this order be served on said respondent, or her attorneys, three days at least before said 2d day of May, 1889."

The respondent, by her attorney, W. R. Thompson, appeared at the time named in this order, and resisted the petition, contending that the appeals had not been properly taken; that no proper efforts had been made to justify the sureties in the court below; and that the appeals were taken for delay. These facts were set out in an affidavit made and filed by Mr. Thompson. The objections to the filing and approval of the bond were overruled, and the bond allowed to be filed. The sureties justified, and the following order was made by the court: "The defendant and appellant Ed. Hirschler, having been allowed, on application therefor, to file in this court a new undertaking on his appeal herein, with sureties, who have satisfactorily justified as to their sufficiency: Now ordered that all proceedings on the judgment herein be stayed till the determination of said appeal, and that the execution now in the hands of the sheriff of the city and county of San Francisco, issued upon said judgment, be, and the same is hereby superseded." The bond given was to stay proceedings under both the appeal from the judgment and from the order denying a new trial. This bond was never indorsed "Filed" by the clerk; but it was received and accepted by the court, placed with other papers in the case in the clerk's office, and acted upon by the court as shown by the above order. Subsequent to these proceed ings a motion was made to dismiss the appeals. The motion to dismiss the appeal from the order denying a new trial was allowed, and the appeal dismissed, and the motion to dismiss the appeal from the judgment was denied; leaving but the latter appeal pending. Thereupon the attorney for respondent, above-named, applied to the clerk of this court for, and procured to be sent down, a remittitur upon the order dismissing the appeal from the order denying a new trial. He then caused an execution to issue from the court below on the judgment and enforced payment thereof, notwithstanding the giving of the stay-bond and the proceedings and order of this court. above recited. The attorneys for said Hirschler have filed in this court a petition for an order requiring the said Thompson to repay the money collected on said execution, and that he be punished for contempt for having caused the issuance and enforcement of said execution in violation of the order of this court staying proceedings. The said Thompson has filed his answer to said petition, in which he renews his claim, made in opposition to the stay of proceedings, that the appellant was not entitled to such stay, and attempts to show that the proceedings and order of this court only stayed proceedings on the appeal from the order denying a new trial, and did not affect his right to enforce the judgment after said appeal was dismissed; avers that he believed his client had the right to issue

execution not withstanding the giving of the bond; that the bond was never in fact filed; that he acted in good faith, and did not intend to violate any order made by this court. He further alleges that he was present at the application to be allowed to justify the sureties in this court, but says that he "denies that he at that time, or at any time subsequent thereto, until the commencement of this proceeding, knew, or suspected, or had reason to suspect, that any such order of this court in that behalf was made, and that no copy of the order was ever served on him." He also denies that he knew that execution on the judgment was stayed.

He

We think none of these allegations can avail the respondent. We cannot, in this proceeding, stop to inquire whether the steps taken in this court which resulted in the order staying the execution were strictly regular or not. Nor can the respondent be allowed to question their regularity in justification of his conduct in causing the enforcement of the judgment. It is enough to say that this court had jurisdiction to make the order, and that it was made. Having been made, it should have been respected and obeyed until set aside. Nor can the respondent excuse himself by showing that he had no notice of the making of the order. had notice of the application therefor, and was present, and resisted it. No further notice to him or his client was necessary. Considering the respondent's good standing in the profession and his claim that he acted in good faith in this matter, we are not inclined to inflict any penalty upon him in case the money wrongfully collected is repaid. But, conceding his good faith, and that he believed he could avoid the effect of the order on technical grounds, his conduct cannot be excused or overlooked. The order of the court is that the said W. P. Thompson repay to the appellant, Hirschler, within 30 days, the amount collected on said judgment, with legal interest, from the date the same was collected, and that he furnish to this court satisfactory evidence that such payment has been made.

We concur: BEATTY, C. J; Fox, J; McFARLAND, J; THORNTON, J.

