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Wachenfeld, J. (dissenting). In In re Woodworth, 15 Fed. Supp. 291; affirmed, 85 F. 2d 50 (C. C. A. 2, 1936), the court held: “On principle, it cannot be doubted that when an attorney makes an agreement to prosecute a case for a fee contingent on success, and is disbarred before the fee is earned, he may not collect compensation from his client for the work done. The agreed fee he cannot have, because he has not performed his engagement and the contingency on which the compensation was to rest has not happened. Reasonable compensation in lieu of the fee he cannot have, because his inability to complete his contract has been brought about by his own wrongful ■conduct.” I subscribe to this reasoning and conclusion and am therefore to affirm. Adopting this rule would not complicate or bring economic ■considerations into disciplinary proceedings nor would it defeat their purpose. It would, in my opinion, be an added incentive to professional conduct, which is foreign to disciplinary complaints. *530Admittedly, the plaintiff was disbarred because of his own wrongful act, and whether it was with reference to this particular case or not, the result, in my opinion, is the same. The penalty falls and he can no longer represent his client because of his wrongful conduct. The result of that misconduct should be uniform, not varying with the degree of culpability or its relationship to any particular case. “I-Iis inability to complete his contract has been brought about by his own wrongful conduct.” I would affirm the judgment. For reversal — Chief Justice Vandeebilt, and Justices Case, Heiiek, Olephant, Bueling and Ackekson — 6. For affirmance — Justice Wachenfeld — 1.

CourtListenerOpinion

2024-06-11T07:23:54.557514

2023-08-26 19:06:15.690553+00

2207251

208 Cal. App. 2d 702 (1962) 25 Cal. Rptr. 530 REGIE NATIONALE DES USINES RENAULT, BILLANCOURT (SEINE), FRANCE, Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; WILLIAM C. FORD, Real Party in Interest. Docket No. 10575. Court of Appeals of California, Third District. October 19, 1962. Bronson, Bronson & McKinnon and Ernest M. Thayer for Petitioner. McCarty & Crow and Richard E. Crow for Respondent and Real Party in Interest. THE COURT. By mandate, petitioner seeks an order of this court compelling the Superior Court in and for the County of Sacramento to set aside and vacate its order denying petitioner's motion to quash service of summons and complaint *703 on petitioner. This court issued its order to show cause and the matter was set for oral argument. After full consideration of the petition, the points and authorities, and the arguments of respective counsel, we are satisfied that the memorandum opinion filed by the Honorable Leonard M. Friedman denying a like motion correctly states the law and we therefore adopt the same as the opinion of this court. [1] "The court has concluded that defendant Regie Nationale des Usines Renault, Billancourt (Seine), France (hereinafter referred to elliptically as `Regie') has had adequate contacts with California and California residents so that the maintenance of the suit against it does not offend our notions of fair play and substantial justice (International Shoe Co. v. Washington, 326 U.S. 310 [66 S. Ct. 154, 90 L. Ed. 95, 161 A.L.R. 1057]). It is, in other words, `doing business' in California and is amenable to substituted service of process on the Secretary of State in the manner provided by Section 6501-6502 of the Corporations Code. "Defendant Regie is a business entity owned by the French government. As an automobile manufacturer, it inaugurates a flow of its products to the California market. It sells its products to defendant Renault, Inc., a wholly-owned subsidiary incorporated in the State of New York. Renault, in turn, sells to various American distributors, who in turn sell to retail dealers. There is a chain of sales leading from defendant Regie to California consumers. The product is such that negligence in manufacture and inspection might well cause injury to California citizens, as is alleged by the plaintiff and by the cross-complainant here. "Regie might choose to arrange its marketing process through a hierarchy of its own agents and employees. Then, by establishing agents in California to sell its products, it would undoubtedly be amenable to suit in this state. For reasons of its own it chooses to market its products through a wholly-owned American subsidiary and a network of independently-owned distributorships and dealerships. These choices on its part effect little, if any, alteration in the jurisdictional situation. The `contacts' exist one way or the other and for precisely the same purposes. The differences are differences only in form and description. "Apparently, where the tort occurs within the state, extensive sales and promotional contacts with California consumers *704 through nonexclusive, independent sales representatives may constitute `doing business' (Cosper v. Smith & Wesson Arms Co., 53 Cal. 2d 77 [346 P.2d 409]). Here there are additional circumstances which, in composite, impel subjection to jurisdiction. These are: (a) the interest of this State in providing a forum for its residents; (b) the relative availability of evidence; (c) the relative burden of defense and prosecution in California rather than at some other place; (d) the case of access to some alternative forum; (e) the extent to which the cause of action arises out of Regie's local activities. Fisher Governor Co. v. Superior Court, 53 Cal. 2d 222, 225-226 [1 Cal. Rptr. 1, 347 P.2d 1]. "As regards `fair play' it is obvious that if California rejects jurisdiction, Regie may successfully bar plaintiff and cross-complainant from access to the courts of all states of the union, including New York. Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333 [45 S. Ct. 250, 69 L. Ed. 634]; see also Fisher Governor Co. v. Superior Court, supra. Regie's argument would, in effect, confine the claimants to the courts of the Republic of France. Fairness to Regie does not entail this disadvantage to the claimants. "Renault, Inc., whether regarded as an individual corporate entity or as alter ego of Regie, is simply a medium through which the latter establishes its business contacts with the California public. As to the mechanics of process serving, Regie has received process via the California Secretary of State without reference to the `presence' of Renault as its purported agent in California. Thus there is no point in deciding whether to respect the separate status of Renault or to regard it as merely the alter ego of Regie." The order to show cause is discharged and the petition is denied. Petitioner's application for a hearing by the Supreme Court was denied December 12, 1962.

CourtListenerOpinion

2024-06-11T07:23:54.590008

2013-10-30 08:36:18.374607+00

2207254

208 Cal. App. 2d 246 (1962) THE PEOPLE, Plaintiff and Respondent, v. SOLLY TERENO, Defendant and Appellant. Crim. No. 8014. California Court of Appeals. Second Dist., Div. One. Oct. 5, 1962. Matthews & Stanley for Defendant and Appellant. Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Norman H. Sokolow, Deputy Attorney General, for Plaintiff and Respondent. LILLIE, J. Having found defendant guilty of four counts of bookmaking in violation of section 337a, subdivisions 1 and 3, Penal Code, the trial judge on February 10, 1961, sentenced *247 him to a term of 180 days in the county jail; he suspended sentence and granted defendant probation for a period of three years on certain specified terms and conditions, among them, that defendant "not gamble or engage in any bookmaking activities or have paraphe[r]nalia thereof in his possession, and not be present in places where gambling or bookmaking is conducted," and that he "obey all laws, orders, rules and regulations of the probation department and of the court." Shortly thereafter defendant was again arrested and charged with four counts of bookmaking; he was found guilty of a violation of section 337a, subdivision 3, Penal Code, as alleged in count 3 of the information (no. 242588). On August 22, 1961, the court denied probation and sentenced defendant to 90 days in the county jail. At the same time, and in the instant case, the court found defendant to be in violation of the probation order of February 10, 1961, and ordered the same modified to provide that he serve the next 90 days in the county jail, probation to continue under the same terms and conditions upon his release. The court ordered the jail terms in case no. 242588 and in the instant case to run concurrently. From the judgment defendant appeals. [1] It appearing that defendant engaged in bookmaking activities on March 23, 1961, for which he was charged and convicted (judgment affirmed by this court on August 29, 1962, People v. Tereno, 207 Cal. App. 2d 246 [24 Cal. Rptr. 501], in violation of section 337a, subdivision 3, Penal Code, and the probation order of February 10, 1961, the lower court properly found defendant to be in violation of the order, and modified the same. The judgment is affirmed. [2] While defendant has also appealed from an order denying a motion for new trial, the record in both cases is silent concerning such a motion and no order relative to denial of a new trial appears therein. Thus, appeal from the purported order is dismissed. Wood, P. J., concurred.

CourtListenerOpinion

2024-06-11T07:23:54.593954

2013-10-30 08:36:18.400331+00

2207256

367 Pa. 159 (1951) Commonwealth v. Chambers, Appellant. Supreme Court of Pennsylvania. Argued November 20, 1950. March 21, 1951. Before DREW, C.J., STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ. *160 Albert S. Oliensis, with him Maxwell L. Ominsky, for appellant. Colbert C. McClain, Assistant District Attorney, with him John H. Maurer, District Attorney, for appellee. OPINION BY MR. JUSTICE BELL, March 21, 1951: This is the second time the defendant was convicted of first degree murder and at each trial the jury in their verdict imposed the death penalty. The defendant in this appeal raises two narrow but very important questions: (1) "Must a suspect in a capital case, prior to police questioning, be furnished counsel or at least advised of his right to counsel and to remain silent upon questioning"; and (2) Did the trial judge commit reversible error in his charge to the jury concerning a man named Phillips? The first question has been ruled adversely to the appellant in a companion case, Commonwealth v. Bryant, 367 Pa. 135, 79 A.2d 193; and we shall therefore proceed to a determination of the second question involved. Joseph Saturno, 65 years old, was found dead in his apartment, 616 Pemberton Street, Philadelphia, about 6:25 p.m. on November 8, 1948. The deceased had been terribly beaten and mutilated, with about 20 wounds in the head; and his apartment was a shambles, with blood over everything. Detectives arrived at the scene of the crime shortly thereafter and as a result of a tip went to defendant's home at 633 Kenilworth Street, less than a block from the deceased's apartment. Defendant was shot by the detectives while he was attempting to escape and was then taken to a hospital. Detectives Lear and O'Donnell were permitted to testify, over objections of counsel, that they questioned defendant at the hospital and that defendant admitted being *161 the lookout while his co-defendant, Bryant, and another man, Phillips, beat the decedent to death. Phillips was then brought to the hospital and identified by defendant. Next morning defendant was taken to Detective Division Headquarters and once more questioned. His statements were then reduced to writing, although not signed by him, and his written statement detailing this exceptionally brutal murder, was read in evidence by Detective Steinberg, over the objections of defendant's counsel. Phillips was again implicated in the crime by defendant. Later the same day defendant signed a confession similar to the ones he had made on the two previous occasions above mentioned. At this time he was warned that any statement he made would probably be used against him at the trial of his case. Once again defendant connected Phillips with the killing. Both Chambers and Bryant confessed that they had come to Saturno's apartment to rob him and gave details of the brutal beating administered to Saturno and how they ransacked his apartment in their search for money, but each blamed the actual beating of Saturno on the other. Bryant's confession was not used or read in defendant's trial. Defendant makes no contention that his confessions were involuntary or coerced or that he did not have a fair trial (except as to the two matters which he specifically raised in his aforesaid statement of the questions involved). In each of defendant's confessions he implicated, as above mentioned, a man named "Phillips" as having, with Bryant, beaten the deceased to death. Phillips denied this when he was arrested by the police in his bedroom about 2 a.m. the morning after the murder and also when Chambers accused him of it at the hospital and again at the Coroner's Inquest, as well as at defendant's trial. *162 Phillips testified at defendant's trial that defendant knocked him unconscious in a crap game on the afternoon of November 8th and that defendant's mother washed the wound; that Phillips then went to the Pennsylvania Hospital at about 4:15 p.m.; that he left the hospital around 5 o'clock and went to the house of Robert Magil, 638 Bainbridge Street, which is less than a block from Saturno's apartment; that he then went home, had supper and because his head hurt him, went right to bed; and that defendant lied when he said that Phillips had anything to do with the murder. Detective O'Donnell testified that defendant (Chambers) definitely told him that Phillips got the patch on his head in his fight with Pop Saturno. Detectives O'Donnell and McColgan each testified that he had investigated these conflicting statements and found out from the hospital records and elsewhere that Phillips received the injury prior to 4:30 on the day of the murder; that they had also investigated Phillips' statement that he had nothing to do with the murder and that they had no proof that he participated in or had any connection with the murder of Saturno. The court then said: "Q. Let's dispose of Phillips. Did you check to see where Phillips was from the time he was discharged from the hospital until the time he was arrested? Did you make an investigation of that matter? A. Yes, we did. He told us the same story he told on the stand here. Q. Where did you ascertain where Phillips was, home in bed? A. We had nothing to prove that he was anywhere else. . . . The Court: He told you all the discussions up to that time, which would determine the status of Phillips. Now, Phillips is out. Q. All right. What happened after Phillips is eliminated?"[*] *163 It is also a fact, for what it is worth, that Phillips was exonerated by the Coroner. Defendant contends that the veracity of his story about Phillips was of very great importance to him because if the jury believed defendant was only a lookout and that the brutal beating had been committed by Bryant and Phillips and not by him, the sentence might have been life imprisonment instead of death. With this contention we agree. In the light of this we shall examine the court's charge to which the defendant objects. The court charged: "The first thing this man did was implicate an innocent man who has successfully established an alibi and who has been vindicated in the community. He had nothing to do with it. The Commonwealth is not in possession of the slightest evidence that he was even near where the crime was committed at the time it was committed. I mention that to you because in determining what are the true facts in this case you have before you statements of this defendant, one of the two witnesses to what took place, and if he lied about Phillips you have a right to ask yourselves whether he lied about Bryant. Was he an innocent bystander or was he a participant in this brutality? Was he the man who beat and beat and beat the poor dead man until he passed out of this life, or was he the man who stood in between the doorway of the two rooms? . . . So, what is the truth? That is what you must ascertain. The law says that all of those who participate in a robbery and other crimes that are enumerated in the Act of Assembly are equally guilty. . . . If A and B are together and A fires the shot, B is just as guilty if he participates in one of these enumerated felonies as though he fired the shot himself. . . . If you believe this defendant is guilty of murder in the first degree, then decide whether it should be life imprisonment or death in the electric chair." *164 It is the exclusive province of the jury, not the court, to decide all the facts, the inferences therefrom, the credibility of the witnesses and the weight and effect to be given to all of the testimony. While the main purpose of a judge is to state and explain the law and briefly review the evidence, it is always the privilege and sometimes the duty of a trial judge to express his own opinion, including his opinion of the weight and effect of the evidence or its points of strength and weakness or even the guilt or innocence of the defendant and the verdict which, in his judgment, the jury should render, provided (1) there is reasonable ground for any statement he may make; and (2) he clearly leaves to the jury the right to decide all the facts and every question involved in the case, regardless of any opinion of the court thereon: Commonwealth v. Cunningham, 232 Pa. 609, 611, 81 A. 711; Commonwealth v. Foster, 364 Pa. 288, 293, 72 A.2d 279; Commonwealth v. Simmons, 361 Pa. 391, 407, 65 A.2d 353; Commonwealth v. Watts, 358 Pa. 92, 97, 56 A.2d 81; Commonwealth v. Jones, 341 Pa. 541, 551, 19 A.2d 389; Commonwealth v. Nafus, 303 Pa. 418, 420-1, 154 A. 485. The question in the instant case is whether the judge in his charge to the jury, by treating controversial questions as established facts, took away from the jury their right to pass upon and decide the evidence and issues presented to them, particularly with reference to Phillips? We are of the opinion that the trial judge unintentionally usurped the power of the jury and for this reason, the appeal must be sustained. Our conclusion is further supported by Commonwealth v. Light, 195 Pa. 220, 45 A. 933. The defendant in that case was indicted for larceny. We there said: "This part of the charge is however open to the objection that it states as an established fact in the case a matter which was the subject of the most serious controversy at the trial, and upon which the guilt or innocence *165 of the defendant in the minds of the jury would depend to a great extent. Whether the defendant Light assisted in taking the turkeys to the buggy was the most important question in the case in determining his guilt. If he assisted in this act, his conduct at the time, shown by the same testimony, together with his denial, and his fabrication of an entirely different account of the matter left little room for doubt. If, as he testified, the turkeys were placed in the buggy by Sholl during his absence and without his knowledge, the case against him was much weakened. The statement that if `. . . at any time between the time they took these turkeys to the buggy,' etc., was an assumption by the court of a fact which had not been established by testimony. This was certainly injurious to the defendant. To what extent it prejudiced his case it is impossible to say. It is enough that it may have done so." The statement of the court during the trial that "Phillips is out. . . . What happened after Phillips is eliminated?"; together with the court's charge exonerating Phillips and stating that he was an innocent man — who had successfully established an alibi and been vindicated in the community and was not even near (he was within half a block one hour before the murder, according to his own testimony) the scene of the crime at the time of its commission — assumed as established and true facts, facts which had not been proved and were, at best, important controversial questions which only the jury and not the judge could decide. Judgment reversed and a new trial granted. NOTES [*] Italics throughout, ours.

CourtListenerOpinion

2024-06-11T07:23:54.599769

2013-10-30 08:36:18.413158+00

2207257

183 Mich. App. 191 (1989) 454 N.W.2d 121 PEOPLE v. POOL Docket No. 109488. Michigan Court of Appeals. Decided November 15, 1989. Before: MAHER, P.J., and MARILYN KELLY and H.E. DEMING,[*] JJ. PER CURIAM. Defendant pled guilty to a reduced charge of larceny from a person, MCL 750.357; MSA 28.589. In exchange for the plea, the prosecutor dismissed the original unarmed robbery charge, MCL 750.530; MSA 28.798. The parties agreed to a sentence of three to ten years in prison. The trial judge sentenced defendant to a prison term of 1 1/2 to 10 years. He noted that defendant's record was not that bad and that he had a good relationship with his family. The prosecutor did not object to the sentence. Neither party raised the subject of the sentence agreement. About a month later, the prosecutor moved to vacate the sentence. He argued that it was a violation of the sentence agreement. The judge acknowledged that he had made a mistake. He vacated the original sentence and resentenced defendant to three to ten years. He denied defendant's subsequent motion to vacate the second sentence. On appeal defendant argues that the trial court did not have authority to resentence him. We agree. A trial court's authority to resentence a defendant is limited. It depends on whether the previously imposed sentence is invalid. People v Whalen, 412 Mich. 166, 169; 312 NW2d 638 (1981). We are unable to find any authority which holds that a sentence which does not follow the sentence *193 agreement is invalid. Even where there is a sentence agreement, the trial court is not bound by it and must still exercise discretion when imposing sentence. People v Killebrew, 416 Mich. 189; 330 NW2d 834 (1982). Since defendant's original sentence was valid, the trial court did not have authority to resentence him. Accordingly, we vacate defendant's sentence and remand for reinstatement of his original sentence of 1 1/2 to 10 years in prison. NOTES [*] Former circuit judge, sitting on the Court of Appeals by assignment.

