Frederick P. Stratton, Latimer & Morrow, and Wm. M. Pierson, for appellants. Brown & Daggett, for respondents.

BY THE COURT. The certificate of the clerk of the court below, filed at the hearing, is sufficient, and the motion to dismiss is denied.

On the authority of People v. North San Francisco H. & R. R. Ass'n, 38 Cal. 564, the judgment is reversed, and cause remanded.

(71 Cal. 307)

BATES v. BATES. (No. 9,586.)

(Supreme Court of California. November 20, 1886.)

PARTITION-NEW TRIAL-PLAINTIFF'S MOTION TO SET ASIDE DECREE IN HER FAVOR. Where plaintiff in partition proceedings has obtained the decree asked for in her complaint, based upon and in accordance with all the facts alleged therein, and admitted by the answer, she is not entitled to a new trial upon affidavits setting forth facts tending to prove that she was mistaken in her rights when she commenced her action, and which, if they exist, are contradictory to the averments of the complaint.

Department 1. Appeal from superior court, Alameda county. Bill for partition. Decree. Motion for new trial denied. peals.

Plaintiff ap

The plaintiff and appellee was the widow of A. S. Bates, deceased, her second husband; she and the defendant, Otis Bates, being the only heirs. After the husband's death, the widow, besides being unacquainted with her husband's investments, was prostrated with grief, and unable properly to instruct her counsel, who, having to make the best of her imperfect instructions, brought this action for partition in her name, assuming the property left by the husband was common property of the widow and the heir. After a preliminary decree of partition had been made in accordance with her complaint, affidavits were obtained in British Columbia tending to show that she had inherited a fortune from a first husband, and that the deceased Bates had invested part of the same in the property sought to be partitioned by her. A motion for a new trial by plaintiff, based on such affidavits, was denied. Philip G. Galpin, for appellant.

The mistake of fact was not made known until after a preliminary decree for partition had been made. Before any notice was given of the making of that or any other decision, the error was discovered, and a motion was made for a new trial. Had it been granted, the plaintiff would have amended her complaint so as to ask partition of the common property only, and a new decree could have been made to conform to the truth. The appellant asks for a new trial on the ground of subsequently discovered evidence, and insists that the court below did not lose jurisdiction to correct the evident mistake of fact so long as a motion for a new trial was pending. The appeals are from the judgment, and from the order denying a new trial. The court had power to grant a new trial on the ground of subsequently discovered evidence, and no necessity exists to file a new complaint to set aside the judgment. A. M. Rosborough, for respondent.

MCKINSTRY, J. The record brought here contains no matter which would justify the reversal of the final judgment. There are many reasons why the order denying a new trial should not be disturbed. It is enough to say, however, that a plaintiff who has obtained exactly the decree to secure which the action was brought and prosecuted, and which is based upon, and is in accord with, all the facts alleged in the complaint and admitted by the answer, is not entitled to demand a new trial, upon affidavits setting forth matters which may tend to prove that she was mistaken in her rights when she commenced her action. It is perfectly apparent that a new trial of the issues

must result in the same decision and interlocutory judgment. A new trial is a re-examination of an issue of fact in the same court, after a trial and decision, etc. Code Civil Proc. 656. The former decision may be vacated, and a new trial granted, on the application of the party "aggrieved," for certain causes, (specified in section 657.)

Here the affidavits of the plaintiff do not tend to prove (1) irregularity in the proceedings of the court or opposite party; or (2) "accident or surprise," within the meaning of the third subdivision of section 657, Code Civil Proc.; or (3) newly-discovered evidence, which could have been given under the pleadings; or (4) insufficiency of the evidence; or (5) error in law occurring at the trial. The real purpose of the plaintiff here, as clearly appears, was to have the decision and judgment set aside, that she might amend her complaint, and thus be enabled to prove facts which, if they exist, are contradictory of the averments of the complaint on which the trial was had. She certainly was not entitled to a new trial of the issues made by the pleadings on which the judgment was based.

