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sufficient to constitute a cause of action." The contention of appellant seems to be based upon the theory that the amended complaint contains no allegation that the roadway in question is a private road, and that the complaint does not state in any allegation whether the road in question is a private or public road. In support of the last proposition we are referred to the case of Grimes v. Linscott (not yet officially reported; decided May 24, 1895) 40 Pac. 421. In that case, there was a demurrer interposed, upon the ground of ambiguity and uncertainty, which was sustained. By failure to raise this objection by demurrer in the present case, it was, under section 434, waived. We are unable to agree with appellant in his deduction of facts from the amended complaint. Succinctly stated, the amended complaint avers that plaintiff and one J. P. Silva are now, and since October 27, 1884, have been, the owners and in the possession and enjoyment of a private right of way, for road purposes, over and along a tract of land, which is described by courses and distances and by metes and bounds, being 30 feet in width, and which was conveyed to them by Henry Curtner, by deed dated October 27, 1884, etc.; that plaintiff is the owner of a tract of land, containing 53 acres (describing it), used by him for farming purposes, and that his only means of egress and ingress thereto, and the only means of reaching any public highway therefrom, is by said private right of way described in the first paragraph of the complaint. Then follow allegations as to the ownership by defendant of 40 acres of land south of and adjoining the strip of land of plaintiff, 30 feet wide, as aforesaid; that the land on the north of said roadway is higher, etc., and the land of the defendant is lower, than the roadway; and that, down the slope to and over the roadway, and over the land of defendant, the surface water, which in the rainy season is in large volume, has been accustomed to flow, etc.; that defendant constructed an embankment upon said roadway, and upon his own land adjoining, whereby the surface water was prevented from flowing down, and was penned back on the roadway, rendering it unfit for travel, and destroying all connection by roadway from plaintiff's land to any county or public road, etc. The further allegations in relation to injury, etc., need not be stated. In all the complaint, we fail to find any intimation that the strip of land, and the private right of way thereon, is a public highway, or that the public has any easement or right therein or thereto. The complaint states a cause of action, and the demurrer was properly overruled.

2. It is further objected by appellant that the evidence is insufficient to justify or support either the first or ninth findings of fact. These findings are to the effect that the strip of land 30 feet in width was a private right of way for road purposes, held, possessed, and

enjoyed by the plaintiff and J. P. Silva, as tenants in common, and that the said roadway so obstructed by defendant was at all times, "and is, a private right of way, and is not a public road or highway, and never has been." The evidence tended to show that in October, 1874, one Henry Curtner, owner of a larger parcel of land, conveyed to plaintiff and his brother, J. P. Silva, a parcel thereof, consisting of 113.57 acres, and also a strip of land 30 feet wide as a right of way, for the purposes of a road extending from the land so conveyed to a public road or highway, which strip of land is accurately described by courses and distances. Plaintiff has succeeded by mesne conveyances to the ownership of the 53 acres of land described in his complaint. In 1887, defendant purchased from said Henry Curtner a tract of, say, 40 acres of land, which is described as "commencing at a point in the southerly line of road, known as the 'Silva Road,'" and running thence along the southerly line of said road, etc., and as being bounded "on the north by said Silva road," etc. Henry Curtner, the former owner, testified as to his sale of the right of way to plaintiff and J. P. Silva, and said he had never conveyed this right of way to the county, or to any person other than the Silvas. He added: "It is, in fact, used by whoever chooses to pass over it, as every one does on private roads,-go through them when they wish, generally pretty neighborly; * # * we let anybody go through that wishes it; it is an open thoroughfare. I don't shut up my place against no neighbors; there are no gates on it." Question: "Been used by the general public for years past?" Answer: "No, not by the general public, but those who have business in there," etc. Various of the witnesses spoke of the road as a public road or public highway, but generally without stating facts in evidence thereof, except that certain gates thereon had been removed; that the road was fenced, and that parties who have purchased land from Curtner bordering on the road have used it, or portions of it, to get to their land. All this was consistent with the idea of a license from plaintiff, and left the question of a dedication of the way to public use open to further inquiry. "No route of travel used by one or more persons over another's land shall hereafter become a public road or highway by use, or until so declared by the board of supervisors, or by dedication by the owner of the land affected." Pol. Code, § 2621. There is no claim that this road was ever declared a highway by the board of supervisors. It only remains, then, to inquire, did the owners thereof dedicate it to the public use? It is said that "if the donor's acts are such as indicate an intention to appropriate the land to the public use, then, upon acceptance by the public, the dedication becomes complete." Elliott, Roads & S. § 92. The question of intent is paramount, and, unless such intent expressly appears, or can be fairly inferred from the acts of the donor, there is no valid