(3 Cal. Unrep. 250) KELLOGG v. COLGAN. (No. 12,895.) (Supreme Court of California. March 25, 1890.) APPEAL EVIDENCE.

Where the evidence is conflicting, an order granting a new trial will not be disturbed on appeal.

Department 2. Appeal from superior court, Sonoma county; JOHN G. PRESSLEY, Judge.

S. K. Dougherty, Albert G. Burnett, and R. F. Crawford, for appellant. E. S. Lippitt, for respondent.

SHARPSTEIN, J. This is an appeal from an order granting plaintiff a new trial in an action for the conversion, by the defendant,

of a mare alleged to belong to plaintiff. The answer of the defendant denies all the allegations of the complaint, and for a further defense alleges that the mare was taken by him as sheriff of Sonoma county upon an execution against one Merchant, in whose possession the mare then was. The verdict of the jury was in favor of the defendant. Plaintiff moved, upon a statement of the case, for a new trial, which was granted, and, as before stated, this appeal is from that order. We cannot disturb the order. The evidence is conflicting. Order affirmed.

We concur: TON, J.

(83 Cal. 450)

MCFARLAND, J.; THORN

MAZKEWITZ 0. PIMENTEL et al. (No. 12,792.) (Supreme Court of California. March 18, 1890.)

APPEAL-RECORD-EXCEPTIONS.

1. When the transcript on appeal fails to show any exception by either party on the trial, an order granting a new trial for "errors of law occurring at the trial, and duly excepted to by the defendant," will be set aside.

2. A motion for a new trial on the grounds that the evidence is insufficient "to support the judgment," and that "the judgment is against law," is not equivalent to a motion for a new trial for the "insufficiency of the evidence to justify the verdict or other decision, or that it is against law," as specified in Code Civil Proc. Cal. § 657, subd. 6.

3. The supreme court cannot assume, in the face of a bill of exceptions containing a copy of the notice of intention to move for a new trial, that another notice was given, designating other causes of motion than those contained in the notice brought up by the bill.

Department 2. Appeal from superior court, city and county of San Francisco; T. K. WILSON, Judge.

Alex.

Herrmann & Soto, for appellant. Campbell and O. F. Meldon, for respondents.

It

motion for a new trial on this ground, and a fortiori, on either of the grounds designated in the notice of intention to move for a new trial. Sawyer v. Sargent, 65 Cal. 259, 3 Pac. Rep. 872; Martin v. Matfield, 49 Cal. 42; Quinn v. Smith, Id. 165; Kelly v. Mack, Id. 524; Coveny v. Hale, Id. 555; Little v. Jacks, 67 Cal. 165, 7 Pac. Rep. 449; Young v. Wright, 52 Cal. 407. In the face of these decisions, we cannot feel at liberty to hold that the first and second causes designated in this motion are equivalent to the sixth cause enumerated in the Code. Nor can we, with a bill of exceptions in the record which contains what purports to be a copy of the notice of intention given in this case, presume that there was another notice given designated in the notice brought here in such which designated other causes than those bill of exceptions. We are, therefore, constrained to reverse the order appealed from in this case. Order reversed.

We concur: THORNTON, LAND, J.

J.; MCFAR

(83 Cal. 559)

NORTON et al. v. STURLA. (No. 12,691.) (Supreme Court of California. April 10, 1890.) LANDLORD AND TENANT-Sale.

Where a sale of the leased premises is made by a landlord to his tenant, and time is of the essence of the contract, the refusal of the tenant to make payment when due, and accept the deed, puts an end to the contract, at the option of the landlord, and he may bring his action for unlawful detainer.

Department 1. Appeal from superior court, city and county of San Francisco; JOHN HUNT, Judge.

