*1 experience construction I houses, of. had never bought a house before at all.” is affirmed.
Conrey, J., P. York, J., concurred. Appellate April 23, No. 3500. Third
[Civ. 1928.] District. DEAN, M. P. etc., NELL Administrator, Respondent, v. Appellant.
McNERNEY, *2 Fitzgerald, Beardsley Mellmann and & B. Abbott Fred Appellant. Carey Philip Respondent. M. and Marvin B. Sherwin for PLUMMER, twenty-seventh day J. January, On the of Dean 1925, Peter W. intestate city Oakland, died of leaving $8,000. of an estate the value of about This estate jewelry $7,720.66 certain of and also the sum consisted deposit city The Bank in on American Oakland. deposit, at death of This W. standing in McNerney. name of Nell Dean, was Dean, Peter W. the death P. Dean After M. estate,
appointed the administrator of his and after such appellant, appointment possession then who had to, possession jewelry referred the same to the plaintiff but refused plaintiff, to deliver or to turn plaintiff pass-books in over to the which was entered money deposit referred to as on the sum with The Ameri- plaintiff The can Bank. had above mentioned, and the Nell McNerney defendant appeals. interposed plaintiff’s
The two defenses to the first, action; deposit that the with The American Bank was what was left of the sum $8,000 theretofore given appellant deceased, Dean; Peter W. second, and, that transaction which came possession into McNerney Nell illegal, and that therefore parties the court would leave the where it found grant them and would plain- relief to the tiff herein. original answer of the plead did not testimony
illegality of transaction, after certain hut tending appel defense, such lant asked pleading, leave an file amended answer substance, establishing facts shown of the transaction. The trial court refused permission to file such amended answer, and this action is assigned as error. The appel trial court also refused the permission lant reintroduce which the record shows in substance and effect to be the same as the tes timony already that had been introduced into record. This to be introduced allegations of the amended answer as tendered court. The trial court found that there was no made Dean, deceased, Peter W. $8,000 *3 record, in against mentioned the and also found conten the illegality tion of the of the Upon appeal contract. this by appellant is conceded the that there is sufficient testi mony in finding the record to the of the court that gift, there was while at the insisting same time that the testimony record shows sufficient to a in gift, the accepted the event that court had testimony such as true. - Upon appeal we have question to do with the illegality of the contract. very The law is well settled that up where the defendant does not the illegal set defense of by ity, the made the plaintiff but or the defendant illegality, duty it becomes the court, shows the sponte, sua (6 refuse to entertain the action. Jur., p. to Cal. 162, sec. cited.) 111, cases there testimony The in this appellant the case which claims to show and which appellant to in the reintroduce connection with her answer, appearing in record, amended the duty it was the pass upon just court to though of the the same as the answer had testimony amended been filed and the in relation again admitted finding thereto into the record. The of the relation the to transaction is as follows: “That on the 15th of October, 1922, Dean, deceased, said Peter W. delivered to the Nell McNerney in defendant for safe- trust $8,000.66, and purpose, the sum of keeping for no other repay McNerney promised defendant that said Nell request upon his Dean, deceased, Peter W. sum to the said January 27, 1925, or That remained on demand. there McNerney from Nell possession of the defendant $7,720.66, which amount $8,000.66 sum of the sum Bank, deposit American with the defendant The now on de- corporation, in credit the name of and at together interest thereon McNerney, fendant Nell with finding per per January 1, This cent annum 1925.” from money question effect that is to the and for safekeeping, by appellant the deceased in ac- purpose, therefore was not delivered no other with the claim of the it was cordance consenting protecting house purpose of her as owner pur- illegal premises belonging her, use of delivery prior to the poses. The record shows that deceased, Dean, W. $8,000 Peter by
August 15, previously had entrusted aggregating custody money of a deposited all money been $4,264.19. That in her Bank San Francisco Hibernia representing name, money and the such own account of the appellant. name all carried record also The contains the number of a witnesses, which court, if believed the trial tended show, beyond if not establish controversy, in this case was either claim of outright given purposes to her given or was to her afterthought. was an of these protection witnesses, court, believed necessitated disregarding of setting aside absolute all the having appellant as ever to there Dean, having W. deceased, *4 custody, her and care, in control for other placed been just safekeeping, moneys previously for as than purpose custody, by control care, in her and deceased. placed the by appellant being the the It court, of the the trial sufficient alleged ruling consider error in us to the the for remains amended answer and the tes in relation to the the of sought be As introduced we timony thereunder. presents of
said, contract, the one by pleaded it must be considered the court whether un- pleaded. permit Hence, the refusal the court to of filing prejudice of an amended answer could work no appellant. to the going question
