tiff's behalf. This he declined to do, and the judge said: "By producing those witnesses and putting them on the stand you would be only accumulating those facts; you have established those facts." Obviously the court was merely calling plaintiff's attention to the circumstance that even if the requested stipulation were made it would have no original force, but would be merely in the nature of cumulative evidence. Plaintiff's claim of title rests upon the following asserted facts: (1) That the 50-vara lot is within that area on Point San Jose or Black Point in the city and county of San Francisco reserved for public purposes by proclamation of the President of the United States dated November 6, 1850; (2) that when by act of Congress of July 1, 1870, c. 197, 16 Stat. 186, this land was relinquished to the city and county of San Francisco in trust to convey to actual bona fide possessors such parcels as were severally held by them, Thomas Lea was in such actual bona fide possession of the property here in dispute; and (3) that said Thomas Lea had held possession of such lot of land until plaintiff took it under a deed from Lea. Defendant established a record title deraigned from the pre-emption claim of J. H. Rickett. His proof of title showed possession by Rickett on or about June 5, 1850, five months before the presidential proclamation upon which plaintiff depends. There was no formal finding that the property was not within the area covered by the said proclamation and the act of 1870 to which we have heretofore referred, but as the court accepted defendant White's proof of title, including certain maps, doubtless the conclusion reached was that the property lay outside of the former reservation by the United States government on Point San Jose and not within that area, as plaintiff attempted to prove, according to a map made by Mr. Riley who was not an engineer and who admitted that his drawing was made up from information gleaned from a certain "Spring Valley Water Company's Map." In admitting this diagram for what it was worth the court remarked that it had very little value. [1] There was considerable testimony on both sides with reference to the alleged occupancy of the property by Lea and his widow. Without reviewing it we may simply say that in view of the conflict of testimony there was sufficient evidence to justify the court's conclusion that neither Lea nor his widow nor Galvin ever occupied this lot for a period of five years. For many of the years covered by the statements of the witnesses the streets in the vicinity of this tract were not definitely marked. Some of defendant White's witnesses testified that Lea occupied the 50-vara lot at the corner of Buchanan and Chestnut streets, and not the lot here in litigation which had frontages on Chestnut street and Magnolia avenue, its westerly line being 137 feet 6 inches west of Buchanan street. It may well have been that, owing to the lack of graded streets in the earlier years, some of the witnesses may have been misled as to the exact location with reference to Buchanan street of the lot upon which Lea's house stood. But whether such was the fact or not, certain it is that there was abundant testimony to justify the court's conclusion regarding the occupancy of the land in question. Thomas Haley testified that in the latter part of 1870 Lea lived on a 50-vara lot at the corner of Chestnut and Buchanan streets. True, this was after the act of Congress upon which plaintiff relies, but it is nevertheless significant. W. E. Haley testified that from 1868 to 1878, Mr. Lea lived on a 50-vara lot at the corner of Buchanan and Chestnut streets, his house being about 100 feet west of Buchanan street. C. D. Harper and E. S. Ring, whose recollections extended as far back as 1868, gave similar testimony. But the most significant evidence was that offered by defendant by which it was shown that the 50-vara lot on the southwest corner of Buchanan and Chestnut streets was conveyed to Thomas Lea by William Barber on March 13, 1863, and that the same William Barber on March 25, 1863, conveyed the adjoining lot, the one in controversy, to S. H. Dwinelle. This is part of the record title now resting in defendant White. It is hardly probable that two men should have bought from the same grantor adjoining property within a fortnight and that one should be maintaining possession of both lots. It was also shown that in 1868 Thomas Lea conveyed the corner lot to Anne Wilson (afterwards his wife). It may be and doubtless is true that Thomas Lea was for many years the only resident on the block of land upon which the lot in question is situated, but this did not constitute possession of the whole block. It was shown that defendant White by his agent contracted for and paid for the grading of the lot, fenced it, and for more than five years paid all the taxes levied upon it. [2] Even if it were conceded that the property was in the Point San Jose Military Reservation, the plaintiff having failed, as the court found, to establish possession by Lea of the 50-vara lot west of the one occupied by him at the corner of Buchanan and Chestnut streets, it follows that Lea was not a beneficiary under the act of Congress of July 1, 1870. Plaintiff under assertion of title as his grantee cannot therefore attack defendant's title or possession collaterally. Palmer v. Galvin, 72 Cal. 186, 13 Pac. 476. It follows from the foregoing that the judgment and order must be affirmed, and it is so ordered. We concur: HENSHAW, J.; LORIGAN, J. (159 Cal. 778) (L. A. 2,531.) SHELDON V. LANDWEHR. (Supreme Court of California. May 20, 1911.) 