debts it had incurred. True they did this, as the court finds, under a mistake as to the legal creation of the district, but that is immaterial; well nigh every merely de facto corporation is the result of the omission or mistake of somebody or some body of people.

We are of the opinion that the district had a de facto existence. In the elements above enumerated we see nothing wanting to give the color of legality to its organization, or to render it impolitic to allow the collateral impeachment of such existence. The same rule which recognizes officers de facto applies to corporations de facto (Clement v. Everest, 29 Mich. 20); it is one of policy to prevent public confusion and private injustice; and it seems to be settled that one assuming to act as a public officer may in some cases be such de facto, although he has not color of election or appointment by the only body which has power to elect or appoint him, and although the appointing or electing body under which he assumes to act had not the legal power. (State v. Carroll, 38 Conn. 449; 9 Am. Rep. 409; 5 Am. & Eng. Ency. of Law, 103.) The order of the board of supervisors purporting to create the district was the formal exercise of legislative power (Hughes v. Ewing, 93 Cal. 417); and thereunder every thing having been done to constitute the district a corporation colorably, if not legally, the law, as we see it, refuses in this incidental way to declare all its proceedings void. (Attorney General v. Stevens, 1 N. J. Eq. 378; 22 Am. Dec. 526.)

The constitution of Tennessee provided that no line of any new county created by the legislature should approach nearer than eleven miles of the courthouse of any existing county. An act was passed forming a new county, under which one of the lines was established within the prohibited distance, but this circumstance did not appear on the face of the act; it was therefore on its face not unconstitutional. The new county collected taxes and exercised other jurisdictional rights up to the line so fixed. Held, that, so long as the older county acquiesced in the boundary which cut off part of

its territory, the right of the new county over such territory could not be questioned in any collateral proceeding; that only the older county could assert the invalidity of the boundary. (Speck v. State, 7 Baxt. 46.) A somewhat similar case received like treatment in Kansas; the court, citing many authorities, said: "When a public organization of a corporate or quasi corporate character has an existence in fact and is acting under color of law, and its existence is not questioned by the state, its existence cannot be collaterally drawn in question by private parties." (In re Short, 47 Kan. 253.) In Michigan it was sought to review by certiorari the proceedings taken to form a new school district out of old districts; this was about fifteen months after the proceedings were had; the court held that after lapse of such time, it was presumed that the district had been organized in fact, officers elected, and expenses incurred; that any one desiring to contest the organization must proceed by quo warranto against the district or its officers. (Fractional Dist. No. 1 v. School Inspectors, etc., 27 Mich. 3; see Stuart v. School District, 30 Mich. 74.) In Arkansas, by mistake as to the tribunal having authority for such purposes, a town was formally organized by order of the circuit court of a certain county when in fact it had no jurisdiction in the matter; otherwise the organization was in accordance with the general law, and for several years the town continuously exercised the franchises of a corporation; it was conceded that the order was void; yet the supreme court held that the town. "had been an existing de facto corporation all the time from 1873 till now; and many things had in good faith been done under it which it would be shocking now to undo." (State v. Leatherman, 38 Ark. 81; see further, Ashley v. Board of Supervisors, 60 Fed. Rep. 55; Aller v. Town of Cameron, 3 Dill. 198; School Dist. No. 2 v. School Dist. No. 1, 45 Kan. 543; City of St. Louis v. Shields, 62 Mo. 247; People v. Maynard, 15 Mich. 463; Cooley on Constitutional Limitations, 310.) Respondent lays much stress on Bay View School Dist. v. Linscott, 99 Cal. 25;

but that case does not touch the present question; we have assumed the correctness of the remark there, that "after the incorporation of the city the board of supervisors ceased to have any power over the school districts within the city."

Since the Coronado school district had a de facto existence the plaintiff could not have enjoined the collection of taxes, nor have resisted an action for the same, on the ground of illegality of its organization (Quint v. Hoffman, 103 Cal. 506; Dean v. Davis, 51 Cal. 406; Reclamation Dist. v. Turner, 104 Cal. 334; Swamp Land Dist. v. Silver, 98 Cal. 51); and for reasons at least as strong should not recover the money when paid. It follows also that the intervenor has no standing to claim the money in dispute. Under section 1887 of the Political Code the taxes when collected were required to be "paid into the county treasury to the credit of such district, and be used for the payment of the principal and interest of said bonds, and for no other purpose"; and, whether the holders of the bonds have any further remedy on the same or not, a subject on which we intimate no opinion, it seems to us clear that on the facts disclosed by the present record they are entitled to the fund in question to the exclusion of both the plaintiff and the intervenor. The judgment dismissing the intervenor's complaint should be affirmed, and the judgment against the defendants and the order denying their motion for a new trial should be reversed.

