Edward A. Holman and Judson M. Davis, for appellants. J. M. Smith, for respondent.

At

COOPER, C. Appeal from judgment. The sole question here is as to the ruling of the court below in sustaining defendant's demurrer to the amended complaint. The complaint states, in substance: That in July, 1891, defendant conveyed the premises described in the complaint to one Snook. the time of the conveyance the premises were incumbered by a mortgage given by defendant to one Kelsey to secure his promissory note for $2,800. Snook did not assume or agree to pay the said note and mortgage. He afterwards conveyed to one McDonald, who conveyed to plaintiffs. While plaintiffs were the owners of the premises, one Dunning, to whom the note and mortgage had been assigned by Kelsey, began a foreclosure suit. In the foreclosure suit the plaintiffs and the defendant were made parties, and the complaint contained a prayer for a deficiency judgment against them, provided the proceeds of the foreclosure sale should not be sufficient to pay the amount found due on the promissory note and mortgage according to its terms. Neither the plaintiffs nor the defendant appeared in said suit, and their default was duly entered. A judgment and decree of foreclosure was accordingly made, which decree provided for a deficiency judgment, as prayed, against the plaintiffs and the defendant in case the proceeds of the sale should not be sufficient to satisfy the demand of plaintiff in the foreclosure suit. After sale of the premises under the decree, there remained a deficiency of $595.05, for which sum judgment was duly entered and docketed against the plaintiffs and the defendant; said judgment to bear interest from date at the rate of 7 per cent. per annum. This deficiency judgment was entered in November, 1898, and became final. It remained unpaid, and in July, 1900, a writ of execution was issued thereon against plaintiffs and defendant; and, in order to protect their property from seizure and sale thereunder, plaintiffs paid the sum in full. Defendant did not repay the amount so paid by plaintiffs, and this action is for the purpose of recovering the amount so paid by plaintiffs, with interest thereon at the legal rate.

The court erred in sustaining the demurrer. The deficiency judgment was for the debt of the defendant, and for a balance due upon his promissory note. The plaintiff's were not liable therefor, and, if they had appeared in the foreclosure suit, they, no doubt, could have prevented any deficiency judgment from being entered against them. They did not appear, however; and while the result was that a judgment was entered against them, which became final as to the plaintiff in the foreclosure suit, and which they were compelled to pay, it was none the less a judgment upon the debt of defendant

De

alone. By the negligence of the plaintiffs in not appearing and presenting their defense in the foreclosure suit, they became bound by the deficiency judgment. The court had jurisdiction of the parties and of the subjectmatter. They have not attempted to impeach the judgment as to the plaintiff in the foreclosure proceedings. They had the right to expect that defendant would pay his own debt. It may be that they were ignorant of their rights, or that they did not think but that the property would sell for sufficient to pay the amount, or, if not, that defendantwould pay it. They are not to be now prevented from showing that the deficiency judgment was for the sole debt of defendant, and that defendant is liable to them. fendant has not paid it, and to pay it to plaintiffs, instead of to the plaintiff in the foreclosure suit, cannot place him in any worse position. He had ample time to pay it before execution was issued, had he so desired, but as he did not do so, and, as the plaintiffs were compelled to pay it, he must now repay it to them. They are not mere volunteers. To pay a judgment in order to prevent the sale of their property on execution is not a voluntary payment. The deficiency judgment made plaintiffs and defendant jointly liable for such deficiency. The defendant was the party primarily liable, and the plaintiffs are entitled to maintain the action. Civ. Code, § 1432; Code Civ. Proc. § 709; Williams v. Riehl, 127 Cal. 369, 59 Pac. 762, 78 Am. St. Rep. 60. It was said by the supreme court of Indiana in speaking of a case in which the surety could have successfully interposed a defense and did not do so: "Our decision on this point is that the fact that the appellant might have successfully resisted the enforcement of the note does not of itself deprive him of a right to contribution from those who occupied toward him the relation of co-sureties. Payment of the note did not injuriously affect the rights of the appellees, for they, as subsequent parties, were bound, although the appellant might have escaped liability had he stood upon his legal right, and hence his adoption of the note did them no injury." Houck v. Graham, 106 Ind. 195, 6 N. E. 594, 55 Am. Rep. 727. In this case the facts upon trial may show that the judgment was correctly entered against plaintiffs, or that defendant has a valid defense, but upon its face the complaint states a cause of action.

*

*

*

We advise that the judgment be reversed, and the cause remanded, with directions to the court below to overrule the demurrer.

