supersede "all special laws in conflict therewith." When the constitution says in section 8 that the charter framed and adopted in accordance with the provisions of that section must be "consistent with and subject to the laws of this state," it means the same laws as those meant in section 6, where it says that they "shall be subject to and controlled by general laws." In Thompson v. Ashworth, 73 Cal. 73, and People v. Henshaw, 76 Cal. 436, the charters under consideration were special charters, passed by the legislature, and subject to alteration and amendment, under the constitution under which they were passed, at the will and pleasure of the legislature. Even if it be true that since the adoption of the present constitution such charters are to be controlled by general laws of the restricted character which apply only to particular places, namely, to municipalities, and not to the state at large,-laws such as I have herein suggested should be designated as "particular laws," and not as "general laws," it does not follow that section 8 of article 11 of the constitution should be destroyed and rendered worse than nugatory, by holding that charters established under its provisions should also be subject to that limited kind of general laws. Ex parte Ah You, 82 Cal. 339, is not in conflict with these views, for there the court was acting, not upon the provisions of the charter generally, but upon the single provision of such a charter establishing a police court. That provision may be void, and the balance of the charter be valid. If void, as in the more recent case of People v. Toal, 85 Cal. 333, I felt compelled to concede it to be, it was not so because of conflict with a law of the class here under consideration, but because of conflict with the constitution itself, the language of the constitution being that such courts must be established, not "by law," but "by the legislature.” Another clause of the constitution provides that such courts shall have such jurisdiction as is conferred upon them "by law."

Under the constitution, therefore, the court must be esablished by the legislature, but, being so established, I have no doubt jurisdiction might be conferred upon it by one of these charters, in cases arising under the charter, or under municipal ordinances passed in pursuance thereof. Brooks v. Fischer, 79 Cal. 173, was, it is true, a case in which the same charter here under consideration was involved. But there the question was as to the validity of the charter as a whole, the real question being as to whether it had been properly approved by the legislature. It was suggested that even if properly approved it was still invalid, because some of its provisions were in conflict with the provisions of some of this class of miscalled general laws. It was correctly held that a conflict of some particular provision of a charter with such a law would not vitiate the whole charter, and in discussing that question, it was merely assumed that the ruling in the former cases might apply to these charters, but without deciding that they would do so.

Entertaining these views, I am clearly of the opinion that the act of 1889, under which the proceedings complained of in this case were had, does not apply to municipalities acting under charters framed, adopted, and esablished as provided in section 8, article 11, of the constitution, and is not in force within the limits of the city of Los Angeles.

BEATTY, C. J., concurring.-I concur in the judgment, and in the main in the opinion of Justice Fox. For the reasons set forth in the dissenting opinions of Justice McKinstry in Thomason v. Ashworth, 73 Cal. 73, and in People v. Henshaw, 76 Cal. 453, I think those cases, and the case of Ex parte Ah You, 82 Cal. 339, were erroneously decided, and that the provisions of the charter of Los Angeles with respect to the opening and widening of streets apply in that city, to the exclusion of the statute of 1889. I think, moreover, that the statute

is unconstitutional on two grounds: 1. It does not, when tested by the liberal doctrine of Lent v. Tillson, 72 Cal. 404, provide for any proper notice to owners of property affected; and 2. It permits assessments upon the property supposed to be benefited in excess of the benefits.

[No. 13540. In Bank.-September 16, 1890.]

IN THE MATTER OF THE ESTATE OF JAMES MOORE DECEASED.

APPEAL-PROBATE PROCEEDINGS-APPEALABLE ORDERS-Appeals can only be taken from such judgments or orders in probate proceedings as are mentioned in section 963 of the Code of Civil Procedure.

ID. ORDER VACATING ORDER SUBSTITUTING A TRUSTEE-Where a testator appointed his widow trustee of his estate, and in case of her death, before certain other trustees, named in the will, became of age,, then the trust to devolve upon his son, and the widow voluntarily renounced her trust in court and consented to the appointment by the court of her son as trustee, and upon application of the widow and a minor trustee, such order is vacated, no appeal will lie from the order vacating the order of substitution, such order not being one of those enumerated in section 963 of the Code of Civil Procedure.