dedication. People v. County of Marin, 103 Cal. 224, 37 Pac. 203. Tested by this rule, the court was justified in finding that the way in question never became or was a public highway, and that it was and is a private way. The findings are ample to support the judgment. The judgment and order appealed from should be affirmed.

We concur: BELCHER, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

(111 Cal. 233)

RUDOLPH et al. v. SAUNDERS, Constable. (No. 19,579.)

(Supreme Court of California. Feb. 3, 1896.)

ATTACHMENT-Validity-EVIDENCE.

A finding of invalidity of an attachment of growing crops, which can be attached only under Code Civ. Proc. § 542, subd. 5, by leaving with the person having such property in his possession, or under his control, a copy of the writ and a notice that the property is attached, will not be disturbed, the return failing to show that the officer served on defendant in attachment, who was in possession of and had the crops under his control, a copy of the attachment or notice that the property was attached, but merely stating that he attached the property "by taking in my custody," and the officer's testimony that a copy of the attachment and a notice, as required by statute, were served, being contradicted by the defendant in attachment.

on said 10th day of June, 1893, either levied, or attempted to be levied, upon the same property covered by plaintiffs' chattel mortgage, to wit, upon about 30 acres of growing beans, upon that portion of the Salsipuedes rancho known as the "James Wells Tract," being farmed to beans by said James S. McBride. If the writ of attachment was properly levied, its lien was prior to that of plaintiffs' mortgage, and the judgment should have been for defendant. If not prior to such mortgage, it became the duty of the defendant, as constable, when thereafter an execution was placed in his hands in the same case, and upon levying on the mortgaged property, to pay off plaintiffs' mortgage, as provided in sections 2968 and 2969 of the Civil Code, and, having failed to do so, the judgment is proper.

The return to the writ of attachment was as follows: "I hereby certify that under and by virtue of the within and hereunto annexed writ of attachment by me received on the 10th day of June, 1893, I did on the 10th day of June, 1893, attach the following described personal property in the possession of James McBride: Thirty acres of beans, more or less, now growing on the Salsipuedes rancho, on the land formerly farmed by James Wells, and attached the same by taking into my custody, and not putting a keeper in charge. N. Saunders, Constable." Subdivision 5 of section 542 of the Code of Civil Procedure provides that "debts and credits, and other personal property, not capable of manual de

J.

Commissioners' decision. Department 1. Ap- livery, must be attached by leaving with the

peal from superior court, Santa Barbara county; W. B. Cope, Judge.

Action by John Rudolph and another, partners, as J. & J. C. Rudolph, against J. N. Saunders. Judgment for plaintiffs. Defendant appeals. Affirmed.

W. I. Nichols, for appellant. Grant Jackson, for respondents.

SEARLS, C. This action was brought by the plaintiffs, as copartners, to recover from the defendant, as constable of township 5, county of Santa Barbara, $521.15, and interest, on account of certain beans levied upon by him under and by virtue of execution. Plaintiffs had judgment for $601.60, interests and costs, from which judgment, and from an order denying his motion for a new trial, defendant appeals.

