IN BANK.

[Filed July 2, 1883.]

'No. 8925.

KING, RESPONDENT, v. BURKHART, APPELLANT.

By the COURT:

There is evidence appearing in the record to justify the findings of the Court below, and the findings are sufficient. Therefore the judgment is affirmed.

DEPARTMENT No. 1.

[Filed July 2, 1883.]

No. 8984.

BOSWORTH v. WEBSTER.

(City and

TAXES-ASSESSMENT. The heading of the assessment-roll read: "Assessment of property for the fiscal year ending April 1, 1871. To all owners and claimants known and unknown in Alameda township." Held: that such recital does not vitiate the assessment. County of San Francisco v. Phelan, 10 P. C. L. J. 291.) ID. In the tabular part of the roll under the heading "Taxpayers' name," are the words "Place, Wilson, Newman, and others." Held: that the assessment is invalid. (Hearst v. Egglestone, 55 Cal. 365; Brady v. Dowden, 59 Cal. 51.)

ID.-MANDAMUS-TAX SALE-SHERIFF'S CERTIFICATE AND DEED. Mandamus will not lie to compel the Sheriff to issue a certificate and deed to a purchaser at a sale for taxes under an invalid assessment. ID. Nor where the petition does not aver that there was an assessment and levy for taxes, and that the same was unpaid.

Mandamus.

E. A. Lawrence for petitioner.

MYRICK, J., delivered the opinion of the Court:

This is an application for a writ of mandate that the respondent issue to petitioner a certificate and deed of certain premises alleged to have been purchased by him at a sale for unpaid taxes.

First. As to the taxes for 1870-71. The heading of the assessment-roll reads:

"Assessment of property for the fiscal year ending April 1, 1871. To all owners and claimants known and unknown in Alameda township."

In City and County of San Francisco v. Phelan (10 Pac. C. L. J. 291), we held that this recital in the heading was an idle recital, which did not vitiate the assessment.

In the tabular part of the assessment-roll, under the heading Taxpayer's name," are the words " Place, Wilson, Newman and others." This places the assessment within Hearst v. Egglestone, 55 Cal. 365, and Brady v. Dowden, 59 Cal. 51. As a certificate and deed, based on such an assessment (or, rather, alleged assessment) would convey no title, and the issuance thereof would be vain, therefore the application of the petitioner is denied as to the certificate and deed based on the alleged assessment for 1870-71.

Second. As to the petition so far as it relates to taxes for years 1877-78. There is no averment that the property referred to was assessed for taxes-nor that any taxes were levied-or that taxes were unpaid.

Application denied.

We concur: Sharpstein, J., Thornton, J.

Abstract of a Recent Decision.

MISNOMER OF Defendant in tHE PUBLICATION OF SUMMONS.-The Supreme Court of Iowa, in Fanning v. Krapf, decided January 17, 1883, holds, that where the name published, as the name of the defendant, differs substantially from his true name, the summons so published would not be sufficient to give the Court jurisdiction of the person of the defendant.

From the foregoing remarks, attorneys will see the necessity of a strict compliance with the letter of the statute in relation to the service of summons by the publication thereof. The strict construction of the statute is the rule adopted by all Courts. Too much care cannot be used in making the affidavit, preparing the order, seeing that the summons is correctly published, and published for the full time prescribed by the statute. The full christian name of every plaintiff and every defendant should be given in the affidavit, order and summons. Every other requirement of the statute should be literally complied with, as otherwise the plaintiff's attorney may find the judgment, obtained by him on service by publication, utterly void.

INDEX.

ACCOMMODATION MAKER-See PROMISSORY NOTE.

ACCOUNT-See ADMINISTRATION.

ACCOUNTING. Under the contract to account and pay for moneys held
in trust, interest was to be paid after demand. No demand having been
found, it was error to compute interest at that date.

In an accounting, sums received between the filing of the comp'aint and the
report of the referee should not be charged unless there has been an
amendment to the pleadings.-Butler v. Austin..
ACKNOWLEDEMENT-Certificate of married woman. See MARRIED

WOMAN.

ACTION. An action on a note alone, secured by a mortgage possessing value,

cannot be maintained..

On forfeited bail-bond..

641

292

326

Husband and wife, when premature...

