certified transcript of the proceedings had by that court in the case of Went v. Hall, it appears that the appeal pending therein from a justice's court was dismissed upon motion, because the former court was of opinion that it did not have jurisdiction to hear and determine the said cause upon its merits. It further appears that the opinion was based upon the view entertained by the court that, as prerequisites to the validity of such appeal, it was necessary that the notice thereof should have been filed in the justice's court prior to the service of a copy of the same upon the adverse party, and that the undertaking should have been filed simultaneously with said notice, notwith-. standing that all of those jurisdictional acts had been performed within 30 days of the date of the rendition of the original judgment.

This construction of sections 974 and 978, Code Civil Proc., was clearly erroneous, as this court held in Coker v. Superior Court, 58 Cal. 177. The superior court of El Dorado county had jurisdiction to hear and determine the case before it upon its merits, and the arbitrary dismissal of it upon motion was an improper divestiture of its rightful jurisdiction. Where such is the case, the writ of certiorari is a proper proceeding to annul the order dismissing the appeal. Levy v. Superior Court, 66 Cal. 292; S. C. 5 Pac. Rep. 353. The order of dismissal should be annulled, and the cause reinstated, heard, and determined upon its merits by the superior court of El Dorado county.

We concur: BELCHER, C. C.; SEARLS, C.

BY THE COURT. For the reasons given in the foregoing opinion the order of dismissal is annulled, and the cause ordered reinstated, to be heard and determined upon its merits.

(71 Cal. 557)

HEINLEN. HEILBRON and others. (No. 11,410.)

(Supreme Court of California. January 18, 1887.)

1. NEW TRIAL-NOTICE OF MOTION-FORM OF-CODE CIVIL PROC. CAL. 22 657, 659. Under Code Civil Proc. Cal. ? 657, providing that "the former verdict or other decision may be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes," etc., and section 659, requiring service upon the adverse party of notice of intention to move for a new trial, designating the grounds upon which the motion will be made, the notice need not specify that the mover will ask that the former verdict or other decision be vacated.

2. ACTION-MISJOINDER OF PARTIES-DEFENDANTS IN TORT.

At the trial of an action ex delicto, a nonsuit having been granted as to certain defendants, for want of evidence to sustain the allegations as against them, and the complaint having been amended by striking their names from it, the other defendants are not entitled to a nonsuit on the ground of misjoinder of parties defendant. 3. APPEAL BILL OF EXCEPTIONS-SPECIFICATION OF ERROR IN.

Upon appeal from the judgment in an action to recover damages from defendant for diverting the waters of a water-course from plaintiff's land, error committed by the court in finding plaintiff to be the owner of certain lands, including lands not described in the complaint, and awarding damages upon that basis, may be availed of, although the error is not specified in the bill of exceptions, as it appears on the face of the record independently of the bill of exceptions. Commissioners' decision. In bank. Appeal from superior court, Tulare county. Action to recover damages for diversion of water. against certain defendants, who appealed.

Brown & Daggett and D. S. Terry, for appellant. G. A. Heinlen, for respondents.

Plaintiff had judgment

Atwell & Bradley and

SEARLS, C. This is an action to recover damages for the diversion of water from Cole slough or King's river, and for a perpetual injunction restraining the defendants from diverting the waters thereof. The cause was tried by

v.12p.no.15-43

the court, a jury having been waived, findings in writing filed, upon which judgment in favor of plaintiff was rendered for $100 damages, and awarding a perpetual injunction against defendants, restraining them from maintaining any dam or dams in Cole slough, or the channel thereof, or from in any manner interfering with the waters thereof, or obstructing or diverting the same from their natural channel, etc. From this judgment, and from an order denying a new trial, defendants appeal.

It is objected on the part of the respondent that the notice of motion for a new trial (a copy of which is inserted in the bill of exceptions, and thereby made a part of the record) is insufficient, in that while it notified respondent that defendants would "make and submit to said court above named a motion for a new trial of said cause," and designated the grounds of said motion, yet did not specify that they would ask that the former verdict or other decision be vacated, etc. The statute (Code Civil Proc. § 657) provides that "the former verdict or other decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes," etc. The section quoted does not make provision for a notice of the motion, but section 659 requires that "the party intending to move for a new trial must, within ten days after the verdict of the jury, or after notice of the decision, * ** * file with the clerk, and serve upon the adverse party, a notice of his intention, designating the grounds upon which the motion will be made," etc.