CourtListenerOpinion

2024-06-11T07:23:54.602266

2013-10-30 08:36:18.415886+00

2207265

208 Cal. App. 2d 239 (1962) LUIS PEREA RIVAS, Plaintiff and Appellant, v. ARNULFO AYALA, Defendant and Respondent. Civ. No. 6851. California Court of Appeals. Fourth Dist. Oct. 4, 1962. Marshall Miles for Plaintiff and Appellant. Harold King for Defendant and Respondent. SHEPARD, J. This is an appeal by plaintiff from a judgment for defendant in a personal injury action. Facts Sometime between 12 midnight and 2 a.m. of May 3, 1960, at the Apache Caf San Bernardino, California, an altercation occurred between plaintiff, Luis Perea Rivas, age 34, weight 215, a cook's helper, and defendant Arnulfo Ayala, age 70, weight 165, a retired Santa Fe railroad worker. While the broad outlines of what happened are not in dispute, the exact details of how the altercation started in the cafe and who the aggressor was after they left the cafe are in sharp conflict. Because where such conflict exists this court is bound by the evidence which supports the findings and judgment of the trial court, we shall so relate it. (Brewer v. Simpson, 53 Cal. 2d 567, 583 [1-2] [2 Cal. Rptr. 609, 349 P.2d 289].) About one year previously, Luis had been a tenant in a house belonging to Ayala and Luis had been evicted. Shortly thereafter, Luis and his uncle "Chevo" Rivas met Ayala returning home late at night in an intoxicated condition. The two Rivas attacked Ayala, knocked him to the ground and severely beat him. Some time before midnight of the night here in question, Ayala came to the cafe, sat on a stool at the bar about 5 feet from the door and next to Mary Bareta (a niece of Luis), ordering a Seven-Up for himself and a beer for Mary. Some time after midnight Luis came in and took *241 a seat at the bar several stools away and next to a Bobby Silva. A short time later Luis came close to Ayala, started a discussion involving "Chevo," and challenged Ayala to fight. Ayala refused. Luis kept repeating his challenge. The bartender ordered Luis to leave Ayala alone and finally ordered Luis to get out of the bar. Luis refused. Finally, Ayala left with Luis. As he walked out he saw a knife in Luis' hand. Outside, Luis and Ayala walked a few paces around the corner. Luis swung his knife at Ayala. Ayala had a small pocket-knife with a 2 or 2 1/2-inch blade which he evidently opened as they were walking. When Luis struck, Ayala struck back two or three times and cut Luis on the face and abdomen. All this took place in a few seconds or a minute. Luis walked away bleeding. Ayala did not follow him. Luis was taken to the hospital by others, for medical attention. Ayala had never before been in a knife fight. Peculiarly, there were at least four other persons in the bar well known to both parties. But the only witness called by either party was a taxi driver who saw the parties walk out together, saw waving arms for a few seconds but could not see who struck what blow, if any, saw blood running from Luis and called the police. He contributed nothing to the question of who the aggressor was. Judgment was rendered for defendant. Plaintiff appeals. Self-Defense Plaintiff first contends that as a matter of law defendant's actions cannot be justified as self-defense, citing as authority People v. Hinshaw, 194 Cal. 1 [227 P. 156]; Fraguglia v. Sala, 17 Cal. App. 2d 738 [62 P.2d 783]. [1] The quotation given by plaintiff from the Hinshaw case provides its own answer: " '... that self-defense is not available as a plea to a defendant who has sought to a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance, or fault, to create a real or apparent necessity for making a felonious assault.' " The court found orally that plaintiff was the aggressor and also found in its written findings "That at the time and place of the occurrence in question the defendant herein acted in proper and reasonable self defense and used no more force than was reasonably necessary to repel the assault committed upon him by the plaintiff." [2] The evidence factually supports both the oral statement of the trial court and its written finding. The Fraguglia *242 case involved a fight between two rubbish truck workers. The judgment there was reversed because there was no evidence that defendant was the aggressor in the sense of the rule as set forth in the Hinshaw case. Furthermore, the trial court may well have believed that defendant finally concluded that plaintiff would attack him in any event and that he would be at a disadvantage in the close quarters of the bar. Some of defendant's answers are inconsistent with this conclusion, but when the whole testimony is read together, with the defendant's lack of fluency and English understanding in mind, it becomes a possible conclusion. Plaintiff's continued insistence on fighting, his refusal to heed the orders of the bartender to leave defendant alone and get out, the fact that an open blade in plaintiff's hand was seen by defendant as they started out of the cafe, the fact that defendant had been previously attacked and inexcusably beaten by plaintiff and "Chevo," the fact that defendant obviously misunderstood the import of several questions, the answers that he was not "afraid" but felt it necessary to protect himself from a knife attack, plus the fact that defendant repeatedly asked plaintiff to leave defendant alone and to go away, all put together lend credence and support to such a belief. If such was the belief of the trial judge, it would render involuntary the willingness of defendant to remove the scene of the impending fight from the close quarters of the bar. In any event the evidence provided ample support for the court's finding. We find the case of Ballew v. Davis, 76 Cal. App. 2d 418 [173 P.2d 317], more nearly in point. There, a photographer was found by the court to have been threatening to strike defendant because defendant was obstructing the photographer's view. Defendant therein was held to be acting in self defense when he anticipated the photographer's blow. Mutual Consent to Combat [3] Plaintiff now contends, for the first time, that this was voluntary mutual combat and that self-defense may not be used as a defense in a damage action in case of voluntary mutual combat. But we need not examine this theory. It was not the theory upon which the case was pleaded or tried and was never suggested to the trial judge for his consideration at any time. [4] Theories never suggested to the trial judge, and which neither he nor the opposing party had any opportunity to consider at the trial level, are not *243 properly presented for the first time on appeal. (Cal. Rules of Court, rule 14 [fn. *]; Richard v. Richard, 123 Cal. App. 2d 900, 903 [7] [267 P.2d 867]; Estate of Bialy, 185 Cal. App. 2d 634, 638 [3] [8 Cal. Rptr. 663]; Estate of Sayegh, 118 Cal. App. 2d 327, 332 [4] [257 P.2d 995].) The judgment is affirmed. Griffin, P. J., and Coughlin, J., concurred. NOTES [fn. *] *. Formerly Rules on Appeal, rule 14.

CourtListenerOpinion

2024-06-11T07:23:54.605884

2013-10-30 08:36:18.486798+00

2207267

325 Mass. 475 (1950) 91 N.E.2d 345 PETER F. GALJAARD vs. ALVAN N. DAY & another. Supreme Judicial Court of Massachusetts, Middlesex. February 9, 1950. March 8, 1950. Present: QUA, C.J., LUMMUS, RONAN, SPALDING, & COUNIHAN, JJ. R.S. Marsh, (W.H. Macdonald with him,) for the plaintiff. W. Powers, Jr., for the defendants. LUMMUS, J. The plaintiff was a tenant at will of the defendants in a tenement on premises in Lexington owned by the defendants and "occupied" by the plaintiff and the defendants. On October 21, 1948, the defendants obtained judgment against him for possession in an action of summary process, but the issuance of execution was stayed from time to time until sometime in March, 1949. St. 1948, c. 2. St. 1949, c. 87. The plaintiff remained in possession of the tenement. On December 25, 1948, he fell on ice on a common walk on the premises. The ice resulted *476 from the act of the defendant Alvan N. Day in emptying on the walk water which then froze. The defendants were seasonably aware of the condition of the walk. The judge found that at the time of the fall the plaintiff was merely a tenant at sufferance to whom the defendants owed merely the duty of refraining from doing him wilful or wanton injury. He found for the defendants. The Appellate Division dismissed a report, and the plaintiff appealed to this court. At common law a person in the position of the plaintiff was merely a tenant at sufferance. Dennett v. Nesson, 244 Mass. 299. Margosian v. Markarian, 288 Mass. 197. Mescall v. Somerset Savings Bank, 305 Mass. 575, 577. "A tenant at sufferance is a bare licensee to whom the landlord owes merely the duty not wantonly nor wilfully to injure him." Margosian v. Markarian, 288 Mass. 197, 199. Carney v. Conveyancers Title Ins. & Mortgage Co. 309 Mass. 197, 200. We think that the rights of the plaintiff were made no greater by the recent statutes providing for stays of execution in cases of summary process. Such statutes do not extend the tenancy at will. On the contrary, they declare that the "tenancy has been terminated." G.L. (Ter. Ed.) c. 239, § 9. St. 1946, c. 43. St. 1947, c. 78. St. 1948, c. 2. St. 1949, c. 87. In Dennett v. Nesson, 244 Mass. 299, where after judgment of possession a stay of execution was granted under St. 1920, c. 577, it was held that the tenancy at will had ended, that no new tenancy at will arose, and that there existed only a tenancy at sufferance. In the present case wanton or reckless conduct is neither alleged nor proved. We find no error in dealing with the plaintiff's requests for rulings. Order dismissing report affirmed.

CourtListenerOpinion

2024-06-11T07:23:54.608248

2013-10-30 08:36:18.504838+00

2207272

79 A.2d 167 (1951) BARTLETT v. CHISHOLM et al. Supreme Judicial Court of Maine. March 14, 1951. James A. Connellan, Portland, for plaintiff. Benjamin L. Berman, and Berman & Berman, all of Lewiston, for defendants. Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ. WILLIAMSON, Justice. On exceptions by defendant, Richard A. Chisholm, to the acceptance of a referee's report. Plaintiff's action to recover a real estate broker's commission was referred under rule of court with the right to except as to matters of law. The referee found for the plaintiff. The first objection sharply raises a jurisdictional question. The objection reads: "1st. The Referee erred in ruling that the declaration could be regarded as having been amended, and further in ruling that the Plaintiff's action was not barred because there was no allegation in Plaintiff's pleadings that at the time of the transaction involved he was a duly licensed and qualified real estate broker under the Laws of Maine." The issue is whether the referee could properly find for the plaintiff in the absence of an allegation in the declaration that the plaintiff was a duly licensed real estate broker at the time the alleged cause of action arose under the provisions of R.S., Ch. 75, Sec. 7, relating to the Maine Real Estate Commission, which reads so far as we are here concerned as follows: "No person, partnership, or corporation engaged in the business or acting in the capacity of a real estate broker or a real *168 estate salesman within this state shall bring or maintain any action in the courts of this state for the collection of compensation for any services performed as a real estate broker or real estate salesman without alleging and proving that such person, partnership, or corporation was a duly licensed real estate broker or real estate salesman at the time the alleged cause of action arose." There is no dispute about the facts on the point at issue. The bill of exceptions seen and agreed to by the plaintiff reads as follows: "Plaintiff's writ and declaration failed to allege that Plaintiff was a duly licensed and qualified real estate broker under the Laws of Maine. The case was tried without any objection being raised to such defect or such insufficiency. The Referee found and ruled that since amendments could have been allowed, he will regard the writ and declaration as though they had been properly amended." The position of the referee appears from his report: "The action is brought in assumpsit on an account annexed and the general money counts, and issue is joined on a plea of the general issue without brief statement. The case was tried without objection being raised as to any defects in or the sufficiency of the writ and declaration. If objection had been made, any apparent defects in pleading were amendable. Jones v. Briggs, 125 Me. 265 [132 A. 817]; Mansfield v. Goodhue, [Me.], 53 A.2d 264. Amendments could have been allowed as provided in R.S., Chap. 100, Sec. 95. See Benson v. [Inhabitants of Town of] Newfield, 136 Me. 23, 33 [1 A.2d 227]." On direct examination the plaintiff testified: "Q. And are you a licensed real estate broker? A. Yes." On cross examination the critical fact of a license at the time the alleged cause of action arose in March 1949 was brought out from the plaintiff as follows: "Q. How long have you been a real estate broker? A. Well, now, of that I am not absolutely positive but I think it is four years I have had a broker's license and either one or two years as a salesman of real estate." The argument of the defendant that "there was no understanding that plaintiff was a licensed broker" or in other words that the case was not tried on the theory that the plaintiff had the required license is without merit. Proof of the fact was made without objection and the fact served no useful purpose except to establish a statutory requirement. It is the allegation, not the proof, which is defective. This is the third case to come before us in which a real estate broker has failed to make the allegation required by statute. Gerstian v. Tibbetts, 142 Me. 215, 49 A.2d 227, arose upon exceptions to a nonsuit granted upon the merits. The Court overruled the exceptions both on the merits and for lack of the allegation. The Court said, 142 Me., at page 220, 49 A.2d at page 229: "If the fact that the plaintiff had a license is considered proved, it is not alleged. The very jurisdiction of the Court depends on both allegation and proof." In Mansfield v. Goodhue, 142 Me. 380, 53 A.2d 264, upon the sustaining of a demurrer, the defect in the allegation was cured by amendment. A second demurrer by the defendant on the ground that the defect was not amendable was overruled. Our Court in sustaining the decision said on page 382 of 142 Me., on page 265 of 53 A.2d: "Assuming that such allegation does involve the right of the court to consider the case, yet there is no reason why the failure to allege such fact may not be cured by amendment. It may be true that a court without jurisdiction has no authority to allow an amendment. Yet if a court has jurisdiction of the subject matter, it may in such a case as this allow an amendment to perfect the jurisdiction on the record." The Gerstian and Mansfield cases stand for the principle that the allegation required by statute must appear of record. There has been no curative amendment in the case at bar. The pleadings are fatally defective, and hence the exceptions must be sustained. It is urged that the pleadings are to be regarded as though properly amended. No *169 objection was raised to the defect in or sufficiency of the pleadings at the trial before the referee. An amendment could have been, and no doubt would have been allowed, had the procedures required by R.S., Ch. 100, Sec. 95, relating to amendments in referred cases, been followed. See Ford v. Inhabitants of Town of Whitehead, 137 Me. 125, 15 A.2d 857, decided shortly before the statute was first enacted in 1941. Our attention is directed to Jones v. Briggs, 125 Me. 265, 132 A. 817, and Benson v. Inhabitants of Town of Newfield, 136 Me. 23 at page 33, 1 A.2d 227 which illustrate the cure of mere defects in pleadings by verdict and the treatment of pleadings on an "as if amended" basis when variance appears between allegation and proof. See also Clapp v. Cumberland County Power & Light Co., 121 Me. 356 at page 359, 117 A. 307; Cyr v. Landry, 114 Me. 188 at page 196, 95 A. 883; Wyman v. American Shoe Finding Co., 106 Me. 263, 76 A. 483. Such cases, however, do not touch upon the situation when jurisdiction is at stake. The Court did not consider the "as if amended" rule applicable in the Gerstian case, supra, although no objection to the pleadings appears to have been raised by counsel at any stage of the case. In the Jones case, supra, the Court said on page 266 of 125 Me., on page 818 of 132 A.: "An action at law is not to be dismissed for mere defects in pleading that are amendable or may be cured by verdict, if it appears that the court has jurisdiction and the plaintiff has stated a good cause of action." In our view the allegation required by the statute must be made of record in fact. The statute does not read that on proof of the license in a case fairly tried and without surprise the allegation may be considered as if in fact made upon the record. Such a construction would fail to give effect to the meaning and the intent of the statute. We may regret that the decision of the referee cannot be considered on the merits, but must be set aside for lack of a few appropriate words in the pleadings. The law here applicable, however, is found in the Act of Legislature which defined and limited the plaintiff's right to bring and maintain his action. Neither the parties nor the Court can waive its provisions. It is not necessary that we pass upon the remaining objections. The entry will be: Exceptions sustained.