SEARLS, C., and BELCHER, C., concurred.

For the reasons given in the foregoing opinion the judgment dismissing the intervenor's complaint is affirmed and the judgment against the defendants and the order denying their motion for new trial are reversed.

GAROUTTE, J., HARRISON, J., VAN FLEET, J.

[No. 18378. Department One.-July 29, 1895.] SARAH HOTCHKISS, RESPONDENT, v. V. L. SMITH, APPELLANT.

COSTS-FEES AND EXPENSES OF KEEPING ATTACHED PROPERTY-COST BILL.-Where the fees and expenses of a sheriff for the keeping of property held under a writ of attachment are not claimed by the plaintiff in the memorandum of costs, and are not included in the judgment, the failure so to claim and include them in the manner required by the statute is a waiver of such costs, and precludes a recovery thereof from the defendant. ID.-APPLICATION OF PROCEEDS OF SALE-ACCRUING COSTS-EXECUTION. The sheriff cannot apply the proceeds of sale under execution to the payment of keeper's fees and expenses under a writ of attachment which were not included in the cost bill and judgment, and they are not part of the accruing costs allowed under section 697 of the Code of Civil Procedure, which include only such fees and expenses as are incurred in the execution of the judgment. AD.--SATISFACTION OF JUDGMENT.-Where it appears that, exclusive of the item of keeper's fees under a writ of attachment constituting no part of the judgment, the property sold under the execution is sufficient, when properly applied to satisfy the judgment, including the amount of costs claimed in the costs bill and accruing costs, the defendant is entitled to have the proceeds so applied, and to have the judgment satisfied.

APPEAL from an order of the Superior Court of Modoc County denying a motion to have satisfaction of judgment entered. G. F. HARRIS, Judge.

The facts are stated in the opinion of the court.

Spencer & Raker, and Clarence A. Raker, for Appellant.

When a judgment is satisfied the court may compel the entry of satisfaction. (Code Civ. Proc., sec. 675.) Any excess in the proceeds over the judgment and accruing costs must be returned to the judgment debtor.

(Code Civ. Proc. sec. 691.) The court should have ordered entry of satisfaction. (Code Civ. Proc., sec. 675; Meredith v. Santa Clara Min. Assn., 60 Cal. 617; Haggin v. Clark, 71 Cal. 444, 448; 2 Black on Judgments, sec. 1014, p. 1188; Briggs v. Thompson, 20 Johns. 294; Medford v. Dorsey, 2 Wash. C. C. 467.) Accrued costs must be included in the judgment. (Code Civ. Proc. sec.

1035; Golden Gate Mill Co. v. Joshua Hendy Machine Works, 82 Cal. 184; Riddell v. Harrell, 71 Cal. 254, 260, 261.) The accruing costs are collected by the execution. A successful party loses all costs and disbursements not included in the memorandum of costs. (Code Civ. Proc. sec. 1033; Chapin v. Broder, 16 Cal. 403; Riddell v. Harrell, supra; O'Neil v. Donahue, 57 Cal. 230-32; Mullally v. Irish-American Ben. Soc., 69 Cal. 559; Porter v. Hopkins, 63 Cal. 55; Sellick v. De Carlow, 95 Cal. 644.)

D. W. Jenks, for Respondent.

VAN FLEET, J.-This is an appeal from an order denying defendant's motion, made under section 675 of the Code of Civil Procedure, to have satisfaction of judgment entered.

The only question involved is whether plaintiff is entitled on execution, as a part of her judgment, to be paid an item of sheriff's fees and expenses for keeping property held under a writ of attachment, when such fees and expenses were not claimed by plaintiff in her memorandum of costs, and consequently not included in the judgment.

Section 1033 of the Code of Civil Procedure provides: "The party in whose favor judgment is rendered, and who claims his costs, must deliver to the clerk and serve upon the adverse party, within five days after the verdict, a notice of the decision of the court or referee -or, if the entry of the judgment on the verdict or decision be stayed, then before such entry is made-a memorandum of the items of his costs and necessary disbursements in the action," etc. And section 1035 of the Code of Civil Procedure provides that the costs shall be included in the judgment. The effect of these pro

visions is that all costs and disbursements incurred in the action must, in order to be recovered by the prevailing party, be included in the memorandum of costs filed by the party. This includes all items of costs or