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from liability as assignee to any creditor comber alone, not his assignee, can main. of the insolvent; thus, by the very form of tain any action to recover the claims countthe discharge, leaving him with all his pow- ed upon.” The constitution, art. 4, § 26, ers as trustee in case other property than provides: "All contracts for the sale of that disposed of by his previous accounts shares of the capital stock of any corporashould be discovered. Whether or not it tion or association on margin, or to be de was necessary to set aside the former order livered at a future day, shall be void, and of discharge and settlement of account, in any money paid on such contracts may be order to bring the present action, it is not recovered by the party paying it by suit in necessary to decide, though this action of the any court of competent jurisdiction." This court, even if not strictly necessary, was provision, it is said, creates a new right, and nevertheless proper, as it was a direct rec- provides a remedy, and that such remedy is ognition of the continuing authority of the exclusive, and limited to Macomber perassignee. We think section 473, Code Civil sonally. We think this contention cannot Proc., has no application to such an order be sustained. The remedy given is a re as that entered, discharging the assignee covery of money paid on a void contract. from liability to creditors, for it is mani- There is no distinction between money paid fest that if the assignee in fact knew of under a contract declared void by the conother property which should have been ap- stitution, and that paid under any other propriated to the payment of the creditors, void contract. In all such cases the party and had omitted to apply it, the discharge who has paid the money remains the equiin question could not have relieved him from table owner of it, though he could not, in responsibility; and, that being true, the dis- many cases, maintain an action for its recharge can only apply to matters appearing covery. But here the constitution, which dein his account, to which they have had an clares the contract void, expressly authoropportunity of excepting.

izes its recovery.

It was, prior to MacomIt is further contended by respondents that ber's insolvency, a part of his estate; and in there is no allegation in the complaint that case of his death the right of action would an assignment of the insolvent's property have survived, unless the right of action is was made to plaintiff, and that the omission limited to him personally, for a right of acof that averment is fatal. The complaint tion which survives is, under the general rule, averred “that on the 26th day of September, assignable. This question was considered in 1887, an order was duly made by and in the case of Meech V. Stoner, 19 N. Y. 28. the said superior court, duly appointing the There, by the statute, all wagers, bets, or said plaintiff assignee of the said insolvent stakes upon any gaming are declared to be debtor, C. A. Macomber; that on the 27th unlawful, and all contracts for or on account day of September, 1887, the said plaintiff, as of any money or property or thing in acsaid assignee, filed his bond as required by tion so wagered are vold; and it is provided law, and on the same day duly qualified and that the person who shall, by playing at any entered upon the discharge of his duties as time, or betting on the sides or hands of such assignee; that on May 8, 1888, the said those who play, lose at any time or sitting assignee filed in said court his final account, the sum of twenty-five dollars or upwards, and the same was settled and allowed.” We and shall pay or deliver the same, or any think these allegations sufficient under a gen- part thereof, may, within three calendar eral demurrer. The special demurrer of de months after such payment or delivery, sue fendants does not go to this point. The for and recover the money or value of the statute makes it the duty of the clerk of thing so lost, paid, or delivered, from the the court to convey to the assignee all the winner thereof. It was claimed on the part estate of the debtor as soon as the assignee of the defendant that the loser at play has, has given bond and qualified. The clerk is by the statute, a merely personal privilege an officer of the court, acting under its direc- to sue and recover back his losses, but has tion, and the presumption is that every no interest in the money or thing sued for, officer discharges every duty specifically en- which is capable of assignment, so as to give joined upon him. Code Civil Proc. $ 1963, the right of action to any one else. In that subd. 15. If the assignment were required case it was held that, if the statute had not by the statute to be made by the insolvent, given an action to recover money lost at a much more serious question would arise; play, a suit for such purpose could not be but here the assignment is based upon the maintained; that this exemption, however, previous proceedings of the court, and be- would not result from any title in the de comes a step in the cause, and essentially fendant to the money or thing won and rea part of the regular and orderly proceedings ceived by him, but because the courts withtherein, and therefore is presumed to have held their remedial process from each of the been taken. If there was in fact no as- offending parties, thus leaving the parties signment, it may be pleaded as matter of where the law finds them, and the defendant defense. We think the complaint, upon this prevails, not upon his own merits or title, point, is sufficient, at least in the absence of but because the plaintiff is deemed unworthy a special demurrer.