CourtListenerOpinion

2024-06-11T07:23:54.612086

2013-10-30 08:36:18.5427+00

2207273

183 Mich. App. 348 (1990) 454 N.W.2d 209 PEOPLE v. TOOHEY Docket No. 111717. Michigan Court of Appeals. Decided April 16, 1990. Frank J. Kelley, Attorney General, William F. Delhey, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people. Frank K. Rhodes, III, for defendant. Before: HOOD, P.J., and MAHER and CYNAR, JJ. MAHER, J. Following a bench trial, defendant was convicted of possession of more than 50 grams *350 but less than 225 grams of a mixture containing a controlled substance (cocaine), with intent to deliver, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a) (iii), and operating a vehicle while under the influence of intoxicating liquor (OUIL), MCL 257.625(1); MSA 9.2325(1). Defendant received ninety days imprisonment for the OUIL conviction and the statutory minimum ten years imprisonment for the cocaine-related conviction. In this appeal as of right defendant asserts the trial court erroneously denied his motion to suppress evidence of cocaine seized during an inventory search of his vehicle. We affirm defendant's conviction for OUIL, but reverse the cocaine-related conviction. I The primary issue in this case concerns the admissibility of evidence obtained during an inventory search of defendant's automobile. After defendant was arrested for OUIL, the police impounded his vehicle and conducted a routine inventory search of its contents. During the search, the police discovered a package of cocaine beneath the driver's seat, plus seven more bags of cocaine contained in a golf bag in the trunk. The total amount of cocaine discovered was more than 50 grams but less than 225 grams. A suppression hearing was held on March 25, 1988. The testimony at the hearing established that on July 8, 1987, between 1:00 and 1:30 A.M., defendant and a friend, John Albert, left an Ann Arbor bar in defendant's vehicle, with defendant driving. Thomas Tanner, an Ann Arbor police officer, testified that he stopped defendant after observing the vehicle cross the center line of Packard Road. After noticing the police car, defendant pulled off onto a residential street where he legally *351 parked his car along the curb. Tanner then performed some field sobriety tests on defendant, after which he made his decision to arrest defendant for OUIL. Albert then asked Officer Tanner if he could take custody of the car. Although Tanner did not perform any sobriety tests on Albert, Tanner would not release the car to Albert because defendant indicated Albert had also been drinking and because Tanner noticed that Albert appeared unsteady, smelled of alcohol and had slurred speech. Albert was given the option of either walking away or having a cab called. Albert then went back and conferred with defendant in the police car. After Albert told defendant that the police officer would not let him take the car, defendant asked Albert to arrange for defendant's wife or attorney to pick up the car. When Albert spoke to Officer Tanner about this request the officer told him the car was being impounded, and it was now their car. Albert eventually left on foot. Shortly thereafter, the police conducted their inventory search of the car and the cocaine was discovered. The sole reason given at the suppression hearing for the impoundment of defendant's vehicle was that impoundment was authorized under Ann Arbor Ordinances, 10:139, which provided: 1. A police officer may immediately remove and impound a vehicle in any of the following situations. * * * i. The driver of a vehicle is taken into custody by the Police Department and such vehicle would thereby be left unattended. Once impounded, standard departmental policy required a police officer to thoroughly search the vehicle to determine what, if any, articles of value were present. *352 Following the suppression hearing, the trial court found that the search of defendant's vehicle was valid and therefore ruled the cocaine was admissible. On May 31, 1988, the day scheduled for trial, defendant waived his right to a jury trial and it was agreed that the record of the suppression hearing plus certain other stipulated facts would serve as the basis for the trial record. Thereafter, the court again upheld the validity of the inventory search and found defendant guilty of possession of cocaine with intent to deliver and OUIL. II Defendant argues on appeal that the trial court erred in failing to suppress the cocaine because the impoundment of his vehicle violated his Fourth Amendment rights as an unreasonable search and seizure. A trial court's ruling at a suppression hearing is reviewed under the clearly erroneous standard. The court's decision will be affirmed unless, upon a review of the record, this Court is left with a definite and firm conviction that a mistake was made. People v Burrell, 417 Mich. 439, 448; 339 NW2d 403 (1983). Upon our review of the record, we agree the trial court clearly erred in denying defendant's motion to suppress the cocaine. The Fourth Amendment to the United States Constitution, made applicable to the states by way of the Fourteenth Amendment, Mapp v Ohio, 367 U.S. 643; 81 S. Ct. 1684; 6 L. Ed. 2d 1081 (1961), guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." US Const, Am IV. A search and seizure without a warrant is unreasonable per se and violates the *353 Fourth Amendment of the United States Constitution unless shown to be within one of the exceptions to the rule. People v Reed, 393 Mich. 342, 362; 224 NW2d 867 (1975). The burden is always on the state to show an exception exists. Id.; Coolidge v New Hampshire, 403 U.S. 443; 91 S. Ct. 2022; 29 L. Ed. 2d 564 (1971). The leading case concerning the validity of inventory searches of impounded automobiles is South Dakota v Opperman, 428 U.S. 364; 96 S. Ct. 3092; 49 L. Ed. 2d 1000 (1976). In that case, the United States Supreme Court upheld an inventory search of a lawfully impounded vehicle. The search in that case was prompted by the presence, in plain view, of a number of valuables inside the car. The Court looked at all the facts and circumstances in the case and, after noting that "police intrusions into automobiles impounded or otherwise in lawful police custody" have been consistently sustained "where the process is aimed at securing or protecting the car and its contents," id. at 373, determined that an inventory search performed as a caretaking function pursuant to standard police procedure did not constitute an unreasonable search and seizure under the Fourth Amendment. Id. at 375-376 (emphasis added). In Opperman, the vehicle had been impounded for violation of a parking ordinance and the validity of the initial impoundment was not at issue. However, Opperman did recognize the authority of the police to remove and impound vehicles in the interest of public safety and as part of a "community caretaking function." Id. at 368. Such authority, however, is not absolute. According to Opperman, the validity of a police intrusion must be examined by analyzing the reasonableness of the seizure under all the circumstances and each case must be decided on its own facts. Id. at 372-373. *354 Opperman recognized various situations in which the impoundment and removal of a vehicle will generally be upheld. Such situations include instances where removal is required to permit the uninterrupted flow of traffic or to preserve evidence, instances where the vehicle is disabled or damaged, and instances where a parking ordinance is violated, thereby jeopardizing both public safety and efficient movement of vehicular traffic. Id. at 368-369. The Opperman Court recognized that, once a vehicle is impounded, an inventory search pursuant to standard police procedure will generally be upheld where its purpose is to (1) protect the owner's property while the vehicle remains in police custody, (2) protect the police against claims or disputes over lost or stolen property, and (3) protect the police from potential danger. Id. at 369. Although defendant raises several issues concerning both the initial impoundment and the subsequent inventory search, we agree the dispositive issue in this case involves the legitimacy of the initial impoundment. In People v Krezen, 427 Mich. 681, 685-686; 397 NW2d 803 (1986), our Supreme Court applied the Opperman rationale in deciding just such a case. In that case, the defendant was arrested at an airport after picking up a package containing cocaine. After the arrest, the authorities impounded defendant's automobile, which was lawfully parked in an air freight parking lot. A brown vial containing cocaine residue and other paraphernalia were discovered in defendant's purse, which was lying visibly on the front seat of the car. In a plurality opinion, the Court upheld the admission of the cocaine found in the purse. Writing for the majority, Justice BOYLE (with Justices RILEY and BRICKLEY concurring) followed *355 Opperman, supra, and indicated that the reasonableness of the impoundment was to be determined from the particular facts of the case. Id. at 686. In her majority opinion, Justice BOYLE noted that the possibility of theft or vandalism has been recognized as a valid reason for impounding a car upon the arrest of the driver, id. at 688, and ultimately upheld the impoundment as being a reasonable caretaking function instituted according to standard departmental policy. Id. at 686-689. In a dissenting opinion, however, Justice LEVIN (with Justices CAVANAGH and ARCHER concurring) did not believe that an impoundment was justified merely to avoid the possibility of theft. He agreed with this Court's statement that the possibility of claims against the police for loss or damages does not compare in importance with the preservation of basic constitutional guarantees.[1]Id. at 703-705. In the swing vote, Justice WILLIAMS likewise indicated he was not persuaded that the impoundment was reasonable. However, he agreed the police could not have reasonably left the purse in plain view and rationalized that, because returning the purse to defendant would have inevitably led to the discovery of the cocaine, its admission should be upheld. Id. at 697-698. In applying the principles of Opperman and Krezen, we begin our analysis of the case at hand with the initial recognition that the burden was on the police to establish the reasonableness of the impoundment when considering the circumstances of the case. Having carefully reviewed the record, we do not believe this burden was met. The evidence in this case established that the vehicle was lawfully parked along the curb of a *356 residential street. There was no evidence that the vehicle constituted a safety hazard or otherwise impeded the flow of traffic. Furthermore, there was no indication that it was necessary to impound the vehicle to protect the police from potential danger or that the impoundment was otherwise necessary as an incident to defendant's arrest. Finally, there was no evidence that any items of value were visibly present in the car. The trial court, after indicating it had reviewed Krezen, stated the following as its basis for denying defendant's motion to suppress: We have had so many suits in this county against police officers and other persons where people claim they lost things in the vehicle, the officer stole something from the vehicle or things are missing. So this Court finds that the officer did act reasonably when he decided that he wasn't going to leave the vehicle in the street and he was going to impound it and he felt that he should inventory what was in it so that somebody couldn't claim that he had stolen something. I am not suggesting that the Defendant would have claimed this. But the officer doesn't know that, the officer has to act with what he has. It is clear that the trial court relied on the reasoning of Krezen and determined that concern over potential liability for missing or stolen items was sufficient justification for the impoundment. However, the basis for the trial court's conclusion is not supported by the record. The police officer did not give as a reason for impoundment concern for either the safety of the vehicle or its contents, nor was there any evidence presented establishing the possibility of theft or vandalism as a reasonable concern. Instead, the only reason given for the impoundment was that it was authorized by local *357 ordinance in a situation where a driver is taken into custody and the vehicle would thereby be left unattended. Although Krezen recognized the lawful impoundment of a vehicle as a reasonable caretaking function, we do not believe that Krezen stands for the proposition that an impoundment will be upheld as a reasonable caretaking function in the absence of evidence creating a reasonable concern for the actual safety of the vehicle or its contents. Indeed, an examination of Krezen clearly reveals that the decisive factor in that case was the presence of defendant's purse in plain view on the front seat of the car. In her majority opinion, Justice Boyle was very careful to indicate that the decision upholding the reasonableness of the impoundment was controlled by the particular facts of the case. Krezen, supra at 686 and 697. She expressly indicated that a departmental policy requiring impoundment upon arrest, regardless of the surrounding factual circumstances, may well involve situations where an impoundment would be violative of the Fourth Amendment as an unreasonable seizure. Id. at 685-686. Justice Levin agreed with this proposition in his dissent, stating, "[courts] generally have concluded that to justify impoundment something more must be shown than simply that the vehicle would otherwise be left unattended." Id. at 708. The "something more" that existed in Krezen was the presence of a purse in plain view on the front seat of the car. In our view, the impoundment of defendant's vehicle would have been found unreasonable under Krezen. We reach this conclusion based on the fact that while Krezen contained specific facts establishing a reasonable concern for the safety of the vehicle's contents, there were no such facts in this case. Further, in spite of Krezen's more compelling *358 facts for upholding the validity of the impoundment, only three of the seven justices were able to find the seizure to be reasonable. Because the only reason given for the impoundment in this case was the existence of the local ordinance, and because there were no other facts presented that would otherwise justify the impoundment of the vehicle as being reasonable under the circumstances, we find that the police did not sustain their burden in establishing the reasonableness of the seizure. Further, we believe that, by relying upon the possibility of theft or vandalism as its basis for finding the impoundment to be proper, the trial court clearly erred when this concern was neither expressed at the hearing nor supported by the record. Inasmuch as the cocaine would not have been discovered absent the impoundment, its admission should have been suppressed. Moreover, because defendant could not have been convicted for possession of cocaine with intent to deliver had evidence of the cocaine not been admitted, this conviction is reversed and the charge shall be dismissed. With respect to defendant's conviction for OUIL, however, the improper admission of the cocaine was harmless error. Therefore, the OUIL conviction is affirmed. III Finally, defendant raises various sentencing issues. Defendant initially claims the trial court erred by failing to give retroactive effect to the recent amendments to MCL 333.7401; MSA 14.15(7401). These amendments reduce the statutory minimum sentence for defendant's cocaine conviction to five years and also allow the sentencing court to depart *359 from the minimum sentence requirement where there exist substantial and compelling reasons to do so. However, in light of our reversal of defendant's conviction under this statute, this issue has been rendered moot. In any event, we agree with the prior decisions of this Court holding that the amendments to the statute are not retroactive. People v Becoats, 181 Mich. App. 722; 449 NW2d 687 (1989); People v Jackson, 179 Mich. App. 344; 445 NW2d 513 (1989). Lastly, we find no merit to defendant's argument that he was deprived of his right of allocution at sentencing. The court twice offered him an opportunity to speak and he declined each time. Additionally, the record does not support defendant's contention that his opportunity to allocute was rendered meaningless because the court had already determined the sentence it was going to impose during an in-chambers conference. See People v McNeal, 150 Mich. App. 85; 389 NW2d 708 (1985). Therefore, defendant's sentence for the OUIL conviction is affirmed. Affirmed in part and reversed in part. NOTES [1] See People v Krezen, 143 Mich. App. 34, 40; 371 NW2d 882 (1985).

CourtListenerOpinion

2024-06-11T07:23:54.618509

2013-10-30 08:36:18.546279+00

9736779

OPINION NORTON, Judge. Appellant Theresa Ann McColley Schmitz (“McColley”) seeks review of the trial court’s denial of her motion for a new trial in a paternity action. After a jury returned a verdict in favor of respondent Mark Stransky a/k/a Mark Rand (“Stran-sky”), McColley moved for a new trial alleging as error three evidentiary rulings. Respondent Stransky filed a notice of review seeking review of orders which require him to reimburse the county for attorney fees expended on his behalf and which refuse to appoint counsel to represent him on this appeal. Stransky now argues that Minn.Stat. § 257.69 is unconstitutional because it violates equal protection by conferring privileges upon custodial parents during paternity actions and that the statute violates the Civil Rights Act of 1964 and the Minnesota Human Rights Act by favoring custodial parents, who are predominately female. Stransky argues that the trial court erred both in requiring him to reimburse Rice County for attorney fees incurred after he was employed and in failing to appoint paid counsel to represent him on this appeal. Because Stransky challenges the constitutionality of statutes, the State of Minnesota intervenes to defend those statutes. We reverse. FACTS McColley alleges that she and Stransky began a sexual relationship in approximately March of 1981. She lived with Stransky in his home during August and September of 1981, and then moved out. Stransky and McColley saw less of one another after she moved out. In early November of 1981, McColley’s physician performed a pregnancy test whieh was returned negative. In early December 1981, a second test came back positive. A later ultrasound examination placed the date of conception at approximately October 15th. Expert testimony later placed conception between October 20 and November 1, 1981. The full-term child was born July 7, 1982. This paternity action was commenced in May of 1984. McColley had undergone blood testing in an unrelated paternity action in June of 1982 and she and her new child gave samples for this action in 1984. Blood testing performed on Stransky resulted in a 98.082% likelihood of paternity. McColley had intercourse with two other men during *458the probable period of conception, once on October 29, 1981 and once on October 31, 1981. She claims that her sexual relationship with Stransky was continuing at a rate of once or twice a week until October 22, 1981, which she says is the last time that she and Stransky had intercourse. Stran-sky denies that he ever had a sexual relationship with McColley. Blood tests performed on the other two men exclude both as potential fathers. McColley insists that these three men were the only men with whom she had sexual intercourse during the likely conception time. At the trial, the main issue for the jury was whether to believe McColley and the blood test or Stransky. McColley sought to introduce Exhibit 9, the child’s baby book, in which she had recorded visits and gifts to the child from Stransky’s mother and sister. She also sought to introduce Exhibit 10, a photograph of the new baby sleeping under a crocheted afghan presented by Stransky’s mother. The trial court excluded Exhibits 9 and 10 on the grounds that they were not relevant. McColley challenges the exclusion. In support of her allegation that she had been involved in a sexual relationship with Stransky, McColley testified that she had seen a tattoo on his abdomen below the belt line. Stransky made an offer of proof, to pull down his pants, before the jury. The jury was then removed and Stransky, his attorney, McColley’s attorney and the judge retired to chambers. Upon their return, the parties stipulated that Stransky did not presently have a tattoo in that location. McColley challenges the offer of proof as an admission of demonstrative evidence which does not tend to support conditions existing at the time relevant to the proceeding. McColley sought to impeach Stransky’s testimony through evidence of two convictions, one for aggravated robbery and theft in 1979 and another for burglary in 1982. Stransky was incarcerated after each conviction. The trial court excluded this evidence as prejudicial and stale; McColley challenges that ruling. This action was brought by the Rice County Attorney’s office on McColley’s behalf. Stransky was unemployed when the action commenced. Because he was indigent, a court-appointed and paid attorney represented him. Stransky later became employed and the trial court determined that from September 1, 1986 he was responsible to reimburse the county for the attorney fees it incurred on his behalf. Stransky was also ordered to pay temporary child support in the amount of $115 per month, pending resolution. Those funds were held in escrow by the County. When the jury returned a verdict in favor of Stransky, the court ordered the es-crowed support refunded, minus the amount owed to reimburse attorney fees and costs. Stransky argues that it is unconstitutional for McColley to receive free legal representation while he is required to pay for his advocate. ISSUES 1. Did the trial court err in refusing to admit Exhibits 9 and 10? 2. Did the trial court err in permitting the offer of proof to be made before the jury? 3. Did the trial court err in refusing to permit evidence of prior convictions for the purpose of impeachment? 4. Does Minn.Stat. § 257.69 unconstitutionally deny noncustodial parents equal protection of laws? 5. Does Minn.Stat. § 257.69 violate Minn.Stat. § 363.03, subd. 4 and the Civil Rights Act of 1964? 6. Did the trial court err in requiring Stransky to reimburse the county his attorney fees? 7. Did the trial court err in not appointing counsel to represent Stransky on appeal? ANALYSIS I. McColley challenges the trial court’s refusal to admit Exhibits 9 and 10. The trial court’s ruling on evidentiary mat*459ters must be sustained in the absence of a clear abuse of discretion. State v. Brouillette, 286 N.W.2d 702, 707 (Minn.1979). The trial court excluded Exhibits 9 and 10 on the grounds that gifts from Stransky’s mother would not be probative of whether Stransky is the father of the child. The trial court went on to state that even if the evidence were probative, it was too prejudicial and would be excluded under Minn.R. Evid. 403. The trial court reasoned that the evidence was irrelevant because it could tend to prove only what Stransky’s mother believed or wished and could not tend to prove whether her son was in fact the father. The trial court was well within its discretion in excluding this evidence. II. Stransky made an offer of proof that he did not have a tattoo which McColley had described and alleged he had. Her allegation was apparently intended to corroborate her assertion that she had been intimate with Stransky. The offer was made in response to McColley’s assertion. McColley argues that the trial court erred in denying her motion for a new trial which was based upon the offer of proof having been made in front of the jury. Offers of proof are to be made outside the hearing of the jury. Minn.R. Evid. 103(c). However, McColley testified that she had seen a particular tattoo on Stransky in 1981. Stransky testified that he did not have such a tattoo, that he had never had such a tattoo and that he had never had a tattoo removed. The record discloses that as soon as Stransky’s attorney offered to have Stransky remove his pants, McColley’s attorney objected. The jury was removed; the parties retired to chambers, Stransky was examined, and the parties returned to stipulate before the jury that Stransky did not presently have a tattoo. McColley objects to the offer of proof (that Stransky would pull down his pants in court) on the basis that it is inadmissible to show whether he had a tattoo in 1981. Because McColley first alleged the tattoo had existed, and then stipulated that no tattoo presently existed, the trial court did not abuse its discretion in making this evidentiary ruling. III. McColley sought to impeach Stran-sky’s testimony by introducing evidence of Stransky’s prior criminal convictions. As he did in the trial court, Stransky attempts to minimize the importance of credibility in this case by instead criticizing the validity of the blood tests which show he is very probably the father. Although no transcript of the video deposition was provided, the expert through whom those tests were introduced, Dr. Polesky, gave uncontradict-ed testimony indicating that the blood tests were not damaged or invalid in any way. Stransky’s allegations that the blood was damaged in transit, or that McColley’s sample was corrupted with genetic material from her unborn child flatly contradict the whole of the expert testimony in the record. Dr. Polesky explained that the blood samples are placed in test tubes containing preservatives and are inspected before testing. He testified that no damage to these particular samples was observed. He also testified that a child younger than six months may carry some of its mother’s genetic markers; not that a pregnant mother’s blood contains markers from her unborn child. In mischaracterizing the evidence, Stransky seeks to avoid that the crux of this case is in the question of his credibility. Because the blood tests were not invalid, the central issue in this case is not simply paternity; the focal point becomes the credibility of the witness who denies it. McColley sought to introduce evidence of two prior crimes: Stransky pleaded guilty to simple robbery on April 25, 1979 and to burglary on October 13, 1982. The trial court granted Stransky’s motion in limine, relying on Minn.R.Evid. 609 and State v. Jones, 271 N.W.2d 534 (Minn.1978). The trial court held that the probative value of the evidence did not outweigh its prejudicial effect and that the convictions were stale. With regard to staleness, *460the applicable rule provides in pertinent part: (b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. * * * Minn.R.Evid. 609 (emphasis added). The summons and complaint in this action were served in May of 1984, and trial began on April 18, 1989. Stransky’s first conviction was obtained on April 25, 1979 and Stransky was sentenced to one year in jail. The evidence does not disclose the actual release date. The second conviction on October 13, 1982 resulted in a sentence of eighteen months, with credit for time served. Again, the record does not reveal his actual release date. Because the rule counts time from the date of conviction or the date of release, whichever is the later date, the trial court erred in counting instead from the date of the convictions, which was the earlier date. The convictions both, therefore, are admissible under Minn.R.Evid. 609(b). The error is compounded by the trial court’s analysis of the Jones factors. They are: (1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue. State v. Jones, 271 N.W.2d at 538. In Jones, a criminal case, the supreme court noted that the rules of evidence were not in effect at the time of Jones’ trial. In the civil case here, the rules of evidence apply and require admission of the impeachment evidence. The applicable rule provides in pertinent part: (a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if * * * the crime (1) was punishable by * * * imprisonment in excess of one year * * * and the court determines that the probative value * * * outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment. Minn.R.Evid. 609 (emphasis added). This rule contains a bright line test which requires admission if the crimes involved dishonesty, without regard to the weighing test of prejudice against probative value contained in part (a)(1). Although the trial court erred in applying the Jones factors to weigh prejudice against probity, it found correctly that the convictions were for crimes of dishonesty. See State v. Stanifer, 382 N.W.2d 213, 218 (Minn.Ct.App.1986) (robbery is a crime of dishonesty under rule 609(a)). The trial court erred in determining that although Stransky’s crimes involved dishonesty, the prejudicial effect outweighed the probative value of admitting this evidence. Because the rule requires admission of prior crimes evidence if the crime involves dishonesty, the trial court abused its discretion. The convictions are admissible to impeach Stransky’s credibility without regard to any prejudicial effect. Minn.R.Evid. 609(a)(2). The crimes were not stale. Minn.R.Evid. 609(b). Therefore, the trial court’s remaining analysis is unnecessary and erroneous. Stransky now argues that a recent proposed amendment to Minn.R.Evid. 609 demonstrates that his convictions should be inadmissible against him. He is mistaken. Prior crimes evidence permits the jury to see the “whole person.” State v. Heidelberger, 353 N.W.2d 582, 589 (Minn.Ct.App.1984), pet. for rev. denied (Minn. Sept. 12, 1984) (citing Brouillette, 286 N.W.2d at 707). Because the testimony of the two key witnesses was diametrically opposed, their credibility was critical when the jury was asked to choose. McColley was enti-*461tied to have the jury informed about the background of the person whose testimony it was asked to believe. The exclusion of this evidence on the crucial question of Stransky’s credibility is an error neither insignificant nor harmless. For this reason, we disagree with the dissent. IV. Stransky questions the constitutionality of Minn.Stat. § 257.69 (1988), which permits governmental legal representation of a custodial parent in paternity proceedings. He contends this statute irrationally favors custodial parents and denies equal protection to others. Statutes benefit from a presumption of constitutionality. Minn.Stat. § 645.17(3) (1988). Stransky must demonstrate compelling evidence in order to rebut this presumption. Equal protection requires that persons similarly situated be treated alike. City of Cleburn v. Cleburn Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3253, 87 L.Ed.2d 313 (1985). Different treatment passes constitutional muster where the distinction in question is rationally based upon a legitimate governmental purpose. See Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). The criteria against which the statute in question must be measured are whether 1) the classification uniformly applies to those who are similarly situated, 2) the distinctions are genuine and provide a reasonable basis to justify different legislation, and 3) the classification is relevant to the purpose of the law. Schwartz v. Talmo, 295 Minn. 356, 362, 205 N.W.2d 318, 322 (1973), appeal dismissed 414 U.S. 803, 94 S.Ct. 130, 38 L.Ed.2d 39 (1974). The purpose of a paternity proceeding under Minn.Stat. §§ 257.51-.74 is to establish parentage and provide support for the child. Because the custodial parent has already acknowledged parenthood and is providing support, the distinction between custodial parents and others is genuine and provides a reasonable basis to justify different treatment. This distinction between acknowledged parents who are providing support and alleged parents who are not providing support is relevant to the purpose of the law. Stransky argues that all parties to a paternity action are similarly situated and should be entitled to free legal services in the interest of determining parentage and support issues. We do not agree that an alleged father who denies paternity is similarly situated to a custodial parent who is providing support. Stran-sky’s argument that the government is obligated to provide him a legal representative because it has provided one to McCol-ley is meritless. Stransky has failed to demonstrate that the statute unconstitutionally violates his equal protection of laws. V. Stransky also alleges that Minn. Stat. § 257.69 violates the Minnesota Human Rights Act, specifically Minn.Stat. § 363.03, subd. 4, and the Civil Rights Act of 1964. Stransky’s argument appears directed at the fact that many of the custodial parents who may receive benefits are women. Minn.Stat. § 257.69 benefits custodial parents, regardless of gender. Stransky is ineligible for court-appointed and paid legal representation not because he is male, but because he is not a custodial parent. VI. Stransky alleges the trial court erred in ordering him to reimburse Rice County for attorney fees incurred by it since September 1, 1986. When this action began in 1984, Stransky had been recently released from prison and was unemployed. Minn.Stat. § 257.69, the constitutionality of which we have just upheld against Stran-sky’s challenge, governs appointment of counsel in paternity actions. The statute states in pertinent part: “The court shall appoint counsel for a party who is unable to pay timely for counsel” in paternity actions. Minn.Stat. § 257.69, subd. (1) (1988). A public defender was appointed at county expense and Stransky was ordered to inform the county when he became employed *462and again had income. In 1986 the court learned that Stransky had become employed and it ordered him to pay attorney fees from September 1, 1986 forward. Stransky argues that the statute does not require complete reimbursement of attorney fees. He asserts that the trial court should have entered specific findings regarding his ability to pay and that if he is not capable of repaying in a reasonable period, such as a year, the fees should be forgiven. The statute states in relevant part that “the court shall require a party to pay part of the fees of court-appointed counsel according to the party’s ability to pay * * Minn.Stat. § 257.69, subd. 2 (emphasis added). There is absolutely no authority for the proposition that if Stran-sky delays payment, he then should not be required to reimburse the county. Rather, after Stransky became employed, the court found that he was no longer entitled to court-appointed counsel. The trial court did not err in its application of this statute to Stransky. VII. Stransky also argues that the trial court erred in failing to appoint counsel to represent him on this appeal. Stransky argues that the court applied the wrong standard in refusing him court-appointed appellate counsel. As noted above, the trial court found that Stransky was “indigent within the meaning of Minn.Stat. § 257.69, subd. 1.” The statute does not contain the word ‘indigent.’ The correct language, as discussed above, is “unable to pay timely.” However, the case upon which Stransky relies, Hepfel v. Bashaw, 279 N.W.2d 342 (Minn.1979), was decided before the present statute was enacted. Similarly, Stransky relies upon the model Uniform Parentage Act, although the Minnesota Legislature adopted a revised version in 1980. Hepfel and the UPA are unnecessary to resolution of this problem. Minn.Stat. § 257.69 does not refer specifically to appellate counsel. This statute orders court-appointed counsel for those ‘unable to pay timely’ which was Stransky’s situation when the action began. When Stransky became employed, the trial court ordered him to take responsibility for his legal fees. The trial court did not err in refusing to appoint counsel for Stransky in this appeal. DECISION The trial court abused its discretion in refusing to permit prior crimes evidence for impeachment of Stransky’s testimony. McColley is entitled to a new trial. The constitutionality of the statute in question is affirmed. Stransky is not entitled to court-appointed counsel and must reimburse the county for the expenses it has incurred on his behalf. Reversed.

