Bassford v. Earl

HENSHAW, J.

Plaintiff's complaint charged that proceedings had been pending to foreclose a mortgage upon his ranch in Solano County; that defendant, Edwin T. Earl, proposed to plaintiff that he would purchase the land at the foreclosure sale for the benefit of plaintiff, and would thereafter deed the property to him, taking a mortgage for the amount which he might have expended; that plaintiff carried out the conditions so far as he was concerned, but the defendant has repudiated the agreement. Plaintiff expressed his willingness to pay all that might be found due, and prayed that Earl might be considered as a mortgagee and that there should be an accounting between plaintiff and the defendants, Edwin T. Earl, the Earl Orchard Company, and the Earl Fruit Company of the rents, issues, and profits of the land. The action was in equity, and the judge called in a jury from which advisory verdicts were received. The jury found that the defendant Earl did state to plaintiff Bassford that if the latter “would obtain deeds from all his brothers and sisters to the property in ques-, tion to himself, and that if he would execute a deed therefor to the defendant, Earl, he, Earl, would advance the money to buy in said property at sheriff’s sale, and upon obtaining the

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sheriff’s deed therefor would deed back to the plaintiff said property and take a mortgage for the amount so advanced by him.” The judge set aside this and the other findings of the jury on defendants’ motion, and gave judgment for defendants. A motion for new trial was made, and the bill of exceptions to be used thereon was pending settlement, the papers being actually in the office of William M. Cannon, attorney for plaintiff, in San Francisco. They were destroyed by the fire following the earthquake. A motion to dismiss this motion for a new trial for lack of diligence in prosecuting it was brought to a hearing before Judge Harrier, then occupying the bench of Solano County, and, amongst other evidence, was presented an affidavit made by Judge Buckles, the judge who presided at the trial of the cause, which affidavit was offered as tending to show lack of diligence on the part of plaintiff’s attorney. It was shown, moreover, that the reporter who took the notes of the trial was dead, and question having arisen as to the possibility, practicability, and cost of having these notes read and transcribed by another reporter, the hearing of the motion was continued, and, in fact, it was never decided by Judge Harrier. On May 14, 1907, plaintiff filed another motion for a new trial under the act of 1907 (Stats. 1907, p. 998). Judge Buckles had returned to the bench. Plaintiff’s attorney wrote to him, suggesting that he call in another judge to hear and determine the further proceedings in the case, but his letter remained unanswered. Subsequently a formal motion was made upon affidavit for this purpose, and upon the eighteenth day of December, 1909, it was denied by Judge Buckles. Thereafter, on the 20th of January, 1910, he dismissed plaintiff’s two pending motions for new trial. These appeals are taken from these orders.