to be heard in the case. But the court furRespondents further contend that “Ma- ther said: "That difficulty being removed by


the legislature, I see no reason why the court has jurisdiction of the appeal, for the right to demand and recover money staked reason that the ainoiút involveá is less thai and lost in gaming is not as much a part $300. We strongly intimated this conclusion of a man's estate as any other right in ac- in Sellick v. De Carlow, 95 Cal. 644, 30 Pac. tion which he can possess; and, if this be so, Rep. 795; and further consideration satisfies why is not such a demand, like any other, us that the intimations given in the opinion capable of being transferred by act of the in that case should be taken as a correct party or of the law. But the statute, it is statement of the law on the subject. Secsaid, gives the action to the 'person,' and tion 4, art. 6, of the state constitution, pronot to his assigns or representatives. Upon vides that “the supreme court shall have apthe precise terms of the statute, this is so, pellate jurisdiction in all cases • • at yet it is difficult to suggest any reason why


• in which the demand, exclusive the right to be asserted in such an action of interest

amounts to three hunwould not devolve upon the administrator, dred dollars;" and no doubt the rule has and thus become a fund for the payment been too firmly settled to be now disturbed of debts, or for distribution amongst the next

that, on an appeal from a final judgment in of kin, or why an assignee in bankruptcy an action to recover money, jurisdiction de or Insolvency would not succeed to the claim,

pends upon the “demand" made by plaintiff, and be able to enforce it for the benefit of

-upon the ad damnum clause of the comcreditors. Assignability of things in action plaint. But that rule should not be extended is now the rule; nonassignability, the excep- further than previous decisions necessarily tion; and this exception is confined to wrongs carry it. An order made after final judg. done to the person, the reputation, or the ment is a separate, independent proceeding; feelings of the injured party, and to con- and where it involves money only, and the tracts of a purely personal nature, like prom

amount involved is less than $300, this court Ises of marriage." The court, in this case, has no jurisdiction, under the constitution, sustained the views above quoted by further of an appeal from such order. Such an apargument and the citation of a number of

peal has been sustained in one or two incases, both English and American, and in

stances where the point was not brought to these views we concur. We think the court

the attention of the court, but in no case erred in sustaining the demurrer to the com

has the point been raised and determined in plaint, and that the judgment should be re

lavor of the jurisdiction. In Lumber Co. v. versed, with leave to the defendants to an

Neal, 94 Cal. 192, 29 Pac. Rep. 622, the only swer.

question involved was whether a certain or

der should be considered as a part of the We concur: SEARĻS, O.; BELCHER, O.

final judgment, or as an order made after

final judgment, but there was no question PER CURIAM. For the reasons given in

raised or decided which called for a considerthe foregoing opinion, it is ordered that the

ation of the amount of money involved in the judgment appealed from be reversed, and

order; and the point under discussion was that the defendants have leave to answer. not raised in any of the other cases decided

by this court, to which our attention has been called. On the other hand, in Langan

V. Langan, 83 Cal. 618, 23 Pac. Rep. 1084, FAIRBANKS v. LAMPKIN et al. (No.

which was an independent appeal from an 15,130.)

order allowing an attorney's fee in a divorce (Supreme Court of California. Aug. 31, 1893.)

suit, this court, sitting in bank, held, withSOPREME COURT-JURISDICTIONAL AMOUNT.

out any dissent, that “the appeal from the Under Const. art. 6, § 4, granting the

order allowing $150 counsel fee must be dissupreme court appellate jurisdiction in cases at law only where the demand, exclusive of

missed, because the amount in dispute is too interest, amounts to $300, that court cannot small to give this court jurisdiction." And in review an order, made after final judgment, Oullaban v. Morrissey, 73 Cal. 297, 14 Pac. taxing a cost bill which is less than that

Rep. 864, the court, sitting also in bank, de amount.

livered the following opinion: “The Court. Department 2. Appeal from superior court,

The plaintiff, having consented to the entry Mendocino county; R. McGarvey, Judge.

of the judgment against himself, cannot apAction by one Fairbanks against Lampkin

peal from it, or, if he can, can only be heard and others. From an order taxing costs aft

as to that portion to which he did not coner final judgment, plaintiff appeals. Appeal sent. That, in this case, is, at the most, the dismissed.

demand for costs, which, being less than J. A. Cooper and J. M. Mannon, for appel- three hundred dollars, does not give this court lant. T. L. Carothers and J. H. Seawell, for jurisdiction." If the two cases last above respondents.