CourtListenerOpinion

2024-06-11T07:23:54.622762

2023-08-26 19:06:27.557448+00

2207258

208 Cal. App. 2d 313 (1962) THE PEOPLE, Plaintiff and Respondent, v. VINCENT LUJAN ORTIZ, Defendant and Appellant. Crim. No. 8315. California Court of Appeals. Second Dist., Div. Four. Oct. 9, 1962. Vincent Lujan Ortiz, in pro. per., for Defendant and Appellant. Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Jack K. Weber, Deputy Attorney General, for Plaintiff and Respondent. *314 JEFFERSON, J. In an information filed by the District Attorney of Los Angeles County, defendant and his wife (not appealing here) were jointly charged with a violation of section 11500 of the Health and Safety Code, possession of heroin. Three prior felony convictions were alleged as to defendant which were initially denied but later, out of the presence of the jury, admitted to be true. Defendant entered a plea of not guilty. After a jury trial defendant was found guilty as charged. Motion for a new trial and probation were denied, and defendant was sentenced to state prison for the term prescribed by law. Defendant applied to this court for appointment of counsel to assist him on appeal. This court, having made an independent investigation of the record and having determined that it would be neither advantageous to defendant nor helpful to this court to have counsel appointed, denied the application, whereupon defendant prosecutes this appeal in propria persona. This is an appeal from the judgment and order denying motion for new trial. Harry E. Dorrell, a police officer assigned to the narcotics division, testified that he had known defendant for about a year before the arrest. During that time he had received information from various sources that defendant and his wife were selling and using narcotics. A day or two before the arrest he had recived information that they had 22 ounces of heroin in their possession. Defendant and his wife were staying at a motel in the City of Los Angeles. Officer Dorrell, accompanied by a fellow officer, went to the motel and showed photographs of defendant and his wife to the motel manager who admitted that the same persons were occupying a room in the motel. Defendant and his wife were not in at the time, and the manager permitted the officers to use a vacant room next door to the unit occupied by defendant. The officers were in the motel room looking out the window when they first observed defendant and his wife in the motel parking lot. As they were walking to their motel unit, defendant and his wife were stopped by the officers who identified themselves. Defendant's wife was asked if she was still using narcotics, and she replied that she was. Defendant was also asked if he was still using narcotics, and he answered that he was. The officers observed what appeared to be fresh hypodermic needle marks on defendant's arm, and on the hands and wrists of his wife. The officers asked defendant to show him where he was taking narcotics. Defendant began to take *315 off his coat, and one of the officers said "Never mind, I will take your word for it." At the request of the officers, defendant's wife voluntarily gave the room key to the officers who then asked if there were any narcotics inside the room. Defendant replied, "No, you can go ahead and search it." The officers asked if they could search defendant, and defendant said "Go ahead." Defendant stated he gave permission for the search because he was "pretty certain he didn't have anything on him against the law." He stated he didn't think there was any more "stuff" (which in narcotics jargon means heroin). They searched defendant's person and found a cigarette package with five rubber containers in it, each containing a quarter ounce of a whitish powder resembling heroin. The officers asked defendant what he was going to do with it and defendant said he was going to "burn somebody." Defendant stated he had picked it up just before he entered the room. The officers made a search of the spot which he pointed out and found two more rubber containers, each holding the whitish powder resembling heroin. Defendant testified in his own behalf. He stated that he stopped before they went in the motel room to ask his wife for the key. She told him the house key was in the package of cigarettes in the plants outside the motel unit. She asked him to get it because she didn't want to get her shoes dirty. He picked up the package which, a few minutes later, the officers took away from him. Defendant denied to the officers that he was using narcotics. [1] At the preliminary hearing defendant's counsel stipulated to the qualifications of the prosecution's witness as an expert chemist and to the fact that if called he would testify that the substance contained in the cigarette package was heroin. Defendant was present when his counsel entered into this stipulation, and he remained completely silent in this regard. At the trial before the jury, a forensic chemist, employed by the police department as a criminologist, testified that in his opinion the powder was heroin. Defendant contends "the main and sole issue on appeal is whether the preliminary hearing magistrate exceeded his jurisdiction to commit him to stand trial pursuant to the California Constitution, Article I, section 8, subdivision 3, in that he was not confronted with the forensic chemist at the time of his preliminary hearing in that his attorney stipulated to the chemist's testimony at the preliminary hearing." Substantially the same factual situation and contention was *316 presented in People v. Prado, 190 Cal. App. 2d 374, 376 [12 Cal. Rptr. 141], which quoted from People v. Wilson, 78 Cal. App. 2d 108, 119-120 [177 P.2d 567], in support of its decision: "Defendant was present and heard her attorney enter into the stipulations. She at no time objected thereto nor sought to be relieved therefrom, nor did her attorney make any such request in her behalf. No contention is advanced that the stipulations were not in accordance with the facts... defendant was not prejudiced thereby." Defendant argues in his brief that by his attorney's stipulation he was denied the right to be confronted by the witnesses at his hearing. If defendant felt that his counsel should not have made the stipulation, he should have complained at that time and given the court an opportunity to correct the situation. In the absence of such complaint the acts of defendant's counsel are imputed to him. "The right of the accused to confront witnesses at his trial, whether reserved in the Constitution or in statutes, may be waived. [Citations.]" (People v. Wallin, 34 Cal. 2d 777, 781 [215 P.2d 1].) [2] Defendant also argues in his brief that he and his wife were committed to stand trial for an offense not proven to exist. "[H]e does so despite the fact no motion was made under section 995, Penal Code, nor did he raise the question at the trial. Section 995 provides that an information may be set aside if the defendant has been committed without probable cause; in section 996, Penal Code, it is provided as follows: 'If the motion to set aside the indictment or information is not made, the defendant is precluded from afterwards taking the objections mentioned in the last section.' " (People v. Stone, 195 Cal. App. 2d 282, 289-290 [15 Cal. Rptr. 737].) Judgment of conviction is affirmed. Purported appeal from order denying motion for a new trial is dismissed. Burke, P. J., and Ford, J., [fn. *] concurred. NOTES [fn. *] *. Assigned by Chairman of Judicial Council.

CourtListenerOpinion

2024-06-11T07:23:54.627649

2013-10-30 08:36:18.425405+00

9736782

LEVINE, Justice, specially concurring. I write specially to express my view that Rule 511, North Dakota Rules of Evidence, in conjunction with Rule 510, North Dakota Rules of Evidence, is sufficient to resolve the issue of the admissibility of Exhibit “N”, the letter inadvertently disclosed by counsel for the Bank. Because the Bank, as holder of the privilege, did not have the opportunity to claim the privilege, it did not waive the privilege. Rule 511, NDREv; 2 J. Weinstein and M. Berger, Weinstein’s Evidence, Standard 512[02], at 512-4 (1989); see also Explanatory Note to Rule 511, NDREv, quoted in the majority opinion, supra, at page 719. In my view, case law from federal and state courts is not helpful, illuminating or determinative because of differing statutes, rules or “standards” governing waiver in those jurisdictions. In North Dakota, a lawyer cannot waive the privilege without consent of her client. Id. Under our rules of evidence, the client alone is keeper of the privilege. North Dakota has opted for the sanctity of client control of the privilege and its waiver in contrast with the differing positions of the several authorities cited by the majority. As the explanatory note to Rule 511 of the North Dakota Rules of Evidence explains, confidential attorney/client communications remain privileged, even when that confidentiality is breached, if the breach is committed by someone other than the client without the client’s having an opportunity to claim the privilege. I agree, therefore, that the trial court did not abuse its discretion in excluding Exhibit “N”. I also agree that the judgment of foreclosure should be affirmed. VANDE WALLE, J., concurs.

CourtListenerOpinion

2024-06-11T07:23:54.628993

2023-08-26 19:06:31.380698+00

2207298

96 N.H. 491 (1951) CLOVER CUTTING DIE CO. INC. v. SAM SMITH SHOE CORP. No. 4003. Supreme Court of New Hampshire. March 6, 1951. *492 J. Morton Rosenblum (by brief and orally), for the plaintiff. Hughes & Burns (Mr. Donald R. Bryant orally), for the defendant. BLANDIN, J. The plaintiff claims first, there was no evidence of an implied warranty of fitness, second, if such warranty existed that the defendant did not sustain its burden of proving a breach and lastly that the amount of the verdict is unwarranted. We believe these contentions cannot be sustained and that the verdict must be upheld. The record shows there was only one purpose for which these dies were to be used, that such purpose was obvious and known to the trade and the parties. The defendant in ordering the dies specified only their size and shape. The method of manufacture, the material and the delicate task of tooling an edge which would cut the leather or lining without sticking in the block were left entirely to the plaintiff. The facts differ materially from those in Gregg v. Company, 69 N. H. 247, relied upon by the plaintiff where as the Court said (page 249) "The plaintiffs directed the size and method of constructing the belt. They relied upon their own judgment, not upon that of the manufacturers." The defendant was not a die maker but only a buyer of this highly specialized product from the plaintiff upon whose skill and judgment it had to rely. Under all the circumstances we believe the Court's holding that an implied warranty of fitness existed was sound. R. L., c. 200, s. 15, par. I. *493 It also appears on all the evidence that the defendant has sustained its burden of showing a breach of the implied warranty. The record shows that the same type of die bought from other manufacturers, used by the same person on similar material and under like circumstances cut satisfactorily. The testimony suggests that if dies are either too sharp or too dull they are unfit for cutting. There was evidence that the plaintiff on several occasions took the dies back to its factory to sharpen or otherwise fix them. We believe upon all the facts the Court could properly find a breach of the implied warranty of fitness. The plaintiff's final contention is that the amount of the verdict cannot be reconciled with the proof. There was conflicting evidence regarding the shipments and types of dies in question and the Court was at liberty to accept or reject all or any portion of the parties' claims regarding these items. Giguere v. Railroad, 86 N. H. 294, 298. The questions of interest and delivery charges were also involved. There were no requests for findings and it is not necessary for the defendant to be able to point out the exact method by which the Court reached its verdict since it cannot be said that it is not in accordance with the evidence. See Young v. Dow, 93 N. H. 210, 212. It follows the plaintiff's exception must be overruled and the order is Judgment on the verdict. JOHNSTON, C. J., was absent: the others concurred.