Judgment and order affirmed.

BOARD OF COM'RS OF FUNDED DEBT SINKING FUNd v. Board of TrusTEES OF CITY OF SACRAMENTO. (No. 11,560.)

(Supreme Court of California. November 26, 1886.)

CONSTITUTIONAL LAW-RETROACTIVE OPERATION-MUNICIPAL CORPORATION-COMMISSION -CONST. CAL. 1879, ART. 11, 13; ART. 22, 1.

The prohibition of Const. Cal. 1879, ? 13, art. 11, providing that "the legislature shall not delegate to any special commission, private corporation, company, association, or individual any power to make, control, appropriate, supervise, or in any way interfere with any county, city, town, or municipal improvement, money, property, or effects, whether held in trust or otherwise, or to levy taxes or assessments, or perform any municipal functions whatever," is not retrospective, and, notwithstanding section 1, art. 22, providing that "the provisions of all laws inconsistent with this constitution shall cease upon the adoption thereof," a law establishing such a commission prior to 1879 is not repealed, nor are proceedings by such board thereafter prohibited.

In bank. Appeal from superior court, Sacramento county.

Application of the board of commissioners of the funded debt sinking fund to compel the board of trustees of Sacramento city, by mandate, to levy a certain tax, under an act of the legislature of 1872. The court below issued the writ, and the trustees appealed. The facts are sufficiently stated in the opinion.

W. A. Anderson and E. C. Hart, for appellants. H. O. & W. H. Beatty, for respondents.

MCKINSTRY, J. This is an application of the board of commissioners of the funded debt sinking fund to compel the board of trustees of Sacramento city, by mandate, to levy a certain tax which is ordered to be levied by an act of the legislature passed in 1872. The court below issued an alternative writ, and the city trustees made a response, not denying any fact set up in the petition and affidavit, but setting up matters of law only as a response to the alternative writ. The court overruled the legal objections raised, and made the writ absolute. From this the trustees appealed.

Appellants contend the petition is fatally defective, in that it does not appear therefrom that petitioners have not a plain, speedy, and adequate remedy at law, and in that it does not appear therefrom that defendants have any municipal function to perform. The facts alleged in the petition show that there is no other plain, speedy, or adequate remedy. The powers and

duties of the defendants are declared and determined by a public statute, of which we take notice.

Appellants further contend that petitioners have no legal capacity to maintain this action. The petitioners are parties "beneficially interested," within the meaning of section 1086 of the Code of Civil Procedure. County of Contra Costa v. Board of Sup'rs, 26 Cal. 641.

The main contention of appellants is that the act of March 25, 1872, (St. 1871-72, p. 546,) was repealed on the adoption of the constitution of 1879, by reason of the clause in section 1, art. 22, of that instrument, which reads: "The provisions of all laws inconsistent with this constitution shall cease upon the adoption thereof." It is said that the provisions of the act of 1872 are "inconsistent" with section 13, art. 11, of the constitution. That section reads: "The legislature shall not delegate to any special commission, private corporation, company, association, or individual any power to make, control, appropriate, supervise, or in any way interfere with, any county, city, town, or municipal improvement, money, property, or effects, whether held in trust or otherwise, or to levy taxes or assessments, or perform any municipal functions whatever."

That the prohibition is prospective, and applies to the legislature created by the constitution in which the prohibition is found, seems too clear for argument. The prohibition became operative with the rest of the constitution, and could only limit the power of the legislature provided for in the constitution. Its language does not purport anything more or different. This much being conceded, is necessarily follows that the act of 1872 is not inconsistent with the section of the constitution above quoted. It is not pretended that it is inconsistent with any other provision of the constitution.