cited are not conclusive against the jurisdic

tion in the case at bar, they certainly point MCFARLAND, J. This is an appeal from clearly in that direction; and, considering all an order made after final judgment taxing the former decisions together, it can be con& cost biu, the whole amount of the bill be- fidently said, at least, that the question has ing only $171.20. We do not think that this not been definitely determined the other way. Ane, assuming, the. question to be an open der of sale was duly issued to the sherir ope;. wé ate.satisfied that we have no juris- of the county, and in pursuance thereof the diction of this appeal. The clear meaning of sheriff advertised for sale, and on April 27, the constitution is that the litigation of in- 1891, sold the said real property for the sum dependent issues involving money only, in of $1,000, and applied the same to the pay. an amount less than $300, must end in the ment of the said indebtedness, interest, atsuperior court. The appeal is dismissed. torneys' fees, costs, and expenses, as di

rected by said decree; that after so apply. We concur: DE HAVEN, J.; FITZGER- ing the said sum there remained due and ALD, J.

unpaid to the plaintiff, on said indebtedness for principal and interest on the said note,

and as determined by said decree, the sum BLUMBERG

of $1,746.99; that the sheriff's return being V. BIRCH. (No. 19,165.)

made, showing such balance or deficiency, (Supreme Court of California. Aug. 31, 1893.)

judgment was duly docketed therefor in MORTGAGES - FORECLOSURE ACTION FOR DEFI- favor of the plaintiff and against the defendCIENCY-MERGER IN JUDGMENT-PLEADING.

ant on April 28, 1891; and that no part of 1. In an action to foreclose a mortgage, in which service is made by publication only,

said sum bad been paid. Wherefore, the the court has no jurisdiction to enter a per

plaintiff demands judgment against the de sonal judgment for a deficiency.

fendant for the sum of $1,746.99, with in2. Code Civil Proc. $ 726, prohibiting terest thereon, etc. The defendant de more than one action to recover a debtor enforce a mortgage, does not prevent a new

murred to the complaint upon the ground action on a note which was secured by a mort- that it did not state facts sufficient to congage to recover a deficiency left on foreclosure stitute a cause of action, and his demurter of the mortgage, as the amount realized on

was sustained. foreclosure may be treated as a payment on

Judgment was thereupon the note, and the action as brought to recover

entered that the plaintiff take nothing, from the balance,

which judgment he appeals. 3. A complaint to recover a deficiency aft- There can be no doubt that the court, by er foreclosure of a mortgage securing a note,

the constructive service of the summons by which shows the foreclosure and the fact that a deficiency resulted, states a good cause of

publication in the foreclosure case, acquired action, whether it is based on the note, or on jurisdiction to ascertain the amount secured an indebtedness resulting from the foreclosure and deficiency.

by the mortgage, and to make and enter a

valid decree of foreclosure, directing a sale Commissioners' decision Department 1. of the mortgaged property, and the applicaAppeal from superior court, Ventura county; tion of the proceeds to the payment of B. T. Williams, Judge.

the amount SO secured, including costs Action by A. W. Blumberg against Cullum and expenses. It did not, however, there Birch to recover a deficiency on a mortgage by acquire jurisdiction to enter or docket foreclosure. From a judgment for defend

a personal judgment against the defendant ant, plaintiff appeals. Reversed.

for any deficiency left unpaid by the proH. L. Poplin, for appellant. Orr & Hall,

ceeds of the sale. Pennoyer v. Neff, 95 U. for respondent

S. 714; Belcher V. Chambers, 53 Cal. 639;

Anderson v. Goff, 72 Cal. 65, 13 Pac. Rep. 73. BELCHER, C. It is alleged in the But, notwithstanding no valid judgment amended complaint in this case that on the could be entered for the deficiency, still, 13th day of August, 1887, the defendant ex- when properly ascertained, the deficiency ecuted and delivered to the plaintiff his constituted a subsisting indebtedness then promissory note, and a mortgage on certain due from the defendant to the plaintiff. The real property to secure payment of the same; plaintiff brought this action to recover that that on the 15th of December, 1890, the plain. indebtedness, and in his complaint set out titl commenced an action against the de all the facts on which he based his right of fendant in the superior court of Ventura recovery; and the defendant's contention is county to foreclose the said mortgage, and that no sufficient cause of action was stated, that a summons in the action was issued, because (1) the personal judgment set out and served on the defendant by publication was void; and (2) the note was merged in only, he being then a nonresident of this the foreclosure judgment, and under section state, and absent therefrom; that defendant 726 of the Code of Civil Procedure no new did not appear in the action, and, after the or other action could be maintained there time allowed by law for him to appear and It is true that the personal judgment answer or demur, his default was duly en- docketed against the defendant was void, tered by order of the court; that the court and also that under the section of the Code then heard proof of plaintiff's demand set cited there can be but one action for the re out in his complaint, and examined him on covery of any debt, or the enforcement of oath respecting any payments that had been any right, secured by mortgage upon real or made on account of such demand, and there. personal property. It does not follow, howupon made and entered in the action its ever, that after the mortgage security is exdecree of foreclosure in the usual form; that hausted, leaving a deficiency which is no under this decree, on March 27, 1891, an or- longer secured, no new action on the note can ever be maintained. On the contrary, tion, within the meaning of Civil Code, $ 362, it has been held that an action may be providing the method for making such amend maintained against an Indorser of a note,