CourtListenerOpinion

2024-06-11T07:23:54.630341

2013-10-30 08:36:18.749746+00

9736783

O’Sullivan, J. On June 29, 1949, Windham Motor Sales, Inc., sold a Lincoln automobile to Emile W. Jacques under a contract of conditional sale. The seller subsequently assigned its interest in the contract to the plaintiff. On September 23, 1949, the defendant, a deputy sheriff, attached the automobile in an action instituted by a creditor of Jacques. During October, the plaintiff brought this action of replevin. The complaint included an allegation that Jacques was in default in failing to pay an instalment of the purchase price due on September 29. From a judgment that the plaintiff recover possession of the automobile, the defendant has appealed. The sole ques*543tion for determination is whether the contract of conditional sale was legally executed. The defendant contends that, as against the vendee’s creditors, it is invalid on two grounds, first, the conditions of the sale are not fully stated, and, secondly, the acknowledgment is defective. Our discussion will be limited to the first ground. Section 6692 of the General Statutes requires that, except as otherwise provided, “all contracts for the sale of personal property, conditioned that title thereto shall remain in the vendor after delivery, shall be in writing, describing the property and all conditions of such sale.” Section 6694 provides that all conditional sales of personal property not made in conformity with § 6692 shall be held to be absolute sales except as between the parties to the transaction and their personal representatives, and that the property involved shall be liable to be taken by attachment and execution for the debts of the vendee. The purpose of these statutes, as has been repeatedly pointed out, is to protect those who, in dealing with another, may be led, by that other’s possession and apparent ownership of personalty, to believe him to be its actual owner. C. I. T. Corporation v. Cohen, 117 Conn. 159, 163, 167 A. 102; Commercial Credit Corporation v. Carlson, 114 Conn. 514, 516, 159 A. 352. The statutes were not aimed at invalidating, nor do they invalidate, as between the parties, a conditional sale contract, however defective its execution may be. Refrigeration Discount Corporation v. Chronis, 117 Conn. 457, 460, 168 A. 783. They were passed solely for the benefit of the creditors of, and the bona fide purchasers from, the conditional vendee. In re Wilcox & Howe Co., 70 Conn. 220, 230, 39 A. 163. This legislative purpose has been consistently recognized by our previous decisions. We have interpreted the *544statutes strictly as against the parties to the conditional sale contract and with liberality towards those for whose protection they were enacted. Lee Bros. Furniture Co. v. Cram, 63 Conn. 433, 437, 28 A. 540; National Cash Register Co. v. Lesko, 77 Conn. 276, 280, 58 A. 967; Standard Acceptance Corporation v. Con-nor, 127 Conn. 199, 203, 15 A. 2d 314. The terms of the contract involved in this action, in so far as they relate to the payment of the purchase price, read: “. . . for a Cash Price of $3680.00, plus Finance Charge of $440.16 making a Total Time Price of $4,120.16, which the buyer agrees to pay to the seller or seller’s assignee in manner following: ... a total down payment of $1282.00 on or before delivery leaving a Deferred Balance of $2838.16, payable ... in 24 equal monthly installments of One Hundred eighteen dollars & 26 cts. ($118.26) each . . . the first installment to be paid on July 29th, 1949 and the remaining installments to be paid on or before the--day of each and every month thereafter until this contract is paid in full.” The claimed defect in this recital of the conditions of the sale is that the day of the month upon which the instalments are due was left blank. It is the plaintiff’s contention that the terms of payment are sufficiently definite to meet the requirements of the statute. Its claim appears to be this: the date of the contract is June 29; the first instalment is made payable on July 29, and those remaining, on the “-- day of each and every month thereafter until this contract is paid in full”; hence, an instalment is due on the 29th day of each succeeding month. The weakness of' this argument is obvious. In the first place, whether “month” refers to a period of one month immediately following the “29th” or to the calendar month which next follows that date is not stated. Furthermore, if we assume that the actual agreement of *545the parties was that all instalments subsequent to the first were to fall due as claimed by the plaintiff, then that was a condition of the sale and, as such, was required by the statute to be expressed in writing. It is quite simple to say that the parties obviously intended, from the language they used, that monthly payments, subsequent to July, were to be paid on or before the 29th of each month. This is the equivalent of filling in an unstated term of the contract. For aught that appears therein, save what may be deduced by inference to the contrary, the actual, unrecorded agreement may have provided for payments on the 1st or 15th or 30th day of the month. The problem, however, is not one of interpretation, permitting the court to resort to its right to draw reasonable inferences in determining the meaning of a contract. If it were, it is not inconceivable that the missing information could be supplied by inferring that, because the dates when the contract was executed and the first instalment was made payable were the 29th of consecutive months, the parties must have intended the 29th of each of the "following months as the date on which the payment was to be made. That, however, is not the point. The only question is whether all of the conditions of the sale were reduced to writing. The statute is not ambiguous. It provides unequivocally that all, not some, of the conditions shall be expressed in writing. Try as it may, the plaintiff cannot escape from the stubborn fact that the contract does not incorporate the complete terms to which the parties agreed. Unless we propose to depart from the strict policy which has characterized our former decisions, we must conclude, as we do, that the contract of conditional sale in this case was an absolute sale as to the vendee’s creditor. C. I. T. Corpora*546tion v. Meyers, 129 Conn. 514, 517, 29 A. 2d 758; Premium Commercial Corporation v. Kasprzycki, 129 Conn. 446, 450, 29 A. 2d 610. There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendant for possession of the automobile. In this opinion Baldwin, J., concurred.

CourtListenerOpinion

2024-06-11T07:23:54.631767

2023-08-26 19:06:32.565738+00

9736784

Brown, C. J. (concurring). I concur in the conclusion that there was error. I am in full agreement with what is stated in the preceding opinion as to the purpose of the statute and as to the court’s duty to enforce strict compliance with it for the protection of bona fide purchasers and creditors. The vendor’s gross carelessness and disregard for the requirements of the statute in this case are manifest, not only from its failure to state in the instrument the dates when the monthly payments were to be made but also in the inadequacy of the acknowledgment. Among other of the applicable provisions of § 6692 is one that all conditional sales contracts “shall be acknowledged before some competent authority.” When a corporation is the vendor in such a contract, it “is essential that it appear from the certificate, when read in connection with the instrument acknowledged, that the acknowledgment is made on behalf of the corporation and therefore is its acknowledgment, and not merely that of the individual who executed the instrument.” Commercial Credit Corporation v. Carlson, 114 Conn. 514, 518, 159 A. 352. In other words, under our statute a certificate is insufficient unless it (1) identifies the subscriber, (2) specifies the writing subscribed, (3) states the capacity in which he executed it, and (4) certifies his acknowledgment thereof. At the end of this contract, just below what appears to be the buyer’s signature, this appears: “Seller *547Signs Windham Motor Sales, Inc., B. Hochberg, Pres. Columbia Ave., Willimantic, Conn.” The certificate of acknowledgment states: “Personally appeared Windham Motor Sales, Inc. (Seller) and Emile W. Jacques (Purchaser) signers and sealers of the foregoing instrument and acknowledge the same ... to be their free act and deed (and the free act and deed of corporation when either party is corporation), before me. When the purported signature of the vendor, and the certificate, are read together, if it is assumed that the first three of the above requisites essential to a valid certificate were satisfied, it is clear that the fourth was not. Even though the vendor s signature is construed to be that of the corporation, by Hochberg as its president, there is nothing to show that he, rather than some other person without even ostensible authority to act on its behalf, acknowledged the instrument. Since a corporation can act only through its agents, the certification that Windham Motor Sales, Inc., “personally appeared,” adds nothing and means nothing. It follows that the certificate is insufficient and judgment must be directed for the defendant.

CourtListenerOpinion

2024-06-11T07:23:54.632896

2023-08-26 19:06:32.569474+00

9736785

Inglis, J. (dissenting). The purpose of the requirement of the statutes that, to be valid as against third parties, a conditional sale contract must state “all conditions” of the sale is to inform such third parties as to what interest the vendee has in the property sold. This purpose is fully accomplished if by a reasonable reading of the contract one is fairly apprised of its terms. Premium Commercial Corporation v. Kasprzycki, 129 Conn. 446, 450, 29 A. 2d 610; National Cash Register Co. v. Lesko, 77 Conn. 276, 280, 58 A. 967; see Mozwish v. Sirus, 113 Conn. 141, 144, 154 A. 166; Beach v. Osborne, 74 Conn. 405, 408, 50 A. 1019, 1118. *548The only possible question concerning the statement of the terms of the sale in the contract involved in this case is whether the times of payments of the instalments of the purchase price are set forth with adequate certainty. The contract on its face is dated June 29, 1949. After stating the amount of each of the instalments and that there should be “24 equal monthly installments,” it reads: “the first installment to be paid on July 29th, 1949 and the remaining installments to be paid on or before the--day of each and every month thereafter until this contract is paid in full.” When these provisions are read in their entirety, it appears that the omission of the precise date of the month upon which the instalments were to become due does not materially detract from the certainty of the statement. The agreement was that the instalments would have become due “on or before” such a day, if one had been stated. It is quite apparent, therefore, that the actual agreement between the parties did not contemplate that any payment must be made on any specific day. It might be made at any time within a specified month. The contract did make it plain that the first instalment was due on July 29, that another instalment was due sometime within the month which followed that date, and that a further instalment was due within each successive month thereafter. The contract also made it plain that in no event could payments continue after the expiration of twenty-four months. To apprehend this much from a reading of the contract, it is not necessary to draw any inferences, still less to do any guesswork. It is the plain intendment of what the contract states. A reading of the contract fairly apprises one of what the agreement was with reference to the time for payment of instalments. It, therefore, satisfies the purpose and the requirement of the statute. *549In only two cases has this court held that the statement of the due dates of instalments in conditional sale contracts was inadequate to meet the requirements of the statute. In C. I. T. Corporation v. Meyers, 129 Conn. 514, 517, 29 A. 2d 758, although the contract called for eighteen instalment payments, it completely failed to state when those payments should commence or end or whether they should be made in successive months. In Standard Acceptance Corporation v. Con-nor, 127 Conn. 199, 203, 15 A. 2d 314, although the contract was dated December 2, 1938, it stated that the instalment payments were to commence on January 10, 1938, an obvious error. The reasoning of the court which led to the conclusion that the requirement of the statute had not been satisfied was that, even if the error in the date were overlooked, the contract was left with no date stated for the commencement or ending of the instalment payments. Obviously, neither of these cases on their facts is analogous to the present case, nor does the reasoning of the opinion in either of them argue that the statement of terms contained in the contract now before us is inadequate. The present contract states plainly that an instalment is to be paid in each successive month commencing July 29, 1949. The certificate of acknowledgment which was annexed to the conditional sale contract is set forth in the concurring opinion of Brown, C. J. In considering the question whether that certificate is adequate, it must be borne in mind that ordinarily the omission from the certificate of the name of the acknowledger is not fatal if his identity is fairly imported by referring to him in the certificate as the signer and sealer or the subscriber of the document acknowledged. Sanford v. Bulkley, 30 Conn. 344, 347; 1 C. J. S. 855, § 92 (a) (2); 1 Am. Jur. 364; notes, 29 A. L. R. 919, 1001, *55072 A. L. R. 1290, 1300. The same is true even though the certificate relates to acknowledgments by two or more persons. Bowles v. Lowery, 181 Ala. 603, 610, 62 So. 107; Brown v. Corbin, 121 Ind. 455, 458, 23 N. E. 276; Stephens v. Perkins, 209 Ky. 651, 655, 273 S. W. 545; Clewer v. Shields, 40 Pa. Super. 400, 403. It obviously is impossible for a corporation to appear personally and acknowledge a document. Accordingly, the words “Windham Motor Sales, Inc. (Seller),” as they appear in the certificate in question, are to be treated as surplusage and ignored. If that is done, the certificate reads: “Personally appeared . . . and Emile W. Jacques (Purchaser) signers and sealers of the foregoing instrument. . . .” That is, the certificate does not specify by name one of the acknowledgers. It is apparent from the certificate, however, that at least two persons appeared and acknowledged the document, because it states that they were “signers and sealers” and that the instrument was acknowledged as “their” free act and deed. The quoted words are in the plural. The certificate is that those who appeared were the signers and sealers of the foregoing instrument. That can be interpreted in no way other than that it was “B. Hochberg, Pres.,” and “Emile W. Jacques.” It also means that B. Hochberg appeared in his capacity as president of Windham Motor Sales, Inc. The certificate further makes it clear that B. Hochberg as president acknowledged the instrument both as his free act and deed and as the free act and deed of the corporation. It, therefore, adequately complies with the requirements of a proper certificate of acknowledgment. The case is distinguishable on the facts from Hayden v. Westcott, 11 Conn. 129; Commercial Credit Corporation v. Carlson, 114 Conn. 514, 159 A. 352; C. I. T. Corporation v. Hungerford, 123 Conn. 438, 196 A. 151; *551and C. I. T. Corporation v. Meyers, 129 Conn. 514, 29 A. 2d 758. In the Hayden case the certificate did not reveal even by way of inference who had appeared. In the Carlson case the certificate failed to state that the person who was making the acknowledgment on behalf of the corporation was an officer of the corporation or was acting in any official capacity. In each of the other two cases the certificate was so garbled as to be meaningless. In this opinion Jennings, J., concurred.

CourtListenerOpinion

2024-06-11T07:23:54.634417

2023-08-26 19:06:32.572988+00

2207309

454 N.W.2d 422 (1990) Gregory James MOEN, Respondent, v. Salma MIKHAIL, M.D., George E. Reisdorf, M.D., et al., petitioners, Appellants. No. C3-89-540. Supreme Court of Minnesota. April 20, 1990. Rehearing Denied May 10, 1990. Robert R. Dunlap, Susan Scheffer, Dunlap, Finseth, Berudt & Sandberg, P.A., Rochester, for George Reisdorf, et al. Kenneth R. White, Farrish, Johnson & Maschka, Mankato, for Salma Mikhail. Evan H. Larson, Peter D. Plunkett, Warren F. Plunkett & Assoc., Austin, for respondent. Considered and decided by the court en banc without oral argument. SIMONETT, Justice. We granted the petitions of defendants Salma Mikhail and George E. Reisdorf to review a split decision of the court of appeals, the majority of which concluded that the trial court is vested with discretion to extend the time limitations contained in Minn.Stat. § 145.682 (1988) upon a showing of excusable neglect and that it abused that discretion in determining that plaintiff made no showing of excusable neglect. Moen v. Mikhail, 447 N.W.2d 462 (Minn. App.1989). We reverse. Here, the trial court improperly first concluded that it was without any discretion to extend the time limitations of section 145.682 in a medical malpractice action. See Stern v. Dill, 442 N.W.2d 322, 324 (Minn.1989). However, our review of the record leads to our conclusion that Moen provided no reasonable excuse for his failure to provide the requisite affidavits in a timely fashion and that, therefore, he would not have been entitled to the requested extension. Summary judgment was properly awarded to the defendants. Reversed.

CourtListenerOpinion

2024-06-11T07:23:54.635918

2013-10-30 08:36:18.847506+00

2207319

208 Cal.App.2d 429 (1962) MAX KEROFF, Plaintiff and Respondent, v. BEN SNYDER, Defendant and Appellant. Civ. No. 6735. California Court of Appeals. Fourth Dist. Oct. 11, 1962. Adams & Tom and Richard E. Adams for Defendant and Appellant. Gostin & Katz and Louis S. Katz for Plaintiff and Respondent. COUGHLIN, J. These appeals arise out of an action to declare a partnership dissolved; to effect an accounting therein; and to partition real property. The dissolution had been accomplished by a written agreement executed prior to commencement of the action; the partition issues were settled thereafter; and the accounting was the sole remaining matter requiring court action. Although several defendants were joined in the action, the partnership and accounting phases thereof involve only the defendant, Ben Snyder, the appellant herein. On February 15, 1961, the court entered a judgment, based on findings of fact and conclusions of law made by a referee appointed by it pursuant to stipulation of the parties, which declared the partnership dissolved and stated an accounting between them. The plaintiff, who is the respondent herein, moved for a new trial, based on several grounds, including insufficiency of the evidence. This motion was heard on April 11, 1961. At the time of this hearing, the parties, their counsel, and the court, the honorable Dean Sherry presiding, preliminarily engaged in an off-the-record discussion. Thereafter, as appears from the augmented record before us, the court granted a new trial because of the insufficiency of the evidence; counsel for defendant were permitted to withdraw as attorneys in the case; at his request he undertook to represent himself; and thereupon the trial judge, undoubtedly having in mind the preliminary unreported discussion heretofore noted, referred to a stipulation and engaged in a further discussion with the parties and the plaintiff's attorney as follows: "The Court: It is now stipulated that the plaintiff has given his attorney full authority to make a settlement agreement here; and that when that agreement is made for the settlement of this case, there will be no further motion for a new trial, there will be no appeal from the decision of the Court." "Is that your understanding, Mr. Katz? [Attorney for plaintiff.]" "Mr. Katz: That is my understanding, Your Honor. *431" "The Court: And Mr. Keroff [plaintiff], is that your understanding?" Mr. Keroff: It is. "The Court: And you Mr. Keroff,--you are giving your attorney, Mr. Katz, full authority to make such settlement, is that right?" "Mr. Keroff: Yes, sir." "The Court: And you understand that that is the arrangement,___" "Mr. Snyder [defendant]: Yes, sir." "The Court: ___Mr. Snyder?" "Mr. Snyder: Yes, sir." "The Court: That when the Court has entered a judgment in this case after discussion with you and Mr. Katz, that my decision on all matters that are presented to the Court at this hearing and the judgment itself will be final?" "Mr. Snyder: I so understand." "The Court: And there will be no motion for a new trial and there will be no appeal from that decision?" "Mr. Snyder: I accept." "The Court: Yes. All right." "Now, gentlemen, I will suggest the matters that we can discuss." This exchange was followed by a discussion which was not reported. From the amended minute order purporting to reflect the proceedings on the day in question, it appears that this unreported discussion terminated in a decision by the court to render judgment, and a direction to counsel for the plaintiff to prepare the same for signature. On April 17, 1961, a written judgment was signed and filed, the terms of which vary substantially from the judgment originally entered. Forthwith, the defendant reemployed his counsel, and through them moved the court, the honorable George A. Lazar presiding, to vacate and set aside the second judgment; to reinstate the original judgment; and, in the alternative, to grant a new trial. This motion was denied. Thereupon the defendant appealed from the second judgment and from the order denying the aforesaid motion. No appeal was taken from the order granting a new trial as to the first judgment, and that order has become final. [1] Heretofore the plaintiff moved this court to dismiss this appeal upon the ground that the defendant had waived his right to appeal. This motion was denied. The waiver *432 relied upon is that expressed in the course of the discussion following the court's setting aside the original judgment and granting a new trial. A fair and reasonable interpretation of that discussion convinces us that it concerned a judgment upon a "settlement agreement." No such agreement preceded the second judgment. Consequently, there was no waiver of an appeal from the latter. The record does not indicate what transpired in the course of the unreported discussion between the court, the parties, and counsel for the plaintiff, which preceded the decision to render judgment as reflected in the minutes. The judgment appealed from recites that the parties "stipulated and agreed to have the case tried by the court at this time, without jury and without a court reporter and after submission of all of the issues to the court and informal discussion thereon, it was further stipulated that the court would render a final judgment herein as to all issues raised in the pleadings relating to the partnership accounting and the First Cause of Action herein." This recital is contrary to the facts as established by the record heretofore considered. The stipulation in question referred to a judgment to be agreed upon by the parties. [2a] In any event, the proceedings are fatally defective because no findings of fact were made by the court. [3] It is an elementary rule that written "findings are required on all material issues raised by the pleadings and evidence, unless they are waived, and if the court renders judgment without making findings on all material issues, the case must be reversed." (James v. Haley, 212 Cal. 142, 147 [297 P. 920]; in accord: Edgar v. Hitch, 46 Cal.2d 309, 312 [294 P.2d 3]; Krum v. Malloy, 22 Cal.2d 132, 136 [137 P.2d 18]; Morrow v. Morrow, 201 Cal.App.2d 235, 238 [20 Cal.Rptr. 338]; Perry v. Jacobsen, 184 Cal.App.2d 43, 49 [7 Cal.Rptr. 177]; Estate of Ingram, 99 Cal.App. 660, 662 [279 P. 208]; Frascona v. Los Angeles Ry. Corp., 48 Cal.App. 135, 137-138 [191 P. 968].) [2b] Section 632 of the Code of Civil Procedure, which imposes the requirement of written findings, provides that they may be waived "by consent in writing filed with the clerk or judge, or by oral consent in open court, entered in the minutes." The recitals in the instant judgment do not indicate a waiver of findings; no written consent to such a waiver is on file; and no oral consent thereto expressed in open court is recorded in the minutes. In this regard it may be noted that in a declaration filed in resistance to the plaintiff's motion to dismiss the appeal, the defendant *433 stated that he requested the court to make findings of fact and conclusions of law, but the judge told him these were not necessary. This statement was not denied. The failure to make findings was error, and the judgment must be reversed. The order denying the defendant's motion for a new trial is not appealable and, therefore, the attempted appeal therefrom should be dismissed. (Rodriguez v. Barnett, 52 Cal.2d 154, 156 [338 P.2d 907].) [4] The order denying the defendant's motion to set aside the second judgment and reinstate the first properly was denied as there is no such proceeding sanctioned by law. (Ransom v. Los Angeles City High School Dist., 129 Cal.App.2d 500, 507 [277 P.2d 455]; Levy v. Brill, 107 Cal.App.2d 204, 205 [236 P.2d 603]; Biggs v. Biggs, 103 Cal.App.2d 741, 742 [230 P.2d 32].) The judgment appealed from is reversed; the order denying the motion to set aside the second judgment and reinstate the first is affirmed; and the attempted appeal from the order denying the motion for a new trial is dismissed. Appellant to recover costs on appeal. Griffin, P. J., and Shepard, J., concurred.