ACTION OF TRESPASS-Will not lie for forcible entry...

ACTION TO QUIET TITLE-See.

ACT OF 1858-See..

431

583

56

127

ACT OF 1868-See..

ADMINISTRATION. An order settling the account of the administrator
reversed for insufficiency of vouchers and accounts..

217

279

The surety of an administrator cannot question the validity of the decree
settling the account of his principal and making distribution of the
estate..

448

156

Value of attorney's services may be fixed by the Court..

571

It was competent for the Probate Court, in the matter of the estate of the
husband, to make distribution of the share of the community property
belonging to the widow, to her heirs, she having died pending the ad-
ministration of her husband's estate, and no creditor of hers objecting.. 448
Non-resident cannot nominate one to serve as administrator..
Decrees of distribution are conclusive as to the rights of heirs, legatees and
devisees, subject only to be reversed, set aside or modified on appeal.
The jurisdiction of the Superior Courts as successors of the Probate
Courts has not been enlarged in this regard, and they have no power to
entertain a petition by legatees to set aside said decrees for fraud..
An Appeal lies from an order of distribution...

The remedy to set aside a decree of distribution for fraud is by an independ-
ent action in equity..

Where it appears from the inventory that the value of an estate does not
exceed $1,500, and the Administrator petitions to assign the whole prop-
erty over to the minor children (the widow assenting), after paying the
expenses of the last illness, funeral and administration expenses, notice
to general creditors is not necessary..

446

535

535

390

The trial Court found in the case that the necessary notices of the hearing
of the petition had been given as required, which finding is conclusive.... 390
The reasonable and proper exercise of the judgment of the appraisors, and
the lower Court in ascertaining and fixing the value of an estate, can-
not be interfered with by the appellate Court..
See APPEAL, Clark vs. Smith; MORTGAGE; PARTIES; ADMINISTRATOR'S BOND;
JURISDICTION.

ADMINISTRATOR'S BOND. An Administrator's bond given pursuant to
an order of the Probate Court, requiring the Administrator to give
"further and additional security," is cumulative. The very purpose of
requiring it to strengthen, to increase, the security previously existing;

390

and sureties on such "additional bond" are responsible for the faithful
execution by the administrator of the duties of his trust without regard
to the time of the execution of the bond.

ADULTERY-See CRIMINAL LAW.

ADVERSE POSSESSION. Where possession is adverse one does not lose
his rights by an agreement that another shall procure title from the
State and convey to him, and that party, after obtaining the title, sells
to a third party.

Being in exclusive possession under an independent right that possession is
sufficient to put every one upon inquiry as to the right under which it is
held.....

Where conterminous owners have occupied parcels of land adversely to each
other for more than five years by a division-fence line, which each has
recognized and acquiesced in as the true line, either is estopped from
afterward questioning it as the true line.
Defendants are bound to show that their possession since they purchased the
interest of some of the tenants-in-common has been of such a character
as to warrant a presumption of ouster of the other tenants, before
they can successfully claim that they have acquired title as against
the tenants, of whom they have not purchased, by an adverse possession
of five years..

Defendant occupied a house, built upon a lot bought from plaintiff for more
than five years. Defendant had erroneously meased the lot. Held,
plaintiff could not maintain ejectment..

94

94

360

357

360

There are five elements required. (1.) Actual occupation; open and notori-
ous. (2.) Hostile to plaintiff. (3.) Under claim of title exclusive. (4.)
Continuous for five years prior to action. (5.) Payment of taxes. 574
Case stated where sufficient to constitute defense.

574

Mere possession by cotenant not sufficient. There must be notice that the
holding has become hostile...

574

Title acquired before the amendment of the Code respecting the payment of
taxes is not affected by it..

361

See STATUTE OF LIMITATIONS; FINDINGS; EVIDENCE.

AFFIDAVIT-See NEW TRIAL; FINDINGS.

AFFIDAVIT OF MERITS-An affidavit of merits is indispensable as a basis
of a motion to vacate a judgment regularly entered....

247

Where the affidavit for change of venue is that the defendant had stated
"the case" to his counsel, etc., it is sufficient....

527

See Wilkins vs. Deginer, 455.

AFFIDAVIT OF SERVICE-Where sufficient......

