defendant have such other and further relief as may be proper in the premises, and recover her costs herein. [Verification.] Charles G. Lamberson, and Attorneys for defendant. § 467. JUDGMENTS [OR DECREES]. FORM No. 1082-Confirming deed, and quieting defendant's title thereunder. -Action to cancel deed alleged to have been executed under undue influence. (In Hemenway v. Abbott, 8 Cal. App. 450; 97 Pac. 190.) [Title of court and cause.] This cause came on regularly for trial, before the court, without a jury, on the 18th day of September, 1906. Messrs. Lippitt & Lippitt appeared as attorneys for the plaintiff, and Charles G. Lamberson appeared as attorney for the defendant; and the court having heard the testimony, and having examined the proofs offered by the respective parties, the cause having been argued by briefs submitted by the respective parties, and the court being fully advised in the premises, and having filed herein its findings of fact and conclusions of law, and having directed that judgment be entered in accordance therewith; now, therefore, by reason of the law and findings aforesaid: It is hereby ordered, adjudged, and decreed: That the plaintiff take nothing by this action; that the deed made by George W. Proctor to defendant, set out in the complaint herein, is good and valid; that the plaintiff has no estate or interest whatever in or to the lands and premises described in the complaint herein, to wit: [Here follows description of said property], either as administratrix with the will annexed of the estate of said George W. Proctor, deceased, or otherwise, and that the title thereto is good and valid; that the plaintiff be and she is forever enjoined and restrained from asserting any claim whatever in or to the said lands and premises adverse to the defendant; that the defendant have judgment against the plaintiff for her costs herein expended, hereby taxed at the sum of $ Dated, December 13, 1906. M. L. Short, Judge of Superior Court. FORM No. 1083-Annulling deed, and quieting plaintiff's title as against the same.-Action for cancelation of forged deed. (In Angus v. Craven, 132 Cal. 691; 64 Pac. 1091.) [Title of court and cause.] This cause having been regularly called and tried before the court sitting as a court of equity upon the equitable issues raised herein by the answer of the plaintiffs filed March 8, 1897, the cross-complaint of the defendant Nettie R. Craven, filed February 26, 1897, and upon the equitable issues joined herein between the intervener, Virginia Fair, and the defendant in said intervention, Nettie R. Craven; the defendants George R. Williams, Stephen Roberts, and Elizabeth Haskins having filed herein their written disclaimer, disclaiming any interest of any nature or description in or to the premises described in the complaint herein, or any part thereof; default of the defendant Marc Livingston having been duly entered of record for failure to appear or answer to the complaint of the plaintiffs herein, and the default of the defendants Elizabeth Haskins, Stephen Roberts, George R. Williams, and Marc Livingston, for failure to answer to the complaint in intervention having been duly entered of record, and the action having been dismissed as to the defendants sued under the fictitious names of John Doe, Richard Roe, Jane Doe, and Mary Roe, and the court having made and rendered its decision, and the findings of fact and conclusions of law having been filed herein, whereupon the plaintiffs and the intervener were awarded a decree that the deeds and the certificates of acknowledgment attached thereto, referred to in said findings, and the records thereof, are null and void, and removing the same as a cloud upon title, and that the said defendant Nettie R. Craven has no right, title, interest, claim, or demand of any nature against the premises described in said findings, or any portion thereof, and that the said defendant Nettie R. Craven is, and all persons claiming through or under her are, forever debarred, restrained, and enjoined from asserting or pretending that the alleged deeds are, or either of them is, valid or genuine, and from claiming or asserting any right or title to the said premises, or any part thereof, under said deeds, or either of them, and further awarding to the plaintiffs and intervener a judgment for their costs. It is now further hereby ordered, adjudged, and decreed, that the said deeds and the said certificates of acknowledgment referred to in the pleadings herein and in said findings, and the records thereof, are, and each of them is, null and void, and