One James S. McBride was indebted to plaintiffs upon a promissory note in the sum of $521.15, with interest at 12 per cent. per annum from the date thereof, viz. from June 8, 1893, and secured by a chattel mortgage executed by said McBride, under date of June 8, 1893, and duly recorded June 12, 1893. On the 10th day of June, 1893, a writ of attachment duly issued out of justice court, in an action therein pending against said mortgagor, James S. McBride, which writ of attachment was placed in the hands of the defendant as constable for service, and was by him,

person owing such debts, or having in his possession or under his control such credits and other personal property, or with his agent, a copy of the writ and a notice that the debts owing by him to the defendant, or the credits and other personal property in his possession or under his control, belonging to the defendant, are attached in pursuance of such writ." In Raventas v. Green, 57 Cal. 254, it was held that a growing crop is personal property not capable of manual delivery, and may be properly attached, when in the possession of the defendant in the attachment proceedings, by compliance with the subdivision of section 542 quoted above. The return of the constable fails to show that he served upon the defendant any notice that the property was attached, or that he served a copy of the attachment upon him. The return is not as full as that in Brusie v. Gates, 80 Cal. 462, 22 Pac. 284, which was held invalid. It is true that was an attachment upon real property, but the requirement of the statute in reference to a service of copy of the writ and notice is in such a case similar to the requirement in attaching personal property not capable of manual delivery; and the reasoning of that case is applicable to, and conclusive of the insufficiency of, the return in the case at bar. See, also, Watt v. Wright, 66 Cal. 202, 5 Pac. 91; Sharp v. Baird, 43 Cal. 579. Proceedings by attach

ment are statutory and special, and the provisions of the statute must be strictly followed, or no rights will be acquired thereunder. Gow v. Marshall, 90 Cal. 567, 27 Pac. 422, and cases there cited. It is true the return states that defendant attached the property "by taking in my custody"; but the property, being a growing crop, not capable of manual delivery, could only be attached by service of the writ and a notice as provided by subdivision 4, § 542, Code Civ. Proc.

The return of the constable was insufficient to show a valid levy of the attachment. To remedy this defect, and to show, not in contradiction of the return, but that the requisite acts in addition thereto essential to a valid levy were performed, defendant was permitted to testify, and did testify, that a copy of the attachment and a notice as provided by the statute were served upon McBride, the defendant therein. On the other hand, McBride was called as a witness on the part of plaintiffs, and testified pointedly that no notice of attachment whatever was ever served upon him. The finding of the court below is in favor of the plaintiffs, and, in the face of this marked conflict of evidence, we are not at liberty to disturb such finding. The judgment and order appealed from should be affirmed.

We concur: VANCLIEF, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

(13 Utah, 31)

PRATT v. PARSONS. (Supreme Court of Utah. Feb. 6, 1896.) CONSTITUTIONAL LAW-JURY TRIAL- UNANIMITY OF VERDICT.

The act of the legislature (Sess. Laws 1892, c. 4-1) which provides that in civil actions a verdict may be rendered by a concurrence therein of nine or more jurors does not conflict with article 7 of amendments to the constitution of the United States, which provides that in suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved. Hess v. White, 33 Pac. 243, 9 Utah, 61, followed.

(Syllabus by the Court.)

Appeal from district court, Third district; before Justice S. A. Merritt.

Arthur Pratt against E. H. Parsons. Judgment for plaintiff. Defendant appeals. Affirmed.

Rawlins & Critchlow, for appellant. Williams, Van Cott & Sutherland, for respondent.

BARTCH, J. This action was brought by the plaintiff to recover a certain amount which he claims is due him under the terms of a contract between him and the defendant. The case was tried before a jury consisting of twelve jurors, nine of whom concurred in rendering a verdict in favor of the plaintiff,

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Feb. 4, 1896.)

(Supreme Court of Utah. CONTEMPT-FAILURE TO PAY ALIMONY-Right of APPEAL-MODIFICATION OF DECREE-EVIDence.

