about, or upon any threshing-machine, the engine, horse-power, wagons, or appurtenances thereof, while engaged in threshing, shall have a lien upon the same to the extent of the value of his services.

"Sec. 2. The lien herein given shall extend for ten days after the person has ceased such work or labor.

"Sec. 3. If judgment shall be recovered in any action to recover for said services for work or labor performed, and said property shall be sold, the proceeds of such sale shall be distributed pro rata to all judgment creditors who have within ten days begun suits to recover judgments for the amount due them for such work.

"Sec. 4. The lien shall expire unless a suit to recover the amount of the claim is brought within ten days after the party ceases work."

The language of the act is sufficiently comprehensive to include a case like this. We could not exclude such a case from its operation without a material modification of its provisions. This case is clearly within the letter of the law, and we see no reason to doubt that it is just as clearly within the spirit of it. The statute gives the lien, and a court of equity undoubtedly has jurisdiction of an action to foreclose it. We think the court properly sustained the demurrer to the complaint of intervention, and that the judgment should be affirmed. Judgment affirmed.

We concur:

SEARLS, C. J.; TEMPLE, J.; PATERSON, J.

I dissent: MCFARLAND, J.

In re NEWMAN'S ESTATE. (No. 12,170.)

(Supreme Court of California. March 1, 1888.)

1. DESCENT AND DISTRIBUTION-"ISSUE"-Adopted Child.

Civil Code Cal. § 1386, div. 1, relating to the rule of inheritance, provides: "If the decedent leave no surviving husband or wife, but leave issue, the whole estate goes to such issue; and if such issue shall consist of more than one child," etc. Held, the word "issue" is used in the same sense as "child," in this section; and sections 227 and 228 of the Code, relating to the status of adopted children, when construed with this section, will entitle an adopted child to succeed to the estate of the adopting parent.

2. JUDGMENT-DIVORCE-COLLATERAL ATTACK-PROOF OF SERVICE OF SUMMONS.

The validity of an adoption was sought to be impeached by showing that a judg ment for divorce, which, if properly obtained, would only require the consent of the parent in custody of the child, was void, because of some irregularities in the proof of the service of the summons by publication, and that judgment was rendered before expiration of defendent's time for answering. Held, that the fact of service, and not the proof, gave the court jurisdiction, and that, after jurisdiction had been acquired and judgment rendered, the proceedings could not be attacked collaterally.1 3. DIVORCE-Decree-OPERATIVE ON DELIVERY TO CLERK.

In an action involving the question as to when a decree for divorce became binding upon the parties thereto, it appeared that the decree was signed by the judge, and delivered to the clerk for filing, who neglected to enter it for over a year. Held, that the decree became operative as to the parties from the date of its delivery to the clerk.

4. ADOPTION-ORDER-VALIDITY-SIGNED BY ACTINg Judge.

An order for the adoption of a child, made by the court, and signed by an acting judge, was objected to, on the ground that it was not made and signed by the regular judge sitting in chambers. Held, this did not invalidate the order. SEARLS, C. J., dissents.

In bank. Appeal from superior court, Los Angeles county; WILLIAM A. CHENEY, Judge.

1 Respecting the grounds on which a judgment may be collaterally attacked, see McCarter v. Neil, (Ark.) 6 S. W. Rep. 731, and note; Nicholson v. Nicholson, (Ind.) 15 N. E. Rep. 223; Decker v. Decker, (Ñ. Y.) Id. 307.

