FIRE INSURANCE (Continued). 3. NEGLECT OF OWNER - RIGHT OF MORTGAGEE TO PERFORM-CONSTRUCTION OF SECTION 2541, CIVIL CODE.-The provision of section 2541 of the Civil Code that where the mortgagor as insurer neglects the performance of acts necessary to the validity of the insurance, the mortgagee named in a policy as being entitled to indemnity in case of loss may perform them is restricted to acts "prior to the loss," which, if not performed, would avoid the insurance. (Id.) FIXTURES. See Public Works, 1. FORFEITURE. See Deeds, 2, 3; Mining Law, 9, 10; Unlawful Detainer, 3. FRANCHISES. WHARF FRANCHISE LIMITATION OF TERM-CONSTRUCTION OF CODE.The twenty-year limitation with reference to wharf franchises contained in section 2910 of the Political Code refers to the term of the grant and not solely to the right to take tolls. (Los Angeles v. Pacific Coast S. S. Co., 154.) FRAUD. RELIEF FROM FRAUD-BURDEN OF PROOF.-One who seeks relief from See Accident Insurance, 1, 8; Accounting, 3; Mortgages, 8, 15; FRAUDULENT REPRESENTATIONS. See Sales, 1. GAMBLING. See Criminal Law, 18 GIFTS. 1. GIFT OF COMMUNITY PROPERTY.-Community property may be given by a husband to his wife with like effect as his separate property. (McDuff v. McDuff, 53.) 2. RIGHT OF WIFE TO SUE HUSBAND-DAMAGES.-A wife may sue her husband to recover possession of property which became part of her separate estate by gift from him and for damages for the withholding thereof by him. (Id.) GUARANTY. See Mortgages, 13, 14; Promissory Notes, 3-5. GUARDIAN AND WARD. 1. AUTHORITY TO DRAW CHECKS PRIOR TO ISSUANCE OF LETTERS.— After the order appointing a given person guardian of the person and estate of an incompetent person has been duly made and entered and the bond in the amount specified in such order has been presented, approved, and filed, such person has authority, as guardian, to draw checks on the account of such incompetent, notwithstanding the oath of office is not taken and letters of guardianship are not issued to him until two days later. (Southern T. & C. Bk. v. S. D. Sav. Bk., 294.) 2. SUPERSEDEAS-RESTRAINT OF GUARDIAN FROM ACTING PENDING APPEAL FROM ORDER APPOINTING AFFIRMANCE OF ORDER-DISMISSAL OF PETITIONS FOR RESTRAINING ORDERS.-A petition by a person adjudged incompetent to secure a restraining order restraining the person appointed guardian of his person and estate from intervening in and the superior court from proceeding further with a certain action pending in said court, pending the hearing of an appeal from the order appointing such guardian, will be dismissed where the order appointing such guardian has been affirmed. (Bundy v. Barnes, 746.) See Statute of Limitations, 1. HABEAS CORPUS. CONVICTION ON INSUFFICIENT COMPLAINT RIGHT TO DISCHARGE.-Where there is an entire failure of the complaint in a justice court to state an offense, a defendant, even after conviction, is entitled to his discharge upon a writ of habeas corpus. (In re Capanna, 501.) See Criminal Law, 34; Juvenile Court Act, 1; Municipal Corporations, 6, 7. HARBORS. See Tide-lands, 1, 2. HUSBAND AND WIFE. See Accident Insurance, 2; Ejectment, 2-4; Gifts, 1, 2; Negligence, 27; Quieting Title, 1. INCOME. See Accident Insurance, INCOMPETENT PERSONS. See Guardian and Ward, 1, 2. INDEMNITY INSURANCE. See Motor Vehicles, 3, 4 INJUNCTION. 1. ACTION INVOLVING POSSESSION OF PROPERTY-SOURCE OF TITLEAPPLICATION FOR OR TO DISSOLVE RESTRAINING ORDER-PLEADING. On an application for a restraining order or an appli INJUNCTION (Continued). cation to dissolve such an order, where previously made, affecting the right of the party in possession to use a given property pending the determination of the question of ownership or the right to the possession of the same as between litigants in an action brought for that purpose, it is not indispensably essential that the source of a party's title to the property should be shown. It is sufficient, if the court before which it is made accepts it, if it be made to appear therefrom that the party making the application denies the adversary party's ownership of or right to the possession of the property as to which the application for a preliminary injunction or the dissolution of a restraining order is made, and it further is likewise made satisfactorily to appear that the applicant for or against the temporary relief sought has some claim of right to the property involved or the possession thereof. (Schwartz v. Arata, 596.) 2. DISCRETION OF TRIAL COURT.-Whether in a particular case a restraining order or an injunction pendente lite should be granted or refused is a matter resting largely in the discretion of the trial court before which the application is made and heard. (Id.) 3. EXTRAORDINARY POWER OF TRIAL COURT-WHEN PROPERLY EXERCISED. The power to grant temporary or provisional relief to litigants by way of a preliminary injunction is an extraordinary power and is to be exercised always with great caution, and in those cases only where it fairly appears upon all the papers presented that the plaintiff will suffer irreparable injury if it be not issued, or that it is necessary to preserve the estates of the parties, or some sufficient cause showing that need of hasty action exists. (Id.) 4. RESISTANCE TO MOTION VERIFIED ANSWER OR AFFIDAVITS SUFFICIENT SUPPORT.