We concur: HAYNES, C.; SMITH, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded, with directions to the court below to overrule the demurrer.

tract, Bailey, or the sheriff and plaintiff, who had succeeded to his interest in the crop, were entitled to complete the contract, and, if they so desired, retain all that was received from the sale of the grapes which they so harvested, and at the same time recover from Johnson two-thirds of the value of that portion of the crop which he delivered. The negligence of the sheriff is thus predicated upon his permitting the deduction of the cost of harvesting from this plaintiff's share of the crop. If the defendant was culpably negligent in the matter, his negligence arose upon October 21, 1891, as pleaded, and found by the court. It further appears that the sheriff had furnished plaintiff's attorney with a cost bill showing his disbursements, on January 12, 1892, and the court finds that plaintiff had actual knowledge of what defendant had done upon the last-named date. Plaintiff's amended complaint, the first time charging negligence, was not filed until February 10, 1894, and accordingly the court found that the cause of action was barred by the provisions of subdivision 2 of section 339 of the Code of Civil Procedure. Appellant seeks to overcome this finding by the argument-First, that the original complaint was filed within two years of the date of the transaction. and that the amended complaint does not change the cause of action; and, second, that the cause of action against the sheriff did not accrue until discovery of what he had done, made at the time of the filing of his formal return under the writ. As to the first of these propositions, it cannot be successfully contended that the two causes of action-the one set forth in the original complaint, the other set forth for the first time in the amended complaint in a separate countare the same. The first is a charge, not of negligence in failure to collect, but is a charge of fraud in refusing to turn over moneys which he had actually collected, and on proof of which plaintiff was entitled to exact the 25 per cent. penalty which he actually demanded. To this action demand upon the sheriff is necessary, and this demand was pleaded. The second cause of action was an action for damages resulting from negligence, pure and simple, not for a refusal to turn over what he had collected, but for his negligent failure to collect what he should have collected, to the detriment and loss of the plaintiff. In this action no demand is necessary, and no penalty is permitted; and so, properly enough, the pleader neither alleged a demand, nor asked for a penalty. The amended complaint so changing the cause of action cannot be made referable to the time of the filing of the original complaint to avoid the bar of the statute.

The second proposition advanced by appellant is equally untenable. It is not true that, where damages result from negligence, the cause of action arises upon the date of the discovery of the negligence or of the

negligent person. It is the date of the act and fact which fixes the time for the running of the statute. Cases of hardship may arise, and do arise, under this rule, as they arise under every statute of limitations; but this, of course, presents no reason for the modification of a principle and policy which upon the whole have been found to make largely for good. If a man assails another and inflicts upon him great bodily injury, and escapes unidentified, and, notwithstanding the most ardent search, is able to conceal his identity for years, if discovery be afterward made it is too late, not only to prosecute him for damages in a civil action, but as well to try him upon the criminal charge. If a searcher of records, in his report upon a title by negligence omits an important instrument, the purchaser, upon the strength of the searcher's report, has no cause of action unless he brings it within two years, not from the date when he may be ousted of his possession, and thus first discover the defect, but within two years from the date of the searcher's report. And so throughout the law, except in cases of fraud, it is the time of the act, and not the time of the discovery, which sets the statute in operation. Gale v. McDaniel, 72 Cal. 334, 13 Pac. 871; People v. Melone, 73 Cal. 574, 15 Pac. 294; Lattin v. Gillette, 95 Cal. 317, 30 Pac. 545, 29 Am. St. Rep. 115; Paige v. Carroll, 61 Cal. 211.

The judgment appealed from is therefore affirmed.

We concur: TEMPLE, J.; McFARLAND, J.

(135 Cal. 91)

TREAT et al. v. CRAIG. (S. F. 2,639.) (Supreme Court of California. Dec. 14, 1901.) MONEY PAID PAYMENT OF INCUMBRANCECAUSE OF ACTION.

Under Civ. Code, § 1432, providing that a party to a joint or joint and several obligation, who satisfies more than his share of the claim, may require a proportionate contribution from the other parties; and Code Civ. Proc. § 709, prescribing that, when one of several persons against whom execution has issued pays more than his proportion, he may compel contribution, or, when a judgment is against several on the obligation of one of them, the surety paying the same may compel payment from the principal, a complaint which alleged that plaintiff had paid a deficiency judgment rendered against defendant and himself in foreclosure of a mortgage securing defendant's debt, to prevent execution against plaintiff's property, which had been derived through defendant, states a cause of action.

Commissioners' decision. Department 2. Appeal from superior court, Alameda county; John Ellsworth, Judge.

