tion as to three defendants, but leaving the question undetermined as to the seven other defendants, must be dismissed.-Dabney Oil Co. v. Providence Oil Co., 29 Cal. App. 251, 155 Pac. 114.

6. A judgment for damages in an action to recover for personal injuries, from which an appeal has been taken without bond, is a final judgment.-In re Berlin Dye Works & Laundry Co., 225 Fed. 683.

7. —Subdivision 2.—An appeal lies "from any special order made after final judgment" under this section, but is general in its character and therefore is controlled by the special law in section 1222, which makes a judgment of contempt final and conclusive and therefore non-appealable.-Gale v. Tuolumne County Water Co., 169 Cal. 46, 145 Pac. 532.

8. No appeal lies from an order discharging one as a receiver.-Edwards v. Western Land & Power Co., 27 Cal. App. 724, 151 Pac. 16.

9. An appeal taken from an order denying a motion for a new trial subsequent to the taking effect of the amendment of 1915 to section 963 of the Code of Civil Procedure abolishing such appeals, must be dismissed. notwithstanding the institution of proceedings in the direction of making of such a motion prior to the taking effect of the amendment.-Hester v. McMullan, 29 Cal. App. 664, 157 Pac. 521.

10. -Subdivision 3. No authority is found herein for an appeal from an order refusing to set aside a previous order for the sale of lands belonging to the estate of a decedent.-Estate of McCarty, 169 Cal. 708, 147 Pac. 941.

11. An appeal does not lie from a finding but only from the order denying the letters. -Estate of Funkenstein, 170 Cal. 594, 150 Pac. 987.

12. Injunctions (subd. 2). In an action brought by a minority stockholder of a corporation which had forfeited its charter for failure to pay its license tax, to enjoin the directors from carrying on the business of the corporation, and to compel them, as trustees, to wind up its affairs, and pay its debts and distribute its assets among the stockholders, interlocutory orders made directing a sale of the property and distribution of the proceeds, are appealable.-Rossi v. Caire, 174 Cal. 74, 161 Pac. 1161.

13. There is no distinction made between temporary and permanent injunctions, and a restraining order or temporary injunction is within the meaning of this section and is appealable.-Laam v. McLaren, 28 Cal. App. 632, 153 Pac. 985.

14. An order granting a temporary restraining order and an order to show cause why an injunction should not be granted is an appealable order, as such order in its effect is an injunction and the statute gives an appeal from an order "granting or refusing to grant an injunction."-Laam v. McLaren, 28. Cal. App. 68, 632, 151 Pac. 290, 153 Pac. 985.

15. Orders denying new trial (subd. 2.)— The amendment of 1915 to section 963 of the

Code of Civil Procedure does not allow an appeal from an order denying a motion for new trial. San Francisco-Oakland Terminal Rys. v. Superior Court, 172 Cal. 541, 157 Pac. 604; Schmitt v. White, 172 Cal. 554, 158 Pac. 216; Gray v. Cotton, 53 Cal. Dec. 98, 162 Pac. 1019.

16. A statute denying a right of appeal from an order denying a new trial is applicable to every case where such order was made subsequent to the date of the taking effect of the amendment. As to the right of appeal from an order granting or refusing a new trial it is the condition of the law at the time of the denial of the motion for a new tria! that controls regarding whether the proceeding was initiated prior or subsequent to the change in the law.-Hirsch v. All Persons, 173 Cal. 268, 159 Pac. 712.

17. This was amended in 1915 by taking away the right theretofore existing to appeal from an order refusing a new trial. An appeal from an order denying a new trial taken after the amendment became effective will be dismissed even though the proceedings for a new trial were instituted prior thereto.-Hester v. McMullan, 29 Cal. App. 664, 157 Pac. 521.

§ 974.

1. Appeal to superior court.-An incorrect recital in the notice of appeal of the date of the rendition of the judgment is not fatal, and does not affect the jurisdiction of the superior court, where the judgment is otherwise correctly described.-Judd v. Superior Court, 29 Cal. App. 671, 157 Pac. 566.

§ 975.

1. Statement of grounds of appeal.—A statement is not necessarily an essential part of the record on appeal to the superior court on questions of law. On such an appeal, where there is no statement, the record before the superior court is a copy of the docket. If the point upon which the appellant depends may be shown by the docket a statement on appeal would be useless. Rauer's Law & Col. Co. v. Superior Court, 26 Cal. App. 289, 146 Pac. 866.