In Bauder v. Tyrrel, 59 Ca!. 99, it was said: "The section regarding the notice of motion for a new trial does not require that the notice shall, in terms, contain a notice of motion that the decision should be vacated. The order granting a new trial does of itself vacate the decision. That must be its necessary effect, for how can there be a new trial if the former decision stands?"

In Kimple v. Conway, 10 Pac. Rep. 189, a notice of motion for “a rehearing or new trial" was construed to be a notice of motion for a new trial, and that the words "rehearing" and "new trial" were used as synonymous.

The language used in the notice indicated clearly the intention of the moving party. Such notice was not defective in any of the specific requirements of section 659, and was therefore sufficient.

The complaint charges all the defendants jointly with having wrongfully built dams, head-gates, etc., in Cole slough, and a water ditch or canal therefrom, and thereby diverting a large portion of the waters thereof from plaintiff. There were two answers filed in the cause, -one by the defendants James and Burrell, and another by the defendants composing the firm of Poly, Heilbron & Co., in each of which answers said defendants pleaded a misjoinder of parties defendant. At the trial a motion for nonsuit was made on the part of defendants James and Burrell, who had answered separately, which motion the court at first overruled, but subsequently granted, upon the ground that there was no sufficient evidence against them to make a case either for damages or for an injunction. Thereupon, upon motion of the plaintiff, leave was granted by the court to amend the complaint by striking therefrom the names of said James and Burrell as defendants.

Defendants Heilbron and others, of the firin of Poly, Heilbron & Co., who had answered separately, also moved for a nonsuit, upon the ground that it appeared from the evidence that there was a misjoinder of parties defendant, in that the acts as proved showed separate and distinct wrongs and injuries committed by defendants James and Burrell from those proven against these defendants, and that no collusion or joint injuries by all the defendants was proven, etc. The court denied the motion, and its action is assigned as error. Misjoinder of parties defendant. In actions ex contractu, if too many parties were made co-defendants, under the common-law rule, advantage could be taken of the misjoinder, (1) if the defect appeared on the face of the

record by demurrer; (2) by motion for nonsuit at the trial; (3) by motion in arrest of judgment; or (4) by writ of error. Mansell v. Burredge, 7 Term R. 352; 1 Chit. Pl. 50, and cases cited.

In actions ex delicto no advantage could generally be taken by the defendant of a misjoinder of parties defendant, and the only effect of a misjoinder was that the parties who should not have been included in the action were entitled to a verdict at the trial. Archb. Pl. 72. To this general rule there was, however, the exception that where the tort could not, in point of law, be joint, as in the case of slander and some others, the misjoinder was ground for demurrer, or, after verdict, for motion in arrest of judgment, or writ of error. But in these exceptional cases the objection was aided by the plaintiff's taking a verdict against one only, or, if several damages were assessed against each, by entering a nolle prosequi as to one after verdict and before judgment. 1 Chit. Pl. 16, (Amer. Ed. 97,) and cases cited.

If several persons jointly commit a tort, the plaintiff, in general, has his election to sue all or some of the parties jointly, or one of them severally, for the reason that a tort is in its nature a separate act of each individual. It is consequently held that in actions in form ex delicto, as trespass, trover, or case for malfeasance, against one only for a tort committed by several, he cannot plead the non-joinder of the others in abatement or bar of the action, or give it in evidence under the general issue; for the plea in abatement can only be adopted in those cases where the parties must be joined, and not where the plaintiff may join them or not at his option. The rule as to the misjoinder and non-joinder of parties plaintiff, in actions ex delicto, was quite different from that governing the matter of defendants. We need not define it here, and only refer to it for the purpose of saying that the case of Gillam v. Sigman, 29 Cal. 639, relied upon by appellants, was one in which there was an alleged misjoinder of plaintiffs. Our Code has so far modified the common-law rules on the subject that all objections to the misjoinder or nonjoinder of parties, either plaintiff or defendant, must be taken by demurrer or answer, and, if not so taken, they are waived. In the present case the defendants set up in their answer the matter of which they complained. Had the proofs shown the defendants guilty severally of distinct wrongful acts, and had the court held them jointly or severally liable therefor, the question involved in Keyes v. Little York, etc., Co., 53 Cal. 734, and Hillman v. Newington, 57 Cal. 56, would arise.

