for which they were made, and cannot be sold elsewhere without "enormous loss, amounting to almost the entire contract price." And that at divers times before the twenty-ninth day of April, 1892, Fruhling Bros. requested said Durkee to accept said gates and lamps, and to permit said Fruhling Bros. to erect them upon said premises, and to pay them therefor the sum of four hundred and thirty dollars, but said defendant, without any cause therefor, refused to accept said gates and lamps, or any of them, or to permit the same to be erected, or to pay for the same, or any part thereof.

The assignment was made to plaintiff April 29, 1892.

It is averred that plaintiff, by reason of the premises, has suffered damages in the sum of four hundred and thirty dollars, with interest from the first day of October, 1891.

The demurrer was not only upon the general ground of insufficiency of facts, but also for uncertainty, charging that it is uncertain upon what grounds plaintiff seeks to recover in this action, and in what the alleged damages consist of, or in what manner plaintiff has been damaged, or as to what is the value of said gates, lamps and material.

The complaint, treated as in an action for the price of the goods, is insufficient, because there is no averment of delivery or offer to deliver sufficient to pass the title to Durkee.

Considered as an action for damages for a breach of the contract it does state a cause of action, but, as such, it is obnoxious to the objections raised by the special demurrer. It is uncertain as to what the damage consisted of, or as to the extent of the damage.

It may be construed as asserting that the loss of Fruhling Bros. is enormous, and amounting to almost the entire contract price, because the goods would not be valuable for any other purpose. How much they are injured by the refusal of Durkee to permit them to complete the contract is nowhere stated even in general terms.

The final allegation that plaintiff has been damaged in the sum of four hundred and thirty dollars is not material. Defendant did not contract with him.

It has been often held that there is nothing in the proposition that the court overruled the demurrer because the defendant failed to appear and present it. A demurrer raises an issue of law. To overrule the demurrer is to decide that issue. On appeal, if there was prejudicial error in the ruling, the case may be reversed for that reason. Even a rule of the superior court that a demurrer would be overruled for want of presentation would make no difference. The code allows such issue to be made, and, unless the demurrer is waived or gotten rid of in some lawful mode, the court must decide the questions raised.

The demurrer itself presents the points.

The judgment and order are reversed and the cause remanded, with directions to the trial court to sustain the demurrer.

HENSHAW, J., and MCFARLAND, J., concurred.

[S. F. No. 114. In Bank.-July 31, 1895.]

G. R. STODDARD, AS COLLECTOR, ETC., PETITIONER, v. SUPERIOR COURT OF STANISLAUS COUNTY, ET AL., RESPONDENTS.

APPEAL INJUNCTION AFTER JUDGMENT APPEALABLE ORDER-CERTIORARI. In an action to obtain a perpetual injunction restraining the collector of an irrigation district from selling land for delinquent assessments due to the district, where, after an appeal has been taken from a final judgment in favor of the defendant, the court, upon plaintiff's motion, made an order enjoining and restraining the collector from selling the property during the pendency of the appeal, such order of injunction is appealable as an order made after final judgment, or as an order granting an injunction, and, conceding that the court had no jurisdiction to make the order, yet being appealable it cannot be reviewed upon certiorari.

APPLICATION in the Supreme Court for a writ of certeriorari to review and annul an order of the Superior

Court of Stanislaus County granting an injunction after judgment. W. O. MINOR, Judge.

The facts are stated in the opinion of the court.

C. C. Wright, and R. Percy Wright, for Petitioner.

The court had no jurisdiction to make an order enjoining or restraining the defendant after a final judg ment determining that the plaintiffs were not entitled to an injunction. (Spears v. Mathews, 66 N. Y. 127; Fellows v. Heermans, 13 Abb. Pr., N. S., 1; Hicks v. Michael, 15 Cal. 107; Swift v. Shepard, 64 Cal. 423.)

C. W. Eastin, for Respondents.

A writ of review cannot be granted on petition of a party who is entitled to appeal from the order or judgment of which he complains. (Faut v. Mason, 47 Cal. 7; Weill v. Light, 98 Cal. 193; Stuttmeister v. Superior Court, 71 Cal. 322; Heinlen v. Phillips, 88 Cal. 557; Gibson v. Superior Court, 83 Cal. 643; Code Civ. Proc., secs. 939, subd. 3, 963, subd. 2, 1068.)

MCFARLAND, J.-This is an application of petitioner Stoddard for a writ of certiorari to review and annul an order of the superior court restraining petitioner from selling certain property; and it has been submitted upon a demurrer of the respondents to the petition.