2. In the event of an appeal from the justice's to the superior court upon questions of law and loan, it is error to dismiss the appeal on the ground of an omission to file a statement of the case.-Rauer's Law & Col. Co. v. Superior Court, 26 Cal. App. 289.

3. In such a case a writ of mandate will issue to compel the superior court to set aside and vacate an order of dismissal made by it upon the ground that no statement was ever prepared or filed, and to compel it to proceed with the trial and determination of the appeal.-Rauer's Law & Col. Co. v. Superior Court, 26 Cal. App. 289.

4. Appellate jurisdiction is not lost by the failure to state the grounds upon which the appellant intends to rely in his statement.-Fletcher Collection Agency v. Superior Court, 31 Cal. App. 193, 159 Pac. 1049.

§ 976.

1. Effect of appeal.-An appeal to the superior court on questions of law and fact operates to vacate and set aside the judgment rendered in the justice's court.-Judd v. Superior Court, 29 Cal. App. 671, 157 Pac. 566.

§ 978.

UNDERTAKING ON APPEAL TO
SUPERIOR COURT.

1-4. Construction of section.

5-9. Bond on appeal-Sufficiency of. 10-12. Jurisdictional prerequisites. 13, 14. Justification of sureties. -Waiver of justification.

1.

15.

Construction of section.-It is difficult to read this section without being forced to the conclusion that within its provisions complete statutory warrant is to be found for the allowance of costs in the superior court on an appeal from the justice's court. -Healey v. Superior Court, 167 Cal. 22, 138 Fac. 687.

2. This section seems to exact the specification "if the appeal be withdrawn or dismissed" only when the undertaking is for a stay of execution.-Cohen v. Connick, 26 Cal. App. 491, 147 Pac. 479.

3. "Any costs," referred to in an undertaking on an appeal from a justice's court, embraces all costs that might be incurred by reason of the appeal.-Cohen v. Connick, 26 Cal. App. 491, 147 Pac. 479.

4. The provision that unless an undertaking is filed for the payment of costs on appeal the appeal shall be ineffectual for any purpose, is mandatory and the requirement peremptory. Johnson V. Superior Court, 28 Cal. App. 618, 153 Pac. 404.

5. Bond on appeal-Sufficiency of.-An undertaking on appeal from the justice's court, prepared on a regularly printed form designed for use as an undertaking for costs and also to stay execution, which contains no promise in that part thereof for costs on the part of the sureties to pay the costs of the appeal, and which is not filled out in that part for staying execution, is nevertheless sufficient to bind the sureties and give the superior court jurisdiction of the appeal, when consideration is given to the latter portion of the printed form providing "that appellant will pay any judgment and costs that may be recovered against him in the said action in the said superior court, not exceeding one hundred dollars, as fixed by the justice of said court."-Cohen v. Connick, 26 Cal. App. 491, 147 Pac. 479.

6. An undertaking on appeal is not invalidated by the inadvertent omission of the word "house" from the phrase "is a householder."-Martha Washington Council No. 2, Daughters of Liberty, v. Superior Court, 29 Cal. App. 45, 154 Pac. 298.

7. An incorrect recital in the undertaking accompanying the notice of appeal does not invalidate the undertaking nor affect the jurisdiction of the appeal.-Judd v. Superior Court, 29 Cal. App. 671, 157 Pac. 566.

8.

Under section 978 of the Code of Civil Procedure, an undertaking on appeal from the justice's court from a judgment for the payment of money in a sum equal to twice the amount of the judgment and costs, and conditioned that if proceedings be stayed the appellant will pay the amount of the judgment appealed from, and all costs if the appeal be withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against him in the action in the superior court, is sufficient as a bond for the payment of costs on the appeal, regardless of its sufficiency to stay proceedings.-Rich v. Superior Court, 31 Cal. App. 689, 161 Pac. 291.

9. The recitals in an undertaking on appeal must identify the appeal which it is intended to support, and if they fail to do so, the error is incurable.-Brownell v. Superior Court, 32 Cal. App. 227, 162 Pac. 419.

10. -Jurisdictional prerequisites. An undertaking on appeal from a justice's court is a jurisdictional prerequisite to a justice's court appeal.-Cohen v. Connick, 26 Cal. App. 491, 147 Pac. 479.

11. There is a vital difference between the case where a bond, merely defective in matter in form, has been filed and the instance where there is no undertaking at all, or where it is so defective as to be entirely invalid. In the first mentioned case another bond may be filed in the appellate court.Cohen v. Connick, 26 Cal. App. 491, 147 Pac. 479.

