Albro was mistaken and that Capwell did not make any such promise.

It appeared that the leak in the roof was first discovered during a rainstorm about 9 o'clock of the night of September 22, 1904. Plaintiff's watchman, Bostwick, notified defendant's janitor, Albro, and also called up by telephone plaintiff's bookkeeper, Furth, who came to the store and notified Capwell. Steps were taken to protect the goods from injury so far as presently possible and the three men went up to the roof through a second-story toilet window. Water was then standing on the subroof to some depth. Observing a break in the drain pipe on or near the upper roof from which water was flowing, Furth tied a cloth around this opening, forcing the water back into the pipe. He asked Albro where the opening was at the subroof, but was told that he did not know. Having no light, the party made no search at that time for this opening, but went below into the store and continued their ef forts to protect the merchandise. The leak seemed to abate somewhat, and Furth went home. The next morning about 7 o'clock the water began coming down worse than before, and Furth was again called and promptly responded, and went about protecting the goods in every possible way. Bostwick testified that he notified the janitor, Albro, several times during the night; "that, when the main flood occurred about seven in the morning, he went upstairs and woke the janitor again, and then went out on the roof and found the outlet, and was standing in water ankle deep on the roof where the skylight was and he got some pieces of glass and shavings and pieces of gunny rope or bale rope out of the outlet. He notified the janitor three times that night; and that the janitor of the Blake Block telephoned for the plumber to come." Witness Maddern, a plumber, responded, as also did witness Rankin, another plumber, Maddern pulled some rubbish out of the pipe below the opening, and, finding no relief, went below to examine the sewer, and while he was gone witness Rankin succeeded in relieving the pipe of its obstructions with a force pump or plunger obtained from janitor Albro, "who was out there working it when he appeared." Albro testified that he had been on the skylight area 50 times or more and had always cleaned it before a rain, that he had charge of the rooms of the upper stories for defendant, and that it was his duty to keep the roofs clean. It is true that he testified that Capwell had requested this of him, suggesting the inference that this duty was put upon him by plaintiff, and not by defendant. But the court held otherwise upon the evidence. Albro was, however, reminded by Capwell several times to keep the area roof clean, and Albro told Capwell he had been told to do so, but "had been too busy to come to it." Capwell also testified that he saw Mrs. Havens, defendant's agent, the Cal. Rep. 98-101 P.-3

morning of this occurrence, and was assured that the difficulty would be removed, "so that we would not sustain a flood in case it should rain again." Capwell also testified that plaintiff had nothing to do with the work above the ceiling of the store or with the care or control of the skylight area or light well. It appeared that this light well was built to give light and air to the upper stories as well as to the ground floor and basement. The area roof was in part built before the remodeling of the stores was begun and extended under the photograph gallery. The changes made required the closing of the light well at the floor of the second story, but the skylight became necessary, as a part of this subroof, to give light to the store below. Defendant, however, retained the use of the drainage system down through this well and through plaintiff's store, and this use was necessary to the drainage of the roof over the main building with no part of which latter plaintiff had anything to do or any control except the store and basement. Speaking of the situation as disclosed by the evidence, the court in its oral opinion at the close of the evidence said: "It seems that this pipe coming from the top of the building, down over the roof of the photographer's room, was an old pipe that had been in use for a long time. Originally it was conducted down through the light well to the sewer, and taken care of in that way. Now, of course, when these alterations were made, two things were necessary. One was that Mr. Capwell's store should be protected from the elements, and another was that there should be some provision still for carrying off the water from the top of the building. That was undertaken by Mr. Spence, employed by the owner of the building. And the largest function of this roof in the way of carrying water was to carry water from the upper roof, because there was a very much larger area of drainage there than there was on this lower roof. I think under all of the evidence in the case I am bound to hold that the owner of the building had appropriated that roof, or at least a portion of it, as if it were a pipe for the purpose of carrying off the water from the upper part of the building, as well as the small amount of water that might fall upon that roof."