1. A distinction exists, upon principle and authority, between that class of contempt proceedings wherein it is sought to vindicate the authority and dignity of the court, or where the contempts consist in the doing of a forbidden act injurious to the opposite party, wherein the process is criminal in its nature, and wherein conviction is followed by a penalty of fine or imprisonment. or both, which is merely punitive, and that other class of contempts where the proceeding is remedial in its nature and is intended for the benefit or advantage of the opposite party, to compel the doing, or omission to do, an act necessary to the administration of justice in enforcing some private right in a civil proceeding.

2. When contempt proceedings are instituted, after judgment, to enforce an order for the payment of alimony and costs for the benefit of the opposite party to a civil proceeding, such proceeding is civil and remedial in its nature, and an appeal lies under Comp. Laws 1888, § 3632, and section 3635, subd. 1.

3. The evidence presented on the trial of this cause held sufficient to support the judgment for the order of arrest.

4. Where the court below, on application, refused to modify the decree for alimony, on the husband's claim of his inability to pay the alimony allowed, and the further claim that a settlement had been made by the parties prior to the institution of divorce proceedings, held, that under section 2606, Comp. Laws Utah 1888, such question was one of fact, and that the evidence, though conflicting, was sufficient to support the judgment.

5. Any man attaining his majority, who voluntarily enters into the marital relation, should be willing to assume those ordinary and reasonable obligations of a husband which naturally follow and attend such relation. These duties require him to provide the wife and children with a reasonable maintenance and support during the continuance of such relation, and such as is commensurate with his means and station; and, in case of separation and divorce occasioned by his fault, he should not complain that the duties so assumed should be held a continuing obligation on his part. (Syllabus by the Court.)

Appeal from district court, Third district; before Justice George W. Bartch.

Bill by Geneva M. Snow against C. Edgar Snow for divorce. Defendant appeals from an order adjudging him guilty of contempt in refusing to pay permanent alimony. Affirmed.

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MINER, J. The record shows that on November 29, 1893, after a personal service of the summons, the respondent was granted a decree of divorce, and the custody of a minor child, and $10 per month alimony, payable monthly during her life as long as she remained unmarried, and also costs of suit. This decree was not appealed from, and the costs and alimony were not paid. In February, 1895, the respondent caused a copy of the decree, with demand for payment, to be served on appellant. On the 13th of February, 1895, plaintiff served notice, and took proceedings to modify the decree, by striking out the allowance of alimony. A hearing was had thereon. The motion was denied, and appellant was adjudged guilty of contempt of court for his refusal and neglect to pay the alimony allowed with costs, and was given 30 days time in which to purge himself of the contempt, or show cause why he should not be punished for such contempt. No cause being shown to the contrary, on May 2, 1895, the court ordered that a warrant of arrest issue, and that the appellant be committed to the custody of the marshal until he purge himself of such contempt. From these orders, made after the decree, this appeal is taken. Several grounds for reversal, based upon the insufficiency of the evidence, and an alleged former settlement between the parties, are also relied upon by appellant's counsel.