12. The superior court has the right and the power to pass upon and decide a motion to dismiss an appeal taken thereto, and where the motion is based upon the ground that the undertaking required by section 978 of the Code of Civil Procedure for the indemnification of the costs accruing by reason of the appeal has not been filed, it is not only within the power, but it is the duty of the court to dismiss the attempted appeal.— Rich v. Superior Court, 31 Cal. App. 689, 161 Pac. 291.

13. -Justification of sureties.-No jurisdiction is acquired of a justice's court appeal where the sureties on the undertaking, or other sureties, fail to justify after notice and within the time specified in the statute, and the finding of a new undertaking within such time under the erroneous impression that the first undertaking was void because of the failure to declare in the affidavit accompanying it that the sureties were freeholders or householders does not render the appeal effectual.-Martha Washington Council v. Superior Court, 29 Cal. App. 45, 154 Pac. 298.

14. Where the sureties on the undertaking on such appeal are required to justify, the substitution for a surety, who fails to appear, of a new surety who signs the same bond and justifies, is an unobjectionable procedure, where the names of the original sureties were not inserted in the body of the instrument.-Judd v. Superior Court, 29 Cal. App. 671, 157 Pac. 566.

V.

2. It is the duty of the appellant, after the exception to the sufficiency of the sureties was duly taken, to cause those sureties -or others in their place-to justify after notice and within the time specified; and a failure to do so makes the appeal unavailing.-Martha Washington Council Superior Court, 29 Cal. App. 45, 154 Pac. 298. 3. The time for filing the undertaking is now fixed as running from the date of the filing of the notice of appeal and not from the date of service of such notice. The filing of a notice of appeal and an undertaking on the same day is a compliance with the statute notwithstanding that the notice of appeal was served seven days before it was filed.-Judd v. Superior Court, 29 Cai. App. 671, 157 Pac. 567.

4. Notice of exception to sureties need not be served.-A notice of exception to the sufficiency of sureties on an undertaking or appeal from a judgment of a justice's court must be filed with the justice, and it is not essential to serve it upon the party or his attorney.-McCarty v. Superior Court, 30 Cal. App. 1, 159 Pac. 737.

5. Second bond filed - Justification of sureties.-Upon a justice's court appeal, where other sureties justify in place of the original sureties and such justification takes place within five days after the filing of exceptions to the sufficiency of the sureties, named in the undertaking, the substitution of new sureties and their justification is within due time, even though it be more than five days after the filing of the notice of appeal.-Clay v. Superior Court, 32 Cal. App. 189, 162 Pac. 416.

6. The fact that such undertaking was re-written and signed a second time by one of the sureties on the original undertaking, together with the new surety does not make the document a new and different undertaking within the meaning of section 978a of the Code of Civil Procedure, or deprive the

superior court of jurisdiction of the appeal. -Clay v. Superior Court, 32 Cal. App. 189, 162 Pac. 416.

7. The naming of the surety in the body of the second undertaking as “J. J. Hutchinson," and the signing thereof in the name of "John J. Hutchinson," does not constitute a defect impairing the sufficiency of the undertaking.-Clay v. Superior Court, 32 Cal. App. 189, 162 Pac. 416.

8. Further justification of sureties is waived where the party excepting to their sufficiency fails to appear at the time and place designated in the notice of justification after service of such notice upon him.Clay v. Superior Court, 32 Cal. App. 189, 162 Pac. 416.

1. As to purpose of section.

2-4. Construction of section.

5. Constitutionality of section.

6. Prohibition to restrain trial for want of payment of filing fees.

1. As to purpose of section.-The purpose of the enactment of this section was to provide for the payment of the clerk's fees at the time of transmitting to the superior court the papers on appeal. Where the fees, though not paid to the justice at the time of presenting for filing the notice of appeal, are nevertheless paid within the thirty days allowed for taking the appeal so as to enable him to transmit the fees, together with the papers on appeal, there is a sufficient compliance with the statute. It is not intended to hold that the justice is required to accept for filing any notice of appeal not accompanied with payment of the fees.Simmons v. Superior Court, 30 Cal. App. 252, 157 Pac. 817.

2.

Construction of section.-The language is so plain and unambiguous that its meaning can not be mistaken or misapprehended. It is mandatory, it being inconceivable that language could be more mandatory or peremptory.-Johnson v. Superior Court, 28 Cal. App. 618, 153 Pac. 404.