If plaintiff had leased the entire building, the principle relied upon by defendant would have some application. But this is not such a case. In Looney v. McLean, 129 Mass. 33, 37 Am. Rep. 295, speaking of the general rule that there is no implied warranty of the safety and adaptation of the building to the uses of the tenant, it was said: "A lease does not imply any particular state of the property let, or that it shall continue fit for the purpose for which it is let, nevertheless its application is limited to premises which by the terms of the lease pass out of the control of the landlord into the exclusive possession of the tenant." The cases relat

ing to patent and latent defects have no application here for the court found on sufficient evidence that the responsibility for draining the upper roof was upon defendant who negligently performed this duty. In such case defendant became liable to plaintiff for damage thereby suffered. Edwards v. N. Y. & H. R. Co., 98 N. Y. 245, 50 Am. Rep. 659. There were many tenants of the upper stories. The main roof of the building sheltered the rooms occupied by them quite as much as the store below. It would be unreasonable to presume that plaintiff impliedly assumed the care of this roof or undertook to provide means for the escape of water from it. The damage resulted, not from rainwater falling upon the skylight nor upon the subroof, but rather from the volume of water poured upon the latter from the upper roof which was provided with no means of escape except to run across the subroof to the pipe which had originally carried the water directly from the main roof. Had this pipe remained as first constructed, it is not likely that the damage would have followed. Nor does the fact that this change was for the better accommodation of plaintiff in rearranging the stores affect the question or relieve defendant from the duty of caring for the water that was to fall upon the roof. We think the trial court correctly interpreted this subroof as being in effect a continuation of the pipe from the main roof which could safely perform the function marked out for it only by keeping the pipe running down through the store free and open for the unobstructed passage of water coming to it across the subroof. As it was the duty of defendant to see to this, it is immaterial whence the obstruction camewhether by accident or design dropped or thrown upon the subroof by tenants of the upper stories, suggested by defendant as a possible cause for the stoppage of the pipe. The fact that plaintiff and its servants promptly endeavored to ascertain the cause of the trouble and to find a remedy is mentioned as a circumstance tending to show an acknowledgment of plaintiff's duty to care for this roof. To our mind it has no such significance. They would have been guilty of contributory negligence had they supinely sat down and allowed the work of destruction to go on, making no effort to avert it.

Much stress is placed by defendant upon the fact that Capwell took especial interest in the plans for the remodeling of the storerooms, made suggestions as to changes, and was cognizant of the manner by which the water from the main as well as the subroof was to be cared for; and finally approved the work when completed. These circumstances are not necessarily inconsistent with the assumption by defendant of the care and control of the roofs of the building, nor do they impliedly or presumptively tend to charge plaintiff with such care and con

trol.

Plaintiff's interest in the building was in the rearrangement of the stores. Incidental to this arose the necessity for a skylight and to provide different means for conveying the water from the roofs to the sewer, Naturally plaintiff was concerned in knowing that these means were adequate and so they were had they been properly looked after; and here again we are confronted with the sole question of fact-upon whom rested the duty to care for the system of drainage adopted? With the exception of the testimony given by janitor Albro and his wife, which the court disbelieved and which was in conflict with the testimony of Capwell, there is no direct evidence that plaintiff ever assumed any control whatever of the skylight area. On the contrary, there was evidence that such control was assumed by defendant; and the conduct of the parties shows that from the time the work was commenced by the defendant, during its progress, after it was completed, and up to the time of the damage and in repairing the pipes after the disaster, the responsibility was assumed by defendant.

