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The appellants contend, however, that plaintiff's rights must be defined by the statutes of 1850 (Stats. 1850, p. 220), in force when the paper of acknowledgment was signed. The statute is very similar in terms to the foregoing provision of section 1387, but it had been held, in two cases decided prior to the enactment of the codes, and of the rules of construction therein contained (Civ. Code, sec. 4), that such statute, being in derogation of the common law, should be strictly construed. (Estate of Sanford, 4 Cal. 12; Pina v. Peck, 31 Cal. 359.) Since the writing here involved was executed in 1861, the appellants seek to refer plaintiff's claim to the statute then in force, read in accordance with the construction given to it by the courts.

[2] Whether plaintiff's position could be maintained under the statute of 1850, as interpreted in the Estate of Sanford and Pina v. Peck, need not be here decided, for we are satisfied that section 1387, rather than the statute of 1850, is the measure of plaintiff's rights. [3] Section 1387 appears in the chapter of the Civil Code dealing with succession. It declares that certain persons are heirs of certain others. It is simply a statute of succession or inheritance. And so this court has decided. (Estate of Magee, 63 Cal. 417; Blythe v. Ayres, supra.) But since no right vests in a presumptive heir until the death of the ancestor (Civ. Code, secs. 1384-5), it is thoroughly settled that the persons entitled to succeed must be ascertained according to the law in force at the date of the ancestor's death. (Tyrrell v. Baldwin, 78 Cal. 470; Estate of Fath, 132 Cal. 609.) The writing of 1861 vested no right in the plaintiff when it was executed. If the statute had been repealed before Loyd's death, and no similar law had taken its place, the plaintiff could not have claimed as an heir. He must found his claim on the law in force when rights of heirship attached, and that law is section 1387 of the Civil Code. The contrary view was suggested in the opinion in the Jessup case, 81 Cal. 419, but the expression was plainly obiter, the case involving, not a right of heirship under section 1387, but the creation of the relation of parent and child by virtue of an alleged adoption under section 230 of the Civil Code.

The judgment and the order denying a new trial are affirmed.

JOHN

L. A. No. 3462. Department One. April 19, 1915.

V.

LAPIQUE, Plaintiff and Appellant,

AGOURE et al., Defendants and Respondents.

CATHERINE

[1] ACTION FOR DEATH-NEGLIGENCE-Loss OF "SOCIETY" TO PARTNERSHIP DISMISSAL OF ACTION WITHOUT NOTICE-PLAINTIFF NOT INJURED APPEAL FROM ORDER-FRIVOLOUS APPEAL.-The dismissal by the court of its own motion and without notice of an action against the widow and heirs of a deceased person for one million dollars damages for the death of such person alleged to have been caused by the negligence of the defendants, is without injury to the plaintiff, where no relationship between him and the deceased is shown, other than the pretension that he as a "surviving partner" of a partnership that once existed between the deceased and two other persons, was damaged by the loss to the partnership of the "society" of the deceased, and an appeal taken

from such an order is frivolous and the respondent entitled to damages therefor.

Appeal from the Superior Court of Los Angeles County-F. R. Willis, Judge.

For Appellant-John Lapique, in propria persona.

For Respondents-W. I. Foley.

Mr. Justice Shaw delivered the opinion of the court, Sloss, J., and Lawlor, J., concurring.

The action in this case was begun by the filing of a paper, designated as a complaint, on January 20, 1913. Summons was served upon the defendants on January 22, 1913. On January 24, 1913, the court below of its own motion entered this order:

"In this case the complaint states no cause of action in favor of plaintiff nor any other person. It is not signed or filed by any attorney of this court or by any person having an interest in any cause of action stated therein. The references therein to the Probate Department of this court are contumacious and disrespectful, and this court believing that citizens should not be harassed by legal proceedings instituted by irresponsible persons and that courts ought not to waste time and incur expense considering such pleadings, the court on its own motion orders plaintiff's complaint stricken from the files and the cause dismissed."

