What the law requires is that a proper order be made by the proper officer; that this be entered, the manner of entering not prescribed, in a record book, the special kind of record book not being prescribed, and that the production of a copy of such order thus made and entered, duly certified by the surveyor-general, shall give the court jurisdiction. In Lane v. Pferdner, 56 Cal. 122, this court, speaking of a point such as that made here, said: "The jurisdiction. was special, and depended upon the fact that the surveyor-general had made an order 'referring the contest.' The district court passed upon the fact which gave it jurisdiction, which fact could be proved by the certified copy."

We are of opinion that the certified copy of the order in evidence in the case in hand was sufficient to justify the action of the superior court, which thereby passed upon the fact that the order referring the contest had been made by the surveyor-general and entered in some kind of a record book, whether in book of documents, papers, or entries is not disclosed by the record.

The judgment should be affirmed.

BELCHER, C. C., and SEARLS, C., concurred.

By the COURT. For the reasons given in the foregoing opinion the judgment is affirmed.

No. 11,222.

BURTON v. TODD.

Department Two. Filed January 29, 1886.

EXTENSION OF TIME TO SERVE AND FILE NOTICES.-Section 1,054 of the code of civil procedure, giving power to the superior courts and the judges thereof to extend the time for service of notices other than appeal, must be construed as intending, also, to include power to grant an extension of the time for filing such notices.

THE SAME-NEW TRIAL-NOTICE OF-EXTENSION OF TIME TO SERVE AND FILE.-AS the right to move for a new trial is statutory it must be pursued in the manner pointed. out by the statute. And after the time fixed by statute has expired, the courts have no jurisdiction to extend or revive such right. But before the expiration of the ten days given by statute within which to move for a new trial, a superior court or judge thereof, may, for good cause, extend the time, not exceeding thirty days, within which to serve and file a notice of motion for a new trial.

APPEAL from an order of the superior court of Santa Barbara county, refusing to settle a statement on motion for a new trial. The opinion states the facts.

A. Packard, and R. B. Canfield, for the appellant.

Charles Fernald, for the respondent.

SEARLS, C. This is an appeal from an order of the superior court, made after final judgment, dismissing and refusing to settle a statement on motion for a new trial.

The facts essential to an understanding of the question involved are as follows:

Judgment was rendered in favor of defendant February 5, 1885. Notice in writing of the filing of the findings and rendition of judgment, was duly served upon plaintiff's attorney February 9, 1885.

On the thirteenth day of February, 1885, the judge of the superior court by an order made ex parte, without notice to or consent of attorney for defendant, extended the time for twenty days, to file and serve notice of motion for a new trial or to prepare and serve a bill of exceptions, as plaintiff might elect.

On the fourth day of March, 1885, plaintiff's attorney served and filed a notice of motion for a new trial.

This notice, as will be seen, was not served and filed within ten days after service of notice of filing and findings and entry of judgment, but was served and filed before the expiration of the time as extended by the judge.

Upon the service of a statement upon him on motion for new trial, counsel for defendant served formal objections to the motion as not being in time, and subject to such objections, served amendments to plaintiff's statement, and thereafter the matter coming on before the court the application to settle statement was dismissed, because the notice of motion was not made in time.

The question presented relates to the power of the judge of the court below to extend the time for service and filing of a notice of motion for new trial.

Section 659 of the code of civil procedure provides that, "the party intending to move for a new trial must, within ten days after the verdict of the jury, if the action was tried by a jury, or after notice of the decision of the court, . . . . if the action were tried without a jury, file with the clerk and serve upon the adverse party a notice of his intention," etc.

Section 1054 of the same code, as amended in 1880, provides that "when an act to be done, as provided in this code, relates to the pleadings in the action, . . . . or to the service of notice other than of appeal, the time allowed by this code may be extended upon good cause shown, by the court in which the action is pending, or a judge thereof; but such extension shall not exceed thirty days without the consent of the adverse party."

The order of the judge extending the time to file and serve notice of motion recites that it was granted upon "good cause shown," and the motion to strike out the statement is based, not upon any defect in this order, but upon the fact that the notice of the motion was not filed and served within ten days after notice of the decision.

We are therefore called upon to decide whether section 1054 of the code of civil procedure authorizes the superior court, or a judge thereof, to extend the time for filing and service of a notice of motion for a new trial.

In Hook v. Hall, 6 West Coast Rep. 134, it was said: "But the right

to move for a new trial is statutory, and there is no provision of the code of civil procedure which gives to the superior court, or to the judges, power, by order, to extend the time for filing a notice of intention to move for a new trial. Section 1054 does not authorize such an order," etc.

Girdner v. Beswick, 7 West Coast Rep. 511, and Brichman v. Ross, Id. 748, followed Hook v. Hall, and enunciated the same doctrine.

In Brichman v. Ross, however, it appearing that no objection had been made in the court below, it was held to have been waived.

A hearing in bank was granted in Hook v. Hall, and the cause was finally decided without passing upon the very point under considera

tion here.

A hearing in bank has also been ordered in Girdner v. Beswick. Under these circumstances we feel at liberty, notwithstanding the case of Brichman v. Ross, to treat the question in the light of former decisions, or as an original proposition, for the reason that Brichman v. Ross, having been decided upon the authority of Hook v. Hall, should not be sustained after the latter is set aside, except upon principle.