It was held in Priest v. Nichols, 116 Mass. 401, that, where a tenant occupying a portion of a building is damaged by the escape of water from pipes used by and under the control of the landlord who occupies the remainder of the building, the landlord will be held liable. The case of Toole v. Beckett, 67 Me. 544, 24 Am. Rep. 54, is cited by respondent, and we think states the law correctly in a similar case to the one here. The court said: "The plaintiff hired the lower portion of a building for a store, the upper portion remaining in the possession of the defendant and under his care and control. A rainstorm poured a great volume of water between the roof and the chimney down upon the plaintiff's goods, causing some injury. The charge is that defendant was guilty of negligence, either on account of the original construction of the roof or in the way and manner of maintaining it. The case both of law and fact is referred to the court. It is well settled that in a lease of real estate no covenant is implied that the lessor shall keep the premises in repair or otherwise fit for occupation. But that is not this case. Here the plaintiff had no care or control of the roof, and had no right to intermeddle with it. The defendant had such care and control for the benefit of himself and all his tenants. implication he undertakes so to exercise his control as to inflict no injury upon his tenants. If he does not exercise common care and prudence in the management and oversight of that portion of the building which belongs to his especial supervision and care, and damages are sustained by a tenant on that account, he becomes liable to him. He is responsible for his negligence"-citing casSee Davis v. Pacific Power Co., 107 Cal.

es.

By

563, 40 Pac. 950, 48 Am. St. Rep. 156, for a somewhat analogous case.

Some errors are claimed to have been made by the court in admitting and excluding testimony, but, as they are not argued and no reasons given in support of these specifications, we have not noticed them. We have addressed ourselves to what appellant stated in her brief as the only question in the case.

The judgment and order are affirmed.

We concur: HART, J.; BURNETT, J.

9 Cal. App. 78

MCKENZIE v. HILL.

In re SAN FRANCISCO STOCK & EX-
CHANGE BOARD et al. (Civ. 529.)
(Court of Appeal, First District, California.
Sept. 22, 1908.)

1. APPEAL AND ERROR (§ 414*)-"ADVERSE PARTY"-NOTICE OF APPEAL.

The "adverse party" on whom a notice of appeal must be served is the party who appears by the record of the proceedings in which the appeal is taken to be adverse.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2138; Dec. Dig. § 414.*

For other definitions, see Words and Phrases, vol. 1, pp. 224-227; vol. 8, pp. 7567, 7568.] 2. EXECUTION (§ 385*)-SUPPLEMENTARY PROCEEDINGS NATURE AND REQUISITE.

Supplementary proceedings so far as the garnishee is concerned are original proceedings, not against the debtor, but against his creditor, and are a substitute for a creditors' bill.

[Ed. Note. For other cases, see Execution, Dec. Dig. 385.*]

3. APPEAL AND ERROR (§ 414*)-NOTICE OF APPEAL-SERVICE-ADVERSE PARTY.

Where, after final judgment on which an execution had been issued, supplementary proceedings were instituted against garnishees in which the judgment debtor was not served, and did not participate, he was not an adverse party on whom a notice of appeal by the garnishees from an order requiring payment by them of a specified sum on the judgment should be served.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2138; Dec. Dig. § 414.*] 4. EXECUTION (§ 358*)-SUPPLEMENTARY PRO

CEEDINGS.

Proceedings supplementary to execution are not a mere incident to the original action, but constitute a new proceeding involving new parties and issues.

[Ed. Note.-For other cases, see Execution, Dec. Dig. 358.*]

Appeal from Superior Court, City and County of San Francisco; Jas. M. Troutt, Judge.

Action by James A. McKenzie against J. B. Hill. From an order in supplementary proceedings directing the San Francisco Stock and Exchange Board and A. B. Ruggles to pay certain money on a judgment recovered by plaintiff against Hill, the garnishees appeal. On motion to dismiss. nied.

De

Aitken & Aitken, for appellants. Edmund Tauszky and W. P. Hubbard, for respondent.

KERRIGAN, J. order made in proceedings supplementary to execution, directing appellants, as garnishees, to apply $876 toward the satisfaction of a judgment recovered by plaintiff McKenzie against defendant Hill. The ground of the motion to dismiss is that no notice of such appeal was served upon the defendant Hill.

