Morris v. Cole

THOMPSON, J.

Judgment was rendered in favor of plaintiff that he recover from defendants $15,000, the purchase price of certain mining property, paid by plaintiff to defendants as the result of fraudulent representations made to him by them. A writ of attachment was issued upon the filing of the complaint and thereafter levied. The defendants made a motion to discharge the writ, which motion was denied. The appeal is from the judgment, from the order denying the motion to discharge the attachment, and there is a purported appeal from the order denying defendants’ motion for a new trial. Inasmuch as the last-mentioned order is not appealable, an order dismissing the appeal therefrom will be found at the end of this opinion.

In so far as the appeal from the order refusing to discharge the attachment is concerned, it apparently presents nothing but an academic question. The record dis

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closes that subsequent to the rendition of judgment a writ of execution was levied upon the attached property and it was sold thereunder. It does not appear from appellants’ brief or otherwise how any disposition that we might make of the order could materially affect the interests of the parties. It is a familiar rule of law that courts will not consume time and labor by attempting to decide moot questions, for which reason there will also be found at the end hereof an order dismissing the appeal from the order denying the motion to discharge the attachment.

Turning, therefore, to the appeal from the judgment, we discover that the court found that on February 5, 1931, the defendants owned a lease and option on certain mining property known as the “Twin Pines Placer lying about 400 feet above the Goodwin dam on the south bank of the Stanislaus river”, in Tuolumne County; that on that day and immediately preceding it the defendants represented to plaintiff and his agents that the earth and gravel therein “contained values of pure gold running* from $18.00 to l$20.00 per ton”; that they had run a drift or incline through a large deposit of gravel bn the property which yielded from $18 to $20 per ton; that plaintiff was denied time to prospect or mine within the property, and that defendants represented that they had “other parties standing ready and willing to purchase said lease or take a sublease thereon and pay $20,000 in cash for the same and if the plaintiff was to acquire the property he would have to take it immediately. It was also found by the court that defendants represented they had acquired from the owner of adjoining property the right to dump gravel taken from the mine upon Ms property; that they “had been tating from said property $100.00 per day or $3000.00 per month, and that such values had continued through thirty or forty feet of the workings; that they could not produce receipts for the values thus obtained from said property as they had shipped such values and disposed of the same through channels other than through the mint or bank as they did not want the people in the vicinity of said property or around Oak-dale to know of the rich values being taken from said property”. The findings also disclose that defendants represented that one of them, D. V. Cole, was an experienced mining man of twenty-two years’ experience and that the