Bernard Newman, a resident of Los Angeles county, died intestate on the 15th day of November, 1886. His estate is valued at $88,000. The next of kin of the deceased are his brother, Michael Newman, the appellant herein, and several nephews and nieces. It is claimed by the respondent that one George B. Maldonado, her child, aged two and one-half years, is the adopted son of the deceased. Mary Maldonado, the mother and guardian of said minor child, claims the right to letters of administration on said estate, under section 1368, Code Civil Proc. Said guardian filed her petition for letters on the 24th day of November, 1886. Appellant, Michael Newman, filed his petition on the 6th day of December, 1886, and also filed grounds of opposition to the petition of said Mary Maldonado; alleging, among other things, that George B. Maldonado is not the adopted child of the deceased, that said child is not entitled to succeed to said estate, that therefore his guardian is not entitled to letters, (section 1365, Code Civil Proc.,) and that said Mary Maldonado is a married woman. In his grounds of opposition, Michael Newman asserted his right to letters of administration. He further set out that the decree for divorce claimed by Mary Maldonado from her husband was void, because of certain irregularities in the proof of the service of the summons by publication, and that the judgment was rendered upon default before the expiration of the time allowed defendant in which to answer. He also asserted that the decree, if operative at all, did not become so until nearly six months after the adoption of the child. It appeared that the decree was duly signed by the judge, and delivered to the clerk for filing in October, 1885, who neglected to enter it until in January, 1887. The child was adopted in June, 1886. Newman claims the decree for divorce did not become binding on the parties until entered by the clerk in January, 1887; that as there was no consent of the father to the adoption, as required by law, in case the divorce was void, or did not become binding on the parties until January, 1887, there was therefore no valid adoption of the child, and the mother had no right to administration. Matthew I. Sullivan and Stephen M. White, for appellant. Lucien Shaw and James M. Damron, for respondent.

PATERSON, J. 1. The provisions of the Civil Code bearing upon the first question presented for our consideration are the following:

"Sec. 227. The judge must make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting.

"Sec. 228. A child adopted may take the family name of the person adopting. After adoption the two shall sustain towards each other the legal relation of parent and child, and have all the rights, and be subject to all the duties, of that relation."

"Sec. 1386. When any person having title to any estate dies without disposing of the estate by will, it is succeeded to, and must be distributed, in the following manner: (1) If the decedent leave no surviving husband or wife, but leave issue, the whole estate goes to such issue; and if such issue consists of more than one child living, or one child living and the lawful issue of one or more deceased children, then the estate goes in equal shares to the children living, or the child living, and the issue of the deceased child or children, by right of representation."

Under these provisions, we think that an adopted child is entitled to succeed by inheritance to the estate of the adopting parent. The provisions of sections 227 and 228 extend to all the rights and duties of natural parents and children. The language is general and comprehensive. The use of the word "issue," in section 1386, does not limit the right of inheritance to natural children only. That section prescribes the rule of inheritance. The word "issue" is there used in the same sense as the words "child" and "children." If the adopted child is, by virtue of its status, to be “regarded and treated in

all respects as the child of the person adopting," and is to "have all the rights, and be subject to all the duties, of the legal relation of parent and child," the right to succeed to the estate of the deceased parent must be included. Estate of Wardell, 57 Cal. 491. See, also, Ross v. Ross, 129 Mass. 266.

2. So far as the action of Maldonado v. Maldonado affected the status of the parties and the custody of the child, it was a proceeding in rem, and service by publication in such cases is good. Pennoyer v. Neff, 95 U. S. 714. The recital in the judgment that the defendant was duly served with process is consistent with the proof of service. It is the fact of service which gives the court jurisdiction, not the proof of service; and the court had authority to receive the amended affidavits of service after judgment, and before the roll was made up. Mason v. Messenger, 17 Iowa, 261; Rickards v. Ladd, 4 Pac. Coast Law J. 52; Allison v. Thomas, 14 Pac. Rep. 309. The affidavits of service, and the recitals in the judgment, are conclusive. The affidavit on application for an order of publication, and the order of publication, cannot be considered. They are no part of the roll. Hahn v. Kelley, 34 Cal. 391; McCauley v. Fulton, 44 Cal. 355. Belcher v. Chambers, 53 Cal. 635, is not in point. In that case, as in Pennoyer v. Neff, the judgment considered was a personal judgment against a non-resident, without personal service or process. So far as the rule established in Hahn v. Kelley is applicable to proceedings in rem, it has not been overruled. The judgment referred to in that case was for money,-the deficiency after foreclosure and sale. The court had jurisdiction of the defendant, and the subsequent proceedings, from the time that publication of summons was complete. Code Civil Proc. 416. The fact that judgment was rendered upon default entered before the time allowing the defendant to answer had expired, rendered the judgment erroneous, simply, not void. A judgment thus rendered can be attacked only upon motion or by appeal, and by the parties in interest. Maldonado is the only party aggrieved by the decree, and he is the only one who can attack it in any way. Alderson v. Bell, 9 Cal. 321; Mitchell v. Aten, 14 Pac. Rep. 497.