The appeal is from an

The undisputed facts in the case are as follows: On the 17th day of January, 1907, respondent, McKenzie, recovered judgment against defendant, Hill, for the sum of $3,805, and assigned the same to C. M. Craig. Craig prepared an affidavit as the basis for an order for the examination of appellants, the San Francisco Stock and Exchange Board and A. B. Ruggles, its president. Upon this affidavit the Honorable James M. Troutt, one of the judges of the superior court of the city and county of San Francisco, made an order, requiring the presence of said appellants before said judge to be examined concerning the possession of the sum of $876, money belonging to defendant Hill not exempt from execution, and which money was subject to be applied toward the satisfaction of said judgment. After the examination of the president of said Stock and Exchange Board, the court ordered the application of the said $876 toward the payment of said judgment. No notice of appeal was served upon defendant Hill. Under these circumstances appellants contend that defendant Hill would be affected by a reversal of the order appealed from, and hence is an adverse party as contemplated by section 940 of the Code of Civil Procedure; and, as no notice of appeal was served upon him, the appeal should be dismissed.

It is not at all clear to us in what manner Hill could be injuriously affected by a reversal or modification of the judgment appealed from; but in any event we are convinced that he was not a party to the proceeding, and therefore was not entitled to notice. "The adverse party upon whom the notice of appeal is to be served is the party who appears by the record to be adverse, and the record to be considered for that purpose is the record of the proceedings in which the appeal is taken." In re Ryer, 110 Cal. 560, 42 Pac. 1082. An examination of the record here shows that in an action against Hill a judgment had been obtained, which is now final and in full force and effect, and upon which judgment an execution had been issued; that in proceedings supplementary to execution the garnishees were examined, and the order appealed from was made. In that proceeding Hill was not served, nor did he in any way participate therein. It thus appears, to reiterate, that Hill was not before the court, and was not a party to that proceeding. Proceedings supplementary to execution, while collateral to an original action, are still quite independent of

it. Indeed, they embrace all the elements of an independent civil action. It has its own record, and only parties thereto need be served with notice of appeal. In Wells v. Torrance, 119 Cal. 441, 51 Pac. 626, these proceedings are called, so far as a garnishee is concerned, original proceedings. In Coffee v. Haynes, 124 Cal. 565, 57 Pac. 482, 71 Am. St. Rep. 99, they are said to be proceedings not against the judgment debtor, but against his creditor. They are a substitute for a creditors' bill. Adams v. Hackett, 7 Cal. 201; Pacific Bank v. Robinson, 57 Cal. 522, 40 Am. Rep. 120; Herrlich v. Kauffman, 99 Cal. 275, 33 Pac. 857, 37 Am. St. Rep. 50. "This [proceeding supplementary to execution] cannot be regarded as a mere incident to the original action. * In this proceeding, the merits of the original action are in no way involved. New issues are presented, new parties are brought in, and new rights are determined, the adjudication of which in no way alters the face of the original judg ment." Harper v. Behagg, 14 Ind. App. 428, 42 N. E. 1115.

Our conclusion that Hill was not a party to the record, and consequently not entitled to notice of appeal, is supported by the cases in this state. In Re Ryer, supra, an heir interested in the estate of Ryer filed his petition for partial distribution. To this petition certain of the heirs and legatees of the deceased filed their answers. Others interested did not appear or object to the petition. On the issues framed the petition was denied. A motion for a new trial was refused, and, from the order denying this motion, an appeal was taken. A motion was made to dismiss the appeal, on the ground that the parties interested who did not appear at the hearing had not been served with notice of appeal. In denying the motion the court said: "Upon an appeal from an order denying a new trial, the parties to the motion in the court below are the only proper parties to the appeal; and the appellant is not required to give notice of appeal to others than those to whom the original motion was directed. The 'adverse party' upon whom a notice of appeal is to be served is the party who appears by the record to be adverse; and the record which is to be considered for that purpose is the record of the proceedings in which the appeal is taken. The rule that the notice of appeal must be served upon all parties that would be affected by a reversal of the order and judgment appealed from is to be construed with the other rule that only the record can be examined for the purpose of determining who are such adverse parties. proceeding instituted in the superior court by the appellant herein is in the nature of a collateral inquiry, or episode, interjected into the proceedings for the administration of the estate, in which there are pleadings, process, trial, findings, and a judgment, thus presenting all the elements of a civil action