ments. payment of which has been secured by a Department 2. Appeal from superior court, mortgage given by the maker, to recover any city and county of San Francisco; Charles deficiency resulting after a sale of the mort- W. Slack, Judge. gaged premises under a judgment of fore Action by one Bowie against the Grand closure against the mortgagor. Vandewater Lodge of the Legion of the West. From a V. McRae, 27 Cal. 596; Allin v. Williams, judgment for plaintiff, defendant appeals. 97 Cal. 403, 32 Pac. Rep. 441. It seems

Reversed. to us, therefore, that in a case like this the

F. Wm. Reade, for appellant. Rogers & amount realized from the proceeds of the Chilstrom, for respondent. sale may properly be treated as a payment on the note, and that an action thereon may DE HAVEN, J. The defrndant is a corpobe maintained to recover the balance left un. ration existing under the laws of this state, paid. But, however this may be, it is clear and belongs to the class known as mutual and not disputed that the defendant was benefit associations. Under its constitution justly indebted to the plaintiff, in some form, and laws it agrees to pay a stipulated sum of for the amount of the deficiency; and, be- money to a designated nominee upon the ing so indebted, the familiar maxim of the death of the beneficiary member, and also law, that where there is a right there is a issues to members known as “special benefit remedy, "ubi jus ibi remedium," is applicable members” a certificate entitling them to reto the case.

ceive an endowment. payable in installments Under our system of pleading, the com- during the life of such members. The de plaint should contain a statement of the fendant is without capital stock, and, like all facts constituting the cause of action, in or. associations of a similar character, depends dinary and concise language, and the court upon the collection from its members of cermay grant the plaintiff any relief consistent tain fixed assessments, in order to provide a with the case made. Sections 426, 580, Code fund for the payment of the certificates isCivil Proc. Here the complaint complies sued by it. Upon February 15, 1888, the de with the rule prescribed, and whether it befendant issued to the plaintiff a special bene said to be based on the note, or on an in- fit certificate of the sixth class, with 10 coudebtedness resulting from the facts stated, pons attached thereto, each providing for the is, in our opinion, immaterial. In either payment of a sum not exceeding $600, the view, it states facts sufficient to constitute first one maturing in June, 1891, and the a cause of action, and the demurrer was tenth in the month of February, 1921; and therefore improperly sustained. We advise by the terms of this certificate, the defendthat the judgment be reversed, and the cause ant agreed with plaintiff, in effect, that, remanded, with directions to the court below should he live to the period of time set forth to overrule the demurrer.

in each of the 10 coupons attached thereto,

he would be entitled “to participate in the We concur: TEMPLE, O.; VANCLIEF, C. special benefit fund of the order, in an

amount to be computed according to the PER CURIAM. For the reasons given in

laws of the order, not exceeding the amount the foregoing opinion, the judgment is re

named in the coupons, respectively." At the versed, and the cause remanded, with direc

time of the issuance of this certificate the tions to the court below to overrule the de

constitution and laws of the defendant contemplated that the defendant would make and collect a sufficient number of assessments to enable it to pay each maturing cou

pon in full, unless one assessment on each BOWIE V. GRAND LODGE OF LEGION

special benefit member would amount to OF THE WEST. (No. 15,149.)

$600, in which event there should be but one

assessment. The constitution, however, con(Supreme Court of California. Aug. 31, 1893.)

tained a provision that "the constitution MUTUAL BENEFIT SOCIETIES – PAYMENT OF CER

* relating to the beneficiary fund and TIFICATES-CHANGE IN LAWS-EFFECT ON MEM

the laws governing the same” might be

amended by a three-fourths vote of all the 1. Where a certificate in a mutual benefit society provides for its payment "in an amount

members present at a regular meeting of the to be computed according to the laws" of the Grand Lodge. society, and these latter provide that their pro- This action is brought by the plaintiff to revisions in regard to the payment of such cer

cover the sum of $600, alleged to be due tificates may be changed at any time, a member is bound by a change made in such laws after

upon a coupon maturing in June, 1891, and his procurement of the certificate, and before attached to the special benefit certificate the time for its payment.

held by him. The coupon is in these words: 2. A change of the laws of a mutual benefit association in regard to the payment of ben

