.

2. The voluntary dismissal of an action is not an admission of want of probable cause.

3. Where it is not alleged in an action on an injunction bond that plaintiff in the injunction suit is a party thereto, the action cannot be maintained against him.

4. To determine the liability of the obligors in an injunction bond, the voluntary dismissal of the suit by plaintiff has the same effect as a decision of the court that the injunction was improperly sued out.

5. In an action on an injunction bond defendants cannot escape liability on the ground that the writ of injunction was ambiguous, and should not have been obeyed, as they are in no position to make such an objection.

6. A demurrer to a complaint containing two counts cannot be sustained if either count is good.

7. A joint demurrer by several defendants must be overruled if the complaint is good as to either of them.

8. A complaint is not necessarily defective in which there is united with some defendants another against whom no liability is shown, and an order overruling a demurrer for inisjoinder of parties is not reversible error if the

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rights of the parties have not been prejudiced. | injunction against the plaintiff, and upon the

9. The fact that the court excused a juror appeal from the judgment rendered therein is no ground for reversal where no exception

in favor of the plaintiff the court said: “AD was taken by appellants to the jurors who tried the case, and it does not appear that they did action on the case will not lie for improperly not have an opportunity to exercise all the per- suing out an injunction, unless it is charged emptory challenges allowed them.

in the declaration as an abuse of the process Department 1. A'ppeal from superior court,

of the court through malice and without Siskiyou county; J. S. Beard, Judge.

probable cause. If the act complained of Action by Joseph Asevado and others

is destitute of these ingredients, then the onagainst Thomas Orr and others. From a

ly remedy of the injured party is an action judgment for plaintiffs, defendants appeal.

upon the injunction bond, which is specially Reversed in part.

provided by the statute as a protection Warren & Taylor and T. M. Osmont, for against injury, even without malice;" and appellants. Gillis & Tapscott, for respond

reversed the judgment because the complaint ents.

failed to aver those facts. To the same ef

fect are the following authorities: COI T. HARRISON, J. The appellant Thomas | Taylor, 10 B. Mon. 17; Manlove v. Vick, 55 Orr brought an action in June, 1891, against Miss. 567; Burnett v. Nicholson, 79 N, C. the respondents in the superior court of 548; Hayden v. Keith, 32 Minn. 277, 20 X. Siskiyou county to restrain them from de- W. Rep. 195; Lawton.v. Green, 64 N. Y. 330; positing any sand or gravel in North Fork High, Inj. 8 1648. The courts of the state Cornish ditch, and from diverting the waters are open to every citizen for the redress of of Main Greenhorn creek from said ditch his wrongs, and unless he is at liberty to during a certain portion of each day; and im- seek such redress without rendering himself mediately after the commencement of the liable in damages to the defendant in case action 'procured a writ of injunction to is- he shall fail to establish his complaint, this sue out of the court, which was served on right would in many instances be a barten the plaintiffs herein, restraining them pend- privilege. The law has provided that in cering the litigation from doing the acts com- tain classes of actions a defendant may be plained of. For the purpose of procuring the restrained during the pendency of the action issuance of the injunction the plaintiff, in ac- from enjoying property, or exercising domincordance with the order of the judge there- ion over the same, where his right to the for, filed an undertaking in the amount of property or of dominion is controverted by $500, executed by the other appellants here- the plaintiff; and in such cases the plainin, conditioned “that, in case the said injunc- tiff is required to indemnify the defendant tion should issue, the said plaintiff, Thomas against any injury that he may sustain from Orr, would pay the defendants in the said such restraint if it shall be finally deteraction such damages, not exceeding the sum mined that the plaintiff did not have a cause of $500. as the defendants therein might sus- of action. The amount of this undertaking tain by reason of the said injunction, if the is fixed by the court as the measure of damsaid superior court should finally decide that age to be sustained, and is the limit of the the said plaintiff, Thomas Orr, was not en- defendant's right of recovery. It is to be titled thereto." In December, 1891, the ac- assumed that the court has properly exertion was dismissed upon motion of the plain. cised its discretion in determining this tiff's counsel, and thereafter the respondents amount; but if, at any time pending the litiherein brought this action against Orr and gation, it should be made to appear to the the sureties on the undertaking to recover court that the undertaking is insufficient, it the damages sustained by reason of the in- would have the power, and it would be its junction. The complaint contains two duty, to require an increase of the undercounts,-one against Orr, claiming the sum taking as the condition of allowing the plainof $6,150 for damages resulting from the is- tiff to continue the injunction. It is only suance of the injunction; and the other when the process of the court is abused, or against the sureties upon their undertaking when the plaintiff seeks to avail himself of to respond in the sum of $500 for the amount its power to harass or injure another by suof such damages. The defendants jointly de- | ing him upon a charge in which he is conmurred to the complaint, and, their demur- scious of having no right of action, that be rer having been overruled, they answered the becomes amenable in damages for bringing complaint, and a trial was thereafter had in such suit. Such an action is, however, in which the jury found that the plaintiffs had the nature of a malicious prosecution, and suffered damages in the sum of $750. Judg- in any action to recover damages therefor ment for that amount was entered against want of probable cause and malice are es the appellant Orr, and for $500 against sential ingredients to the complaint, and the other appellants. From this judgment must be clearly alleged and proved in order to the defendants have appealed.