Action by Webster Treat and another against A. W. Craig. From a judgment in favor of the defendant, the plaintiff's appeal. Reversed.

issue pending in the justice's court. No cause of action was therefore alleged, and the judgment appealed from should be affirmed.

We concur: COOPER, C.; GRAY, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.

(135 Cal. 65)

KING v. KUTNER-GOLDSTEIN CO. (Sac. 851.)

(Supreme Court of California. Dec. 13, 1901.)
JUSTICE'S COURT-JURISDICTION-TITLE TO
REAL PROPERTY-ISSUES-VERI-
FIED ANSWER.

1. Where in trespass in justice's court it appears that the right of possession and title to the land is involved, the justice has no jurisdiction.

2. Under Code Civ. Proc. § 838, providing that the parties to an action in a justice's court cannot give evidence on any question which involves the title or right of possession of real property, nor can any issue presenting such question be tried by such court, where such issue is raised by the pleadings the justice cannot try the cause, though the answer is not verified.

3. Where a justice renders judgment in an action in which the titie and right of possession of real property are involved, on an appeal on questions of law alone the superior court should reverse the judgment.

Department 1. Appeal from superior court, Kings county; M. L. Short, Judge.

Action by Charles King against the Kutner-Goldstein Company. From a judgment of the superior court affirming a judgment of a justice's court in favor of plaintiff, defendant appeals. Reversed.

Wm. L. McGuire, for appellant. Hudson & Pryor, for respondent.

to

GAROUTTE, J. This is an action brought

recover damages for the trespass of sheep. It was originally brought in the justice's court, where a judgment was rendered against defendant. Thereupon an appeal was taken to the superior court upon questions of law alone, and the judgment affirmed. The present appeal is prosecuted from the judgment rendered in the superior court. The point is made that the judgment of the justice's court was void, the action being without the jurisdiction of that court, and, the judgment of that court being void, it is contended that the judgment of the superior court upon appeal, upon questions of law alone, was also void.

The facts material to a consideration of this question are these: Plaintiff paid $500 to defendant as a part of the purchase price of a certain tract of land, the balance to be paid thereafter if title proved good. Plaintiff, being satisfied with the title, paid the balance of the purchase price and received his deed. He then brought the present action for damages for trespass upon the land, occurring between the date of the first pay

ment and the delivery of the deed, claiming by his complaint that he was the owner and entitled to the possession during that period. Defendant filed an unverified answer denying all the allegations of the complaint, and the case went to trial upon the facts. The following stipulation of the respective attorneys appears in the amended statement upon appeal from the justice's court to the superior court: "Witnesses were sworn on both sides, and evidence was adduced which clearly showed that the right of possession and title to said land mentioned in plaintiff's complaint was involved." In view of the foregoing recital contained in the statement upon appeal to the superior court, it is very evident that the justice's court had no jurisdiction to try the action. When the facts contained in the foregoing recital were adduced before the justice of the peace, he should have stopped the proceedings forthwith. It is contended upon the part of respondent that, the answer of the defendant not being verified, he thereby waived any and all objections to the jurisdiction of the court over the subject-matter of the action. In answer to this proposition it is sufficient to say that neither a party nor both parties can vest the court with a constitutional jurisdiction to which it is otherwise a stranger. If the failure of the defendant to verify his answer in this particular case vested the justice's court with jurisdiction to try the title and the right of possession to this particular tract of land, then by the same character of proceedings a justice's court could be vested with jurisdiction to try an action of ejectment, or any other action involving the title or right of possession to real estate. In support of his contention in this regard respondent relies upon section 838 of the Code of Civil Procedure, which provides: "The parties to an action in a justice's court cannot give evidence upon any question which involves the title or possession of real property, * nor can

any issue presenting such question be tried by such court; and, if it appear from the answer of the defendant, verified by his oath, that the determination of the action will necessarily involve the question of title or possession to real property, * the

justice must suspend all further proceedings in the action, and certify the pleadings, and if any of the pleadings are oral, a transcript of the same, from his docket to the clerk of the superior court." The language of the section is clear and explicit to the effect that the parties are not allowed to give evidence upon any question which involves the title or possession of real property, and the section further declares that no issue can be tried by the court which presents such a question. It is difficult to see how the language could be plainer, or more mandatory in its terms. In the present case the defendant filed an unverified answer, but that fact of itself is immaterial, for an unverified an

swer where the complaint is unverified raises every issue that a verified answer would, and in this case issues were raised by the answer to every allegation of the complaint. It is said in Rowley v. Howard, 23 Cal. 401: "The complaint is not verified, and the answer denies generally the allegations of the complaint. This averment cannot, therefore, be held as admitted. It is true that the act in question requires the answer to be verified; but this does not change the rule established by section 46 of the practice act. Indeed, the language of the section of the Code itself contemplates that the answer in cases covered by it may be oral, and, if this be so, it is evident that a verification is not absolutely necessary. There is some language found in Williams v. Mecartney, 69 Cal. 556, 11 Pac. 186, which possibly infringes upon these views. If there be an infringement, the doctrine here announced must prevail, for it must be deemed an elementary principle that the facts, and not the verified answer, constitute the final test of jurisdiction upon any cause of action inaugurated in a justice's court.