But the action of the court below in granting a nonsuit as to the defendants James and Burrell, whom the testimony failed to show as joint tortfeasors with the other defendants, eliminated this question from the case, and, as there was testimony sufficient to hold the other defendants, there was no error in refusing the motion for nonsuit as to them. In other words, the nonsuit as to James and Burrell was granted because the latter were not shown to have been guilty of the wrongful acts charged in the complaint, and a failure of proof against a defendant charged jointly with others does not support a plea in abatement, based upon the theory that defendants are several and not joint trespassers.

It is next objected that the findings do not support the judgment; and, among other objections thereto, is one that the court finds the plaintiff to be the owner of, say, 2,000 acres of land, not described in his complaint, and awards damages to plaintiff for diverting water therefrom. Turning to the complaint, and comparing it with the findings, we discover: (1) That plaintiff describes the land of which he is seized and possessed by legal subdivisions, aggregating some 10,000 acres, a portion only of which the court finds him to own. (2) The court finds the plaintiff to be the owner of sections 5, 21, W. of section 9, W. of W. of section 16, E. and S.W. of section 28, in township 19 S., range 20 E., aggregating over 2,000 acres, not described in the complaint, or claimed by the plaintiff. The court further

found that defendants had obstructed Cole slough so as to turn away and divert the waters thereof from the lands of plaintiff, and that, by reason of the wrongful acts of the defendants in diverting the water, plaintiff has been damaged in the sum of $100, for which sum judgment was rendered, etc.

A party who seeks to recover damages to land of which he avers himself seized and possessed, and who only succeeds in establishing ownership to a part thereof, may have his damages for injury to such part; but we know of no rule by which he can show ownership of land, and recover damages for an injury thereto, which is not described in his complaint or claimed by him. The findings as to such lands were without the issues, and the defendants were not sued for injury to them. The plaintiff can only recover upon the cause of action set out in his complaint, and not upon some other which the proofs may develop. Mondran v. Goux, 51 Cal. 151; Heinlen v. Fresno Canal, etc., Co., 8 Pac. Rep. 513.

It was said in Morenhout v. Barron, 42 Cal. 605: "A finding is useless and idle unless the facts found are within the issues, and a judgment based upon such facts cannot be sustained." It is urged by respondent that appellants cannot avail themselves of the supposed error, for the reason that they failed to specify the same as error in their bill of exceptions. Where a motion is made for a new trial on the ground that the findings are not sustained by the evidence, the statement must specify the particulars in which the evidence is insufficient. Code Civil Proc. § 659; Bate v. Miller, 63 Cal. 233.

So, too, when the notice designates, as the grounds of the motion, errors of law occurring at the trial and excepted to by the moving party, they must be specified in the statement, and, if no such specifications are made, the statement is to be disregarded. The error complained of is one which appears upon the face of the judgment roll, and, if we disregard the bill of exceptions, it remains equally patent. The appeal is from the judgment as well as from the order denying a new trial, and the error complained of is one which might have been inquired into had no motion for a new trial been made. It appears of record, and requires no statement or bill of exceptions to make it apparent. A decision and judgment in favor of a party upon a cause of action for which he has not sued is a decision against law, and, if not apparent on the record, may be corrected by a motion for a new trial, in which the statement performs the office of making a record of that which was not so before; but where the facts are all of record, an inquiry may be had in this court into the regularity of the proceedings, equally without as with a motion for a new trial, provided, as here, there is an appeal from the final judgment. The case of Putnam v. Lamphier, 36 Cal. 151, is in point. The court said: "The point is made that the judgment is not authorized by the pleadings. This objection may be taken upon the judgment roll alone, whether there is a statement on motion for a new trial or not. It is sometimes included among the grounds of the motion, but without any necessity, as it derives no support from the statement, and its omission, in stating the grounds of the motion, raises no presumption that it is waived." The appellate court will take notice of errors appearing in the judgment roll, even if not named in the specification of errors in the statement.. Shepard v. McNeil, 38 Cal. 72; Patterson v. Sharp, 41 Cal. 133; Sharp v. Daugney, 33 Cal. 505.