sustain the action. Cox v. Taylor, supra. 1. In Robinson v. Kellum, 6 Cal. 399, an The complaint in the present case does not action was brought against the defendant to aver either malice or want of probable cause, recover damages for wrongfully suing out an and therefore fails to show any cause of ac

tion against the defendant Orr. The conten- complaint is good against either of them. tion on the part of the respondents that A complaint is not necessarily defective in the voluntary dismissal of the action was an which there is united with some defendants admission by the plaintiff that he had no another against whom no liability is alleged probable cause for commencing it, is not ten- or recovery sought, and an order overruling able. The plaintiff may have commenced a demurrer for misjoinder of parties defendthe action in good faith, and, in the absence ant does not constitute a reversible error if of any averment to the contrary, it must be it can be seen that the rights of the parties so assumed; but if, after its commencement, have not been prejudiced. The complaint he had become satisfied that he would not in the present case seeks no recovery against be able to establish his allegations, either these appellants except upon their undertakby reason of having been originally misin- ing, and it is evident that their rights could formed, or because he was unable to procure not be prejudicially affected by the fact that witnesses in support thereof, good faith their principal, who did not unite with them towards the defendants would prompt him in the undertaking, has been made a codeto dismiss the action, rather than to force fendant. The repetition in the second count them to the annoyance and trouble of con- of the complaint of the matters set forth in testing his claims at a trial. It is not al- the first count, and which affect Orr alone, leged that the appellant Orr was a party to may be regarded as merely surplusage, and, the undertaking filed by him upon the issu. as these matters are insufficient to constitute ance of the writ of injunction, and conse- a cause of action against Orr, they could not quently he is not liable thereon. Lindsay v. have injured the appellants. In Stark v. Flint, 4 Cal. 89; Ghiradelli v. Bourland, 32 Wellman, 96 Cal. 400, 31 Pac. Rep. 259, the Cal. 588. It follows that the complaint fails two causes of action which the plaintiff had to state any cause of action against Orr, and united in his complaint were against the that the judgment rendered against him was same defendant, and it was held that the without authority, and must be reversed. statute gave him the right to object to their

2. The appellants Bohnert and Walbridge being so united. In the present case, howagreed by their undertaking that they would ever, the cause of action alleged against pay to the plaintiffs herein any damages Orr is different from the cause of action which they might sustain by reason of the alleged against these appellants; and, where issuance of the injunction. Their liability the substantial rights of the parties have not depends simply upon proof that the injunc- been affected by a misjoinder of causes of tion was issued, that the defendants suffered

action, a judgment that is rendered after a damages thereby, and that the court has

trial of the case upon its merits should not decided that the plaintiff was not entitled to be reversed because the court overruled a the injunotion. The voluntary dismissal of

demurrer for such misjoinder. Reynolds v. the action by the plaintiff had the same ef

Lincoln, 71 Cal. 183, 9 Pac. Rep. 176, and fect as a decision of the court that he was

12 Pac. Rep. 49. not entitled to the injunction, (Dowling v. The action of the court in excusing the Polack, 18 Cal. 625;) and the evidence before

Juror De Witt did not give to the defendants the jury was sufficient to justify its verdict an available exception. Assuming that he for the amount in which it was rendered.

was competent to be a juror in the case, it These appellants, however, urge that their does not appear that the defendants were demurrer to the complaint should have been prejudiced by his exclusion. Their right to sustained. They united with Orr in a gen- have the cause tried by an impartial jury eral demurrer to the complaint upon the did not give them the right to have it tried grounds that it did not state facts sufficient

by any particular jurors. No exception was to constitute à cause of action; that there

taken by them to any of the jurors who tried was a misjoinder of parties defendant; and the cause, and it does not appear that ey that several causes of action were improperly did not have an opportunity to exercise all united, viz. an action on the case for dam

the peremptory challenges allowed them. ages, and an action upon a special contract. The court did not err in refusing to inThe demurrer upon the two latter grounds struct the jury that the writ of injunction is in reality but one, as the specification for was void by reason of its ambiguity, and that, misjoinder of parties states as its ground the therefore, the plaintiffs were not entitled to joining of an action against Orr for damages damages because of their obedience to it. with an action against these appellants upon They were bound to obey the spirit as well as their bond; but, assuming the demurrer to the letter of the injunction, and were justibe sufficient in form, we think it was prop- fied in acting so as not to render themselves erly overruled. The second count in the liable for a contempt in disregarding it on the complaint sufficiently states a cause of action ground that it was ambiguous. It does not against these appellants upon their undertak- lic in the mouth or one who has secured an ing, and a demurrer to the entire complaint injunction which is ambiguous in its terms cannot be sustained if either of the counts to object to its obedience on the part of the is good. So, also, a joint demurrer by all defendants, or to their claim for recompense of the defendants must be overruled if the for the damage they have sustained thereby.

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