CourtListenerOpinion

2024-06-11T07:23:54.638225

2013-10-30 08:36:18.924753+00

2207322

208 Cal.App.2d 740 (1962) MORRISON DRILLING CO., INC., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THOMAS F. BAILEY et al., Real Parties in Interest. Civ. No. 7103. California Court of Appeals. Fourth Dist. Oct. 22, 1962. Hancock & Garland and David M. Garland for Petitioner. No appearance for Respondent. Kindel & Anderson and Paul F. Marx for Real Parties in Interest. GRIFFIN, P. J. [1a] This is a petition for a writ of certiorari to review an order of the respondent superior court staying all proceedings in the trial of an action until plaintiff therein (petitioner here) has brought into the action a party alleged to be indispensable. Petitioner brought the action in the superior court against certain members of a joint venture to recover for the value of services alleged to have been rendered on behalf of the joint venture. The defendants who had been served in the action demurred on the ground that petitioner had failed to join Batzer Oil Corporation, a Wyoming corporation, as a defendant and that Batzer Oil Corporation was one of the members of the joint venture, a joint obligor, and an indispensable party. By leave of court, petitioner filed an amended complaint naming Batzer Oil Corporation as a party defendant. However, petitioner was unsuccessful in his attempts to serve Batzer Oil Corporation within the State of California and petitioner's motion to serve Batzer Oil Corporation as a foreign corporation doing business in the state, by service on the secretary of state, was denied because no showing was made that Batzer Oil Corporation had conducted any business *742 within the State of California. Thereafter, the petitioner brought this petition for a writ of certiorari. The complaint alleges that petitioner is a Wyoming corporation and that about August 17, 1959, the respondents here and Batzer Oil Corporation entered into a written joint venture agreement whereby they agreed to drill an oil and gas well in Converse County, Wyoming. It is alleged that Batzer Oil Corporation, acting as the agent of the respondents, entered into an oral contract with petitioner in Wyoming whereby petitioner was to supply and did supply services and materials in connection with the drilling of an oil and gas well in Converse County, Wyoming. Petitioner alleges that the reasonable value of the services and materials supplied by it is $11,351.64 and that it has been paid no part of this amount. It is alleged that the respondents and each of them are indebted to petitioner in the amount of $11,351.64. Appended to the original complaint is a contract between respondents and Batzer Oil Corporation. In this contract, it is agreed that Batzer Oil Corporation owns certain interests in oil leases in Converse County, Wyoming, that the parties agree to drill a test well on the leased land and that Batzer Oil Corporation shall be the agent of the parties in charge of the actual drilling of the well. It is provided that each of the parties, including Batzer Oil Corporation, shall have either a one-eighth or a one- fourth interest in the proceeds of the joint venture and in its obligations. It does not clearly appear whether this contract was entered into within the State of California. At the head of the contract, or letter purporting to be the contract, is noted "4252 Beverly Boulevard, Los Angeles 4, California, August 17, 1959." It is directed to William L. Rush at 3950 Beverly Boulevard, Los Angeles, California and is purportedly signed by all parties on August 18, 1959, including Batzer Oil Corporation by F. G. Batzer, vice president. The complaint does not allege the place where the agreement was executed. [2] Both petitioner and respondents agree that the statutory and case authority in this state provides that the parties to a joint venture are jointly liable in an action brought by a third person to enforce an obligation of the joint venture. (Corp. Code, 15015.) In Harrison v. McCormick, 69 Cal. 616, 620 [11 P. 456], it was said: "The rule is well settled that several persons contracting together with the same party for one and the same act, shall *743 be regarded as jointly, and not individually or separately liable, in the absence of any words to show that a distinct as well as entire liability was intended to fasten upon the promisors." This rule is reiterated in Iwanaga v. Hagopian, 39 Cal.App. 584 [179 P. 523]; Mirabile v. Smith, 119 Cal.App.2d 685, 688-689 [260 P.2d 179]; and Hobgood v. Glass, 161 Cal.App.2d 208 [326 P.2d 546]. [3] It is also clear that joint obligors are indispensable parties to an action brought to enforce a joint liability. (Williams v. Reed, 48 Cal.2d 57 [307 P.2d 353].) In 1 Chadbourn, Cal. Pleading, at page 517, it is said: "... joint obligors or obligees on a contract must be joined as plaintiffs or defendants." See also 2 Witkin, California Procedure, at page 1054, where it is said: "... joint obligors or debtors jointly liable under a contract must be joined as defendants. [Citation.] Partners and joint venturers are likewise united in interest so as to require joinder in actions, whether on contract or tort." [1b] Code of Civil Procedure, section 414, provides: "When the action is against two or more defendants jointly or severally liable on a contract, and the summons is served on one or more, but not on all of them, the plaintiff may proceed against the defendants served in the same manner as if they were the only defendants." See also Tally v. Ganahl, 151 Cal. 418, 424 [90 P. 1049], where the plaintiff was allowed to proceed against one joint obligor alone where the other was absent from the state and not within the jurisdiction of the court. In Rawitzer v. Wyatt, 40 F. 609, the court held that Code of Civil Procedure, section 414, permits a plaintiff who has joined all joint obligors to proceed against less than all of them where service of process cannot be obtained on all of the joint obligors. This view of the effect of Code of Civil Procedure, section 414, was reiterated in Iwanaga v. Hagopian, supra, 39 Cal.App. 584, and Hobgood v. Glass, supra, 161 Cal.App.2d 208. In the latter case, the court said: "In Iwanaga v. Hagopian, 39 Cal.App. 584, 585 [179 P. 523], the court refers to the common law rule that a partnership obligation is joint, and not joint and several, and to the corollary rule that a judgment against less than all the partners upon such a liability extinguishes the original claim against all for the reason that the joint obligation is deemed *744 merged in the judgment. The decision then proceeds to point out that in California the common law rules have been abrogated by statue:" " 'In some states the rigor of this common-law rule has been relaxed by statutes, which declare the obligations of copartners to be several as well as joint. But in this state the common-law rule has been expressly enacted by section 2442 of the Civil Code, which declares the liability of copartners to be joint, and we have no provision permitting several judgments to be recovered in several actions upon a joint obligation. The extent to which the common-law rule on this subject has been changed by the provisions of section 414 and section 989 of the Code of Civil Procedure is by permitting (section 414) an action brought against the joint debtors, but in which the summons has not been served on all, to proceed to judgment against those served; and (section 989) after judgment so obtained, to bring in any of the defendants not served by an order to show cause why they should not be bound by the judgment.' " See also Wharton v. Harlan, 68 Cal. 422, 427 [9 P. 727]. The order of the lower court was therefore erroneous. It should not be inferred from this holding that the petitioner should have judgment on the issues framed by the pleadings. We have only discussed the issues presented by this petition. Our description of the liability of the defendants as "joint" is not intended to foreclose the trial court from deciding that this obligation is other than joint. Nor should our use of the term "joint venture" preclude the trial court from deciding the exact nature of the parties' relationship after the issues are framed by the pleadings and the evidence is presented. (See Corporations Code, 25100, subd. (m).) [4] The petition here seeks a writ of certiorari. A writ of mandamus is more appropriate where a court erroneously refuses to assume jurisdiction. (3 Witkin, California Procedure, 50, p. 2531.) Although the petition seeks the wrong relief, there is no reason why this court should not grant the appropriate writ where the complete record is before us. (Board of Trustees v. State Board of Equalization, 1 Cal.2d 784 [37 P.2d 84, 96 A.L.R. 775]; 3 Witkin, California Procedure, pp. 2567-2569.) Let a writ of mandate issue directing respondent court to vacate all orders abating or staying proceedings in action *745 No. 97691 in said court, and directing it to assume jurisdiction, and to proceed to trial of the action. Shepard, J., and Coughlin, J., concurred.

CourtListenerOpinion

2024-06-11T07:23:54.641409

2013-10-30 08:36:18.956562+00

2207323

79 A.2d 620 (1951) ABBOTT et al. v. ZONING BOARD OF REVIEW OF THE CITY OF WARWICK. M. P. No. 948. Supreme Court of Rhode Island. March 16, 1951. *621 Charles H. Drummey, Edmund J. Carberry, Jr., Providence, for petitioners. Hailes L. Palmer, City Sol., Providence, for respondent. CAPOTOSTO. Justice. This is a petition for certiorari to review the action of the respondent board in granting the application of Leo T. Martineau for an exception under the provisions of the zoning ordinance of the city of Warwick to permit the use of land in a residential zoning district as a "Drive-In Theater." The writ was issued and pursuant thereto the respondent certified to this court the records pertaining to the decision, including a summary of the representations made to the board for and against the application. It appears that about one month prior to the date of application. November 30, 1949. Leo T. Martineau, a resident of Providence, hereinafter sometimes called the applicant, purchased 12.75 acres of vacant land in a residential B zone in the city of Warwick. A drive-in or open-air theater is not a permitted use in that zone. In the newspaper notice of the hearing thereon before the board the land was described as lot 472, plat 350 "at intersection of Warwick Ave. & Oakland Beach Ave. * * *" both of which are main highways. We note here that in said notice the plat was not definitely identified, although it later appeared that such reference was to an assessor's plat. It is conceded *622 by the board that the land was not located at the above-mentioned intersection although it was in that immediate vicinity. A statement of the actual site and of the tributary streets and roads involved is unnecessary for our purposes. A hearing on the application was held on December 14, 1949. The applicant at that time told the board that he intended to sell the land to Gerald Deitch and Joseph Petrella, who were to build and operate the theater. Counsel for the prospective buyers then presented a plan of the theater, explained the details of the venture which he said would call for an expenditure of approximately $125,000, and urged the granting of the application. Such action was approved in a written statement signed by six persons owning land within 200 feet of the alleged location and by three others in person, while one property owner who lived some distance from the site voiced his opposition. At the close of the hearing the board granted the application giving the following reasons for their decision: "1. The City of Warwick needs the additional revenue that it would derive from the taxes. 2. Young couples, who have one or two children, can attend the theater without the additional expense of hiring baby sitters. 3. Chief of Police stated that his department can control the traffic without it being a hazard. 4. The citizens and taxpayers of the City of Warwick are entitled to recreation of this sort." The decision further provided: "1. That the stipulations in the letter from the Chief of Police dated Dec. 13, 1949 be carried out" and "2. That fire protection, either a fireman or fire-box, be provided for." As a matter of fact the stipulations, so called, were merely suggestions by the chief of police of necessary changes for the maintenance of order and the control of increased traffic, including the resurfacing of two certain streets. Shortly after such decision by the board other property owners and residents of the neighborhood whose interests would be affected by the erection and operation of the theater retained counsel. They thereupon immediately filed a petition, bearing some fifty signatures, asking for a rehearing by the board, alleging in substance that the petitioners were not present at the hearing "to protest the application" because some did not see the advertisement in the newspaper "while others who were cognizant of the application were misled by the advertisement * * *." Among the grounds of objection stated in this petition were increased fire and traffic hazards, devaluation of property, disturbance at late hours, and the creation of unsanitary conditions. Furthermore on January 11, 1950 two clergymen, one of whom spoke for himself and for an association of ministers, also wrote to the board for a review of the matter. However, after stating in an undated written decision that the application had been duly advertised and fully considered, the board denied the petition for a rehearing on the ground that its rules of procedure did not permit the granting of "any rehearing" within one year from the date of decision. The petitioners here claim that in the circumstances the decision of the board is illegal, arbitrary and unreasonable. Respondent first contends that the petitioners are not really aggrieved parties entitled to have a review of the decision in question by certiorari, as after proper notice they had failed to present their objections to the board. It further urges that two of the petitioners, who owned property within 200 feet of the alleged site, "apparently have had a change of mind and have withdrawn their names as petitioners"; that another owner of a lot within that area, who was illiterate and had signed the petition by mark, should have supported her action in the matter by affidavit showing "that the petition was read to her or that she understood its contents"; and that the other petitioner owned property well beyond the aforementioned area. We observe at this point that we find no record of a "change of mind" by the two petitioners as above alleged, nor is there any provision by statute or otherwise requiring that a signature by mark, especially if it is duly witnessed as it was in the present petition, be supported by affidavit as respondent argues. In the absence of proof to the contrary, we will not presume *623 that the petitioner so signing was improperly induced to sign the petition. We understand respondent's contention in effect to be that only an owner of property within 200 feet of land for which a variance or exception is sought can be an aggrieved party within the terms of the enabling act or ordinance. This same question was considered by us in Flynn v. Zoning Board of Review, R.I., 73 A.2d 808, and we there held that generally speaking a landowner whose property naturally would be affected adversely by a decision granting an exception or variance was considered to be an aggrieved party having a right to a review of the board's decision in this court by certiorari. As the reasons and pertinent authorities for such holding are set forth in that case we need not repeat them here. In the instant case all the petitioners not only own property in the same established residential zone, but the nature and extent of the proposed change is also such that it would naturally and reasonably tend to affect the value and use of the property in that neighborhood generally. The contention under consideration is therefore without merit. Respondent, quoting certain language from Taft v. Zoning Board of Review, R.I., 71 A.2d 886, next contends that the petitioners are not entitled to question the hereinbefore-mentioned misdescription of the land in question as they waived that right by failing to make such objection to the board. Since it is admitted that the location of the premises is substantially incorrect, it cannot be said that persons in interest, whether within or outside the 200-foot limits of the alleged site, might not reasonably have been misled to inaction at the hearing before the board. As to the quotation from the Taft case, it is only necessary to observe no useful purpose is served by relying on language in a case which is so clearly different in its facts from the one at bar. This is not the ordinary case for relief from the provisions of a zoning ordinance. The large amount of land involved, its location in a residential zone near the confluence of heavily traveled highways, and the character of the proposed use of that land present an unusual situation for careful consideration by the proper authority. The board urges, among other things of a similar nature, that the decision should be sustained because (1) that section of the city of Warwick has "not developed into a residential area as zoned" in 1945; (2) "The area is improperly zoned"; (3) "It is clear that this land wasn't suitable for residential B. and the board in granting the application is encouraging the most appropriate use of the land"; and (4) "It is common knowledge that `Y' intersections are excellent locations for business." In the absence of any legislative power in the board to establish zones, the reasons just mentioned are without persuasive force. That power is vested exclusively in the city council by the enabling act, general laws 1938, chapter 342. The board was created to administer the zoning ordinance but not to formulate or revise it. The discretionary power of the board to grant an exception in special cases was intended to provide reasonable latitude in the application of the terms of the ordinance in order to relieve against the arbitrary effects that might follow from a literal enforcement thereof. Flynn v. Zoning Board of Review, supra. The case of East Providence Mills, Inc. v. Zoning Board of Review, 51 R.I. 428, 155 A. 531, upon which respondent relies, is inapplicable in the circumstances of the instant case. Our discussion of that case in the Flynn case need not be repeated here. It is to be kept in mind that in the case at bar we are dealing with an exception and not with a variance. See Harrison v. Zoning Board of Review, 74 R.I. 135, 59 A.2d 361, for a statement of the difference between the two grounds of relief. The ordinance now before us authorizes the board in appropriate cases and subject to appropriate conditions and safeguards to make special exceptions to the terms of this ordinance in certain specified cases or "where the exception is reasonably necessary for the convenience and welfare of *624 the public." Since the application was not for a permitted and specified use in a residential B district, the decision of the board must necessarily rest on the quoted part of the ordinance. Recognizing that the power of the board to grant an exception is broad and might be abused, in Costantino v. Zoning Board of Review, 74 R.I. 316, at page 324, 60 A.2d 478, the court stated that such power should be sparingly used, meaning thereby that a decision granting an exception would be reversed as an abuse of discretion in the exercise of the legal power delegated to the board unless such decision was based upon some substantial ground, as in East Providence Mills, Inc. v. Zoning Board of Review, supra. The nature and extent of the proposed use in the instant case present an extreme departure from the permitted uses in the district. After due consideration we are of the opinion that the board was not warranted in granting an exception that would permit the applicant to introduce a new business of such size and character in a residential zone. The grounds set forth by the board in its decision relate almost entirely to the policy in zoning heretofore adopted by the city of Warwick, which policy, as hereinbefore stated, is for the city council and not for the board to determine. Therefore, excluding all questions of that nature, there is nothing in the present record which in our judgment shows that the granted exception was reasonably necessary for the convenience and welfare of the public. The petition for certiorari is granted, the decision of the respondent board is reversed, and the records in the case which have been certified to this court are ordered sent back to the respondent board.

