Page images
PDF
EPUB

men it might procure. There was reason why the plaintiff should make a special deposit of two thousand dollars with the bank as bailee, and none at all why he should make a commercial deposit of that sum. The money was delivered in a manner strictly in accord with a contract of pledge, but quite inconsistent with the notion of an ordinary banking deposit. The so-called certificate of deposit issued by the bank is not a certificate of deposit, but a mere receipt, expressing, though briefly, the contract of pledge. Every contract by which possession of personal property is transferred as security only is to be deemed a pledge. (Civ. Code, sec. 2987.) Under such a contract the fact that the bank afterward wrongfully commingled and used the funds, if it did do so, cannot be urged by it in defense as effecting any change in the contractual relations and rights of the parties. It would be but allowing it to plead its own wrongdoing. to its own advantage. (Henderson v. O'Conor, 106 Cal. 385; Massey v. Fisher, 62 Fed. Rep. 958; National Bank v. Insurance Co., 104 U. S. 54.)

There is nothing in the case of Mutual etc. Assn. v. Jacobs, 141 Ill. 261, 33 Am. St. Rep. 302, upon which appellant relies, which can aid his contention here. The plaintiff in that case sued to recover the sum of six thousand dollars, deposited by it with the banking house of Kean & Co., as indemnity on an appeal bond. But, as the court declares, the plaintiff gave its check to Kean & Co., which was cashed by that house, and the funds thus received with the knowledge of plaintiff were mingled and used with the general funds of the bank, and there was nothing in the certificate or deposit issued and received by plaintiff which indicated a special deposit. The court merely finds from a review of the evidence that it was not established that the deposit was special.

In the case at bar the trial court finds a special deposit, and does not find a commingling and use of the money with plaintiff's knowledge. Indeed, it does not find any such commingling and use at all. It merely

1

finds that after its reception, and without plaintiff's knowledge or consent, the moneys "went into the bank. vaults through the regular channel." The bank vaults are the usual and proper places for the reception and keeping of special deposits. The finding strictly means no more than that the money went into the bank vaults as a special deposit in the regular manner.

The court allowed plaintiff as damages legal interest upon the money from the date upon which Christian and Olsen were surrendered by the sureties. But, while plaintiff was entitled to a return of his money immediately after this event, defendant was not in default until its refusal after demand to make restoration of it. Not being in default, it should not be charged with interest as damages. This demand was actually made by plaintiff upon February 26, 1894, from which date plaintiff is entitled to interest as compensation.

The judgment is ordered modified accordingly, each party to bear his respective costs upon this appeal. MCFARLAND, J., and TEMPLE, J., concurred.

[Sac. No. 63. Department Two.-May 13, 1896.] RECLAMATION DISTRICT No. 535 OF SACRAMENTO COUNTY, RESPONDENT, v. J. H. HAMILTON, APPELLANT.

NEW TRIAL-SUFFICIENCY OF PROPOSED STATEMENT--SKELETON STATEMENT.--A proposed statement, on motion for new trial, should be a fair one, but nothing should be inserted therein in extenso but that which is pertinent to the questions made by the moving party, and necessary for their proper consideration, and a proposed statement should not be rejected because it contains reference to documentary evidence, with the remark "[here insert]," notifying the opposite party that it is to become part of the statement; and though such reference in an engrossed statement would render it a skeleton state:nent, a proposed statement is not to be rejected, or settlement thereof refused on that account. ID.--EXTENSION OF TIME-STIPULATION--JURISDICTION OF COURT.-An extension of time to prepare and serve a proposed statement by stipu lation of the parties does not affect the jurisdiction of the court to

extend the time for a period of thirty days from the expiration of the stipulated time. ID.-CONSTRUCTION OF STIPULATION-WAIVER OF MOTION.-A stipulation extending time to the defendants to prepare, serve, and file their proposed statement, agreeing that defendants will use their utmost endeavors to have the statement of the case settled by the judge. and will, at as early a day as possible, have their transcript on appeal printed, is not to be construed as an agreement that they would waive their right to prepare the statement and move for a new trial, if they failed to serve their statement by the day named in the stipulation. ID.-FORM OF Order Extending Time-Immaterial Error IN DESCRIPTION. -An order made after the time had been extended by stipulation to prepare a "statement on motion for new trial," which erroneously designates a further extension of time as being "to prepare, serve, and file their statement of the case, and affidavits on appeal to the supreme court," could not mislead the opposite party, and errors which do not mislead must be disregarded. ID.-"FILING" OF PROPOSED STATEMENT-CONSTRUCTION OF STIPULATIONS AND ORDERS.-Stipulations and orders, including an extension of time to “file,” as well as to prepare and serve the proposed statement, are not to be construed as intended to require that the proposed statement should be filed before it was settled, or that it should be settled and filed within the time limited for its preparation and service.