fore the grand jury, and testify in a criminal case, to leave the territory, and not appear as such witness. This court refused a writ of habeas corpus to review his commitment for contempt, when the trial court had jurisdiction. In Re Kelsey, 43 Pac. 106, decided at the last December term, this court refused a writ of habeas corpus to the relator, who was adjudged guilty of contempt by the trial court for refusing to pay a monthly allowance and costs of the proceeding pending divorce proceedings, and before judgment; the court holding that the order of conviction was an interlocutory order made pendente lite, and not a final juugment, from which an appeal would lie. In Ex parte Whitmore, 9 Utah, 441, 35 Pac. 524, this court held that an appeal would not lie from an order adjudging the appellant guilty of contempt, and imposing a fine for willfully and contemptuously violating the decree and injunction of the court in removing a measuring box placed in the channel of a stream for the purpose of measuring and diverting the water of the stream for irrigation purposes, in direct violation and disobedience of such injunctional order, holding this to be a criminal contempt, and therefore the order of conviction was not appealable. In this case the court carefully examined and discussed the question of civil and criminal contempt, holding that the proceedings in the case which culminated in the conviction and fine appealed from were for a criminal contempt, and were not instituted to bestow the damages to be recovered for the injury complained of upon the injured party, because his rights had been infringed upon, but that the proceeding had been brought in the name of the people, for the purpose of punishing the party who had contemptuously disobeyed and violated the direct order and command of the court; that the injured party obtained no pecuniary benefit from the order of conviction, and that, if he had any remedy for damages, it was not under this proceeding; that the fine, if paid, would go to the territory, and not to the injured party. The court said: "The act restrained had been done, and it was out of the power of the petitioner to undo it. The water had been appropriated by him, and the measuring box had been taken away and destroyed, in violation of the express order and command of the court. The main object of the proceeding was to vindicate the authority of the court. Where the contempt is such that it results in a violation of the rights of the public or of the rights of an indi

The first question presented by the appeal is whether an appeal will lie to this court from an order adjudging the appellant guilty of contempt in refusing to pay alimony and costs ordered by the court. Counsel for the appellant insists that the judgment for contempt was a civil proceeding, under section 3632, Comp. Laws Utah 1888, which provides that "a judgment or order in a civil action, except when expressly made final, may be reviewed as prescribed in this Code, and not otherwise"; and subdivision 1, § 3635, Comp. Laws Utah 1888, which provides that "an appeal may be taken from a final judgment in an action or special proceeding commenced in the court in which the same is rendered," authorizes the appeal in question. In the case of People v. Owens, 8 Utah, 20, 28 Pac. 871, this court held that it would not review proceedings in contempt when the court below had jurisdiction. In that case the court below ordered the party to produce in evidence certain records which he had in his possession, and he was adjudg-vidual, which have been adjudicated and fixed ed guilty of contempt in disobeying the order of the court, and a fine was imposed upon him, from which judgment he appealed. In Ex parte Whetstone, 9 Utah, 156, 36 Pac. 633, the defendant was convicted under section 725, Rev. St. U. S., in a criminal proceeding for contempt, for procuring a witness who was duly subpoenaed to appear be

by the court, and a punishment is imposed in the interest of public justice, and not in the interest of any individual litigant as a money indemnity, the offense is necessarily of a public or criminal nature, and is clearly covered and made punishable by our statutes as a public offense. In such cases, if a fine is imposed, its limit is fixed and determined by

the statute, and is not fixed by the injury demanded or sustained by the individual injured. The proceeds, when collected, go into the public treasury, and not for the benefit of the party injured." The contempt consisted in doing a forbidden act, that was not only injurious to the opposite party, but was a contemptuous violation of the express commands of the court. The process was therefore criminal in its nature, and the conviction was properly followed by fine and costs that did not exceed the sum that the court was authorized to impose, under Comp. Laws Utah 1888, § 3821, subd. 5, and section 3830. The fine is a punishment, and not an indemnity; and, if imprisonment is also imposed, it is in the interest of public justice, and becomes a penalty, and in no way becomes an indemnity to the individual injured. People v. Court of Oyer and Terminer, 101 N. Y. 248, 4 N. E. 259; State v. Davis (N. D.) 51 N. W. 942; State v. Giles, 10 Wis. 101; In re Murphey, 39 Wis. 286. In discussing the same subject, this court said: "There is another class of contempt proceedings, which are purely remedial in their character. This class embraces such contempt proceedings as were resorted to by a successful litigant in equity to secure the fruits of his litigation in case of the refusal of the defeated party to obey the order or decree made in such action. Such a proceeding, while in form a contempt proceeding, was never instituted primarily to vindicate the court's authority, but for the sole purpose of giving the successful suitor the fruits of his litigation." It is true that many states have enacted statutes regulating proceedings as for contempt in civil cases, and the decisions upon the subject are somewhat conflicting, and almost irreconcilable. Upon this subject the supreme court of Nevada, in Phillips v. Welch, 11 Nev. 187, says: "If the contempt consists in the refusal of a party to do something for the benefit or advantage of the opposite party which is ordered to be done, the process is civil, and he stands committed until he complies with the order. The order in such cases is not punitive, but coercive. If, on the other hand, the contempt consists in the doing of a forbidden act injurious to the opposite party, the process is criminal, and conviction is followed by a penalty of fine or imprisonment, or both, which is purely punitive. In the former case the private party alone is interested in the enforcement of the order; and, the moment he is satisfied, the imprisonment terminates. In the latter case the state alone is interested in the enforcement of the penalty. It is true the private party receives an incidental advantage from the infliction of the penalty, but it is the same sort of advantage precisely which accrues to the prosecuting witness in a case of assault and battery, the advantage being that the punishment operates in terrorem, and by that means has a tendency to prevent