There is some point made by respondent as to the jurisdiction vested in the justice's court by section 112 of the Code of Civil Procedure. It is not necessary to carefully examine subdivision 2 of said section for the purpose of determining the extent of the jurisdiction attempted to be vested in justices' courts by that subdivision. It is sufficient to say that, if the jurisdiction there granted is broader than the jurisdiction given by the constitution, then the provisions to that effect must fall.

It follows from the foregoing views that the justice's court had no jurisdiction to render the judgment made by that court, and, that being so, the appeal to the superior court being taken upon questions of law alone, that court should have the judgment theretofore rendered in the justice's court reversed.

For the foregoing reasons, the judgment is reversed.

MOHR v. BYRNE et al. (KOWALSKY, Intervener. S. F. 1,843).

(Supreme Court of California. Dec. 14, 1901.) BILLS AND NOTES-INNOCENT HOLDER-INDORSEMENT AFTER MATURITY.

An indorsee of a note for valuable consideration, taking the same after maturity, does not take subject to the equities of a third person, whose rights are latent, and do not appear from an inspection of the note or the indorsements thereon, and will be deemed an innocent purchaser.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; J. M. Seawell, Judge.

Action by Henry Mohr against Kate C. Byrne and others, in which H. I. Kowalsky intervened. From a judgment in favor of the plaintiff, the intervener appeals. Affirmed.

W. A. Kirkwood, W. C. Shepard, A. A. Sanderson, and Weil & Lippett, for appellant. Hepburn Wilkins, Wilson & Wilson, T. J. Crowley, W. H. H. Hart, and Aylett R. Cotton, for respondents.

GRAY, C. The intervener, Kowalsky, appeals from a judgment to the effect that he take nothing in the above-entitled action. The appeal was dismissed as to defendant Byrne, and the only parties respondent are the plaintiff, Mohr, and the defendant Moore (formerly Florence Blythe). The record on appeal consists of the judgment roll, from which it appears that the defendant Byrne made and executed to one Sol Ephraim her promissory note for $12,000 and interest, receiving as the only consideration thereof $4,000 in money. As security for the payment of this note Byrne assigned to Ephraim a $12,000 interest in a contract which she had with Mrs. Moore (formerly Florence Blythe) for a one-tenth of the interest of the lastnamed person as the sole heir of the estate of Blythe. Subsequently Ephraim indorsed the said note, and thereafter assigned the said $12,000 interest in the contract to the plaintiff, Mohr, as security for a $2,000 note jointly executed and delivered by intervener, Kowalsky, and Ephraim, to the said plaintiff. The said $12,000 note and contract was thereafter made to secure other notes and obligations of Ephraim, not necessary to be here described. Thereafter plaintiff brings this suit upon the $12,000 note and contract (and other obligations) against the maker, Byrne, Mrs. Moore, and others, not necessary to be here named. In this action Kowalsky intervened, setting out that he owned a onehalf interest in the $12,000 note and contract involved in the suit, and praying "that a decree and judgment may be entered that he is the owner of the one-half interest, to wit, the sum of $6,000, in the contract from Kate C. Byrne to Sol Ephraim, and thereafter transferred and assigned over to the plaintiff Henry Mohr, being the same contract for $12,000 as alleged in plaintiff's complaint; and that the said Henry Mohr has no interest or ownership and is not entitled to any part of said contract belonging to the said Henry I. Kowalsky, the intervener herein." On issues made by answers to the original complaint and to the intervention, a trial was had, and the court found for plaintiff, and gave him judgment against defendants Moore and Byrne on account of said $12,000 note in the sum of $4,000 and interest thereon at the rate of 6 per cent. per annum from the date of said note, November 7, 1892, less the amount of two several notes executed by Ephraim and assigned to Byrne, and by her set up as a counterclaim; which left the judg

ment obtained by Mohr on account of the $12,000 note less in amount by several hundred dollars than the sum due on the said $2,000 note executed by Ephraim and Kowalsky to plaintiff. The court found facts showing that the $12,000 note was assigned to plaintiff after it was due, and that plaintiff had no notice that Kowalsky had any interest in the note until long after he had taken it as security for the said $2,000 note.