60

72

AGENCY-See MECHANIC'S LIEN; Hayes vs. Campbell...

APPEAL. After having perfected an appeal from an order dismissing a
motion for a new trial, a subsequent filing and serving of a notice of an
appeal from the judgment without giving the undertaking required by
Section 941 C. C. P., gives the appellate Court no jurisdiction of that
appeal. The undertaking filed within five days after the service of the
notice of appeal from the order cannot be made applicable to the appeal
from the judgment...

Party requesting the overruling of a demurrer will not be heard against it
on appeal..

350

523

Where the appeal is ineffectual it is the better practice to deny a motion to
dismiss the attempted appeal and simply refuse to hear the party who
claims to have appealed.

Where there is no specification that the finding is not justified by the evi-
dence, the appellate Court will not consider such objection...
The undertaking in regard to a deficiency where the judgment appealed
from is for the sale of mortgaged premises, is required only in the case of

350

462

an appellant in possession of the premises adjudged to be sold. (945 C.
The demurrer and order overruling it are reviewable on appeal from the
judgment...

Where the sixtieth day fell on Monday, a non-judicial day, the preceding
day being Sunday, a notice of appeal given on the following Tuesday is
in time..
When for delay damages will be imposed.

Motion to dismiss before statement and bill of exceptions are settled is pre-
mature....

An order for judgment is not a final judgment, and an order subsequently
made is not appealable as an order from final judgment...
Where there is a substantial conflict in the evidence the judgment will be
affirmed

Section 940, C. C. P., regulating appeals, differs materially from the Prac-
tice Act. The notice of appeal may now be filed on a day subsequent to
the service..

No transcript on appeal having been filed within time and no extension
obtained, the appeal should be dismissed...

252

522

293

36

539

92

118

118

On appeal from special orders made after final judgment, the appellant must
furnish the Court with a copy of the notice of appeal, of the orders
appealed from, and of the papers used in the Court below. (C. C. P. 951) 154
As the papers found in the transcript are not identified as having been used
on the hearing in the Court below, the orders appealed from must be
affirmed..

An order made after the judgment is not reviewable on appeal unless
excepted to...

154

216

A correction of a decree after its entry, as to amounts, is not an entry of a
new decree, and an appeal must be taken within a year from the entry.. 233
Objection as to pleading cannot be made for the first time in appellate court 235
Judgment discharging plaintiff from a trust. Certain defendants consented

to the judgment. Appellant (defendant) and others did not. The
notice of appeal was served on plaintiff alone. Held, the appeal should
be dismissed. The co-defendants of appellants were all interested in the
judgment and would be affected by its reversal, and the notice of appeal
should have been served on each of them..

243

1. The opinion of the Court below forms no part of the record. 2. Excep-
tions must be made in the lower Court or they will not be considered on
appeal..

30

No findings were filed or waived, and this was error.

32

An order dismissing a motion for new trial is not reviewable where there is
no bill of exceptions or statement in the transcript...

522

On appeal from the judgment an order denying a motion to strike out parts
of an answer is not reviewable..

522

Lies from decree of distribution..

535

One undertaking sufficient, when the appeal is from the judgment and also
from the order denying new trial; Chester vs. Bakersfield Town Hall
Ass., 601.

38

Consent judgments will not be considered on appeal.

See EJECTMENT; COSTS; JUSTICES' COURT; Williams vs. Conroy, 654.

See 150; 155; PRACTICE; 163; 168; 179; New TRIAL; 213; 248; 252; 253; UN-
DERTAKING SURETIES; NEW TRIAL; CRIMINAL LAW; Clark v. Smith;
461; PRACTICE; 592

APPEAL FROM JUSTICES COURT-See PROHIBITION.

APPEALABLE ORDER-See APPEAL.

APPEARANCE-See Baker v. Riordan; 592

APPLICATION OF PAYMENTS-See 115.

APPOINTMENT-See HARBER COMMISSIONERS.

APPRAISEMENT-See ADMINISTRATION.

ARKANSAS GRANT-See 217.

ARREST-See 363.

ASSAULT-The Court instructed the jury, in an action for damages for as-
sault, that "the very fact that the defendant used an unlawful weapon
(gun) gives the plaintiff a right to recover." Held, error.