Pacific Coast Law Journal.

VOL. 1.

MAY 18, 1878.

No. 12.

Current Topics.

THE very important constitutional question, of the validity of the exemption laws passed by State Legislatures as to existing debts, has been passed upon very recently by the Supreme Court of the United States in the case of Edwards vs. Kearzy. The court held that the remedy, subsisting in a State when and where a contract is made and is to be performed, is a part of its obligation; and any subsequent law of the State which so effects that remedy as substantially to impair and lessen the value of the contract, is forbidden by the Constitution, and is therefore void. That the law of North Carolina, exempting personal property and a homestead of a debtor from sale under execution, is unconstitutional, and invalid as to debts contracted before its enactment. We will soon publish this very important opinion in full.

IN Winters vs. Browner, Administrator, just decided by our Supreme Court, it was held that an action was not barred by Sec. 1496 of the Code of Civil Procedure, when begun within three months of the date of an actual rejection of a claim by an administrator. In this case the plaintiff presented his claim on February 3d, 1877, to the defendant as administrator. No action was taken by the administrator, either to allow or reject the claim, until the 17th day of March, 1877, when he rejected the claim by endorsing his objection thereon. The complaint was filed June 2d, 1877.

The defendant claimed that the action should have been brought within three months after February 14th, being the

tenth day after the claim was presented, and that the statute raised the presumption of rejection on that day.

The plaintiff contended that the statute was a provision for the benefit of the claimant, and that he may waive it and allow the administrator further time.

CROCKETT, J. and RHODES, J. dissented.

Supreme Court of California.

APRIL TERM, 1878.

[No. 5,827.]

[Filed April 22, 1878.]

ELLIOTT, APPELLANT, VS. PECK, ADMX., RESPONDENT.

FINDINGS ESTATES OF DECEDENTS.-In an action against an administrator upon a

disallowed claim, the presentation of which was made after the ten months had elapsed, it is necessary that the precise time when the claim became due appear in the findings. C. C. Pro., § 1493.

Appeal from the Twentieth Judicial District, Santa Cruz County.

On the 28th of August, 1872, Elliott and Peck owned 200 feet each in certain quicksilver mines in San Luis Obispo County, known as The Santa Cruz Mine and San Lorenzo Claim. Elliott's health being bad, and Peck being his warm friend, the former conveyed to the latter by deeds absolute his interests, in order to facilitate a sale. No consideration passed. Peck died September 14, 1873, intestate, not having sold the property. The respondent, as administratrix, gave notice to creditors October 30, 1874. In June, 1875, under an order of the Probate Court, she sold the mining interests for $6,575. Plaintiff Elliott, on the 17th of September, 1875, presented his verified claim in the usual

form against the estate for his half of the proceeds, which was disallowed. The estate was then on the 26th of August, 1875, fully distributed and the money on hand paid over. On November 8th, on application of Elliott, the Probate Court vacated the decree of distribution, and this action for money had and received for plaintiff's use and benefit was commenced December 14, 1875.

The court below rendered judgment in plaintiff's favor for the half of net proceeds of the sale, but granted a new trial on the grounds that Mrs. Peck, the administratrix, should have been allowed to testify, and that parol evidence should not have been admitted to defeat deeds absolute. From the order granting a new trial the plaintiff, Elliott, appealed.

C. B. Younger and F. Adams, for appellant.

J. H. Logan, for respondent.

PER CURIAM.

There is no finding from which it can be seen at what precise time the claim of Elliott became due. This was necessary in order to determine whether the presentation of the claim-made on the 17th of September, 1875-was within the time required by the statute. Remittitur forthwith. (Code of Civil Procedure, Section 1493.)

[No. 5,802.]

[Filed, April 20, 1878.]

BAGGS ET AL., RESPONDENTS, VS. SMITH, APPELLANT.

FINDINGS.-Omission to find upon a counter claim is error.

FINDINGS-APPEAL-AMENDMENT.-Amending the findings after an appeal taken, for that reason if for no other, is error.

Appeal from the Twentieth Judicial District, San Benito County.

Action to recover $1,200, the value of services rendered by Baggs & Tully, attorneys and counselors-at-law, at de

fendant's instance. The answer denied the indebtedness, and averred that plaintiffs were employed at a certain per diem for the time actually employed, and a fee of $100, contingent upon success, all of which has been paid. For a counter claim, the answer set up an indebtedness of plaintiffs for $75 borrowed money. The findings were that plaintiffs were employed as attorneys to prosecute a probate proceeding, without any special contract as to fees; that they attended to the case until a final distribution was had, by which defendant realized $2,500, and that the services were worth $400. From the judgment entered pursuant to the foregoing, the defendant appealed on the 29th of June, 1877. On August 6th, 1877, upon motion the court amended its findings, allowing the $75 set up in the counter claim, but finding the indebtedness $400 over and above the counter claim, and from this order the defendant also appealed.

William Leviston, for appellant.

James N. Breen and Drake & Rix, for respondents.

PER CURIAM.

The findings filed June 4th, 1877, are insufficient to support the judgment entered on that day, in that they did not respond to the issue joined upon the counter claim of the defendant for the alleged loan of moneys to the plaintiffs. It is the settled rule that the material issues made by the pleadings must be responded to by the findings.

The order of August 6th, 1877, amending the findings was also erroneous, if for no other, for the reason that the cause was then pending in this court upon appeal from the judgment, and under such circumstances the court below had no authority to make new or further findings in the cause.

Judgment and order of August 6th, 1877, reversed, and cause remanded for a new trial.

[No. 5,462.]

[Filed April 22, 1878.]

SMITH, APPELLANT, VS. LAWRENCE, RESPONDENT.

FINDINGS WAIVER-BILL OF EXCEPTIONS.-Where appeal is taken by bill of exceptions or statement, the fact of non-waiver of findings must affirmatively appear in order to avail appellant of the error.

Appeal from the Twelfth Judicial District, San Francisco. Appeal from an order granting a new trial, being the second appeal in the same cause, vide Smith vs. Lawrence (38 Cal. 24.) The action was commenced on the 25th day of April, 1867, upon two promissory notes, and judgment rendered thereon February 23, 1875. Defendant's bill of exceptions, after setting forth the exceptions taken during the progress of the trial, concluded with the grounds assigned for a new trial and appears to have been allowed as a whole by the certificate of the District Judge. The body of the bill of exceptions contains no mention of findings, but in the eleventh ground assigned for a new trial the defendant states: "That the judgment should be set aside and a new trial granted because no findings were filed (and the same were not waived) before the entry of judgment."

Upon the decision of the motion, the court below (Daingerfield, J.) Held: "In this case it appears from the statement on appeal that there were no findings filed and that they were not waived. If this fact appeared by bill of exceptions there can be no doubt under the recent decisions of the Supreme Court, but there would be such error as would reverse the judgment. I can see no difference in principle between a bill of exceptions and a motion for a new trial, as to this error in a trial. The findings are never filed until after a trial, and an assignment of error is practically therefore a bill of exceptions as to such an error.'

E. B. Mastick, for appellant.

E. A. Lawrence, for respondent.

From this much of the opinion of Judge Daingerfield it will be seen that his decision did not rest" upon the assumption that it appeared in the settled statement that findings of fact had not been waived," but upon the proposition that a mere assignment of this particular error is equivalent to a bill of exceptions.-EDITOR.