a repetition of the offense. The principle of distinction between the civil and criminal processes for contempt here indicated, though not expressly recognized in any of the cases that have fallen under our observation, is entirely consistent with all the decisions, and is the only means of rendering them consistent with each other. It may therefore be considered established by them." Rap. Contempt, §§ 21, 22.

From a careful inspection of the authorities, it is evident that a clear distinction exists, both upon principle and authority, between that class of cases where it is sought to vindicate the authority or dignity of the court, or where the contempt consists in the doing of a forbidden act, injurious to the opposite party, wherein the process is criminal or of a criminal nature, and wherein conviction is followed by a penalty of fine or imprisonment, or both, which is merely punitive, and that other class of contempts where the proceeding is remedial, and intended for the benefit of the opposite party. to compel the doing or omission to do an act necessary to the administration of justice in enforcing some private right in a civil proceeding. This distinction between civil and criminal contempt is recognized in the following cases: Lester v. People (Ill. Sup.) 37 N. E. 1004; Lester v. Berkowitz, 125 Ill. 307, 17 N. E. 706; Howard v. Durand, 36 Ga. 346; Crook v. People, 16 Ill. 534; Phillips v. Welch, 11 Nev. 187; Tome's Appeal, 50 Pa. St. 285; Cobb v. Black, 34 Ga. 162; Hawley v. Bennett, 4 Paige, 163; Androscoggin & K. R. Co. v. Androscoggin R. Co., 49 Me. 392; State v. Knight (S. D.) 54 N. W. 412; Ruhl v. Ruhl, 24 W. Va. 279; Buck v. Buck, 60 III. 105; Robbins v. Gorham, 25 N. Y. 588; People v. Diedrich, 141 Ill. 669, 30 N. E. 1038. In the case of Lester v. People (Ill. Sup.) 37 N. E. 1004, the court said: "When the contempt consists of something done or omitted in the presence of the court, tending to impede or interrupt its proceedings or lessen its dignity, or, out of its presence, in disre gard or abuse of its process, or in doing some act injurious to a party protected by the order of the court, which has been forbidden by its order, the proceeding is punitive, and is inflicted by way of punishment for the wrongful act, and to vindicate the authority and dignity of the people, as represented in and by their judicial tribunals. In such cases, although the application for .ttachment, when necessary to be made, may be made and filed in the original cause, the contempt proceeding will be a distinct case, criminal. in its nature, and may properly be docketed and carried on as such, and the judgment entered therein will exhaust the power of the court to further punish for the same act and offense. Ex parte Kearney, 7 Wheat. 42; Cartwright's Case, 114 Mass. 238; New Orleans v. Steamship Co., 20 Wall. 392; Ingraham v. People, 94 Ill. 428. Cases of that character are clearly distinguishable from

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