ID. FAILURE TO FILE STIPULATIONS AND ORDERS-CONSENT TO OMIT FIL-
ING. The failure to file stipulations and orders extending the time to
prepare and serve a statement of the case until shortly before the
hearing of the motion cannot be urged as a ground for dismissing the
motion, where the counsel for the opposite party stipulated that orders
and stipulations extending time need not be filed.

ID. CONSTRUCTION OF CODE.-Section 283 of the Code of Civil Procedure,
authorizing an attorney to bind his client by agreement filed with the
clerk, or entered upon the minutes of the court, and not otherwise, is
to be construed as referring to executory agreements, and not to those
which have been wholly or partly executed, or under which it would be
inequitable to insist that the stipulation was invalid.
ID.--SERVICE OF STATEMENT ON HOLIDAY--"JUDICIAL BUSINESS."-The
service of a proposed statement is not invalid or void because made
on Sunday or on a legal holiday, although it might be served on the
next day, nor is such service "judicial business" within the meaning
of section 5 of article VI of the Constitution.

APPEAL from an order of the Superior Court of Sacramento County refusing to settle a statement on motion for new trial, and dismissing the motion. MATT. F. JOHNSON, Judge.

The facts are stated in the opinion.

1

Albert M. Johnson, and William M. Sims, for Appellant.

Section 1054 of the Civil Code does not limit the authority of attorneys to extend the time. It merely limits the power of the court to extend time for thirty days, without the consent of the adverse party. (Curtis v. Superior Court, 70 Cal. 390; Simpson v. Budd, 91 Cal. 488.) The proposed statement was not properly a skeleton statement, as it would have to be engrossed, and documents referred to could then be inserted. The service of the statement on a nonjudicial day was not void. (5 Am. & Eng. Ency. of Law, 85; State v. California Min. Co., 13 Nev. 203.)

Armstrong & Bruner, for Respondent.

The

The proposed statement was a skeleton statement, and insufficient. (People v. Bartlett, 40 Cal. 146; Bush v. Taylor, 45 Cal. 112.) The court can only extend the time allowed by the code, and cannot extend the time allowed by stipulation. (Code Civ. Proc., sec. 1054.) The order of the court referred only to a statement on appeal, which is provided for by the code. (Code Civ. Proc., secs. 659, subd. 4, 660, 661.) The court cannot amend its order. (Code Civ. Proc., sec. 1858.) failure to file the stipulations and orders destroyed their validity. (Campbell v. Jones, 41 Cal. 515; Code Civ. Proc., sec. 283; Borkheim v. North British etc. Ins. Co., 38 Cal. 623; O'Neil v. Dougherty, 47 Cal. 164; Merritt v. Wilcox, 52 Cal. 238; Smith v. Polack, 2 Cal. 92; Blackwood v. Cutting Packing Co., 71 Cal. 465; Superior Court Rule 23.) The service of a statement, being a step in an action, is judicial business, and cannot be done on a nonjudicial day. (Stonesifer v. Kilburn, 94 Cal. 43; Kelley v. Larkin, 47 Cal. 58; Code Civ. Proc., secs. 10, 133, 134.)

HAYNES, C.-Appeal from an order refusing to settle defendant's statement on motion for a new trial, and dismissing said motion.

After the service of defendant's proposed statement the plaintiff, upon due notice, moved the court to refuse to settle the same, and to dismiss defendant's motion for a new trial, and to deny the same upon the following grounds: "1. That it is a mere skeleton statement, and does not substantially conform to the requirements of the Code of Civil Procedure; 2. That the same was not served within the time allowed by law, nor within the time to which the court had jurisdiction to extend the time, and the court made no order extending the time for preparing and serving the statement on motion for a new trial; 3. On the further ground that said alleged statement on motion for a new trial was not served upon a judicial day, but was served upon the day of a general election."

The court below granted the motion upon the second ground, and, while saying that it was not necessary to pass upon the other grounds, expressed the opinion that they were insufficient to sustain the motion. Respondent, however, insists that, if the motion was properly granted upon any or either of the grounds specified, the order must be affirmed, and discusses all of them.

1. It is true the appellant's proposed statement should be a fair one; but nothing should be inserted, in extenso, at least, but that which is pertinent to the questions made by the moving party, and necessary for their proper consideration. The first alleged defect in said proposed statement pointed out by respondent is an illustration of the proper mode of preparing statements. It is as follows: "Plaintiff offered in evidence the following documentary evidence: Minutes of the board of trustees of Reclamation District No. 535, show. ing order employing J. C. Boyd, engineer; also the report of said engineer to the board of trustees." No objection or exception was made, and no question seems to be made thereon, and, therefore, a copy of the minutes would only encumber the transcript and increase both labor and expenses. If, however, for any reason the opposite party deemed the whole, or some part of the

« PreviousContinue »