SALES (Continued). in the matter of purchase payments; but where such installment See Contracts, 5-7, 9, 12-17; Deeds of Trust, 17; Landlord and SCHOOLS AND SCHOOL DISTRICTS. 1. INCORPORATION OF DISTRICTS CURATIVE LEGISLATION - RETROSPECTIVE EFFECT.-The act of the legislature passed in the year 1905 (Stats. 1905, p. 243), which provides that school districts acting as such for a period of five years under the laws of the state are "declared" to be duly incorporated, was retrospective only in its effect. (Van Wagener v. MacFarland, 115.) 2. INCORPORATION OF PORTION OF SCHOOL DISTRICT-MAINTENANCE OF ORIGINAL DISTRICT-DE FACTO EXISTENCE. Where an unincorporated town embraced within a school district incorporates as a city of the sixth class, but no separate school district is attempted to be maintained, the school district retains its original name, the school trustees for the district are thereafter elected jointly by the inhabitants of said city and those resident in the remaining portion of the school district, and the schools are continued to be maintained as before the incorporation proceedings were had, full acquiescence being made by all the inhabitants, the district has a de facto existence. (Id.) 3. VOTING OF BONDS BY DE FACTO DISTRICT-VALIDITY.-Where a school district having a de facto existence by regular proceedings has authorized the issuance of bonds, such bonds may be legally issued, and when sold they will represent binding obligations against all the property of such de facto district. (Id.) 4. CITY HIGH SCHOOL DISTRICT-ANNEXATION OF ELEMENTARY SCHOOL DISTRICTS-APPOINTMENT OF SCHOOL BOARD.-Where a city high school district, embracing all the territory within a municipal corporation of the fifth class and certain additional territory annexed thereto for high school purposes and the elementary school district of that city are coextensive and both are governed by the city board of education, elected by the electors of the district, and the board of supervisors of the county, pursuant to the provisions of section 1734b of the Political Code, adopts a resolution annexing a number of elementary school districts to that city high school district, the county superintendent of schools has not the authority to appoint a high school board for such enlarged high school district. (Horton v. Whipple, 189.) SEPARATE PROPERTY. See Husband and Wife, 2-4. SERVICES. PERSONAL SERVICES-CONTRACT-PAYMENTS EVIDENCE.-In this action to recover an alleged balance due for services, the findings as to the terms of the contract under which the services were rendered and as to the nature of payments made to the plaintiff are supported by the evidence. (Vergano v. Denis, 483.) See Attorney and Client, 1-4; Common Carriers, 1, 4. SPECIFIC PERFORMANCE. 1. CONTRACT TO LEAVE PROPERTY BY WILL-PERFORMANCE OF PERSONAL SERVICES-PECUNIARY MEASUREMENT.-Specific performance of a contract to leave property by will in consideration of performance of personal services cannot be decreed where the services are susceptible of pecuniary measurement, and the fact that the promisee kept no memorandum and is unable to establish the extent or value of the services is immaterial. (Hoyt v. Thomas, 14.) 2. CONTRACT ADEQUACY OF CONSIDERATION.-Equity does not require the highest price obtainable for bank stock in order to enforce specific performance of a contract for its purchase, but merely that the price be fair and adequate under the circumstances. (Estate of Cheda, 433.) See Adoption, 1, 2. STATUTE OF FRAUDS. See Contracts, 6. STATUTE OF LIMITATIONS. See Bonds, 3; Guardian and Ward, 2. STATUTORY CONSTRUCTION. 1. CURATIVE ACTS.-Curative acts are remedial in their nature and they will not be construed within the narrow limits of the letter of the law, but rather be given liberal effect to promote the general object sought to be accomplished. (Van Wagener v. MacFarland, 115.) 2. LEGISLATIVE INTENT-USE OF WORDS.-Statutes are not to be construed with any such nicety of discrimination as to the use of words in obvious disregard of the legislative intent as gathered from the whole act. (Abbey v. Board of Directors of Honeut etc. Dist., 757.) 3. SUBSTITUTION OF "AND" FOR "OR."-Whenever necessary to arrive at the evident intent of a statute, courts will substitute "and" for "or" and vice versa. (Id.) 4. ESTABLISHED PROCEDURE - INTENT то CHANGE-PRESUMPTION. A legislative intent to change the procedure consistently in opera STATUTORY CONSTRUCTION (Continued). tion for a period of twenty-four years ought not to be presumed, in the absence of clear language indicating such intent. (Id.) STREET LAW. 1. JURISDICTION - IRREGULARITIES-WAIVER OF OBJECTIONS-COLLAT ERAL ATTACK ON ASSESSMENTS.-Where a city council regularly acquires jurisdiction to order certain street work done under the provisions of the Vrooman Act, a property owner who makes no protest against the work under section 5% of that act, nor takes any appeal under section 11 thereof, and who does not file a notice to the city treasurer against the issuance of the bonds as permitted by the Bond Act of 1893, cannot collaterally attack the assessment in a suit to quiet title because of irregularities occurring in the proceedings after the city council acquired jurisdiction. (Chapman v. Rudolph, 233.) 2. AGREEMENT TO REBATE-WAIVER OF OBJECTION.-An agreement by the contractor to make certain rebates or deductions to those who pay without litigation in the event that it is awarded the contract, contrary to the provisions of the contract and of the San Jose charter, will not render the assessment void, where no appeal is taken therefrom because of that defect. (Id.) 3. INVALID SALE QUIETING TITLE-PAYMENT OF LIEN.