[1] This order was duly entered as a judgment and the plaintiff appealed. It does not appear that either party was present when the order was made. The proceeding would perhaps have been more orderly and regular if the court had cited the plaintiff to appear before it at some fixed time to show cause why such an order should not be made and had then made the order. Regardless, however, of any question of the regularity of the proceedings, the order must be affirmed on the ground that by no possibility could it have produced any harm to the plaintiff. The so-called complaint presents a pretended cause of action so preposterous that it should not be tolerated by any court. The plaintiff claims one million dollars damages because of the death of Pierre Agoure, which, it is alleged, was caused by the negligence of the defendants. The defendants are the widow and heirs of Agoure and are the only persons in whose behalf an action could be maintained for Agoure's death from the negligence of another. Actions for death caused by negli gence cannot be maintained at all except in cases where the statute so declares. Sections 376 and 377 of the Code of Civil Procedure give the right to maintain such actions only to the parent, the personal representative, or the heir, or the guardian of an heir, of the person whose death has been so caused. The plaintiff does not show any relationship whatever to Mr. Agoure. He alleges that there was a partnership once existing between Agoure and two other persons named Menendez and he describes himself as a surviving partner, that is, a surviving partner of a firm of which he was not a member, and he alleges that the damages were caused by the loss to the partnership of

the "society" of Agoure. Nothing quite so preposterous has, to our knowledge, ever been presented in any court. The only thing for a court to do with such a pretended cause is to dismiss it. Such dismissal could not have injured Mr. Lapique in the slightest degree.

no other motive claim that was

The taking of this appeal could have had than that of keeping alive an action on a utterly without foundation. It could not have been for any other purpose than to cause the defendants the annoyance and delay that ensued from taking the appeal and perhaps as a means of securing some sort of a compromise. It is a case in which damages should be awarded.

The order appealed from is affirmed, and it is further or dered and adjudged that the defendants recover from the plaintiff the sum of $100 as damages because of this appeal.

L. A. No. 3461.

Department One. April 19, 1915.

FRANK M. KELLOGG, Plaintiff and Appellant, v. CLARA KELLOGG, Defendant and Respondent.

APPEAL-RECORD-AFFIRMANCE

[1] ACTION FOR DIVORCE-ORDER FOR COUNSEL FEES AND TRAVELING EXPENSES OF ORDER.-Where the record on appeal from an order made in a divorce action requiring the husband to pay to the wife certain sums of money for counsel fees and traveling expenses shows that an affidavit made by the wife in a previous case between the parties for the same cause was received and considered by the court, but its contents are not stated, it must be assumed that it contined facts sufficient to support the order.

[2] ID. APPEAL REVERSAL-PROOF OF ERROR.-A judgment or order will not be reverseu unless error is shown and the burden is upon the appellant to show the error.

Appeal from the Superior Court of San Diego County-W. A. Sloane, Judge.

For Appellant-L. E. Dadmun.

For Respondent-G. F. Hoff, J. M. Chatterson.

At the time set for hearing the parties filed a stipulation that the cause might be submitted without oral argument.

Mr. Justice Shaw delivered the opinion of the court, Sloss, J. and Lawlor, J. concurring.

The court has examined the briefs and in the absence of the parties will proceed to determine the case without further delay.

[1] The action is brought by the husband against the wife, to obtain a divorce. The appeal is from an order made by the court during the progress of the case, requiring the husband to pay to the wife certain sums of money for counsel fees and for expenses in traveling from Michigan to San Diego to attend the trial. It is claimed on the part of the appellant, the husband, that the evidence taken by the court does not show any proof of the husband's abilities. In the condition of the record we cannot assent to this proposition. [2] The case comes within the principle, so often stated, that a judgment or order will not be reversed

unless error is shown and that the burden is upon the appellant to show the error. An affidavit of the wife was introduced and set out in full. It refers to and makes a part thereof another affidavit made by her in a previous case between the parties for the same cause. The record shows that the affidavit in the other case, which was referred to in the affidavit filed, was received and considered by the court, but the transcript does not set forth its contents. There is nothing in the record to show its contents or the facts it proved or tended to prove. Under the rule just stated, the court, on appeal, must assume that it contained facts sufficient to support the order of the court below. For that reason the order of the court will have to be affirmed.

The order is affirmed.

L. A. No. 3476.

Department One. April 20, 1915.