CourtListenerOpinion

2024-06-11T07:23:54.643950

2013-10-30 08:36:18.959469+00

9736786

Mr. Justice Scanlan delivered the opinion of the court. H. S. Merrell, Trustee in Bankruptcy of the estate of Joseph William Council by appointment of the District Court of the United States for the Eastern District of North Carolina, Wilson Division, in bankruptcy cause No. 590, appeals from a judgment order entered in the Circuit court of Cook county. On November 3, 1947, National Bank of Commerce of Norfolk, Norfolk, Virginia, (hereafter referred to as the Bank), filed its complaint in the Circuit court of Cook county alleging that J. W. Council was indebted to it by virtue of a certain note dated August 18, 1947, in the principal sum of $7,388.24, which sum was past due. At the same time the Bank filed an affidavit for attachment and an attachment writ issued to attach any funds due Council. Weber Costello Company, a corporation, was summoned as garnishee, and subsequently it stated, in answer to interrogatories, that: “1. It holds indebtedness in the sum of $4811.28, representing commissions due J. W. Council on account of orders obtained by him and shipped to respective customers ; 2. Indebtedness in the sum of $200.25 representing commissions due J. W. Council on account of orders obtained by him and having been shipped and payment having been made therefor after the date of service; 3. Said J. W. Council obtained certain orders for garnishee’s products, shipped to various customers, but payment not made in amount of $192.40. J. W. Council obtained orders which had not been accepted. Goods not shipped and commissions when accepted and shipped total $1372.50.” On December 12, 1947, which was within four months of the issuance of the attachment writ, Council filed his petition in bankruptcy in the United States District Court for the Eastern District of North Carolina, Wilson Division, and he was adjudicated a bankrupt on December 13, 1947. When the Weber Costello Company filed its answer to the interrogatories, it also filed a countercomplaint, which admits that it owed Council, at the time of the service of the attachment writ, $4,811.28, that Council has demanded all commissions due him, and prays that Council and the Bank may settle their demands between themselves and that the court shall determine to whom the money should be paid. On March 22, 1948, it was ordered that Weber Costello Company pay to the Clerk of the Circuit court $5,178.68, which sum was to be subject to the order of the court. The judgment order entered by the trial court orders the Clerk of the court to pay to the Bank “out of the monies deposited by the counter-plaintiff” $3,026.86 and costs, and “that the Trustee in Bankruptcy is entitled to receive all funds in the possession of Weber Costello Company in excess of the sum of $3,026.86 to be administered by the Court of his appointment.” The Trustee appeals from that judgment order. The countercomplaint was filed two days after Council had been adjudged a bankrupt in the North Carolina court. On December 26,1947, the-Bank filed its answer to the countercomplaint, in which it set up that on June 4, 1946, Council had executed an assignment wherein he assigned to the Bank commissions due him from Weber Costello Company to secure his indebtedness to the Bank; that the assignment was in the amount of $3,026.86; that notice was given to Weber Costello Company of the assignment; that that Company acknowledged receipt of the assignment and agreed to pay to the Bank all commissions due Council on shipped orders totaling up to $3,026.86 beginning June 4,1946. On February 7, 1948, the District Court of the United States for the Eastern District of North Carolina, Wilson Division, in bankruptcy, entered an order reciting that Council was adjudicated a bankrupt in that court on December 13,1947; that H. S. Merrell was appointed Trustee on February 4, 1948, and authorizing him “to take the necessary steps to avoid the attachment lien . . . in the Circuit Court of Cook County, Illinois.” In the instant case, the answer filed by the Trustee, on March 2,1948, to the countercomplaint filed by Weber Costello Company alleges, inter alia, “the fact to be that said Joseph William Council was adjudicated a bankrupt on the 13th day of December, 1947, and that this defendant was duly appointed and qualified as Trustee in said bankruptcy of J. W. Council and has taken constructive possession of all of the assets of the said J. W. Council, and that the said sums due as aforesaid should be paid this defendant to be administered in the said bankruptcy proceedings now pending in the District Court of the United States for the Eastern District of North Carolina, Wilson Division, in Cause No. 590. . . . That the said cross-complaint was not filed in this cause until the 15th day of December 1947. That the said Joseph William Council was adjudicated a bankrupt on December 13, 1947, and all assets, including the debt due him by Weber Costello Company, passed into the possession of the Trustee in Bankruptcy and jurisdiction to determine the validity or the amount of all liens against the property of the said Joseph William Council vested exclusively in the Bankruptcy Court in the District Court of the United States for the Eastern District of North Carolina, Wilson Division, in Cause No. 590. That neither this trustee nor the said Bankruptcy Court have given permission to file this counterclaim or to adjudicate this claim outside of the said Bankruptcy Court. That this Court does not have jurisdiction of the person of Joseph William Council for the reason that he was served herein by publication; that it does not have jurisdiction of the subject matter of this cause for the reason that jurisdiction thereof has passed to the Bankruptcy Court. Therefore, this defendant asks that this cause be dismissed with plaintiff’s costs.” In the determination of this appeal we have been aided by the following statements made by the Bank in its brief: “It is an established general rule in bankruptcy law that after an adjudication in bankruptcy, the Bankruptcy court has exclusive jurisdiction to determine all questions involving the bankrupt’s property including the right to determine the extent and character of liens against the bankrupt’s property. It has also been said that the filing of a bankruptcy petition is a caveat to all the world and in effect an attachment and injunction. But — these rules and doctrines are subject to certain qualifications and limitations and must be taken with reference to the facts in each particular case. C ( 1 ‘ Congress recognized the need for additional process and procedure and provided that the Bankruptcy court shall have the right to ancillary proceedings through its trustee. After adjudication the trustee appointed in one district, may go into another and institute any action necessary to protect or recover the property of the bankrupt estate there. It is established law that any district court in bankruptcy, in the exercise of ancillary jurisdiction in aid of another Bankruptcy court, may grant injunctions, stay proceedings, etc. In other words, bankruptcy proceedings do not ipso facto, merely by virtue of their filing and maintenance, terminate an action already pending in a foreign State court, to which the bankrupt is a party or deprive the court of jurisdiction in such case. “The Bankruptcy Statute also empowers the Bankruptcy court to permit its trustee to intervene in foreign State court proceedings to protect the bankrupt’s estate and under such circumstances the trustee becomes bound by the decision in the State court case. For such purposes it matters not whether the State court case was filed before or after the trustee was appointed. í Í “The Trustee in Bankruptcy had the right to file ancillary proceedings in the United States District Court for the Northern District of Illinois — without coming into the State court case, or, had the right upon entering into the State court case, to seek removal to our local Federal District Court. He did neither although he had ample opportunity so to do as appears from the various proceedings that took place in the State court. “Instead, the Trustee in pursuance of permission granted by the court of his appointment in North Carolina, appeared voluntarily in the State court and upon leave of court filed his appearance and answer. The Trustee’s answer to the counterclaim placed in issue the validity of the Assignment of Commissions held by the Bank, claiming that said assignment had been paid in full and that the Trustee was entitled to recover the entire amount of money held by Weber Costello Co.; further, that because of the bankruptcy of said Council, all assets including the moneys held by Weber Costello Co., allegedly passed into the constructive possession of the Trustee and that the Federal District Court of North Carolina had exclusive jurisdiction. “Consequently the State court rightfully heard the case on its merits and adjudicated the claims of the parties.” (Italics ours.) The Bank further states in its brief: “There isn’t any dispute about the fact that the Attachment Writ was voidable upon the election of the Trustee in Bankruptcy .... No evidence was offered by the Bank on the attachment issue,” and it was stipulated that the writ of attachment be quashed, and the trial court quashed the writ upon motion of the Trustee. The Bank contends that “a Trustee in Bankruptcy who intervenes in a foreign State court proceeding upon leave of the court of his appointment and participates in the merits of the case, is bound by the judgment of the State court”; that “the trial court in this case had a clear right to proceed as no proper legal action had been taken to oust it from its jurisdiction,” and that “the Bankruptcy court at North Carolina authorized the Trustee to intervene in the Circuit Court of Cook County; he did intervene, stayed in the case, litigated the validity of the assignment and now complains because the trial court held against his contentions. ’ ’ The Trustee states: “The law is perfectly clear, as appellee [the Bank] points out in the first paragraph of its argument, that bankruptcy courts, after adjudication, have exclusive jurisdiction to determine questions involving the bankrupt’s property. Appellee suggests that if a bankruptcy court is to make its authority felt outside of its territorial jurisdiction it must have the cause in question transferred to the Federal Court having jurisdiction or resort to ancillary proceedings in the local bankruptcy court. Either of these means would be effective, but there is a third alternative. That is to go into the state court, plead the adjudication, and ash the state court to direct that the funds be paid to its trustee to be returned to the jurisdiction of bankruptcy court. “. . . There is no question of the right of the trustee to possession of the bankrupt’s property wherever it is. However, if it is outside the territorial jurisdiction of the court appointing the trustee, then the trustee must go into a local court to enforce his rights. That does not abridge the rights of the trustee given him by the bankruptcy statutes, but merely makes him take a further step to enforce them. In the case on appeal the trial court refused to recognize these rights and undertook to adjudicate a portion of the bankrupt’s estate.” It is true, as the Bank contends, that the Trustee, in his answer, saw fit to question the validity of the Bank’s claim against the estate of the bankrupt, nevertheless, the answer of the Trustee challenged the jurisdiction of the Circuit court of the subject matter for the reason that the jurisdiction of the subject matter had passed to the Bankruptcy court. On March 4, 1948, the trial court overruled the motion of the Trustee to dismiss the countercomplaint for want of jurisdiction upon the ground that the court attained jurisdiction of the funds by virtue of the attachment and that although the trial court voided the attachment the court still had jurisdiction of the funds and the Bankruptcy court could not oust the trial court from that jurisdiction. The trial court after overruling the motion of the Trustee to dismiss the countercomplaint set the case for hearing. In the final order the trial court sustained the Trustee’s motion to quash the attachment writ because it was issued within four months of the adjudication in bankruptcy, at which time the principal debtor was insolvent. It is conceded by the Bank that the attachment writ was voidable upon the election of the Trustee and that the trial court was justified in quashing the writ of attachment upon the motion of the Trustee. It is further conceded by the Bank that it “made no proof on the attachment issue but the case was heard solely on the counterclaim and the rights of the parties to the funds in the hands of Weber Costello Co.” In the attachment proceedings the Bank based its claim on certain notes of the bankrupt aggregating $7,388.24, but in its answer to the countercomplaint, filed nearly two weeks after the adjudication in bankruptcy, it abandoned the claim made in the attachment proceedings and based its claim upon the alleged assignments made to it by Council of moneys due him from Weber Costello Company. That the bankruptcy court has exclusive jurisdiction to control the administration of a bankrupt’s estate is settled law. In U. S. Fidelity Co. v. Bray, 225 U. S. 205, the court states (pp. 217, 218) : “We think it is a necessary conclusion from these and other provisions of the act [Bankruptcy Act] that the jurisdiction of the bankruptcy courts in all ‘proceedings in bankruptcy’ is intended to be exclusive of all other courts, and that such proceedings include, among others, all matters of administration, such as the allowance, rejection and reconsideration of claims, the reduction of the estates to money and its distribution, the determination of the preferences and priorities to be accorded to claims presented for allowance and payment in regular course, and the supervision and control of the trustees and others who are employed to assist them. C Í “Of the fact that the suit was begun in the Circuit Court with the express leave of the court of bankruptcy it suffices to say that the latter toas not at liberty to surrender its exclusive control over matters of administration or to confide them to another tribunal.” (Italics ours.) In Isaacs v. Hobbs Tie & T. Co., 282 U. S. 734, 739, the court cites with approval the rule stated in the Bray case. Other cases to the same effect need not be cited, as the Bank admits the rule. The Isaacs case further holds that a trustee in bankruptcy can recover the bankrupt’s property or enforce his rights wherever they are, and can turn to local courts for help in enforcing these rights; that “upon adjudication, title to the bankrupt’s property vests in the trustee with actual or constructive possession, and is placed in the custody of the bankruptcy court. Mueller v. Nugent, 184 U. S. 1, 14. The title and right to possession of all property owned and possessed by the bankrupt vests in the trustee as of the date of the filing of the petition in bankruptcy, no matter whether situated within or without the district in which the court sits.” (p. 737) In the Isaacs case it appeared that one Cunningham was adjudged bankrupt in the Northern District of Texas and Isaacs was made trustee of the bankrupt’s estate. Thereafter the holder of a note secured by a mortgage on certain land instituted foreclosure proceedings in a State court of Arkansas. Then the bank-rapt and the trustee specially appeared and petitioned for removal of the cause to the United States District Court for the Western District of Arkansas. To quote from the decision (p. 739): “. . . The appellant-trustee might have instituted ancillary proceedings in the District Court for the Western District of Arkansas and there obtained an injunction to restrain the appellee from foreclosing its mortgage. There is no reason, however, why he should not have followed the course here pursued, of pleading the adjudication in Texas in abatement of the foreclosure proceeding. The state court in which the foreclosure action was begun was without jurisdiction to pursue it. Upon removal into the federal court upon the ground of diversity of citizenship, the latter court had no higher or different right to interfere with the bankruptcy administration than had the state court. The answer of the trustee stated a valid defense and it was error to enter judgment against him on the pleadings. “Appellee asserts that inasmuch as the appellant removed the cause into the federal court he waived any lack of jurisdiction in that court and estopped himself to set up exclusive jurisdiction of the bankruptcy court. There is no merit in this contention. The jurisdiction in bankruptcy is made exclusive in the interest of the due administration of the estate and the preservation of the rights of both secured and unsecured creditors. This fact places it beyond the power of the court’s officers to oust it by surrender of property which has come into its possession. Whitney v. Wenman, 198 U. S. 539; In re Schermerhorn, 145 Fed. 341. Indeed, a court of bankruptcy itself is powerless to surrender its control of the administration of the estate. U. S. Fidelity & G. Co. v. Bray, 225 U. S. 205. The action of the trustee in removing the cause, could not, therefore, divest the Texas District Court of its jurisdiction.” (Italics ours.) As a trustee in bankruptcy could not surrender the control of the administration of the bankrupt’s estate even to a Federal court, he certainly could not surrender that control to the Circuit court of Cook county. If this were not so an intolerable situation as to estates of bankrupts would prevail. The Federal District Court of North Carolina had jurisdiction to direct its Trustee to appear in the State court in Illinois to plead the adjudication in "bankruptcy and to ask the State court to return to the 'Trustee moneys in its possession that admittedly belonged to the estate of the bankrupt. When the attachment writ was quashed the funds of the bankrupt were in the actual possession of the Circuit court, but the title to the funds, the constructive possession of the funds, were vested in the Trustee and the Trustee had the clear right to actual possession of the funds. In our judgment the trial court should have turned over the funds to the Trustee. Instead of doing so the trial court proceeded to pass upon the merits of the Bank’s claim, that sought to reach funds belonging to the estate of the bankrupt, and after deciding that the claim was a just one the trial court retained a part of the estate of the bankrupt sufficient to pay the claim of the Bank against the bankrupt’s estate and then entered an order that the balance of the funds in its possession be returned to the Trustee, “to be administered by the Court of his appointment.” In our view of the law the position taken by the trial court, that it attained jurisdiction of the funds by virtue of the attachment and that although the trial court voided the attachment it still had jurisdiction of the funds and the Bankruptcy court could not oust it from that jurisdiction, cannot be defended. Indeed, the Bank, in its brief, does not rely upon the court’s position. It concedes that the Bankruptcy court had exclusive jurisdiction to determine all questions involving the bankrupt’s property, including the right to determine the extent and character of hens against the bankrupt’s property, and it seeks to support the judgment entered upon the ground that “the Bankruptcy court at Forth Carolina authorized the Trustee to intervene in the Circuit Court of Cook County; he did intervene, stayed in the case, litigated the validity of the assignment and now complains because the trial court held against his contentions.” The position of the Bank is, in effect, that the North Carolina Bankruptcy court waived or surrendered its exclusive jurisdiction to determine all questions involving the bankrupt’s estate in the instant case. We have shown, however, that the Bankruptcy court cannot surrender its exclusive control over matters of administration or confide them to another tribunal. That wholesome rule is based upon the Bankruptcy Act. Counsel for the Bank have cited a number of cases in support of their contention that the Trustee participated in the proceedings before the Circuit court and is, therefore, bound by the judgment of that court, but, in our judgment, the cases cited differ from the instant one upon the facts. If the Bank has a valid claim against the bankrupt estate of Council it has a right to present it to the Bankruptcy court in North Carolina. The judgment order of the Circuit court of Cook county is reversed, and the cause is remanded with directions to the trial court to order the Clerk of the Circuit court to pay to the Trustee in Bankruptcy all funds in his hands that were deposited there by the Weber Costello Company by order of the court. Judgment order reversed, and cause remanded with directions. Friend, P. J., and Sullivan, J., concur. (See next page)