1. CONTINUANCE (§ 7*)-APPEAL AND ERROR (966*)-DISCRETION OF Court. An application for continuance because of the absence of witnesses is addressed to the sound discretion of the trial court, and its refusal is not ground for reversal, unless the trial court clearly abused its discretion. SLOSS, J. Judgment went for the plaintiff in this action to recover the balance claimed to be due on four promissory notes. and from an order denying his motion for a The defendant appeals from the judgment new trial. The only point made by the appellant is that the court erred in denying his motion for a continuance. It appears that, when the case was called for trial, the attorney for defendant stated to the court that he appeared [Ed. Note.-For other cases, see Continuance, Cent. Dig. 88 17, 18; Dec. Dig. 87; Appeal and Error, Cent. Dig. 3837; Dec. Dig. specially to ask for a continuance on the 966.*] 2. CONTINUANCE (§ 19*)-ABSENCE OF PARTY. The unavoidable absence of a party to an action, who is also a witness, does not compel the trial court to grant a continuance, but it should be granted or refused according to the court's sound discretion with consideration to the good or bad faith of the application. [Ed. Note. For other cases, see- Continuance, Cent. Dig. 88 41-48; Dec. Dig. § 19.*] 3. CONTINUANCE (8 49*)-RIGHT TO A CON TINUANCE-CONDITIONS. Where the defendant's physician made an affidavit that defendant would be unable to appear at the trial in less than a month, and the plaintiff had attached mining stock of the defendant in a company controlled by the defendant, and which stock was advertised to be sold within three weeks for failure to pay an assessment, and the plaintiff's attorney as well as the court agreed to a continuance if this sale was postponed, a concession which the defendant's attorney refused to make, a continuance was properly refused, though defendant was an important witness in his own behalf. [Ed. Note. For other cases, see Continuance, Cent. Dig. §§ 143-145; Dec. Dig. § 49.*] 4. TRIAL (8 6*)—NOTICE OF TRIAL-STATUTE. Code Civ. Proc. § 594, providing that either party may bring an issue to trial in the absence of the other party, provided, if the is sue be one of fact, proof must be made that the adverse party has had five days' notice of such trial, has reference to ex parte proceedings to secure defaults, and does not apply to those cases where both parties are represented when called for trial; and hence, where a defendant and his attorney had had sufficient notice for them to prepare for trial, it was not error for the court to proceed with the trial, though the defendant was not given formal notice of trial where the only reason for a continuance was that the defendant was absent, and necessarily would be for about a month. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 13-18; Dec. Dig. § 6.*] 5. APPEARANCE (§ 9*)-SPECIAL APPEARANCE -WAIVER. Where an attorney appeared specially to apply for a continuance, and, on the motion for a continuance being overruled, remained and participated in the trial, he waived his special appearance. [Ed. Note.-For other cases, see Cent. Dig. §§ 42-52; Dec. Dig. 9.4ppearance, Department 1. Appeal from Superior Court, Orange County; Z. B. West, Judge. Action by R. B. Sheldon against H. A. Landwehr. From a judgment for plaintiff and an order denying a motion for new trial, defendant appeals. Affirmed. ground of the inability of the defendant to be present on account of ill health. He supported his application by his own affidavit and by the oral testimony of a physician. The affidavit stated that the defendant, if present, would testify to certain facts material to his defense, and that the case could not be tried without his testimony. The physician's testimony was to the effect that the defendant's condition was such as to make it unsafe for him to appear at the trial, or to go to trial in less than a month. The plaintiff, through his attorney, objected to a continuance on the ground that he had attached, as security for any judg ment to be recovered, certain mining stock of defendant; that an assessment had been levied on said stock, and the same was advertised to be sold at delinquent sale within three weeks; and that such sale, if had before Judgment, would destroy plaintiff's security. Declaring that the defendant was in full control of the mining company, and could postpone the sale, the plaintiff, in effect, offered to consent to a continuance of the trial, if defendant would postpone the delinquent sale for 30 days. The defendant's attorney stated that he could not consent to such postponement, and declared that the plaintiff had security for the notes, beyond the stock covered by his attachment. The plaintiff introduced evidence showing that he had no other security. After some discussion, the court continued the matter until the afternoon of the same day, when further testimony on the question of other security was given. Plaintiff's attorney then renewed his offer to consent to a continuance, on condition that the defendant would have the assessment sale postponed. Defendant's attorney, not questioning the statement that it was in defendant's power to have the sale postponed, simply declared that he was not willing to undertake to procure a postpone ment of the sale. Thereupon the court said: "I will continue this case until to-morrow, and, if that company does not pass proper resolutions and continue that sale, the case will go on to-morrow." Defendant's attorney stated that he could not and would not be present on the following day, whereupon the court directed that the trial proceed, and Chas. S. McKelvey, for appellant. Puring- it did proceed, defendant's attorney particiton & Adair, for respondent. pating. [2] The circumstance that the witness who is unable to attend is at the same time one of the parties should no doubt be regarded as strengthening the showing in favor of a continuance (Jaffe v. Lilienthal, 101 Cal. 175, 35 Pac. 636), but it has never been held in this court that the unavoidable absence of a party necessarily compels the court to grant a continuance. Lynch v. Superior Court, 150 Cal. 123, 88 Pac. 708. In such cases, as in others, the court in granting or denying the application should be governed by a desire to take that course which, under all the circumstances disclosed, seems most likely to accomplish substantial justice. One of the questions that may be considered is that of the good or bad faith of the application. Barnes v. Barnes, 95 Cal. 171, 177, 30 Pac. 298, 16 L. R. A. 660. [1] An application for continuance on the | provided, however, if the issue to be tried is ground of the absence of a witness is ad- an issue of fact, proof must first be made dressed to the sound discretion of the trial to the satisfaction of the court that the adcourt, and an order denying the application verse party has had five days' notice of such will not be deemed ground for reversal un- trial." It is quite clear from a reading of less it is clear to the appellate court that this section that it has reference only to the court below has abused its discretion. proceedings taken against a party in his abMusgrove v. Perkins, 9 Cal. 211; Kneebone sence. Where one party, the other being v. Kneebone, 83 Cal. 647, 23 Pac. 1031. absent and unrepresented, calls a case for trial, and seeks, upon an ex parte showing, to secure a dismissal, a verdict, or a judgment, the section requires proof that the absent party has had such notice as would have enabled him to appear to prosecute or defend his case. A proceeding taken against him in his absence is in the nature of a default. The purpose of the Code section is to prevent the possibility of such default being taken against one who has, by reason of insufficient notice or no notice of the time of trial, been unable to appear. The provision has no application to cases in which both parties are represented when the case is called for trial. It is, of course, true that even in such cases the want of notice sufficient to have enabled one of the parties to prepare for trial would be good ground for continuance. But the statute does not fix any arbitrary period of five days for this purpose, nor does it require service of a formal notice. Where the party has actually known that the case was set for a certain time, and appears at that time, he is not entitled to a continuance in the absence of a claim and showing that he has not had such knowledge long enough to enable him to properly prepare. It is in each case a question for the discretion of the trial court. Not [3] Upon the facts before it in the case at bar, the trial court certainly cannot be said to have abused its discretion in denying the defendant's motion. The plaintiff had shown that he would suffer loss by delay. withstanding this, he expressed his willingness to have the trial continued if he were protected against such loss. The defendant had the power to afford such protection, but his attorney declined to take any step to that end. His position, as he stated it to the court, was that his client was "entitled to a continuance no matter what the result would be to the plaintiff." The court below took the contrary, and we think the correct, view that its duty was to consider the interests of both parties. The showing be fore it fully justified the conclusion that injustice would be as likely to follow from the granting of the continuance as from its refusal. Furthermore, the attitude of defendant's attorney afforded warrant for the belief that the continuance was not asked in good faith to enable the defendant to make a meritorious defense, but that its real object was to hinder and delay the plaintiff in the enforcement of his rights. [4] It is also claimed that the court erred in proceeding to trial because it was alleged in the affidavit of defendant's attorney that he had not had notice of the time of trial. Said attorney did in fact remain during the trial and participated therein. Section 594 of the Code of Civil Procedure provides that "either party may bring an issue to trial or to a hearing, and, in the absence of the adverse party, unless the court, for good cause, otherwise direct, may proceed with his case, and take a dismissal of the action, or a verdict or judgment, as the case may require; In the case at bar, no claim was made that the defendant and his attorney had not known of the setting of the case long enough in advance to enable them to be ready. The affidavit of the attorney that he had received no notice must be taken to refer only to a formal service of notice in writing. Other averments in the same affidavit show by clear implication that he had knowledge, at least two days before the day of trial, that the case had been set for that day. That the defendant himself