Kimball v. Superior Court

STURTEVANT, J.,

pro tem.

This is an application for a writ of review brought by the petitioner to have a judgment of contempt annulled. The alleged contempt arose in certain proceedings had in the case of

Seim

v.

Wilson.

In the amended

[762]

complaint, in that ease, on which the parties went to trial, it was alleged that Wilson held title for the plaintiff, Heim, of and to certain properties acquired by the defendant Wilson, under and by virtue of a grubstake agreement theretofore entered into by and between the plaintiff, Heim, and the defendant, Wilson. In the said amended complaint, Charles E. Kimball, this petitioner, John S. Kimball, and the WilsonKimball Mining Company (a corporation) were not made parties or, if they were, judgment was entered in their favor. A part of the property involved was a mine in Alaska. The trial court found for the plaintiff as to the existence of the trust and entered an interlocutory decree, in which it ordered that an accounting be had. The findings are silent as to what is the law of Alaska on the subject of trusts or on any other subject. There is no finding as to the title, if any, of J. S. Kimball (deceased), of Charles E. Kimball (this petitioner), or of the Wilson-Kimball Mining Company (a corporation), or whether either “purchased it in good faith and for a valuable consideration.” (Civ. Code, sec. 2243.) .

In short, as the case was made in the trial court, it presented the simple issue as to what Wilson had obtained and acquired under the grubstake—nothing more. Wilson’s vendees, who purchased in good faith and for a valuable consideration, are not responsible to the plaintiff, Heim. (Civ. Code, secs. 856, 2243;

Estate of Lyon,

163 Cal. 803, 805, 806, [127 Pac. 75] ;

Kowalsky

v.

Kimberlin,

173 Cal. 506, [160 Pac. 673].) In the absence of proof to the contrary, it is presumed that the laws of Alaska are the same as in California.