Hobbs v. Duff

By the Court,

Rhodes, J.: A concise and accurate history of the litigation out of which this suit grows, is given in the report of Hobbs v. Duff, 23 Cal. 596, which was an appeal from the preliminary injunction, which, by the decree from which this appeal is taken, was made perpetual. On that appeal most of the questions going to the merits of this controversy were decided. It was then held that the plaintiffs were not estopped, either by the judgment in Duff v. Fisher, or by the judgment in Duff v. Hobbs, or by the judgment in Duff v. Goddard, from showing that William R. Duff was only a trustee for Ryan & Duff. It was also held that there was a sufficient consideration to support the assignment of the unsatisfied balance of the judgment of foreclosure in Fisher v. Ryan; that this action in equity could be maintained, although in the action at law on the appeal bond—Duff v. Hobbs—the defendants attempted, but failed, to set off the balance due on the judgment of foreclosure, against the demand on the appeal bond; that the proceedings in Duff v. Hobbs imparted notice to Joseph! of the set-off claimed by the present plain‘tiffs, and that without regard to the question of notice, he took his assignment, subject to the plaintiff’s right to such set-off; that if William R. Duff is a mere trustee for Ryan and J. R. Duff, he is not injured by the set-off, and that the latter are not injured, for the set-off satisfies a portion of their indebtedness. Other points were decided, about which no question is now made. The decision on the points above mentioned, became the law of the case.

Objection is taken to the depositions of Buhne et al., on the ground,that no notice of their taking was shown. It was proven by oral testimony that the notice was given to the [489]attorneys of ¥m. B. Buff; and no reason is given why the proof of service may not be m;:de in that manner as well as by affidavit. It is also shown by an affidavit that the notice was served on the attorneys for Win. B. Buff and Josephi.

The defendants interposed objections to the larger portion of all the questions which were propounded by the plaintiffs to Buhne and others, and they now rely upon all those objections, and specify particularly a number of questions which were asked of each witness; but they do not undertake to show wherein the questions were objectionable. The statement shows that all the objections found in the depositions were presented to the Court, and were overruled. It will suffice to advert to the character of some of those questions, in classes, without taking them up in detail. Questions were asked of the witnesses to show that William B. Buff acquired the title to one of the mills and the steam-tug—portions of the property which was sold at the foreclosure sale. That was the theory of the defendant’s case, and it could do them no injury to prove the fact by oral testimony. The record in Duff v. Fisher was better evidence of such fact; but the record was introduced in evidence, and as the oral evidence did not add to, vary, or contradict the record in the respect mentioned, no injury resulted to the defendants from its admission. The testimony of those witnesses, going to show that Wm. B. Buff" acquired the possession of such property and that he leased the mill to certain persons, instead of injuring the defendants rather strengthened their position, as it tended to show that he was in fact the owner of the mill. Evidence as to the pecuniary standing and ability of William B. Buff, was competent on the issue, as to whether he was in equity the owner of the property, the title to which was taken in his name. Testimony showing that Byan and J. B. Buff, or either of them, par