The demurrer must be sustained. The petition shows these facts: One Underwood and others brought an action in the said superior court against the petitioner here, Stoddard, as collector of the Modesto irrigation district, for a perpetual injunction restraining Stoddard from selling certain land for delinquent assessments due said district. A temporary restraining order was granted by the court; but upon the hearing a final judgment was rendered in said action in favor of Stoddard, defendant therein and petitioner here. The plaintiffs in said action took an appeal from said judgment to this court; but, after the said appeal had been taken, the court, upon plaintiffs' motion, made an order enjoining

and restraining Stoddard from selling the property described in the complaint during the pendency of the appeal. It is this last order that petitioner Stoddard seeks to have reviewed and annulled in this present proceeding, upon the ground that said court had no jurisdiction to make it. The demurrer is upon the ground, among others, that the said order is an appealable order, and therefore cannot be reviewed on certiorari.

Petitioner, in his brief, does not contest the proposition that the order is appealable either as an order made after final judgment, or as an order granting an injunction; he directs his argument to the points that the court had no jurisdiction to make the order, and that an appeal would not be a plain, speedy, and adequate remedy. It may be readily admitted that the court had no jurisdiction to make the order; but, as the order is appealable, certiorari will not lie, because it lies only where "there is no appeal." (Code Civ. Proc., sec. 1068.) In this respect it differs from mandamus and prohibition, which lie "in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law." (Code Civ. Proc., secs. 1086, 1103.) With respect to certiorari the language of the code is, "when . . . . there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy." (Code Civ. Proc., sec. 1068.) In Stuttmeister v. Superior Court, 71 Cal. 322, the authorities on the point are collated; and it was there declared that "the writ (certiorari) will not lie when there is an appeal from the action complained of," and "the writ is not given in lieu of an appeal, but only to review errors in excess of jurisdiction for which an appeal does not lie." (See cases cited in opinion of Searls, C., also In re McConnell, 74 Cal. 217, 219; Hayne on New Trial and Appeal, sec. 307.) We have been referred to no case in which it has been held that, under our code, a writ of certiorari will lie to reverse an appealable order. That the appeal does not

CVIII. Cal.-20

afford a plain, speedy, and adequate remedy makes no difference; the provision of the statute governs.

The demurrer to the petition is sustained and the proceedings dismissed.

TEMPLE, J., HENSHAW J., VAN FLEET, J., GAROUTTE, J., and HARRISON, J., concurred.

[No. 18341. In Bank.-July 31, 1895.]

LOWER KINGS RIVER RECLAMATION DISTRICT, NO. 531, RESPONDENT, v. P. C. PHILLIPS ET AL., APPELLANTS.

RECLAMATION DISTRICT-VALIDITY OF ORGANIZATION-CHARACTER OF LAND INCLUDED-RES JUDICATA-ASSESSMENT EVIDENCE.-An order of the board of supervisors made upon a proper petition, after due notice and appearance and answer or remonstrance by the owner of land claimed by him to have no need of reclamation, by which a reclamation district was organized so as to include his land, is conclusive evidence against him that the district was lawfully organized, and that his land included therein was of a character which the law authorized to be included in the district, and is res judicata between the parties; and, in an action to enforce an assessment upon his land, no evidence is admissible to prove that the district was not lawfully organized.

ID. ASSESSMENT OF LAND IN PROPORTION TO BENEFITS-EVIDENCE ASSESSMENT-ROLL NOT CONCLUSIVE.-The assessment-roll of the reclamation district in due form is not conclusive evidence that the assessment was made in proportion to benefits; but the defendant against whom the assessment is sought to be enforced may, under a denial that the assessment was proportionate to the benefits which result to each tract from the reclamation works, offer evidence tending to prove that his land was not benefited by the reclamation works, and was arbitrarily and excessively assessed without regard to proportionate benefits.

[D.-DEFENSE--ATTACK UPON ASSESSMENT OPPORTUNITY ΤΟ BE HEARD-DUE PROCESS OF LAW-OVERRATING OF BENEFITS.-An attack may be made upon the determination of the assessment commissioners by way of defense to an action upon the assessment, where there has been no prior hearing or opportunity to be heard before the commissioners; and to deprive the defendant of a hearing in defense to such action would be to deprive him of his property without due process of law; and any material overrating of benefits and consequent assessments injurious to the taxpayer which are not within the maxim de minimis may be pleaded and proved as a defense, whether such overrating be the result of fraud or negligence of the commissioners.