APPEAL from an order of the Superior Court of Yolo County vacating an order of substitution of a trustee of an estate.

The facts are stated in the opinion of the court.

Baker & Grant, and Grove L. Johnson, for Appellants. E. R. Bush, and C. W. Thomas, for Respondents.

WORKS, J.-The decedent left a will by which he disposed of a certain water ditch and lands connected therewith, and, among other things, provided in his will that his wife should have the management of the ditch and lands in trust during her life, and that in case of her death, before certain other trustees, grandchildren of his, named in the will as trustees, should arrive at full age,

the management of the ditch should devolve upon his son, also named in the will. The widow came into the court below, in which the settlement of the estate was pending, and voluntarily renounced her management of the property, and consented to the appointment by the court of the son to such management. All of the parties interested in the property appeared and consented to this order substituting the son as manager of the ditch, except the minor trustees, whose right to act as such, and who, upon becoming entitled to act as such trustees, would have but a naked legal title to the property, to hold and manage the same for the benefit of others. These minor trustees were not notified of the pendency of the application for this order, nor did they appear either in person or by guardian when the order was made. Subsequently the court below set aside and vacated the above-mentioned order on the application of the widow and one of the minor trustees. Proper notice of the motion to vacate the former order was given, and the motion was made and granted on the ground that the court had no jurisdiction to make the same.

This appeal is from the order vacating the former order. The respondent contends that the order appealed from is not an appealable order, and that therefore the appeal should be dismissed. We think this point is well taken. Appeals can only be taken from such judgments or orders in probate proceedings as are mentioned in section 963 of the Code of Civil Procedure, and the order appealed from in this case is not one of the number. (Const. Cal., art. 6, sec. 4; Estate of Calahan, 60 Cal. 232; Estate of Dean, 62 Cal. 613.)

Appeal dismissed.

BEATTY, C. J., PATERSON, J., MCFARLAND, J., Fox, J., SHARPSTEIN, J., and THORNTON, J., concurred.

[No. 13300. In Bank.-September 17, 1890.]

W. T. GARNER, RESPONDENT, v. E. ERLANGER, AP

PELLANT.

SETTING ASIDE JUDGMENT BY DEFAULT INEXCUSABLE NEGLECTFAILURE TO EXAMINE SUMMONS AND COMPLAINT.-A motion to set aside a judgment by default, based upon an affidavit showing that the defendant was sued in the county in which he was served with summons, upon a note dated and payable in another county, and that he took it for granted, without examining the papers, that he had been sued in such other county where the note was payable, and had thirty days in which to answer the complaint, and did not examine the papers or discover his mistake until after ten days had expired, when he left the papers with his attorney to prepare an answer, and was informed that the time for answer had expired, may be properly denied, upon the ground of inexcusable neglect and lack of diligence. ID.-DISCRETION-REVIEW ON APPEAL.-An order denying or granting a motion to set aside a judgment by default, on the ground of mistake, inadvertence, surprise, or excusable neglect of the defaulting party, rests in the sound discretion of the court, and will not be reversed on appeal unless a clear abuse of such discretion is shown.

APPEAL from an order of the Superior Court of Fresno County refusing to set aside a default judgment.

The facts are stated in the opinion.

Justin Jacobs, for Appellant.

Church & Cory, for Respondent.

BELCHER, C. C.-This is an appeal from an order refusing to set aside a judgment entered against the defendant by default, in the county of Tulare. The motion was made, under section 473 of the Code of Civil Procedure, upon the ground of mistake, inadvertence, surprise, and excusable neglect. The action was upon a promissory note for $450, dated "Kingsburgh, February 13, 1888," and payable at Kingsburgh one year after dute, with interest. Kingsburgh is in Fresno County, and the summons and copy of the complaint were served on defendant in the county of Tulare on the twenty-eighth