-Where the assessment and bond are valid, the fact that the sale thereunder is invalid will not destroy the contractor's lien; and the property owner is not entitled to have the title to his property quieted against that lien except upon making payment. (Id.) 4. DUE PROCESS-ISSUANCE OF BONDS-FAILURE TO OBJECT.-The Street Improvement Bond Act of 1893 is not subject to the objection that it does not provide for due process of law; and a property owner is in no position to complain of the issuance of a bond thereunder where he has made no attempt to prevent such issue. (Id.) 5. JURISDICTIONAL REQUIREMENTS PLEADING. In an action by a property owner to quiet title, a recital in the answer of the defendant contractor that the city council "duly gave, made and passed their certain Resolution Ordering Work," etc., constitutes a sufficient allegation of all the jurisdictional requirements. (Id.) 6. CLOSING OF STREET-DETERMINATION OF TRUSTEES-CHARACTER OF PROCEEDING CERTIORARI.-Proceedings had and taken by a board of trustees under the terms of the act of March 6, 1889 (Stats. 1889, p. 70), to determine whether a street should be closed are not of a judicial character and, therefore, are not subject to review on certiorari. (Garin v. Pelton, 672.) 7. CLOSING OF STREET-DETERMINATION OF TRUSTEES-CHARACTER OF PROCEEDING PROHIBITION.-Proceedings had and taken by a board STREET LAW (Continued). of trustees under the terms of the act of March 6, 1889 (Stats. 1889, p. 70), to close a street are not of a judicial character and, therefore, prohibition will not lie to prevent such proceedings. (Garin v. Pelton, 674.) SUCCESSION. See Adoption, 3. SUPERIOR COURT. ACTS OF JUDGE-WHEN CONSTRUED AS ACTS OF COURT.-Under the constitution, wherever an act is to be performed by a judge of the superior court and such judge is present at the place designated for the transaction of judicial business, and there assumes to transact such business, his acts may be construed as the acts of the court of which he is a judge. (Newby v. Bacon, 337.) SURETIES. See Landlord and Tenant, 1. TAXATION. See Judgments, ; Municipal Corporations, 4, 11-16. TENDER. See Vendor and Vendee, 13. TIME. See Bill of Exceptions, 2, 3; Contracts, 19; Judgments, 2, 7; Motor Vehicle Act, 1. TITLE. See Vendor and Vendee, 1, 2. TORTS. See Municipal Corporations, 10. TOWN SITES. See Public Lands, 1. TRADEMARKS. 1. PROPERTY RIGHTS INJUNCTION.-Ownership of a trade name may be acquired either by a prior adoption within or without the state or by registering such name with the Secretary of State and such ownership may be transferred and the rights thus acquired are property rights and may be protected by injunction from invasion. (Evans v. Shockley, 427.) 2. ASSIGNMENT OF TRADEMARK - SEPARATION FROM BUSINESS-INJUNCTION.-An assignee of a registered trade name may be protected by injunction although he does not purchase or continue the business in connection with which the name has been used. (Opinion of supreme court withheld on denial of hearing.) (Id.) TRANSFER. See Motor Vehicle Act, 1. TRIAL. 1. CONCURRENT JURISDICTION WITH ACCIDENT COMMISSION - CONSOLIDATION OF ACTIONS-RULES OF PROCEDURE.-Where a suit for damages for personal injuries is properly brought in the superior court, the rules of procedure that are prescribed for the trial of actions in that court must apply, and the right of that court to consolidate that action with other actions for the purpose of trial is not affected by the fact that its jurisdiction to try said action is merely concurrent with the Industrial Accident Commission, whereas its jurisdiction to try the other cases is exclusive. (Baker v. Superior Court, 288.) 2. CONSOLIDATION OF ACTIONS-RIGHT OF SUPERIOR COURT.-In view of the provisions of sections 4 and 427 of the Code of Civil Procedure, the superior court has no inherent common-law right to consolidate actions for the purpose of trial regardless of statutory provisions. (Id.) 3. ERRONEOUS CONSOLIDATION OF ACTIONS-APPEAL-PROHIBITION.Error of the trial court in consolidating for the purpose of trial an action by an employee against a third person for damages for personal injuries and an action by the employer against said third person for damages for injury to property of the employer may be reviewed on appeal from the judgment, and in the absence of exceptional circumstances because of which that does not afford a plain, speedy, and adequate remedy, a writ of prohibition will not issue to prevent such consolidation. (Id.) 4. PLEADING-DEFAULT-ISSUES EVIDENCE.-Where, at the opening of the trial of an action, and by leave of the court, the defendant files what is termed by the document itself a crosscomplaint, and the plaintiff makes no objection thereto and does not file any counter-pleading, and it is not stipulated that the allegations of such pleading of the defendant be deemed denied, but the case is tried and counsel for defendant introduces evidence as if an issue thereon had regularly been tendered, the defendant is not entitled to have the default of the plaintiff thereafter entered for failure to answer said pleading, even though such pleading be in fact a cross-complaint and not merely a counterclaim. (San Joaquin Brick Co. v. Mulcahy, 295.) 5. AFFIRMATIVE PLEADINGS-INSUFFICIENT FINDINGS.-Whether such pleading of the defendant constituted a cross-complaint or amounted only to the setting up of a counterclaim, the matters therein affirmatively alleged having been such that, if true, the defendant would have been entitled to a judgment thereon against the plaintiff, and the defendant having introduced evidence in support of those allegations, the failure of the court to find thereon constituted reversible error. (Id.) |