had such knowledge for a considerably longer period is shown by the testimony of his physician. The real ground upon which a continuance was asked was the illness of the defendant, and the period of postponement requested on this ground was 30 days. A continuance of five days was the utmost that could have been claimed for want of notice, even if the period defined in section 594 governed the case. But such continuance would not have put the defendant in any better position, so far as his personal presence and aid to his attorney were concerned. Under these circumstances, we think the court did not err in refusing to postpone the trial upon the mere ground that notice of the setting of the case had not been given. [5] We attach no importance to the state PLICATION FOR CONTINUANCE-TIME OF DIS- ment of defendant's attorney that he appear- 16. NEW TRIAL (§ 97*)-ABSENT WITNESS-APed specially to move for a continuance. He had already appeared generally by filing an answer. Assuming that he could thereafter limit his appearance to a special purpose, he certainly waived such limitation by remaining during the trial, cross-examining witnesses, making objections, and otherwise taking part in the proceedings on behalf of his client. Where defendants knew before trial what an absent witness would testify, his evidence was not newly discovered so as to sustain an application for new trial, where the application to postpone the trial to give defendants an opdid not show that an application had been made portunity to discover the absent witness. [Ed. Note.-For other cases, see New Trial, Cent. Dig. § 195; Dec. Dig. § 97.*] The judgment and the order denying a new 7. APPEAL AND ERROR (§ 528*)-RECORD-APtrial are affirmed. PLICATION FOR NEW TRIAL-AFFIDAVIT OF Where an affidavit of a witness alleged to We concur: ANGELLOTTI, J.; SHAW, J. have been newly discovered was not made a (159 Cal. 765) BROADS et al. v. MEAD et al. (L. A. 2,639.) (Supreme Court of California. May 18, 1911.) 1. LANDLORD AND TENANT (§ 123*)-RIGHTS OF TENANT-SIGN PRIVILEGE. Where plaintiff leased the two upper stories of a business building in which to carry on a restaurant and for a residence, she was entitled to make a reasonable use of the front wall above the first story to advertise such business, and therefore was entitled to enjoin the tenant of the first story from placing signs on or against the wall which would obstruct or interfere with her use. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. § 436; Dec. Dig. § 123.*] 2. EVIDENCE (§ 445*)-PAROL EVIDENCE – SUBSEQUENT AGREEMENT. An oral agreement, not based on a consideration, between defendants, tenants of the first story of a business building, and B., the original lessee of the upper stories, and plaintiff's assignor, giving defendants the right to place signs on the upper front wall of the building, not executed prior to the transfer of his lease to plaintiff, was void as an attempt to alter a written contract by an executory oral agree ment. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2052-2065; Dec. Dig. § 445.*] 3. LICENSES (§§ 58, 62*) - REVOCATION BY SALE OF PROPERTY. - An oral agreement between plaintiff's assignor and defendants that the latter might use the upper front wall of a building for sign purposes was a mere license, revocable at the pleasure of the licensor, and, not having been exercised prior to the assignment, was revoked thereby. part of the statement used on a motion for a new trial, and it did not appear from the record that it was read or used in support of the motion, or otherwise presented to the court, it could not be considered in support of an appeal from an order denying the motion. [Ed. Note.-For other case, see Appeal and Error, Cent. Dig. § 2388; Dec. Dig. § 328.*] S. DAMAGES (§ 14*) - NOMINAL DAMAGES – AMOUNT. Where the court found that plaintiff was Cent. Dig. § 356; Dec. Dig. § 14.*] One SHAW, J. Plaintiff Laura Broads was the lessee of the second and third stories of a three-story building on Spring street, in Los Angeles; the lease being in writing for a twoDefendants were lessees of the year term. first story. Plaintiff carried on a restaurant in the second story, and occupied the third story as a place of residence. Defendants in the first story conducted a trunk store. Boaz Duncan was the owner of the building, and leased the premises to the respective parties. Defendants placed signs, advertising their trunk business, against the outside front wall of the second and third stories. This action was to enjoin them from maintaining said signs thereon, and to recover the damages alleged to have been caused to plaintiff by the placing and maintaining of the same. Bernard Broads is the husband of Laura Broads, and joins as plaintiff solely because of that fact. The court found the facts as 5. LICENSES (§ 58*)-EXECUTION-REVOCATION above stated, and also found that the signs -Loss. [Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 116, 125; Dec. Dig. $$ 58, 62.*] 4. LICENSES ($ 49*)-USE OF BUILDING ADVERTISING PURPOSES EVIDENCE. Evidence held insufficient to warrant a finding that the tenant of the upper stories of a building had consented to the use of the front wall above the first story by the tenant thereof for advertising purposes. [Ed. Note. For other cases, see Licenses, Dec. Dig. § 49.*] A license to hang signs on the front wall of a building for advertising purposes, though executed, is revocable, if no substantial loss would be incurred through a removal of the signs. [Ed. Note. For other cases, see Licenses, Cent. Dig. § 120; Dec. Dig. § 58.