“This first coupon issued by authority of eft certificates is not an amendment of its cer

the Grand Lodge, Legion of the West, shall tificate of incorporation or articles of associa- not exceed $600, and shall not mature before





the month of June in the year 1891." The be bound if such laws were existing. They defendant in its answer alleged that the law may consent that such laws may enter into of defendant in relation to its beneficiary and form parts of their contracts, modifying funds was amended in March, 1891, so as to or varying them. It is their voluntary agreeprovide that, if the amount of an assessment ment which relieves the application of such called and received in the second calendar laws to their contracts and transactions from month next preceding the maturity of a cou- all imputation of injustice." Superior Compon “shall be insufficient to pay the full face mandery v. Ainsworth, 71 Ala. 436. This value of each and every certificate or cou- was also, in effect, so decided by this court pon payable in the same calendar month, in the case of Stohr v. Society, 82 Cal. 557,

then the sum to be paid on any 22 Pac. Rep. 1125. In that case it appeared coupon or certificate payable in said calen- that Stohr had become a member of the de dar month, and which shall be in full satis- fendant therein, and at the time he became faction thereunder, shall be a proportionate such member the by-laws of that society proamount of such one assessment, and all that vided that a member disabled by sickness can be claimed by any person." The answer should receive $10 per week. Subsequently further alleged that 3713 coupons of the sixth the society limited the amount of benefits to class matured in the month of June, 1891, be paid, and it was contended for the plainand that, according to the provisions of the tiff therein that such amendment of the bylaws of defendant, the proportion due on laws impaired the obligation of his contract; each, to be paid from the assessments receiv. but the court thought otherwise, saying: “Uned by defendant, would be $108, and that de doubtedly, when the plaintiff complied with fendant had no other funds applicable to the what was required of him as a member, the payment of such coupons. The defendant of. by-laws constituted a contract; and, unless fered to show, upon the trial of the case, the contract itself otherwise provide, it canthat this alleged change in its laws had been not be changed without the consent of all the made, but the evidence was, upon the objec- members. But here the contract itself does tion of the plaintiff, excluded. The plaintiff | provide otherwise. Under the averments of recovered a judgment for the sum of $600, the second defense there is an express pro with interest thereon from the date of the vision that the by-laws may be changed. commencement of the action.

• This provision must be held to enter The defendant appeals, and assigns as er- into and form a part of the contract, and, ror the ruling of the court in not permitting in legal effect, it is as potent as the express it to show that its laws in relation to its provision of the second defense. • • • beneficiary funds were changed, as alleged in the present case the plaintiff can have no the answer; and we are of the opinion that right to have the contract remain unchanged. the court erred in excluding this offered evi- because, as we have seen, the contract itselt dence. The alleged change made in the laws provides that it may be changed. • • • It of the defendant did not impair the obliga- the plaintiff has any right which is so fixed tion of plaintiff's contract or affect any vest- that it is not subject to change, we think ed right of his. The plaintiff, when he be it can only be to the fruits which ripened! came a member of the defendant corpora- before the change was made; in other words, tion, became also bound by its constitution to such sums as became due before the new and laws, and such constitution and laws be- by-law was adopted." The change alleged came a part of his contract of membership, in defendant's answer to have been made in as much so as if they had been written there. its constitution and by-laws was not an in in express terms, and his rights under the amendment of its certificate of incorporation certificate issued to him were subject thereto or articles of association, within the meaning and limited thereby. The certificate issued of section 362 of the Civil Code. Judgment to plaintiff contained the express provision reversed. that "he shall be entitled to participate in the special benefit fund of the order, in an We concur: MCFARLAND, J.; FITZGERamount to be computed according to the ALD, J. laws of the order, not exceeding the amount named in said coupons, respectively.” This certificate, when read and construed, as it must be, in connection with the constitution GISSON v. SCHWABACHER et al. (No. and laws of the defendant existing at the

15,059.) time of its issuance, and which provided that (Supreme Court of California. Aug. 31, 1893.) a change might be made in the laws of de INJURY TO EMPLOYE-ASSUMPTION OF RISK-Coxtendant governing such funds, means that

TRIBUTORY NEGLIGENCE. the plaintiff is to participate in the special

Plaintiff was employed as a sack sewer benefit fund of defendant in an amount to be

in defendant's flour mill, and to do such other

work as the foreman might direct. In comcomputed according to the laws of defend

plying with the latter's directions ro assist him ant in force when the several coupons shall in taking apart some rollers on one side of the mature. "Parties may contract in reference

room in which he worked, he was caught in to laws of future enactment,-may agree to

some belts and rollers, which he could not see

on account of the darkness of the room, and be bound and affected by them as they would which were not protected by any guards or

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