Before further into the as to the by stricken out the trial court and not allowed to stand in of answer, may the amended we state that record shows that the deceased W. Dean for a period engaged considerable of time in the business of bootlegging; liquors that he garage had stored situate premises belonging on the appellant, later on and of liquors by some stored used him in his business bootlegger in one of the occupied rooms in the residence appellant. by proposed amended recites answer garage by use of the storing liquors, for and, further, some during part the latter July early part of or the of August, month the month of 1922, appellant, upon returning her home, discovered the deceased had liquors stored some of the illicit one dwelling-house occupied by appellant. rooms spoke appellant concerning That the deceased same, and the deceased stated to that he would she would suffer loss see that reason of use his purpose premises storing liquors, said her and protected. see that she was That thereafter, would on day August, 1922, fifteenth said deceased appellant $8,000.66. That paid said deceased purpose protect- for against any loss reason use ing storing liquors, for premises that said de- her thereafter, twenty-seventh until continued ceased liquors January, premises belong- store illicit appellant. When the ing to the relation to reintroduced the defense tendered, colloquy a short ensued between the trial court
so just as to what was counsel claimed appellant in relation to In colloquy the transaction. questions “By direct answers: find the the Court: we paid running a bootlegging he you Do (counsel appellant) Mr. Mellmann : establishment?” might propositions, you two say rest on “We do not. We *5 money; he that gift of her a monéy, he made it; he title that actually transfer to intended and did These considerations moved certain considerations.” was ap- appear protection it would were claimed to be testimony of the then trial court heard pellant. The far as illegality, but so appellant in relation the fol- only it determined that shows, record can portion lowing It is the of such stricken out. was following in the words: answer of which is liquor, it afraid, “I when I was saw liquor said, ‘Pete, I I in the house.’ don’t want house. garage; I I didn’t want I mean when saw it didn’t me, said, He ‘You don’t need it in the house. said to Pete worry; you for a haven’t the evidence. Don’t think put posi- your yourself I will in a bad minute that home ” you. I care of.’ you will see are to hurt that taken tion interposed out this coun- A motion to strike answer plaintiff, appears to be the motion sel testimony. question then in relation to the granted granting arises, commit reversible error this did following A reference to the record shows that the motion? was introduced and allowed remain therein in which the character business the deceased had after engaged (Testimony ap- had been established. appellant): “Q. Questions by counsel he Was pellant. (referring deceased), engaged in the time that at Q. Yes. bootlegging business? A. You remember at liquor your Q. house? A. he Yes. he stored Was time storing liquor your garage? A. Yes. at ever, any time, you at state to Q. Did he what his reason Q. you? A. protecting At Yes. time before you anything state to Only did he about it? A. one began get I nervous on day liquor said—I account of the I said, ‘Pete, you I put house—and don’t in the want house; I they am liquor my afraid will take home caught.’ get said, he worry; I ‘Don’t I And will show you.’ Q. many days I will take care of you How before actually gave you he was this? A. He Q. at different times. When me was the last gave you before he or check conversation I subject? night A. The came home and liquor found the Maybe there, Q. When was that? A. a week before stored give that, Q. Dean one week before that. When did I you money? gave morning HeA. me on the deposited Q. you present it. Who besides and Peter ‘Nell, Nobody. Q. say you? Dean? A. A. What did he *6 this; put yourself your protection, take init bank for for anything happens
and if I am me, in ease over, help slang knocked will it bail me out.’ That is a phrase saying Q. over, it. In case I am knocked help was to bail me A. he, personally, out? all it. If Not By I am over, Q. way. knocked use it that over, you knocked what did If understand it to mean? A. Q. bootlegging? For arrested. A. Yes.” apparent It is thus that the trial court before illegality all it claimed to show purpose transaction, and the for which is claimed given by $8,000 was appellant. the deceased to the placed The court found that custody in the purposes for of safekeeping, no purpose, directly other which theory contradicts the paid money was protection, the statement counsel is direct effect paid made that the is permission bootlegging to run a establishment belonging premises to her. on the Had the court found with the accordance appears as it record, may be is gift, a sufficient and also sufficient to show transaction, finding of the whole but as the contrary sufficiently court supported, trial affirmed, must judgment and it is so ordered. J., pro Hart, tem., Acting
Jamison, P. J., concurred. rehearing petition for A this cause was denied following appeal May 23, court 1928, and district opinion rendered thereon: ruling THE COURT. The first of the court and transcript findings set fact as forth are determinative judge appeal. may What
upon colloquy counsel, is not said in somewhat extended controlling.
Rehearing denied. petition by
A heard in have the cause ap- supreme court, court of after the district peal, supreme denied ou 1928. June
All the concurred. Justices April 23, Appellate Third 3505. No. 1928.]
[Civ. District. SIMPSON, Respondent, NEW HARD FRANK v. YORK (a Corporation), Appel WARE TRADING CO. lant.