A. D. Splivalo and Chas. E. Nougues, for appellant. E. F. Preston, for respondent.

BEATTY, Č. J. Action for unlawful holding over after rent due. Judgment for plaintiffs, motion for new trial denied, and defendant appeals. There are two, and only two, material questions in this case: First. What was the character of defendant's hold

The last is the only one of the designated grounds above stated upon which the court could grant the motion. Neither of the other designated grounds are by the Code1 made a cause for granting a new trial. We are unable to discover in the transcript that any error in law occurred at the trial to which defendants, or either of them, excepted. In fact, we do not find that anything that occurred at the trial was excepted to by either party. It was, therefore, error to grant the

1Code Civil Proc. Cal. § 657 provides that a new trial may be granted for either of the following causes: "Subd. 6. Insufficiency of the evidence to justify the verdict or other decision, in that it is against law. Subd. 7. Error in law occurring at the trial, and excepted to by the party making 'he application.

June 21, 1887? Did she hold as vendee in possession under contract of sale, or as a

lessee under a verbal lease? Second. What extension of time did plaintiffs give her to make payment of the agreed price of the premises, one year from June 21, 1887, as she claims, or one month, as they claim? There is a substantial conflict in the testimony on both points, and the findings of the superior court, which are against the defendant, cannot be set aside. Time was expressly made of the essence of the contract of sale, and the time of payment expired June 21, 1887. We must accept the finding of the superior court that it was extended only until July 21st,-one month. When the deed was tendered August 15, 1887, and payment demanded, the defendant distinctly refused to pay before June 21, 1888, and she persisted in this attitude when the offer of the deed

was renewed on the trial; at least she did not at that time offer or agree to accept it and make payment. This refusal to perform upon her part put an end to the contract of sale at the option of the plaintiffs, and left them at liberty to pursue their remedy as landlords. Judgment and order affirmed.

We concur: PATERSON, J.; Fox, J. (84 Cal. 107)

In re GRIFFITH'S ESTATE. (No. 13,528.)

(Supreme Court of California. March 31, 1890.)

ADMINISTRATOR-APPOINTMENT-REMOVAL.

1. An order granting letters of administration is an adjudication that all facts existed that were necessary to give the court jurisdiction of the decedent's estate, and that all steps had been taken that were necessary to the issuance of such letters.

2. Code Civil Proc. Cal. § 1373, provides that upon the filing of a petition for letters of administration the clerk must post notices thereof in certain public places 10 days before the hearing. Held that, on an application to remove an administrator, the plaintiff, in the absence of averments that such notices were not posted, will not be permitted to deny that he had notice of the application.

3. In a proceeding to remove an administrator, six affidavits that the deceased was not a resident of the county where the appointment was made were filed with the petition, but were not refiled with the amended petition. Four affidavits to the contrary were filed upon the amended petition, and the fact was found for the defendant. Held, that there is no ground for disturbing the finding.

4. The fact that an applicant for letters of administration "offered" to divide commissions with a relative of the deceased if the latter would allow him to procure the appointment, and that he knew deceased was not a resident of the county in which the application was made, and failed to so inform

the court, is not sufficient to maintain an action to set aside the appointment on the ground of fraud.

5. Where the deceased had property in two counties, a valid appointment of an administrator in one rendered void a subsequent appointment in

the other.

Commissioners' decision. In bank. Appeal from superior court, San Joaquin county; JOSEPH H. BUDD, Judge.

Louttit, Woods & Levinsky, Hall & Earl, and Morrow & Stratton, for appellant. Baldwin & Campbell, for respondent.

HAYNE, C. This was an application by James Stanley, public administrator of Alameda county, to the superior court of San Joaquin county, for the revocation of the appointment of John Gambetta, the public administrator of San Joaquin county, as administrator of the estate of Richard Griffith, deceased. The amended petition showed, substantially, the following facts: Richard Griffith died intestate in San Joaquin county, leaving estate therein and also in Alameda county, and being at the time of his death a resident of Alameda county. The petition of Gambetta for administration was filed in the superior court of San Joaquin county on June 24, 1889. Two days afterwards, Stanley filed his petition for administration in the superior court of Alameda county. The petition first filed came on to be heard first, and on July 6th the San Joaquin court appointed Gambetta administrator of the estate, and is