3. The payment of the fees required by law to be paid at the time the notice of appeal is filed is a jurisdictional prerequisite; in other words no jurisdiction can be conferred on the superior court in the absence of the payment of such fees at the time designated.-Johnson v. Superior Court, 28 Cal. App. 618, 153 Pac. 404.

4. In a case where an appeal was attempted the day after this section went into effect, the plea that neither the defendant nor his attorney knew of the existence of the section is no valid excuse for not observing its requirements.-Johnson v. Superior Court, 28 Cal. App. 618, 153 Pac. 404. 5. Constitutionality of section. — It is within the legitimate power of the legislature to prescribe the terms upon which appeals may be taken, for the right of appeal is purely statutory. When the language of the statute is perfectly plain and unequivocal the courts will require a substantially strict compliance with the mode prescribed for exercising the right.-Johnson v. Superior Court, 28 Cal. App. 618, 153 Pac. 404. 6. Prohibition to restrain trial for want of payment of filing fees.-Prohibition will not lie to restrain the superior court from proceeding with the trial of a case on appeal from a justice's court on the ground that the appellant did not, at the time of filing the notice of appeal, pay to the justice of the peace the fees provided by law to be paid to the county clerk for filing the appeal and placing the action on the calendar of the superior court, where he did pay the same a few days thereafter, and within the time specified by law for perfecting the appeal. Simmons v. Superior Court, 30 Cal. App. 252, 157 Pac. 817.

§ 989.

1.

Summoning party after judgment.— In a proceeding under section 989 of the Code of Civil Procedure, which provides that when a judgment is recovered against one or more of several persons, jointly indebted upon an obligation, those who were not originally served with summons and did not appear in the action may be summoned to show cause why they should not be bound by the judgment, evidence that the defendant thus summoned was associated with the defendant against whom judgment was obtained in the ownership of certain placer claims, and that the latter bought supplies from the plaintiffs for the purpose of developing such claims, and that the former never at any time repudiated liability for such supplies, but on the other hand endeavored to raise money to pay for the same, sufficiently shows a joint indebtedness, in view of the presumption created by

section 1431 of the Civil Code that an obligation imposed upon several persons is joint.-Colquhoun v. Pack, 32 Cal. App. 97.

§ 1010.

1. Statement of grounds in notice.-A notice of motion to dismiss an appeal on the ground that the appellant has failed to furnish the requisite papers is insufficient where it fails to designate what particular papers are claimed to have been omitted from the record.-Garrett v. Garrett, 31 Cal. App. 173, 159 Pac. 1050.

2. Whereas it is provided that the notice of motion must state the grounds upon which it will be made it follows that only such grounds as are specified can be considered by the court in support of the motion. Where the motion was to strike out the item of attorney fees on the ground that they were "unlawful and not properly taxable as costs," the only inquiry which the court could make was whether the defendant was entitled as costs to any sum as attorney fees.-Mojave & B. R. Co. v. Cudde back, 28 Cal. App. 439, 152 Pac. 943.

§ 1012.

1. Service on one of two attorneys.—Where there are two attorneys of record, service by mail of a notice of appeal may be made upon one without also notifying the other. Garrett v. Garrett, 31 Cal. App. 173, 159 Pac. 1050.

§ 1013.

1. Service by mail-Construction.-Dropping a card to the defendant in person stating that the case was set for a named date is not a compliance with the statute.-McMunn v. Lehrke, 29 Cal. App. 298, 155 Pac. 473.

§ 1021.

1. Attorney fees-Bona fides of.-The power to name the compensation in such case is not plenary, and the matter of good or bad faith is involved. In other words, the defendant was not empowered under the contract arbitrarily to name a fee without any reference to the bona fides.-Foster v. Young, 172 Cal. 317, 156 Pac. 476.

2. Contract for, valid and enforceable. -A contract for attorney's fees is a valid and enforceable contract.-Fell v. Frierson, 171 Cal. 351, 153 Pac. 229.

3. In an action for the foreclosure of a chattel mortgage given to secure the payment of two promissory notes which provided for attorney fees in the event that suit be commenced to enforce their payment, it is error to refuse to allow the plaintiff his costs and attorney fees, on the ground that the defendant had made a tender of the amount which he claimed was due, where the findings show that the tender was not only insufficient in amount, but that it was made after action brought and rejected on the ground of such insufficiency.-Fell v. Frierson, 171 Cal. 351, 153 Pac. 229.

1.

lowed.