The prohibition of future enactments, of a particular character, by houses of the legislature brought into existence by the same constitution which contains the prohibition, cannot be held to annul past legislation without violating the plain meaning of the language. It may be that some provisions of the constitution prohibit future action, authorized in the past by a statute in force prior to the adoption of the constitution. In such cases, the prohibition (it might be argued) is pointed at such future action, and is not a repeal of the statute which originally authorized it. Thus, "no county-seat shall be removed unless two-thirds of the qualified electors shall vote in favor of such removal." Section 2, art. 11. This may not only prohibit any legislation attempting to authorize a removal, without the two-third vote, but may prohibit also the removal itself. Other examples might perhaps be put to illustrate the distinction. But, in each case, the meaning of the prohibitory clause must be ascertained by reference to its subject-matter, and to the other provisions of the constitution. There is no clause of the constitution which can be construed to prohibit proceedings, under the prior law, by the board of commissioners established by the act of 1872, or by other like boards.

In their original points counsel for appellant say: "It is contended by respondents that sections 12 and 13 of article 11 are not retrospective. Standing alone, this would be true, and there are numerous authorities sustaining that construction; but the plain intent to make them retroactive is disclosed by section 1 of article 22 of the constitution of California." In their brief in reply, however, counsel seem to contend that section 13, art. 11, of itself, and independent of section 1, art. 22, of the constitution, repealed the act of 1872. For the reasons above set forth, this view cannot be upheld.

Our conclusion is that the act of 1872 is not inconsistent with the constitution, and that it will remain in full force until altered or repealed by the legislature. Const. art. 11, § 1.

Judgment affirmed.

We concur: THORNTON, J.; MYRICK, J.; SHARPSTEIN, J.

v.12p.no.7-15

(71 Cal. 351)

PEOPLE . LAVELLE. (No. 20,203.)

(Supreme Court of California. December 2, 1886.)

CRIMINAL LAW-EVIDENCE-OPINION-APPEARANCE AS TO BEING RATIONAL.

In the trial of a defendant charged with felony, a question propounded to a witness, who was present at the time of the arrest, "What was the appearance of this man [the defendant] at that time, with reference to his being rational or irrational?" is admissible, on the ground that the evidence sought to be elicited thereby is as to a fact.-namely, his appearance at the time,-and not the opinion of the witness as to the sanity of the defendant, based upon an acquaintance with him.

In bank. Appeal from superior court, Tulare county.

Information for an assault with intent to commit murder. Judgment for defendant. The people appealed. The facts are sufficiently stated in the opinion.

Oregon Samlers, for appellant. W. B. Wallace, Dist. Atty., for respondent.

MYRICK, J. The defendant was accused by information of the crime of an assault with an intent to commit murder. Testimony had been given concerning the circumstances of the alleged assault. One Keener, a deputy sheriff, who was present at the time of the arrest, which immediately followed the alleged assault, was asked the question: "What was the appearance of this man [the defendant] at that time, with reference to his being rational or irrational?" This was objected to on the ground that it did not appear that the witness was competent to testify, from appearances, as to whether the man was rational or irrational. It is urged on this appeal that the court erred in overruling the objection, because the witness had not shown himself to be competent within subdivision 10, § 1870, Code Civil Proc. The evidence sought to be elicited was not the opinion of the witness as to the mental sanity of the defendant, based on an acquaintance with him, but was rather as to a fact, namely, his appearance at the time. The appearance of a person at a given time is one thing; the opinion of a witness as to the mental condition of that person, based on an acquaintance with him, is quite another.

No error appearing, the judgment is affirmed.

We concur:

(72 Cal. 17)

MORRISON, C. J.; SHARPSTEIN, J.; MCKEE, J.; THORNTON, J.

ROWLAND . MADDEN and others. (No. 11,220.`

(Supreme Court of California. November 29, 1886.) EXECUTORS AND ADMINISTRATORS-ACTIONS AGAINST-PLEADING ISSUE-PRESENTATION OF CLAIM DENIAL-CODE CIVIL PROC. CAL. 475.