F. H. HECKER, Plaintiff and Appellant, v. MILES MORLEY and JAMES MORLEY, Defendants and Respondents.

[1] FRAUD-ACTION TO SET ASIDE CONVEYANCE-LACK OF INTENT TO DEFRAUD CONSIDERATION-FINDINGS UPON SUBSTANTIAL EVIDENCE -CONCLUSIVENESS ON APPEAL.-It is held in this action by a creditor to set aside a conveyance of property on the ground of fraud, that the findings upon substantial evidence that there was no intent to defraud and that there was a valuable consideration are conclusive upon the appeal.

Appeal from the Superior Court of Los Angeles County-L. T. Price, Judge.

For Appellant-Charles M. Ackerman.

For Respondents-H. C. Milsap.

Mr. Justice Shaw delivered the opinion of the court, Sloss, J., and Lawlor, J., concurring.

This was an action by a creditor of Miles Morley to set aside a conveyance of property by Miles Morley to James Morley, on the ground that the conveyance was made to defraud the plaintiff as a creditor of Miles Morley. The court found that there was no intent to defraud and that there was a valuable consideration and upon those findings gave judgment for the defendants. The plaintiff on his appeal makes the point, and this is the only point, that the evidence is not sufficient to sustain the findings.

[1] The only question being whether or not the findings are sustained by the evidence, the decision must go upon the familiar ground that an appellate court cannot interfere with the findings of the trial court where there is substantial evidence to sustain it. There is sufficient evidence here to support the findings of the court below. It is useless to recapitulate the evidence or state the reasons upon which the conclusions of the court may be upheld.

The judgment is affirmed.

L. A. No. 3493. Department One. April 22, 1915. HUGH WARRING et al., Plaintiff and Respondents, v. SOUTHERN PACIFIC BRANCH RY. CO. et al., Defendants and Appellants.

[1] ACTION TO QUIET TITLE-TITLE BY PRESCRIPTION-INSUFFI CIENCY OF EVIDENCE AS TO ONE PLAINTIFF-CLAIM OF OTHER PLAINTIFF NOT SHOWN-REVERSAL OF JUDGMENT.-It is held in this action to quiet title wherein the plaintiffs plead the narrow ground that they are the owners by prescription based upon adverse possession for the required length of time, that the evidence fails to show that continuous adverse possession without interruption that the law requires to constitute title by prescription as to one of the plaintiffs, and for that reason it is necessary to reverse the judg ment, and also that the record does not show the respective interests claimed or possessed by the two plaintiffs and because of that fact a decision cannot be made which will limit the judgment to the interest of the other plaintiff alone.

Appeal from the Superior Court of San Luis Obispo CountyE. P. Unangst, Judge.

For Appellants-Carpenter & Gibbons.

For Respondents-Lamy & Putnam.

Mr. Justice Shaw delivered the opinion of the court, Sloss, J., and Lawlor, J., concurring.

The plaintiffs have sued to quiet their title, pleading the narrow ground that they are the owners under title by pre scription, based upon an adverse possession for the required length of time. [1] The evidence in the record fails to show, as to Hugh Warring, that continuous adverse possession without inter ruption which the law requires to constitute title by prescription. For this reason it is necessary to reverse the judgment. The record does not show the respective interests claimed or possessed by the two plaintiffs and because of that fact we cannot make a decision which will limit the judgment to the interest of M. D. Warring alone, and it is necessary to reverse the entire judgment. The plaintiffs upon the going down of the remittitur should have leave to amend their pleadings. The claims are apparently not the same as they appear to be by the complaint and the allegations should be made to correspond to the facts as they claim them to be.

It is ordered that the judgment be reversed and the plaintiffs have leave to amend their pleadings as they may be advised.

L. A. No. 3471. Department One. April 22, 1915.

DOLLY CRIPE, Plaintiff and Respondent, v. SAMUEL CRIPE, Defendant and Appellant.

[1] ACTION FOR DAMAGES-ALIENATION OF AFFECTIONS OF HUSBAND -EVIDENCE-STATE OF HUSBAND'S FEELINGS TOWARD WIFE-DECLARATIONS OF HUSBAND TO DEFENDANT-EXCLUSION PREJUDICIAL ERROR.— In an action by a wife against her father-in-law for damages for the alienation of her husband's affections, declarations made by the husband to the defendant before the latter sought to bring about the separation of the plaintiff and her husband, tending to show

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