Upon these findings and facts the judgment appealed from was clearly correct as between the plaintiff and intervener. The case turns on the question whether the plaintiff obtained the $12,000 note as a bona fide purchaser for value, without notice of intervener's equities. From the fact that plaintiff parted with value for the note, and that he had no notice of intervener's rights against Ephraim, it will be presumed that plaintiff was an innocent purchaser of the note, and it was not necessary to find in exactly those terms that plaintiff was an innocent purchaser. It is sufficient that the facts found establish that conclusion. Nor does the fact that plaintiff took the note after maturity make him any the less a bona fide purchaser as against the equities of intervener herein set up. The rule that indorsees after maturity take with notice of prior equities applies only as between the parties thereto, and does not apply as to third persons occupying the position of intervener herein, whose rights are merely latent, and do not appear from an inspection of the note or the indorsements thereon. The note, though due when assigned to plaintiff, carried with it the same presumptions as any other chose in action, and, quoting from the well-considered case of Duke v. Clark, 58 Miss. 465 (at page 474): "It is true that the assignee of a chose in action takes it subject to all the equities to which it was subject in the hands of the assignor, but the equities meant are such as obtain in favor of the debtor, and not those claimed by a third person against the assignor." The supreme court of Mississippi cite many cases in support of this proposition, including the case from this state, Wright v. Levy, 12 Cal. 257. See, also, First Nat. Bank of Bridgeport v. Perris Irrigation Dist., 107 Cal., at page 62, 40 Pac. 47, wherein it is said: "The law does not require that the assignee for value of a thing in action shall take it subject to the latent equities of third persons of which he has no notice, but only that the assignment shall be subject to the equities existing in favor of the debtor, in this case the defendant." In Bank v. Everman, 52 Miss. 506, it is said: "A purchaser of negotiable paper, even after maturity, cannot be bound by a secret equity in favor of an entire stranger to the paper, of which he neither had knowledge nor anything to put him upon inquiry." To the same effect, see Crosby v. Tanner, 40 Iowa, 136, where some authorities are cited, and the reason for the rule quoted from an opinion by Chan

cellor Kent. It seems clear that the note in plaintiff's hands is not subject to the latent claims of the appellant, and for that reason, so far as Mohr and Kowalsky are concerned, the conclusion of the court that the latter should take nothing was correct.

As to the other respondent in the action, the appellant asks no relief in his complaint. This is the law of the case. Mohr v. Byrne, 64 Pac. 237. Consequently, he has no ground of appeal.

The judgment should be affirmed.

We concur: COOPER, C.; SMITH, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is affirmed.

(135 Cal. 69)

PEOPLE v. MILLER. (Cr. 768.)1 (Supreme Court of California. Dec. 13, 1901.) HOMICIDE-CONFESSION-ADMISSIBILITY-CIR

CUMSTANCES-WITNESS CROSS

EXAMINATION.

1. On a trial for manslaughter, a witness testified that after the homicide the defendant made a voluntary statement, without threats or offer of reward or immunity. Defendant's counsel requested leave to inquire as to the conditions under which the statement was made. The request was refused, and the witness testified that defendant was asked why he killed deceased, and answered "that he was on his row, and throwing clods at him, and he told him to get off, and he would not get off, and he got mad and shot him." On cross-examination the witness testified that defendant was under arrest at the time the statement was made, but no further facts were developed. Held that, though it was error to refuse permission to cross-examine the witness, as the subsequent cross-examination showed that defendant was not prejudiced thereby the judgment should not be reversed therefor.

2. The fact that a person is under arrest at the time he makes a confession does not render such confession inadmissible.

3. The fact that defendant, on trial for murder, had a bullet wound in his head, and was not in the full possession of his faculties at the time he made a confession, does not affect its admissibility, but may be considered in determining its weight.

In banc. Appeal from superior court, Alameda county; W. E. Greene, Judge.

W. D. Miller was convicted of manslaughter, and appeals. Affirmed.

J. M. McElroy and D. Kinsell, for appellant. Tirey L. Ford, Atty Gen., and A. A. Moore, Jr., Dep. Atty. Gen., for the People.

HARRISON, J. The appellant was convicted of manslaughter, and sentenced to imprisonment in the state prison for 10 years, and has appealed therefrom. The only question presented upon the appeal is the correctness of the ruling of the superior court upon the admission in evidence of certain statements of the defendant made while he was under arrest.

It appears from the bill of exceptions that about a quarter after 11 o'clock in the eve Rehearing denied January 11, 1902.