3. It is contended that the order is void because it was made by the court, and not by the judge. The order appears to have been made in open court, but it is a written order, signed by the judge, and filed in the proceedings. The words "by this court," in the order, may be treated, we think, as surplusage. An order made by the judge at chambers, in a case requiring action by the court, may, for good reasons, be held to be invalid, but no such reasons can be urged in cases like this. The power which the judge might have exercised in his chambers was exercised in open court; and the fact that the clerk and sheriff were present cannot affect the validity of his judicial act.

4. The judge who signed the order-Honorable B. T. WILLIAMS, of Ventura county-had the same power as the judge of Los Angeles county, for whom he was acting. Section 71, Code Civil Proc. It must be presumed, in the absence of a showing to the contrary, that he was acting upon the request of the governor, or of one of the judges of the superior court of Los Angeles county.

5. The decree was signed by the judge on October 19, and was filed with the clerk on October 22, 1885. Thus rendered, it was binding on the parties and privies, althought not entered until January 5, 1887. The clerk could not, by his failure to perform a ministerial duty, abridge the rights of any party interested. Casement v. Ringgold, 28 Cal. 339; Gray v. Palmer, Id. 422. The order is affirmed.

We concur: MCFARLAND, J.; SHARPSTEIN, J.; TEMPLE, J.; MCKINSTRY, J.; THORNTON, J.

I dissent: SEARLS, C. J.

(No. 9,958.)

PATENT BRICK Co. et al. v. MOORE et al.

(Supreme Court of California. March 1, 1888.)

1. NEW TRIAL-INSUFFICIENCY OF EVIDENCE-Statement of Case.

On the hearing of a motion for a new trial, where the statement of the case contained no specification of the particulars wherein the evidence was alleged to have been insufficient to justify the decision, the court below properly disregarded the statement as to that ground.

2. SAME ERRORS OF LAW-FAILURE TO TAKE EXCEPTIONS.

Where it appears from the statement of the case that there were no exceptions whatever taken at any time during the trial to any act of the court, the court is justified in refusing to grant a new trial upon the ground that the decision is against the law.

On a motion by defendant for a new trial, made on bill of exceptions and statement of the case, in an action to foreclose a mechanic's lien, because a certain bond, introduced in evidence without objection, which appears in the statement of the case as signed by plaintiffs, as sureties for the contractors who built the building upon which the lien is claimed, containing an express stipulation that the building should be delivered clear of all liens, worked an equitable estoppel in pais, and prevented the foreclosure of plaintiffs' lien, held, that as there was nothing in the findings to indicate that such a clause existed in the bond, and no issue being made, based upon such a contention, the trial court, not being informed by the statement of the case that the defendant claimed the evidence derived from that clause in the bond did not justify the decision, was not bound to make a finding not responsive to the pleadings, and the motion for a new trial was properly refused. 4. DAMAGES-LIQUIDATED DAMAGES-UNCERTAINTY OF ACTUAL DAMAGES.

Under Code Civil Proc. Cal. § 1671, which provides that parties to a contract may agree upon an amount as liquidated damages when, from the nature of the case, it would be impracticable to fix the actual damages, taken in connection with section 1670, which provides that every contract by which the damages to be paid for a breach thereof is determined in anticipation is to that extent void, except as expressly provided in section 1671, a building contractors' bond, containing a stipulation that, if the building is not completed on a day certain, they should pay $100 for each day of delay as liquidated damages, does not of itself, in the absence of all other evidence upon the subject, make it clear that it would be impracticable to fix the actual damages resulting from the breach of a bond in not completing the building. 5. MECHANICS' LIENS-ATTORNEY'S FEE-DISCRETION OF COURT.

Plaintiff in an action to foreclose a mechanic's lien asked for an attorney's fee. The defendant, in his answer, did not claim that no fee should be allowed, but that a smaller fee than that asked for would be sufficient. Held, that the parties had left it to the discretion of the trial court to fix the amount, and his decision, having been judiciously made, will not be disturbed.

6. SAME

MATERIALS USED IN BUILDING-FINDINGS-APPEAL.

On appeal from a judgment in plaintiffs' favor, in an action to foreclose a mechanic's lien, when the complaint states and the findings show that the materials furnished were sold to be used, and were used, upon the building, and that the claim was assigned to plaintiff, and the statement of the case cannot be examined to see if the evidence upon these points is sufficient, and from the record there does not appear to have been any exceptions taken, it will be presumed that the findings were based upon sufficient evidence.