-Resistance to a motion for a preliminary injunction pending the determination of the litigation may be supported either by a verified answer or by affidavits. (Id.) 5. REFUSAL OF PRELIMINARY INJUNCTION-DISCRETION NOT ABUSED.In this action involving the right of possession of certain lands from which the defendants were extracting minerals, the defendants, by their affidavits, having disputed the plaintiff's ownership and right of possession of the property and set forth their own right of possession, and reinforced such declaration by the further statements, which were not denied, that, with the actual knowledge of plaintiff for several months prior to the hearing of the application for the preliminary injunction, they had expended large sums of money in equipping the property with machinery and other works so that the mineral ore therein deposited could be properly and profitably extracted therefrom, and that they were solvent and able to respond in damages should judgment be had INJUNCTION (Continued). against them, the trial court did not commit an abuse of discretion in refusing to grant a preliminary injunction and in dissolving the temporary restraining order. (Id.) See Equity, 2; Rel-light Abatement Act, 2, 3. INSTRUCTIONS. QUESTIONS OF FACT — ABSENCE OF PREJUDICIAL ERROR. — An instruetion upon a question of fact forbidden by article VI, section 19, of the state constitution is not sufficient to require a reversal of the case where the evidence offered to prove such fact is uncontradicted and it does not appear from an examination of the entire record that such error resulted in a miscarriage of justice. (Hoffman v. Pacific Electric Ry. Co., 751.) See Appeal, 2, 14; Common Carriers, 3; Criminal Law, 26; Employer and Employee, 7; Negligence, 9-11, 31, 42, 44, 46; New Trial, 1. INSURANCE. See Accident Insurance; Fire Insurance; Indemnity Insurance. INTENT. See Criminal Law, 32; Deeds, 10; Vendor and Vendee, 3. INTEREST. See Promissory Notes, 1. INTERVENTION. See Sureties, 2. INTOXICATING LIQUORS. See Counties, 7, 9, 12, 13, 25. ISSUES. See Accounting, 1. JOINDER. See Pleading, 12. JUDICIAL NOTICE. See Counties, 20; Evidence, 3, 6. JUDGMENTS. 1. WHAT DEEMED ADJUDICATED WHERE FINDINGS WAIVED.-In the absence of findings, only those issues which were actually and necessarily included in the judgment, or necessary thereto, are deemed adjudicated. (McDuff v. McDuff, 53.) 2. JURISDICTION-JUDGMENTS OF SISTER STATES-EVIDENCE-The provisions of article IV, section 1, of the constitution of the United States, that "Full Faith and Credit shall be given in each state to the . . . judicial proceedings of every other state," and of section 1913 of the Code of Civil Procedure that "the effect of a judicial ... 1 JUDGMENTS (Continued). record of a sister state is the same in this state as in the state where it was made," establish a rule of evidence, rather than of jurisdiction, and while they make the record of a judgment, rendered after due notice in one state, conclusive evidence in the courts of another state, or of the United States, of the matter adjudged, they do not affect the jurisdiction, either of the court in which the judgment is rendered or of the court in which it is offered in evidence. (Anthony v. Tarpley, 72.) 3. RIGHT TO RE-EXAMINE FOREIGN JUDGMENTS.-Judgments recov. ered in one state of the Union, when proved in the courts of another government, whether state or national, within the United States, differ from a judgment recovered in a foreign country in no other respect than in not being re-examinable on their merits, nor impeachable for fraud in obtaining them, if rendered by a court having jurisdiction of the cause and of the parties. (Id.) 4. WANT OF JURISDICTION-IMPEACHMENT OF FOREIGN JUDGMENT.Jurisdiction must exist as a fact; and the record of a judgment rendered in another state may be collaterally impeached by extrinsic evidence showing that the facts necessary to give the court pronouncing it jurisdiction did not exist, although the record sought to be impeached may recite the jurisdictional facts. (Id.) 5. APPEAL JUDGMENT BY CONSENT.-As a general rule, a judgment by consent will not be reviewed on appeal. (Peterson v. Holder, 278.) 6. DEFAULT-APPLICATION FOR RELIEF-SHOWING REQUIRED.-Where a party in default makes seasonable application to be relieved therefrom, and files an affidavit of merits alleging a good defense, and the plaintiff files no counter-affidavit and makes no showing that he has suffered any prejudice or that injustice will result from the trial of the case upon its merits, very slight evidence will be required to justify a court in setting aside the default. (Id.) 7. RELIEF FROM MISTAKE OF LAW. Relief from default can be granted notwithstanding the mistake through which the default arose was a mistake of law. (Id.) See Accounting, 2-4; Chattel Mortgages, 2; Conversion, 3; JURIES AND JURORS. See Criminal Law, 20; Negligence, 8; New Trial, 7; Pleading, 7. JURISDICTION. See Counties, 11; Divorce, 2-4; Judgments, 2, 4; Juvenile Court Act, 2; Mandamus, 1; Municipal Corporations, 7; Parent and Child, 2; Prisons, 5, 6; Summons, 1; Superior Court, 1. |