CourtListenerOpinion

2024-06-11T07:23:54.646851

2023-08-26 19:06:40.002119+00

9736787

Additional Opinion Upon Petition For Rehearing. As appears from our opinion, the principal contention urged by the Bank in its brief in support of the judgment was that “a Trustee in Bankruptcy who intervenes in a foreign State court proceeding upon leave of the court of his appointment and participates in the merits of the case, is bound by the judgment of the State court,” but as it is clear from certain cases cited in our opinion that the Bankruptcy Court was given by the Act exclusive jurisdiction to deal with the property of the bankrupt estate and that that court cannot surrender or waive that jurisdiction, the Bank abandoned, apparently, the waiver contention. In the petition for a rehearing it contends: “The bank’s claim under the counterclaim was not against the bankrupt or his bankruptcy estate. It was a direct and primary claim against a third party — Weber Costello Company, who expressly undertook and agreed to pay a specified sum of money to the bank in consideration of which the bank advanced its funds to Mr. Council. The assignment was not conditional, but passed the title to the funds thereunder directly to the bank, and such funds were not a part of the bankruptcy proceedings filed eighteen months after the assignment was given. Therefore the Bankruptcy Court did not and could not have constructive possession over property that wasn’t owned by the bankrupt. ” “Upon adjudication, title to the bankrupt’s property vests in the trustee with actual or constructive possession, and is placed in the custody of the bankruptcy court. Mueller v. Nugent, 184 U. S. 1, 14. The title and right to possession of all property owned and possessed by the bankrupt vests in the trustee as of the date of the filing of the petition in bankruptcy, no matter whether situated within or without the district in which the court sits. Robertson v. Howard, 229 U. S. 254, 259-260; Wells v. Sharp, 208 Fed. 393; Galbraith v. Robson-Hilliard Grocery Co., 216 Fed. 842. It follows that the bankruptcy court has exclusive jurisdiction to deal with the property of the bankrupt estate. It may order a sale of real estate lying outside the district. Robertson v. Howard, supra; In re Wilka, 131 Fed. 1004. When this . jurisdiction has attached the court’s possession cannot be affected by actions brought in other cou,rts. White v. Schloerb, 178 U. S. 542; Murphy v. Hofman Co., 211 U. S. 562; Dayton v. Stanard, 241 U. S. 588. . . . Thus, while valid liens existing at the time of the commencement of a bankruptcy proceeding are preserved, it is solely within the power of a court of bankruptcy to ascertain their validity and amount and to decree the method of their liquidation. Ex parte City Bank of New Orleans, 3 How. 292; Houston v. City Bank of New Orleans, 6 How. 486; Ray v. Norseworthy, 23 Wall. 128; In re Wilka, supra; Nisbet v. Federal Title & T. Co., 229 Fed. 644.” (Isaacs v. Hobbs Tie & T. Co., 282 U. S. 734, 737, 738. Italics ours.) The Bank, in its brief upon the appeal, when it was relying upon the point of waiver, stated: “It is an established general rule in bankruptcy law that after an adjudication in bankruptcy, the Bankruptcy court has exclusive jurisdiction to determine all questions involving the bankrupt’s property including the right to determine the extent and character of liens against the bankrupt’s property. It has also been said that the filing of a bankruptcy petition is a caveat to all the world and in effect an attachment and injunction. ’ ’ In passing upon the Bank’s present position we deem it advisable to restate certain salient facts: On November 3, 1947, the Bank filed a complaint in the Circuit court of Cook county against J. W. Council, the complaint alleging that Council was indebted to the Bank by virtue of a certain note dated August 18, 1947, in the principal sum of $7,388.24, which was past due. On the same day, upon an affidavit for attachment, a writ issued to attach any estate or effects of Council, and service of the writ was had 'on Weber Costello Company as garnishee. The affidavit stated that Weber Costello Company “has effects or estate of said defendant [J. W. Council] in its possession, custody or charge. ’ ’ The answer of the garnishee stated: “1. It holds indebtedness in the sum of $4811.28, representing commissions due J. W. Council on account of orders obtained by him and shipped to respective customers; “2. Indebtedness in the sum of $200.25 representing commissions due J. W. Council on account of orders obtained by him and having been shipped and payment having been made therefor after the date of service; “3. Said J. W. Council obtained certain orders for garnishee’s products, shipped to various customers, but payment not made in amount of $192.40. J. W. Council obtained orders which had not been accepted. Goods not shipped and commissions when accepted and shipped total $1372.50.” It is clear from the record that “effects or estate” of J. W. Council reached by the attachment writ were deposited by Weber Costello Company with the clerk of the Circuit court by order of that court. In the “counterclaim” of Weber Costello Company filed December 15, 1947, it alleged that on the date of the service of the writ it was indebted to J. W. Council in the sum of $4,811.28, representing commissions due, and that since the service of the writ it has become indebted to Council in further amounts, and it prayed that it “may be ordered to bring the said sums of money into this court, subject to the further order of the court.” In an order entered March 22,1948, Weber Costello Company was ordered to pay to the clerk of the court the sums it owed J. W. Council. In the “answer” of the Bank to the “counterclaim of Weber Costello Company it admitted that said Company was indebted to J. W. Council as set forth in its “counterclaim. ’ ’ On December 12,1947, which date was within four months of the service of the attachment writ, Council filed his petition in bankruptcy and was adjudicated a bankrupt on December 13,1947. On December 26, 1947, thirteen days after the adjudication in bankruptcy, the Bank filed an “answer” to the “counterclaim,” and as it was then certain that the attachment writ would be quashed upon motion of the Trustee, the Bank in its “answer” abandoned its claim against Council and asserted a claim against Weber Costello Company based upon assignments of commissions executed by Council and accepted by that Company, which agreed to pay the Bank the amounts of the assignments, and the new suit asserted that the assignment is in full force, that Weber Costello Company is indebted to the Bank in the sum of $3,026.86, and the Bank prays for judgment against Weber Costello Company and “that Court order all of assignment paid in the amount of $3026.86.” The Bank contends, and the Trustee asserts, that the “answer” of the Bank was the commencement of an entirely new suit. It follows, of course, that the Circuit court of Cook county could not even claim that it acquired jurisdiction of the subject matter of the new suit until the “answer” of the Bank was filed. It was stipulated that the attachment writ in the case of the Bank against Council was voidable and the trial court was obliged to quash if upon the motion of the Trustee. In the final judgment order the trial court entered a judgment in favor of the Bank and ordered the clerk of the court to pay to the Bank $3,026.86 and costs out of the funds that had been deposited with the clerk by Weber Costello Company by the following order of the court: “. . . that Weber Costello Company pay to the Clerk of the Circuit Court, $5178.68 [the amount Weber Costello Company stated in its 'counterclaim’ that it was indebted to Council] subject to the order of this court.” The amount so deposited was the amount reached by the attachment writ. The trial court recognized that the funds that he ordered Weber Costello Company to deposit with the clerk were funds belonging to the bankrupt, and in the judgment order also ordered ‘ ‘ that the Trustee in Bankruptcy is entitled to receive all funds in the possession of Weber Costello Company in excess of the sum of $3026.86 to he administered hy the Court of his appointment.” Indeed, the trial court in deciding the case recognized that the funds in the possession of the clerk of the court were assets or effects of the bankrupt and stated that although he quashed the attachment writ the court still had possession of the funds and the Bankruptcy Court could not oust the trial court of that jurisdiction. Until the attachment writ was quashed all parties recognized that the funds deposited with the clerk of the court were assets or effects of J. W. Council. It must be noted that the judgment order in the instant case was entered March 23, 1948, three months and ten days after the adjudication in bankruptcy. The answer of the Trustee in Bankruptcy, filed March 2, 1948, alleged that jurisdiction to determine the validity of all liens against the property of Council was exclusively in the Bankruptcy Court in North Carolina. Despite the arguments of the able attorneys for the Bank it clearly appears from the record that the trial court passed upon the validity of the alleged lien of the Bank against the funds deposited with the clerk of the court, held that it was a valid lien, and ordered the claim of the Bank paid out of the said funds. It is our considered judgment that under the record in this case and the law only the Bankruptcy Court could pass upon the validity or invalidity of the alleged lien first asser ted by the Bank in its “answer” to the “counterclaim. ’ ’ We find no good reason why the petition for a rehearing should be allowed, and it is accordingly denied. Petition for rehearing denied.

CourtListenerOpinion

2024-06-11T07:23:54.649707

2023-08-26 19:06:40.010443+00

2207325

208 Cal.App.2d 443 (1962) THE PEOPLE, Plaintiff and Respondent, v. RICHARD M. GALVAN, Defendant and Appellant. Crim. No. 1815. California Court of Appeals. Fourth Dist. Oct. 11, 1962. Peter J. Hughes, under appointment by the District Court of Appeal, for Defendant and Appellant. Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Richard S. Cohen, Deputy Attorney General, for Plaintiff and Respondent. STONE, J. [fn. *] Defendant was charged by indictment with two counts of sale of narcotics, violation of Health and Safety Code section 11501, and, by a supplement to the indictment, with a prior conviction of a felony. Defendant admitted the prior conviction but pleaded not guilty to each count of the indictment. A jury found him guilty on each count. His motion for a new trial was denied; judgment was entered pursuant to the jury verdict; and he was sentenced to the state prison on each count, the sentences to run concurrently. Defendant has appealed from the judgment and from the denial of his motion for a new trial. Fernando A. Maldonado was an agent for the Bureau of Narcotic Enforcement of the State of California, doing undercover work in the San Diego area between January and May, 1961. One Effrem Tucker was a "special employee" of the Bureau. Maldonado described a special employee as "a person employed and is paid, in this case was paid $10 per day for giving us information and introducing me to narcotic users and peddlers here in the San Diego area." On March 5 Maldonado, with Tucker as a passenger, parked a state automobile next to a curbing in the San Diego area. Prior to *446 that Tucker had "set-up" a rendezvous at this location with defendant, who was waiting. He approached on the passenger's side, Tucker informed him that he and Maldonado were looking for "stuff," referring to heroin; Maldonado passed Tucker $20 and Tucker handed it to defendant. In return defendant handed four papers to Tucker, who passed them on to Maldonado. The four papers contained heroin. Two days later Maldonado, with Tucker as his passenger, parked his car at the rear of defendant's car on a public street in San Diego. The meeting had been prearranged by Tucker. Defendant walked back to the car, approaching Tucker on the passenger's side. Again Maldonado gave Tucker $20. Tucker passed the money to defendant who, in turn, handed four white papers to Tucker and Tucker passed them to Maldonado. They contained heroin. Maldonado testified that he masqueraded as a fisherman from San Pedro looking for a source of narcotics; that he enlisted Tucker's aid to make contact with a seller; that Tucker arranged for him to meet defendant. Although the narcotic sales occurred on March 5 and March 7, defendant was not arrested until May 12. The delay in defendant's arrest was occasioned by Maldonado's operations as an undercover agent. His relations with persons trafficking in narcotics required that Maldonado retain his anonymity until May 12. The record is not clear whether defendant learned of Tucker's identity on May 12, at the time he was arrested, or on May 16, when he was arraigned and served with a transcript of the proceedings before the grand jury. In any event, on May 16 the transcript revealed to defendant that Tucker had acted as an informer. It also revealed that Tucker had been arrested for burglary prior to his participation in the narcotics sales on March 5 and 7; that Tucker pleaded guilty to the charge of burglary; that on March 24, by proceedings in the Superior Court of San Diego County, he was placed on five years' probation; that as a condition of probation Tucker was committed to the United States Public Health Service Hospital in Texas for treatment as a narcotics addict. Defendant does not challenge the sufficiency of the evidence to prove that the sales were made. His appeal is centered upon his defense of entrapment, his contention being that Tucker furnished him the narcotics and induced him to sell them to Maldonado as a favor. Defendant testified that he simply acted as a "front" for Tucker. This he did after Tucker explained that Maldonado had purchased narcotics *447 from him in the past but that he would not buy from him now because Maldonado claimed the narcotics had been of poor quality. Tucker persuaded defendant to make the sales for him and allay Maldonado's doubts. [1] It is not denied by the prosecution that defendant's arrest was delayed in order to preserve Maldonado's anonymity. This delay, argues defendant, permitted Tucker to leave California between the time the alleged crimes were committed and the time of defendant's arrest, so that defendant was deprived of a material witness at his trial. This, it is asserted, constitutes suppression of evidence by the prosecution, a denial of due process, and reversible error. The record reflects that defendant at the time of his arraignment May 16, was aware of the identity and whereabouts of the informer, Tucker. However, the record discloses no effort on the part of defendant to locate Tucker prior to October 4, two days before the trial. Furthermore, defendant cannot in good conscience argue that he was allowed insufficient time to prepare for trial since the trial, which was originally set for July 31, was continued to October 6 at his request. Defendant relies largely upon the reasoning of the court in People v. Kiihoa, 53 Cal.2d 748 [3 Cal.Rptr. 1, 349 P.2d 673]. The case at bar is distinguishable from the Kiihoa case in three important respects. First, the informer here was not sent out of the state by the police or the prosecution, as in Kiihoa. There was no design by enforcement officers or the prosecution to prevent the informer from appearing as a witness for the defendant. The superior court ordered the informer committed to a federal hospital for narcotics addicts in Texas as one of the conditions of his five- year term of probation. Second, the delay in defendant's arrest was not for the purpose of preventing his learning the identity of the informer, but to preserve the anonymity of the undercover agent, Maldonado, who was working on other cases. To have arrested defendant and disclosed the identity of the agent would have destroyed the efficacy of preliminary work by the agent with other persons suspected of trafficking in narcotics. The third distinction is that in Kiihoa when the defendant was arrested the police disclaimed any knowledge of the informer's whereabouts. The police, by design, made it impossible for Kiihoa to locate the informer to seek his assistance in preparing his defense. In the case before us the whereabouts of the informer and his identity were disclosed to *448 defendant. Furthermore the informer, although in a government hospital in the State of Texas, was under the supervision of the San Diego County Probation Office. There is nothing in the record indicating that the informer could not have been subpoenaed pursuant to Penal Code sections 1334 et seq. The three critical circumstances just related not only distinguish the case at bar from People v. Kiihoa, supra, but they also bring the case within the ambit of People v. Sauceda, 199 Cal.App.2d 47, 56 [18 Cal.Rptr. 452]; People v. Wilburn, 195 Cal.App.2d 702, 705 [16 Cal.Rptr. 97]; People v. Castedy, 194 Cal.App.2d 763, 768 [15 Cal.Rptr. 413]; People v. McKoy, 193 Cal.App.2d 104, 110 [13 Cal.Rptr. 809]; People v. Givens, 191 Cal.App.2d 834, 840 [13 Cal.Rptr. 157]. The rationale of these cases is summarized in People v. Sauceda, supra, page 56, as follows: "In all of these cases, as in People v. Kiihoa, supra, the suspect was not arrested until after the informant had left the jurisdiction. Yet the cases have uniformly held that in the void of specific testimony that the police encouraged the informer to disappear [as was the case in Kiihoa], the courts cannot infer improper motives or activities on the part of the officers, but must presume that the officers regularly and lawfully performed their duties (People v. Farrara, 46 Cal.2d 265 [294 P.2d 21]), as well as that the payment for and termination of an informer's employment is not in and of itself 'encouraging him to disappear.' (People v. Wilburn, supra.)" If we understand defendant's argument, it is that intentional delay in making an arrest for the purpose of withholding the identity of an informer, cannot be justified upon the ground of public interest if the delay deprives a defendant of a substantial right. It is apparent that defendant's argument paraphrases the reasoning expressed by the Supreme Court in People v. McShann, 50 Cal.2d 802 [330 P.2d 33]; Priestly v. Superior Court, 50 Cal.2d 812 [330 P.2d 39]; and Mitchell v. Superior Court, 50 Cal.2d 827 [330 P.2d 48]. It cannot be denied that two fundamental judicial concepts, public interest and the right of an accused to defend himself, are here in conflict. However this case is not a suitable vehicle for pursuing the interesting question of when the right of an accused to defend himself outweighs public interest in delaying an arrest to protect an informer, because defendant has made no showing that by the exercise of a reasonable *449 amount of effort he could not have secured the presence of the informer as a witness. Defendant's own lack of due diligence contributed largely to the circumstance about which he now complains. The record reveals no excuse for the failure to attempt to locate and subpoena the informer pursuant to Penal Code sections 1334 et seq., nor does defendant's brief offer any explanation for this neglect. [2] Also it follows from defendant's failure to make a showing of due diligence that it was not error to deny his request for a continuance in order to locate the informer. (People v. McShann, 177 Cal.App.2d 195, 200 [2 Cal.Rptr. 71].) [3] The foregoing discussion of defendant's first ground of appeal disposes of his second contention that the court erred in denying his offer of proof concerning his efforts to locate the informer. The trial court was justified in not permitting this evidence to go to the jury because the offer of proof showed, in addition to the facts hereinabove set forth, that the subpoenas secured two days before the trial were issued to agencies which had no control over the informer. Counsel for defendant had knowledge that the informer was under the supervision of the probation office, yet he had subpoenas issued in care of the State Bureau of Narcotics, and in care of San Diego Police Department Narcotics Detail. Each agency returned the subpoena, denying knowledge of Tucker's whereabouts. Thus defendant's offer of proof failed to support his charge that the prosecution was guilty of willful suppression of evidence. [4] Likewise defendant's failure to make an adequate offer of proof that there was suppression of evidence negates his argument that the court erred by refusing to give his instruction on the subject. Defendant offered the following: "Defendant's Requested Instruction No. 6 If the evidence demonstrates that a witness could give material and relevant testimony on the issues in question and that the ability to have such a witness available at trial was within the control of one of the parties but such witness was not called to testify, then you may infer that if such witness were called to testify, that he or she would give testimony adverse to the side failing to call such witness." The court chose to give CALJIC No. 23, which reads: "Neither the prosecution nor the defense is required to call as witnesses all persons who are shown to have been present at any of the events involved in the evidence, or who *450 may appear to have some knowledge of the matters in question in this trial; nor is the prosecution or defense required to produce as exhibits all objects or documents that have been referred to in the testimony, or the existence of which may have been suggested by the evidence." We believe defendant's argument is untenable, first, because his instruction assumes that Tucker was within the control of the prosecution. The instruction recites "that the ability to have such a witness available at trial was within the control of one of the parties. ..." The evidence does not support this assumption. Second, defendant's argument presupposes that it was the duty of the prosecution to call the informer as a witness. [5] The prevailing rule is stated in People v. Kiihoa, supra, page 752, as follows: "The prosecution is not required to call any particular witness, nor to put on all the evidence relating to a charge so long as all material evidence bearing thereon is fairly presented in such a manner as to accord to the defendant a fair trial. (People v. Tuthill, 31 Cal.2d 92, 98 [187 P.2d 16]; People v. Parry, 105 Cal.App.2d 319 [232 P.2d 899].)" (See also People v. McShann, supra, 177 Cal.App.2d 195, 199; People v. Castedy, supra, 194 Cal.App.2d 763, 769.) [6] And again in Kiihoa, page 752, the Supreme Court said: "The denial by the prosecution of an opportunity for the defendant to seek out the informer and to defend by these means, where the testimony of the informer would be material to the issues, is unfair and oppressive to the defendant, and deprives him of due process of law. (See Roviaro v. United States, 353 U.S. 53, 63-64 [77 S.Ct. 623, 1 L.Ed.2d 639]; People v. McShann, supra, 50 Cal.2d 802, 809, 810.)" (Emphasis added.) Defendant failed to take advantage of his opportunity to seek out the informer. As we have noted, defendant put off subpoenaing Tucker until two days before the trial, although he had both ample time to locate him and the means of compelling his attendance by following the procedure provided by Penal Code sections 1334 et seq. Furthermore, the tardy attempt to subpoena Tucker was misdirected and inadequate. Defendant cannot avoid the consequences of his failure to seek out the informer when he had the opportunity to do so, and likewise he cannot shift to the prosecution the burden of calling the informer as a witness for the defense. [7] Defendant's final contention is that the court erred *451 in instructing the jury on his defense of entrapment because insufficient emphasis was placed on the role of persons other than law enforcement officers. The court gave CALJIC Instructions 851 and 854, as follows: "The law does not tolerate a person, particularly a law enforcement officer, generating in the mind of a person who is innocent of any criminal purpose, the original intent to commit a crime thus entrapping such person into the commission of a crime which he would not have committed or even contemplated but for such inducement; and where a crime is committed as a consequence of such entrapment, no conviction may be had of the person so entrapped as his acts do not constitute a crime." "If the intent to commit the crime did not originate with the defendant and he was not carrying out his own criminal purpose, but the crime was suggested by another person acting with the purpose of entrapping and causing the arrest of the defendant, then the defendant is not criminally liable for the acts so committed." "It is important in considering the defense of entrapment to ascertain whether the acts charged as constituting the offense were the result of the intent of some other person to place the accused in a position where he might be charged with the offense, in which event the defendant may not be convicted or whether the defendant, acting in pursuance of his own intent, committed the acts, such other person merely affording him the opportunity of doing so, in which latter event the defense of entrapment would not relieve the defendant from responsibility." In our opinion the foregoing instructions completely and adequately cover the defense of entrapment, including a situation where a person other than a law enforcement officer is involved. We find no merit in appellant's contention that the court erred in refusing to give his proffered instruction, which reads as follows: "Defendant's Requested Instruction No. 7 In order to make the defense of entrapment available to a defendant, the person doing the entrapping need not be a law enforcement officer. If the offense was suggested by another person with the purpose of entrapping and causing the arrest of the defendant, then the defendant is not criminally liable for the acts committed, whether or not this other person was a law enforcement officer." *452 The substance of defendant's proposed instruction is fully covered by the two instructions which were given. A court is not bound to give a particular instruction submitted by a party simply because it is applicable to the case. Appropriate instructions may be selected by the court from those submitted by the parties, or the court may use its own instructions, provided the instructions given by the court embrace and fairly state all points of law on all the material elements of the case. (People v. Clark, 116 Cal.App.2d 219, 224 [253 P.2d 510]; People v. Latona, 2 Cal.2d 714, 727 [43 P.2d 260]; People v. Young, 70 Cal.App.2d 28 [160 P.2d 132]; 2 Witkin, California Procedure, 52(b), p. 1780.) The judgment and the order denying motion for new trial are affirmed. Griffin, P. J., and Coughlin, J., concurred. NOTES [fn. *] *. Assigned by Chairman of Judicial Council.

CourtListenerOpinion

2024-06-11T07:23:54.654332

2013-10-30 08:36:18.983374+00