that the same be and they are hereby removed as a cloud upon the title to the property described in said findings; that the defendant Nettie R. Craven has no right, title, or interest in, nor any claim or demand of any nature or description against, the said described premises or any part thereof, and that all persons claiming through or under her be and they hereby are forever debarred, restrained, and enjoined from asserting or pretending that said alleged deeds are, or either of them is, valid or genuine, or from claiming or asserting any right or title to the said premises, or any part thereof, under the said deeds, or either of them. Said premises are bounded and described as follows, lying and being in the city and county of San Francisco: [Here follows description of said property as the same appears in the complaint.] And it is hereby further ordered, adjudged, and decreed, that the plaintiffs and intervener do have and recover their costs herein, taxed at $3,849.50, against the defendant Nettie R. Craven. Dated December 1, 1897. Charles W. Slack, Judge. § 467. ANNOTATIONS. Cancelation distinguished from reformation.-Pleading.-A distinction must be observed between suits for reformation and suits for cancelation and rescission of a contract. In the former suits there must be shown not a mere mistake on one side, but a mutual mistake, or what is equivalent in the law to a mutual mistake, and, in addition, an enforceable contract of the tenor and terms sought to be established by the suit for reformation. On the other hand, cancelation or rescission proceeds upon the ground that there is no contract between the parties by reason of the mistake or fraud. Relief on evidence showing mistake may be had under a bill. the gravamen of which is fraudulent representation and undue influence, although the bill does not denominate the transaction as being one produced by mistake: Moehlenpah v. Mayhew, 138 Wis. 561, 119 N. W. 826, 830; Kyle v. Fehley, 81 Wis. 67, 51 N. W. 257, 29 Am. St. Rep. 866. Parties. In an action to cancel a deed of trust, beneficiaries are not necessary parties defendant, since their interest is fully represented by the trustee: Watkins v. Bryant, 91 Cal. 492, 27 Pac. 775. TITLE XVII. Miscellaneous Civil Proceedings. Page Chapter CXXXIII. Summons and Citation.-Jurisdiction.... 1803 CXXXIV. Change of Place of Trial or Venue, Generally. Removal of Causes to Federal 1828 CXXXVI. Notices, Motions, and Orders..... CXLIII. New Trials, Appeals [and Writs of Error] 1902 Form No. 1084. Judgment demanded. (California.) § 470. Certificates, orders, etc. 1805 ..... Form No. 1086. Sheriff's certificate of service of summons. 1805 Form No. 1088. Order extending time to answer after decision Form No. 1089. Affidavit as basis of order for service by pub Form No. 1091. Order for citation to executor upon applica tion by creditor 1807 Form No. 1092. Acknowledgment of service of citation.... 1808 Form No. 1093. Citation to executor and surviving widow to not be reduced Form No. 1094. Order sustaining demurrer to petition and dis- § 472. Annotations . ... .... 1808 1809 1510 § 469. SUMMONS. FORM No. 1084-Judgment demanded. (California.) [Title of court and cause.] The people of the state of California send greeting to defendant: You are hereby directed to appear and answer the complaint in an action entitled as above, brought against you in the superior court of the state of California, in and for the county of , within days after the service on you of this summons, if served within this county, or within thirty days, if served elsewhere. *And you are hereby notified that unless you so appear and answer as above required, the plaintiff will take judgment for the sum of $ as demanded in the said complaint, as arising upon contract, and for costs.* Given under my hand and the seal of the superior court of the state of California, in and for the county of this day C. D., Clerk. By E. F., Deputy Clerk. [Endorsed with name of the attorney for the plaintiff, and, if served and returned, with certificate as in form No. 1086, or affidavit as in form No. 1139, and date of filing.] FORM No. 1085-Alternative relief. (California.) [Title of court and cause.] [As in preceding form, except in the place of the paragraph starred thus (**) insert the following paragraph:] *And you are hereby notified that unless you so appear and answer as above required, the plaintiff will take judgment for any money or damages demanded in the complaint as arising upon contract, or will apply to the court for any other relief demanded in the complaint [etc.].* |