An allegation in the pleading that a claim was transferred and assigned in writing is an allegation of a matter of evidence, so far as the statement that it was in writing is concerned; and, when the findings show that the claim was assigned to plaintiff, it will be presumed, in the absence of anything to show to the contrary, that the court found upon sufficient evidence that the claim was assigned in writing. 8. SAME-PERFORMANCE OF LABOR-FINDINGS.

From the findings in an action to foreclose a mechanic's lien, to the effect that plaintiff performed labor upon and in the construction of the building at the request of the contractors, it would appear, in the absence of anything to show to the contrary, that plaintiff, as a person, performed the labor upon the building, and was entitled to enforce his lien, having filed his claim under Code Civil Proc. Cal. § 1183, giving mechanics, material-men, etc., a lien for all labor performed or materials furnished by them, etc.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; J. F. SULLIVAN, Judge.

The action of William Cronan, et al. v. The Mechanics' Institute and

Charles P. Moore, et al. was commenced in July, 1882. Thereafter eight other suits were brought against the same defendants by the Patent Brick Company et al., Charles Hanson et al., A. Gennon et al., Fr. H. Rosenbaum, Asa R. Wells et al., Alpheus Kendall et al., Walter J. Weatherly, and Charles Williams. These nine actions were consolidated and tried together. Each of these actions was brought to foreclose mechanics' liens for materials furnished and work done for defendants Moore et al., contractors in the construction of a building for the Mechanics' Institute, known as the "Mechanics' Pavilion." In the contract it was provided that the building should be completed by the 10th of February, 1882, and the contractors were to pay $100 per day as liquidated damages for every day thereafter that the said work should remain unfinished. A bond was given by the contractors, signed by Hanson and Joost, plaintiffs in these suits, as sureties, containing the same provision. It was also provided that the building should be delivered over to the institute free and clear of all liens; that 75 per cent. of the appraised value of the work should be paid as the work progressed, and the residue 31 days after the entire work was completed and accepted. The contract price was $32,000. Defendants claimed a breach of the contract, and $6,000 damages, for failure to complete the contract, and also that the work was not done in a workman-like manner, in accordance with the terms of the contract, "whereby this defendant was damaged in the sum of eight thousand dollars." At the trial, the court awarded $2,000 damages, but did not allow liquidated damages, and, to save any question, found that defendants had suffered no damages by the alleged breach of the contract. The court found $6,482.60 due the contractors, and awarded the same to the plaintiffs proportionately, and their liens upon the land covered by the building were recognized and foreclosed. From a judgment overruling a motion for a new trial, made on a bill of exceptions and statement of the case, defendants appealed, assigning

error.

Estee, Wilson & McCutcheon, for appellants. D. H. Whittemore, Arthur Rodgers, K. M. Smith, A. N. Drown, Cutler & Eisner, Wm. H. H. Hart, Wm. H. Fifield, and Jarboe, Hornson & Goodfellow, for respondents.

FOOTE, C. Nine separate actions were instituted in the trial court for the foreclosure of mechanics' liens against certain property belong to the Mechanics' Institute, arising out of a building contract which the institute had entered into with Charles P. Moore et al. Those several actions were by order of court consolidated into one, and tried without a jury. Judgment of foreclosure in behalf of all the lien claimants was rendered; and from that, and an order refusing to grant a motion for a new trial, the Mechanics' Institute has appealed. The grounds upon which the motion for a new trial proceeded, as set out in the notice of intention, were: First, insufficiency of the evidence to justify the decision; second, that the decision is against law; third, errors in law, occurring on the trial, and excepted to by the defendant.

We will first consider the case as it affects the appellant and Charles Hanson et al., respondents. There is no specification in the statement of the case of the particulars wherein the evidence is alleged to have been insufficient to justify the decision; therefore the court below was obliged to disregard the statement as to that ground for a new trial.

As to the second ground, it appears from the statement that there was no exception whatever taken at any time during the trial to any act of the court; so that it was justified in refusing to grant a new trial upon that ground.

It is claimed for the appellant that the court should not have given a decision in favor of enforcing the lien of Hanson et al., and should not have rendered a judgment of foreclosure in their favor because a certain bond which appears in the statement of the case as signed by Hanson and one Joost, as sureties for C. P. Moore et al., (the contractors in the building of the insti