| sued letters to him. Two days afterwards the Alameda court appointed Stanley administrator, and issued letters to him. The two courts, apparently, were in ignorance of each other's proceedings; and Stanley "did not know, or receive any notice, or have any knowledge, of the said petition of John Gambetta, or of the hearing of the same, and only first heard of the same on the 9th day of July, 1889." The petition for revocation also alleges certain facts for the purpose of showing fraud on the part of Gambetta, which will be considered below. Gambetta filed a demurrer to the petition for revocation, and also certain affidavits. The court sustained the demurrer, and afterwards made an order denying the petition; and Stanley appeals.

The petition for revocation does not allege that the notice required by law was not given. It alleges, merely, that Stanley received no notice and had no knowledge of the proceeding. But the law does not require that he should receive notice, or that any should be sent to him. It requires, merely, that a certain notice should be posted. Code Civil Proc. § 1373. That was all the notice that was necessary; and, as the petition does not allege that it was not posted, it must be presumed that it was. Nor does the petition for revocation allege that Gambetta's petition for administration was in any way defective; and, therefore, it must be presumed that such petition for administration set forth all the facts necessary to give jurisdiction, among which was the fact of residence in San Joaquin county. And the order made upon such petition was an adjudication that such fact existed. And, while such residence was jurisdictional, it was one of those jurisdictional facts which the court must determine from evidence produced before it, and whose determination is valid until set aside in some proper manner, notwithstanding that it was mistaken in its view of the evidence, or that other evidence could have been produced which would have required a different determination. The judgment cannot be attacked collaterally. This precise point was decided in Irwin v. Scriber, 18 Cal. 500, (see, also, Freem. Judgm. § 608,) and seems clear upon principle.

The appointment of Gambetta being valid until set aside, it follows that the subsequent appointment of Stanley, upon a petition filed after Gambetta's was void; for there cannot be two valid administrations at the same time in this state. Compare Estate of Hamilton, 34 Cal. 468, And, in a case like this, the court which first gets jurisdiction by proper proceedings has the authority to act. The proceedings of the Alameda court, therefore, do not aid the petitioner. This is conceded by the counsel for the appellant. But, as they proceed to remark, he "is in no worse position by virtue of a void appointment than if the latter had never been made;" and the question arises whether the first appointment, which, as we have seen, is not void, can be set aside in this proceeding.

In this regard it is to be observed that there is no provision in the part of the Code relating to probate practice which authorizes the proceeding. There is a provision which authorizes certain specified persons to file a petition for the revocation of letters of adminis tration granted to other persons. Code Civil Proc. 1383. But the appellant is not one of the persons therein specified, and his counsel concede that the provision does not apply to the case. If, therefore, relief is to be had under any provision of statute, it must be by virtue of some general, provision of the Code of Civil Procedure; and, as the proceeding is certainly not a motion for new trial, the only provision which can possibly apply is section 473 of the Code of Civil Procedure, which provides, among other things, for relief against judgments by default. We do not think it necessary to express an opinion as to whether that section applies or not. If it be assumed in favor of the appellant that it applies, and, further, that the petition here can be considered as a proceeding under it, we are not prepared to say that the order should be reversed upon the evidence. The petition first filed was accompanied by the affidavit of six persons, which stated, in a somewhat general way, that the deceased was a resident of Alameda county, and had his home and place of business there. These affidavits were not renewed with the amended petition. The counsel for the appellant expressly state that they "were not renewed with the amended petition," and it is impossible to say that they were considered as before the court upon the amended petition. The respondent, however, filed four affidavits upon the amended petition tending to show that the deceased was a resident of San Joaquin county. In this condition of affairs, even if it be assumed that the proceeding is an application for relief under section 473, it cannot be said that the decision of the court was wrong upon the evidence. In order to avoid this, the counsel for the appellant treat the petition as a pleading whose allegations are admitted by demurrer. They refer to the affidavits as "seemingly being filed to give moral support to the application" and say: "The affidavits never should have had a place in the case; and, both by reason of the action of the court, and upon principles of law, they must pass out of consideration. The demurrer, however, admits the facts as charged to be true, and it is upon this showing that the appellate court must pass.'