From when al

Construction of section. This section was never intended to apply to an action tried anew on appeal in the superior court. If such was the intention it would have been easy to expressly say so. This section must be given a reasonable construction, one that will harmonize with other sections of the code, if possible.-Healey v. Superior Court, 167 Cal. 22, 138 Pac. 687.

2. -Subdivision 1.—A judgment for costs against one of the defendants in an action of ejectment who claims no interest in the property should not be given.-Sweet V. Richvale Land Co., 29 Cal. App. 111, 154 Pac. 608.

3. —Subdivision 3—Nominal damages. —A judgment for nominal damages will not carry costs.-Lund v. Lachman, 29 Cal. App. 31, 154 Pac. 295.

4. To carry costs, a judgment of the superior court must amount to the sum of three hundred dollars; such a judgment can not be considered to be one for nominal damages.-Lund v. Lachman, 29 Cai. App. 31, 154 Pac. 295.

5. -Subdivision 5.-Where one riparian proprietor recovers judgment against another who has diverted water above their lands, he is entitled to his costs, since the action involves the title to real property within the meaning of subdivision 5, section 1022, of the Code of Civil Procedure.--Miller & Lux v. Enterprise Canal etc. Co., 169 Cal. 415, 147 Pac. 567.

6. An action to quiet title to the use of waste waters and to enjoin the maintenance of any obstruction interfering with free ingress or egress for the purpose of cleaning and repairing the canal conducting the waters, entitles the plaintiff to costs, even though the suit is in equity and includes the right to an injunction. The right claimed in such an action is a right to real property. Imperial Water Co. No. 1 v. Wores, 29 Cal. App. 253, 155 Pac. 124.

7. The plaintiff in an action concerning water rights is entitled to its costs, notwithstanding it only recovered a judgment for part of its demand, as such an action is in the nature of a suit to quiet title to real property, and falls, so far as regards costs, within the provisions of subdivision 5 of section 1022 of the Code of Civil Procedure.Cuthbert Burrell Co. v. People's Ditch Co., 31 Cal. App. 396, 160 Pac. 845.

tion is in substance and effect a simple action to quiet title, and where no costs are included besides those recoverable by the plaintiff in the latter action the court does not err in refusing to grant a motion to retax costs.-Faxon v. All Persons, 166 Cal. 707, 137 Pac. 919.

9.

Change of rule, as to allowance of.— Costs are but an incident of a judgment, and the rule pertaining to their allowance in an action may be changed or modified by statute during its pendency. Cain V. French, 29 Cal. App. 725, 156 Pac. 518.

10. Intervenor, against-From when allowed. In a suit by stockholders in behalf of the corporation, costs should not be awarded against an intervenor which accrued before he connected himself with the litigation.-Whitten v. Dabney, 171 Cal. 621, 154 Pac. 312.

§ 1027.

1.

Costs on appeal-Construction of section.-Under this section as amended the prevailing party has an absolute right to his costs except where the judgment has been modified, whereas before the amendment the court had discretion to deny costs where a new trial was ordered as well as where judgment was modified.-Estate of Prager, 167 Cal. 737, 141 Pac. 369.

2. This section is applicable to all appeals, except where it may be inconsistent with other provisions of law applicable to certain proceedings, and except also as it may be limited in its application to proceedings in eminent domain by constitutional provision. Oakland v. Pacific Coast Lumber & Mill Co., 172 Cal. 332, 156 Pac. 468. 3. The rule that the modification of a judgment on appeal carries costs to the appellant is inapplicable, where it is conceded by the respondent that the judgment was excessive to the extent that it is modified, and that the appellant could by a proper motion in the trial court have obtained such modification.-Conlin v. Emanuel Lewis Invest. Co., 26 Cal. App. 388, 147 Pac. 472.

4. The amendment to this section permitting the expense of printing briefs to be charged as a part of the costs is applicable to cases where the brief was filed before the amendment went into effect but where the judgment did not become final upon appeal until after the passage of the amendment. Costs are but an incident of a judgment and the law pertaining to the allowance thereof may be changed or modified by statute during its pendency.-Cain v. French, 29 Cal. App. 725, 156 Pac. 518.

5. Where the judgment affirmed on appeal became final prior to the amendment of 1913 to this section allowing expenses for briefs printed, the respondent can not have the cost of printing her brief in answer to the petition of the appellant for a hearing of the appeal in the supreme court, notwithstanding the provision of section 1324 of the code that the time for filing the memorandum of costs on appeal is limited to begin after the filing of the remittitur in the su