Viewed in this light, did the legislature, by section 1054 of the code of civil procedure, intend that the extension of time to serve a notice of motion for a new trial therein provided for, should also extend to the filing of such notice?

In Cottle v. Leitch, 43 Cal. 320, it was said that an order extending the time "for preparing and filing motion for a new trial" extended the time of the defendant to give notice of the intention to move for such new trial.

We suppose the court proceeded upon the theory that an extension of time to move carried with it an extension of time to do those things essential to the motion.

We know that, as a matter of convenience, it has been the usual practice in this state to first serve, and then file papers required to be served and filed, in order that the evidence of service may accompany the paper when filed, and, except as otherwise expressly provided, the practice is to be commended.

In view of the exposition in Cottle v. Leitch, supra, and of the practice of the profession, with both of which we may presume the legislature was familiar, we think it but reasonable to suppose that when power was given to the superior courts and the judges thereof to extend the time for service of notices other than of appeal, it was intended also to include an extension of the time for filing such notices.

Section 1054 is quite general in its scope, extends to a great variety of proceedings, and covers notices for varied and diverse objects, which are required to be filed, and in some of which, at least, there can be no propriety whatever in filing before service; yet if the court or judges cannot extend the time for filing, this must in all instances of extension be done before the service.

To illustrate: The court is by this section given the power to extend the time to plead, to amend pleadings, to prepare bills of exceptions,

etc. Now, if the time for filing an answer cannot be extended, it would, in most cases, be futile to extend the time for its preparation and service.

In the construction of a statute the intention of the legislature is to be pursued if possible: Code Civ. Proc., sec. 1859.

We think when the legislature gave to the courts and judges authority to extend, within certain limits, the time within which notices were to be served and other acts were to be performed, the object was to give parties additional time within which to prepare such notices, and to do every act naturally following and dependent thereon and essentially connected therewith. Time may be essential for deliberation and consideration before determining upon the propriety of a motion for a new trial, and we think this was the paramount reason for lodging in the courts and judges power to extend the time. These reasons are of constant recurrence, while the necessity for an extension to enable a party to procure service of the notice will but rarely pre

sent itself.

We conclude, therefore:

1. That as the right to move for a new trial is statutory, it must be pursued in the manner pointed out by the statute.

2. That after the time fixed by statute has expired, the courts have no jurisdiction to extend or revive such right.

3. That before the expiration of the ten days given by statute within which to move for a new trial, a superior court or judge thereof may, for good cause, extend the time, not exceeding thirty days, within which to serve and file a notice of motion for a new trial.

It follows from this view that Brichman v. Ross, supra, so far as in conflict with this opinion, is not a correct exposition of the law, and should be overruled.

The order from which this appeal is taken was doubtless made upon the authority of Hook v. Hall, supra, and was eminently proper under that case.

It should, however, for the reasons herein given, be reversed, and the court below directed to settle the statement or motion for a new trial.

BELCHER, C. C., and FOOTE, C., concurred.

By the COURT. For the reasons given in the foregoing opinion, the order is reversed, with directions to the court below to settle the statement on motion for a new trial.

No. 11,221.

BALDWIN v. ELLIS, TAX COLLECTOR, ETC.

In Bank. Filed January 29, 1886.

BOARD OF EQUALIZATION-EQUALIZATION MAY AFFECT TAXES FOR COUNTY PURPOSES. Under sections 3,692 et seq. of the political code, the state board of equalization has the power to increase or lower the assessment-rolls of the several counties so as to affect taxes for county purposes.

PLEADING OFFICIAL CHARACTER OF DEFENDANT MUST BE ALLEGED.-A cause of action against a tax collector, in his official capacity, must aver the fact of his being such officer. And an omission of such allegation in the statement of one cause of action is not cured by an allegation thereof contained in another cause of action joined in the same complaint.

APPEAL from a judgment of the superior court of Los Angeles county entered in favor of the defendant. The opinion states the facts.

Wells, Van Dyke, & Lee, for the appellant.

Stephen M. White, for the respondent.

FOOTE, C. The plaintiff instituted this action with the object in view of recovering a sum of money alleged to have been illegally exacted from him, as taxes, by the defendant as tax collector of Los Angeles county.

A general demurrer was interposed to each of the alleged causes of action set out in the complaint, and being sustained, and the plaintiff declining to amend his pleading, judgment passed for the defendant, and from that this appeal is prosecuted.

The demurrer was properly sustained to the second cause of action set out at folio 75 of the transcript, for the reason that the action was brought against the defendant as tax collector, and not as an individual, and therefore in order that a judgment could properly be obtained against him as such, the allegations in that statement of the cause of action should have averred the fact of his being such officer. There is an allegation of the necessary kind in the first cause of action, but none in the second. These two must stand or fall by reason of their several recitals, and in the absence in one of any special reference to anything contained in the other, cannot be aided by anything save what is in itself averred: Haskell v. Haskell, 54 Cal. 262. The main question involved in the case is this: Has or not the state board of equalization the lawful right to increase or lower the assessment roll of the county of Los Angeles so as to affect taxes for county purposes?

The appellant's contention is that it has no such power granted by law; that its rightful action affects the said roll, only so far as state taxes are concerned.

By section 3650 of the political code, the county assessor must prepare an assessment book under the direction of the state board of equalization.

Under section 3655, same code, it is made his duty to transmit a summary of his assessment to that board on the first Monday in July of each year.