Now, since there is no provision in the probate procedure authorizing the proceeding, the only theory upon which the allegations of the petition could be admitted by a demurrer is that the petition is, in effect, a complaint in a separate proceeding; and upon this theory the application could not be under section 473, for that section contemplates a motion in the cause in which the default was taken, and not a separate suit, with separate pleadings, and all the attendant machinery and delay. Upon the theory of counsel, v.23P.no.10-34

But

therefore, the petition is to be passed upon as if it were a complaint in a separate suit to set aside a judgment. Then, does the petition set forth facts upon which a suit to set aside a judgment could be maintained? We do not think that it does. It is entirely clear that a separate suit cannot be maintained by reason of mere errors of law or fact in a matter which was examined in the first suit. Collins v. Butler, 14 Cal. 226. The petition, however, attempts to show more than this. Aside from want of jurisdiction, which we have already considered, it seems to proceed upon the ground of fraud. But the only circumstances which can possibly be claimed to constitute fraud are two. In the first place, it is alleged that before Gambetta applied for letters he offered to divide his commissions with a nephew of the deceased, if such nephew "would allow said Gambetta to procure administration upon said estate in San Joaquin county." But, if it be assumed that such an arrangement, if carried into effect, would constitute fraud against the petitioner, it is not alleged that it was carried into effect, or that it was agreed to be. The petition is silent as to whether the proposal was accepted or rejected. In the second place, it is alleged that Gambetta knew that the deceased was not a resident of San Joaquin county, and knew that his name appeared on the Great Register of Alameda county, and did not disclose the same to the court. the failure of a party to give evidence, known to him to exist, tending to overthrow his case, is not ground for a suit to set aside the judgment. Allen v. Currey, 41 Cal. 318. It is not a fraud which is extrinsic or collateral to the matter examined in the first suit. The rule in this regard was laid down in the important case of U. S. v. Throckmorton, 98 U.S. 61. There it was held that a suit could not be maintained to set aside a judgment confirming a Mexican grant, although it appeared that the confirmee had procured the grant to be falsely and fraudulently antedated, and had supported it by perjured testimony suborned by himself; and MILLER, J., delivering the opinion, said: "The acts for which a court of equity will, on account of fraud, set aside or annul a judgment or decree between the same parties, rendered by a court of competent jurisdiction, have relation to frauds extrinsic or collateral to the matter tried by the first court, and not to a fraud in a matter upon which the decree was rendered." The principle laid down in this case is in accordance with the weight of authority, and is required by far-reaching considerations of public policy. In the case before us, the question as to the residence of the deceased was alleged in the petition and passed upon by the court; and the decision in the Throckmorton case applies. It makes no difference that the petitioner did not know of the proceeding in the San Joaquin court. If the notice required by the statute was given, the judgments of probate courts bind everybody, whether they had actual knowl

edge or not, except where it is otherwise expressly provided; and, as we have seen, it must be held, upon the allegations of the petition, that the notice required by the statute was given. We therefore advise that the older appealed from be affirmed.

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

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

(83 Cal. 447)

BALLERINO . MASON et al. (No. 13,239.) (Supreme Court of California. March 14, 1890.)

ASSESSMENT FOR TAXES-VALUATION.

1. Pol. Code Cal. § 3627, provides that "all taxable property must be assessed at its full cash value," and defines this to be "the amount for

which the property would be taken in payment of a just debt due from a solvent debtor." Held that, in a suit against an assessor for damages for excessive valuation of lands, an averment that their "actual value for agricultural purposes" never exceeded a certain lesser amount, states no cause of action, as it expresses a standard of valuation different from that of the statute.