The

instituted in an independent suit for the purpose of determining the right of the appellant to a share of the estate, and, in matters of procedure upon appeal, should receive the same consideration as upon an appeal in a civil action." In Re Bullard, 114 Cal. 462, 46 Pac. 297, the administrator of the estate rendered an account for settlement, and in connection therewith reported that he had allowed a claim in favor of the Hibernia Savings & Loan Society. One of the heirs of the decedent contested the allowance of this claim, and excepted to the account in this respect. From an order settling the account he appealed, and served notice thereof on the administrator alone, and not on the claimant, and for this failure a motion was made to dismiss the appeal. The Hibernia Savings & Loan Society did not in any way participate in the proceeding, and yet, notwithstanding that it was vitally interested in the matter, the court held that it did not appear from the record that it was in any respect a party to the proceedings, and that it was unnecessary to serve it with notice of appeal.

A late case on the subject is Estate of McDougald, 143 Cal. 476, 77 Pac. 443, where the cases just referred to are quoted from with approval, and the matter is fully discussed. There the administrator filed an account, to which a judgment creditor filed written objections. Upon the issues thus presented the account was surcharged $5,500 and settled accordingly. In connection with the account the administratrix reported that she had allowed the claims of 16 creditors. In addition to the settlement of the account, the court ordered that a dividend be declared upon the claims reported, and paid out of the funds adjudged to be in the hands of the administratrix. From these orders the administratrix appealed, and served her notices of appeal on the contesting creditor, and on two others who appeared at the contest, but not upon any of the other creditors. The contesting creditor moved to dismiss the appeals for failure to serve the notices on the persons who did not appear at the hearing. There it was contended that the creditors who did not appear nor make any objection to the account were directly interested in the result of the appeal; that the dividend accruing to them under the order would be diminished if the appeal was successful; and, therefore, that they were adverse parties who must be served with notice of appeal to give the court jurisdiction. In denying the motion the court said: That a person interested in an estate, although his name and his interest are disclosed on the face of the record, is not necessarily a party to the cause or proceeding is manifest from a consideration of the different cases where persons interested may or may not appear, at their option. In a proceeding to probate a will any person interested, whether as devisee, legatee, or heir, may appear and con-

test the probate. The petition for probate must show the names of the heirs and devisees, and hence their interest must always appear in the record. Yet it would not be contended that an heir, devisee, or legatee who fails to appear at the time of the hearing of the petition is in any sense a party to such proceeding. So with the petitioner for administration there may be many persons who are entitled to letters and who are interested in the matter of the appointment. But, if they fail to appear or contest the right of the petitioner, it is manifest that they cannot be considered parties. Upon the settlement of an account, every creditor, heir, legatee, or devisee is a person interested, and as such has a right to enter an appearance and become a party. The names of these persons generally appear upon the face of the account or upon some of the documents referred to therein, but the giving of the notice and the statement of their rights or claims does not ipso facto make them parties to the proceeding. See, also, Niles v. Gonzales (Cal.) 92 Pac. 74; O'Rourke v. Finch et al. (Cal. App.) 96 Pac. 784.

The motion is denied.

We concur: COOPER, P. J.; HALL, J.

9 Cal. App. 62

RICHMOND et al. v. SUPERIOR COURT
OF CALIFORNIA et al. (Civ. 567.)
(Court of Appeal, Second District, California.
Sept. 19, 1908.)