Where, in a suit against executors upon a claim against decedent, plaintiff alleges in his complaint that on the ninth day of December, 1881, his claim, duly verified, was duly presented to defendants, as executors, for allowance, and defendants in their answer "deny that on the ninth day of December, at said city and county, or elsewhere, the claim of the plaintiff for $36,000. or the claim as in plain

tiff's complaint set forth, or the claim upon which this action is founded, or any claim whatever, was duly presented to these defendants for allowance," the allegation of presentation of the claim to the executors is material to plaintiff's complaint, and the denial of it in the answer, though open to criticism, is sufficient to raise an issue under Code Civil Proc. Cal. 2 475.

In bank. Appeal from superior court, San Francisco.

Action against executors. Judgment for defendants. Plaintiff appeals. Moses G. Cobb, for appellant. A. N. Drown and W. H. Fifield, for respondents.

SHARPSTEIN, J. The plaintiff sues the defendants as executors of the last will and testament of Jane Rowland, deceased, to recover the sum of $36,

000, which he alleges was justly due to him from said testate at the time of her decease; and he further alleges that on the ninth day of December, 1881, said claim, duy verified by the oath of plaintiff, was duly presented to the defendants as executors of the will of said Jane Rowland, deceased, for allowance. The defendants in their answer deny that on the ninth day of December, 1881, the claim of plaintiff for said sum, or any claim whatever, was duly presented to these defendants for allowance, or that any proper or legal claim, or any of the matters or things in the plaintiff's complaint alleged, has been at any time duly or otherwise presented to these defendants for allowance. Upon this issue the court finds that the alleged claim of plaintiff was not, nor was any claim verified by the oath of plaintiff, duly or otherwise, presented to defendants, as executors as aforesaid or otherwise, for allowance on the ninth day of December, 1881, or at any other time.

The finding is not against the evidence, and appellant does not attack it on that ground. He contends that the pleadings do not raise any such issue; that the allegations of the complaint as to that matter, are wholly immaterial; but, if material, they are not sufficiently denied to raise an issue.

As to the materiality of the allegations we entertain no doubt. The case differs but little, if at all, in principle, from Lathop v. Bampton, 31 Cal. 17, in which it was held that the due presentation of the claim, in that case, to the executors, was a prerequisite of the right to maintain an action against him.

Treating the allegation as a material one, was it sufficiently denied to raise an issue? The defendants in their answers "deny that on the ninth day of December, at said city and county, or elsewhere, the claim of the plaintiff for the sum of $36,000, * * * or the claim as in plaintiff's complaint set forth, or the claim upon which this action is founded, or any claim whatever, was duly presented to these defendants for allowance." It appears by the record that this was treated as a denial, sufficient to raise an issue upon the plaintiff's allegation of a presentation of his claim to the defendants. It is doubtless obnoxious to criticism, but, under section 475, Code Civil Proc., the defect. must now be disregarded.

Other questions are discussed by counsel upon which it is unnecessary to express any opinion at this time.

Judgment and order affirmed.

We concur:

TON, J.

(71 Cal. 330)

MORRISON, C. J.; MCKINSTRY, J.; MYRICK, J.; THORN

LARKIN V. LARKIN. (No. 11,348.)

(Supreme Court of California. November 29, 1886..

HUSBAND AND WIFE-DIVORCE-APPEAL-WIFE'S COSTS.

Where, in an action by a husband for divorce, judgment is given against the defendant, and a motion by her for a new trial is denied, and she appeals from the judgment and the order, on motion for new trial, the court may, in its discretion, by special order made after final judgment, order plaintiff to pay the attorney of defendant a sum for costs of her appeal.

In bank. Appeal from superior court, Alameda county.

Appeal from special order, after decree of divorce, allowing wife's costs. Thos. H. Smith and Mastic, Belcher & Mastic, for appellant. Charles F. Hanlon, for respondent.

SHARPSTEIN, J. This is an appeal from an order made after final judgment in an action of divorce. The judgment was in favor of the plaintiff, and the defendant appealed from it, and the order denying her motion for a new trial, to this court. After taking such appeal she applied to the court below for an order that the plaintiff pay to her (defendant) a reasonable sum