2. The presumption is that official duty has been regularly performed; and, in a suit against an assessor for damages for breach of official duty, an averment that he "willfully and against law" overvalued certain property, does not charge that intent to injure the owner which is necessary to sustain the action.

Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; A. BRUNSON, Judge.

Horace Bell and Horace Allen, for appellant. Chapman & Hendrick, Allen & Miller, and Stephens & Eldridge, for respondents.

BELCHER, C. C. This is an action to recover damages for alleged violation of official duty. The facts stated in the complaint are, in substance, as follows: The plaintiff, for 20 years, has been the actual occupant and sole owner of a tract of land in Los Angeles county containing 134 acres. During the time plaintiff has been such owner, the said tract of land "has never been of a higher actual value for agricultural purposes than from $150 to $250 per acre," and "said tract of land has never been of higher actual aggregate value for agricultural purposes than from $20,100 to $33,500." At the general election held in November, 1886, the defendant Mason was duly elected county assessor in and for Los Angeles county, and thereupon, as such officer, he took the oath and executed the bond required by law, and the other defendants became his sureties on the bond. For the fiscal year 1887, Mason, as such assessor, "did willfully, and against law, levy an assessment on the said tract of 134 acres of land, property of this plaintiff as aforesaid, at the unlawful and false valuation of $96,200," which was $62,700 above the actual and lawful valuation of said property; and the said Mason "did thereby extort from this plaintiff unlawfully the sum of $940.50, by way of taxes, in violation of law, and to this

plaintiff's damage of the sum of $940.50." Then follows a similar averment, that, for the fiscal year 1888, defendant Mason willfully, and against law, assessed the plaintiff's said tract of land "at the false and unlawful valuation of $100,500, and that this valuation was $67,000 above the actual and lawful value of the said tract of land, and that said defendant C. C. Mason, in his official capacity as such assessor, did thereby extort from this plaintiff the sum of $804, by way of taxes, in violation of law, to this plaintiff's damage of $804." The prayer is that plaintiff have "judgment upon the said official bond of the defendant C. C. Mason as assessor, and that plaintiff do have and recover of and from defendants thereupon the sum of $1,744.50 damages, and plaintiff's cost of this action." A general demurrer to the complaint was ining to amend, judgment was thereupon enterposed and sustained; and, plaintiff declintered dismissing the action. From that judgment the appeal is prosecuted.

1. The Code provides that "all taxable property must be assessed at its full cash value," (Pol. Code. § 3627,) and it defines the meaning of "full cash value" to be "the amount at which the property would be taken in payment of a just debt due from a solvent debtor." Id. § 3617. The words "actual value for agricultural purposes" are not the equivalent of "full cash value." This is evident, for the reason that the value of property for the purposes named may be, and often is, less than its value for other purposes, and less than it would be taken for in payment of a just debt from a solvent debtor. The averment as to the value of plaintiff's property was, therefore, insufficient to sustain his contention.

2. The county assessor is a public officer, and the assessment complained of was made in the discharge of official duty. An assessor is required to exercise his best judgment in determining as to the value of property to be assessed, and the presumption. is that official duty has been regularly performed. Code Civil Proc. 1963, subd. 15. The averment that Mason willfully, and against law," assessed plaintiff's property at too large a sum, does not imply that he acted maliciously, or with intent to wrong or injure the owner; and, in the absence of some averment to this effect, we must assume that he simply erred in his judgment. But for such an error the only remedy is by application to the board of equalization. Gas Co. v. January, 57 Cal. 614. The law applicable to the case as made, was, in our opinion, correctly stated in Kendall v. Stokes, 3 How. 98, by Chief Justice TANEY, as follows: "A public officer is not liable to an action if he falls into error in a case where the act to be done is not merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion, even although an individual may suffer by his mistake." In our opinion, the demurrer was properly sustained, and the judgment should be affirmed.