For the error indicated, we are of opinion the judgment and order of the court below should be reversed, and a new trial ordered.

We concur: BELCHER, C. C.; FOOTE, C.

BY THE COURT. For the reasons given in the foregoing opinion the judg ment and order are reversed, and cause remanded for a new trial.

(71 Cal. 555)

LUCO and others v. SUPERIOR COURT, TUOLUMNE Co. (No. 11,597.) (Supreme Court of California. January 18, 1887.)

1. ACTION-VENUE-CHANGE OF ACTIONS IN SUPERIOR COURTS OF CALIFORNIA ON APPEAL FROM JUSTICES' COURTS.

Under section 5, art. 6, Const. Cal., providing that "superior courts shall have appellate jurisdiction in such cases arising in justices' and other inferior courts as may be prescribed by law," that part of section 980, Code Civil Proc. Cal., declaring that the provisions of this Code as to changing the place of trial * * are appli

*

cable to trials on appeal to the superior court," is unconstitutional; and where an action tried in a justice's court of a county is appealed to the superior court thereof, such court has jurisdiction of the action, and will refuse an application to transfer it to the superior court of another county, on the ground that the defendants are residents of such other county.

2. SAME PERSONAL ACTION-NON-RESIDENT DEFENDANT-WAIVER OF OBJECTION TO JU

RISDICTION.

Where, in a personal action, the defendants are not residents of the county where the action is brought, and make a motion to dismiss for lack of jurisdiction by reason of that fact, and then voluntarily withdraw the motion, and go to trial on the merits, they waive the question of jurisdiction. Code Civil Proc. Cal 2848.

Commissioners' decision. In bank.

H. P. Irving, for petitioners. F. W. Street, for respondent.

FOOTE, C. From the certified copy of the transcript brought here in response to the requirements of the alternative writ of mandate issued from this court to the superior court of Tuolumne county, it appears that on the ninth day of February, 1885, one Isaac T. Holland commenced an action in a justice's court of Tuolumne county against Juan M. Luco, I. N. Thorne, and S. F. Ambler,―all of said defendants being non-residents of said county; -that on the sixth day of March following, defendants Thorne and Luco (Ambler not having been served with process) filed in the justice's court affidavits and a motion to dismiss the action, on the ground of a want of jurisdiction in the court to try the cause, also separate answers to the complaint; that on twenty-first day of December, 1885, the case was tried in said justice's court, but before the trial commenced Thorne and Luco, by consent, withdrew the motion to dismiss the action. Judgment was then rendered against them, and from that they appealed to the superior court of Tuolumne county, on questions both of law and fact.

After the filing of the papers on appeal in said superior court, the defendants Thorne and Luco moved, upon affidavits, for a change of the place of trial of the cause to the superior court of the city and county of San Francisco, upon the ground that their residence then, and at the time of the commencement of the action, was at the latter place. The court overruled their motion. And it is to compel its action to transfer the case for trial as demanded by their motion that the present proceedings were instituted.

The fact that the defendants voluntarily, by consent, withdrew their motion to dismiss the case, and went to trial on the merits in the justice's court, was a waiver of the question of jurisdiction raised on the motion, under section 848, Code Civil Proc., the action being in its nature personal. The action undoubtedly arose in the justice's court of Tuolumne county, and therefore no other superior court save of that county had appellate jurisdiction to hear and determine it; and, as the superior court of the city and county of San Francisco was without jurisdiction so to do, it was proper for the court below to have refused, as it did, to transfer the cause, as requested by the defendants.

This construction of the provisions of section 980, Code Civil Proc., relative to a change of place of trial, and of article 6, § 5, of our state constitution, as bearing upon the constitutionality of that former section as applicable to