1. CERTIORARI (§ 10*)-PRIOR
FECT OF DECISION.

REVIEW-EF

Where a prior writ of certiorari was denied by the Supreme Court because the proceeding was directed to the judge of the superior court instead of the tribunal itself, language in the opinion inadvertently used, appearing to determine petitioner's right to the writ on the merits, did not foreclose them from presenting the question anew, or preclude the court from determining it without reference to the former decision.

[Ed. Note. For other cases, see Certiorari, Cent. Dig. § 17; Dec. Dig. § 10.*]

2. LANDLORD AND TENANT (§ 291*)-POSSESSION-RELATION-COMPLAINT.

Where complaint by a landlord against a tenant to recover possession alleged a verbal lease, 30 days' notice to terminate the tenancy, and thereafter 3 days' notice to quit, claiming rent for one month and damages, it sufficiently showed the existence of the relation of landlord and tenant between the parties.

[Ed. Note. For other cases, see Landlord and Tenant Cent. Dig. § 1239; Dec. Dig. § 291.*] 3. JUSTICES OF THE PEACE (§ 36*)-TITLE TO REALTY EVIDENCE.

While justices' courts are prohibited from receiving evidence on any question involving the title or possession of real property, or to try any issue presenting such question, Code Civ. Proc. 835, also declares that in forcible entry and detainer of which justices' courts have jurisdiction, any evidence, otherwise competent, may be given, and any question properly involved therein may be determined.

[Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. § 91; Dec. Dig. § 36.*]

4. FORCIBLE ENTRY AND DETAINER (_2*)— STATUTES.

The statutory provisions relating to pro ceedings in forcible entry and detainer are to be construed to include proceedings in unlawful detainer.

[Ed. Note. For other cases, see Forcible Entry and Detainer, Cent. Dig. § 4; Dec. Dig. § 2.*j

5. LANDLORD AND TENANT (§ 291*)—UNLAWFUL DETAINER EVIDENCE.

Proceedings in unlawful detainer, in which the rules of evidence relating to forcible entry and detainer are made applicable, are limited to those cases where the relation of landlord and tenant exists, and in which such defenses only can be recognized as are available to the tenant against the landlord.

[Ed. Note.-For other cases, see Landlord and Tenant, Dec. Dig. § 291.*}

6. LANDLORD AND TENANT (§ 290*)—UNLAWFUL DETAINER.

To sustain an action for unlawful detainer, proof of a mere quasi tenancy is not sufficient, but there must be either an express letting or proof showing, by implication, defendant's occupancy of the land as plaintiff's tenant.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 1208; Dec. Dig. § 290.*] 7. JUSTICES OF THE PEACE (§ 36*)—JURISDICTION-ACTION FOR POSSESSION-UNLAWFUL DETAINER.

A complaint in unlawful detainer before a justice alleged a verbal lease, 30 days' notice to terminate the tenancy, and 3 days' notice to quit, 1 month's rent in arrear, and damages. Defendant's verified answer denied that they ever had been plaintiff's tenants, denied plaintiff's ownership and right of possession, and averred that defendants held possession under a contract of sale, the conditions of which had not yet been performed. Held, that the decisive question was whether the relation of landlord and tenant existed between the parties, which was within the jurisdiction of a justice of the peace, and that the action was therefore not transferable to the superior court as involving title to realty.

[Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. § 91; Dec. Dig. § 36.*] Ap

Action by Emma Agnes Richmond. plication for writ of certiorari by Emma Agnes Richmond and others against the Superior Court for Los Angeles County and Frederick W. Houser, Judge, etc. Writ dismissed, and application denied.

Wm. T. Blakely, for petitioners. Tipton & Cailor, for respondents.

PER CURIAM. Application for writ of certiorari to review order of superior court remanding to justice court a case of unlawful detainer which had been certified up by the justice court on the ground that title to real property was involved in the issues to be tried.

A former application was denied by this court because the proceeding was directed to the judge of the superior court, instead of to the tribunal itself. It was not intended by the opinion then filed to determine anything but who were the proper parties to the proceeding, but in assuming the position of the petitioners for the purpose of deciding this