*] were maintained on the front walls of the second and third stories for three months, that plaintiff was damaged thereby, but that said damages were only nominal. The judgment enjoined the further maintenance of the signs, and further declared that plaintiffs should recover of defendants $100 as dam- tion was made to postpone the trial so as to ages. [1] Plaintiff Laura Broads had leased the premises for the purpose of carrying on a restaurant therein. She had the right to make a reasonable use of the front wall for the purpose of advertising said business. This clearly implies the right to keep it free for such use and to prevent other persons from placing signs upon or against it which would obstruct or interfere with such use by her. Her right to prevent the defendants from occupying her wall space with signs relating to their own business seems indisputable. The injunction was properly given. [2, 3] Defendants claim that there was an oral agreement between the defendants, Duncan, and one Bergman, the original lessee of the upper stories and the assignor of Laura Broads, giving defendants the privilege of placing their signs on the upper walls. The agreement was not carried out prior to the transfer by Bergman to Broads, and it was at that time void, being a mere attempt to alter a contract in writing by an executory oral agreement. It is not shown to have been based on any consideration whatever. Therefore, at most, it was nothing more than a license, revocable at the pleasure of the licen sor. [4] It is further claimed that the signs were placed on plaintiff's wall with her consent, and that thereby the license became executed and irrevocable. The evidence merely shows that Mrs. Broads was requested to allow defendants' men to go through her rooms to the front windows to enable them to place some signs in front of the building. She was not told that the signs were to be hung upon the wall of the second or third stories, and there is no evidence that she was aware of their intention in that respect. A few days afterwards she demanded that they be removed. The evidence is not such as to require a finding that she knowingly consented to have them placed above the first story. [5] Besides, there is no evidence that defendants were put to any expense in the matter. If they would suffer no substantial loss from the removal of the signs, the license was revocable, even if executed. Stoner v. Zucker, 148 Cal. 518, 83 Pac. 808, 113 Am. St. Rep. 301. give an opportunity to discover Bergman and secure his attendance or deposition. A new trial was therefore properly refused. Scanlan v. San Francisco, 128 Cal. 589, 61 Pac. 271. [7] The affidavit was not made part of the statement used on motion for new trial. It does not appear from the record that it was read or used in support of the motion or otherwise presented to the court below for its consideration. Hence it cannot be considered here in support of the appeal, even if it stated good grounds for a new trial. [8] The judgment for damages is not supported by the facts found. The finding is that the damages caused to the plaintiff by the signs were merely nominal. The conclusion of law on that subject is that the plaintiff have judgment for $100 as damages, and judgment was given for that sum. A finding of nominal damages only does not warrant a judgment for $100. The law does not regard trifles, and, if the judgment were for a small sum avowedly as nominal damages, we might not be disposed to reverse or modify it. But $100 is a substantial recovery and does not come within the definition of nominal damages. 418. Maher v. Wilson, 139 Cal. 520, 73 Pac. One dollar is the amount usually adjudged where only nominal damages are allowed. Plaintiff was entitled to costs of suit. There is no merit in the motion for a new trial. The order denying the motion for new trial is affirmed. The judgment is modified by reducing the money judgment to the sum of $1, and, as so modified, the judgment is affirmed. The defendants shall recover only one-half of the costs of appeal. The court cannot relieve one of the consequences of his neglect to file a claim against an estate within the time limited by statute by directing the executors to pay the claim. and Administrators, Cent. Dig. 831; Dec. Dig. [Ed. Note. For other cases, see Executors § 233.*] 2. EXECUTORS AND ADMINISTRATORS (§ 216*) -PRESERVATION OF ESTATE. are [6] On motion for new trial defendants filed an affidavit showing that Bergman, whose whereabouts defendants had been previously unable to learn, had been discovered since the trial and would testify that the oral agreement had been made as claimed, and that Mrs. Broads had been informed of it before she bought the lease of Bergman. The affidavit shows that defendants prior to the trial knew that Bergman would so testify. Hence it was not strictly newly discovered evidence. It is not shown or claimed that any applica*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes It being the duty of an administrator or executor, to make such expenditures as reasonably necessary to preserve the property pending administration, a devisee doing work on an unfinished house in order to protect the same could not recover from the estate; her payment being voluntary. and Administrators, Cent. Dig. § 757; Dec. Dig. § 216.*] [Ed. Note.-For other cases, see Executors |