On behalf of appellant it is claimed that the judgment is against law because the liens so asserted expired before the judg ment was rendered. This requires a consideration of that chapter of the Code of Civil Procedure, beginning with section 813, declaring the liability of steamers, vessels and boats for various kinds of services rendered and supplies furnished for their benefit, including work done and materials furnished in this state for their construction, repair or equipment. After declaring that demands for these several causes constitute liens upon such vessels, it is said that "such liens only continue in force for the period of one year from the time the cause of action accrued”. First, it should be noted that these claims arise in connection with the construction of a boat, and not for work done after its active use in navigation, and therefore none of the claims involved is of the class arising from maritime contracts. The action was commenced in the form of a personal action against the owner, as well as for the enforcement of these liens. He was personally served with summons and appeared in the action. The suit is not a proceeding in rem. It is not against the thing as defendant and the judgment is not that the thing is indebted. Under section 817, et seq., the plaintiff is entitled to certain attachment proceedings ancillary to the enforcement of his lien, but such attachment proceedings are not essential to the prosecution of the action. It is conceded by counsel for both parties that the lien is prior to and exists independently of any attachment. "The attachment under section 817 presupposes the existence of a lien." (Jensen v. Dorr, 157 Cal. 437.) In the case at bar it will be assumed that there has been no attachment, inasmuch as the only attempt in that direction was SO made that it was held to be void and was dismissed.

In the ordinary course of proceeding judgment would have been rendered herein against defendant Dorr personally, and in other respects the judgment would have been as now rendered. During the pendency of this action, however, the defendant was adjudged a bankrupt and prior to the trial herein duly received his discharge in bankruptcy. Such discharge having been pleaded and proved, the court was unable to render a personal judgment. Appellant's contention seems to be that, since the action is not a proceeding in rem, and since under the circumstances last above noted there could be no personal judgment, therefore, the entire action fails; and especially he insists that this must be so in view of the fact that no attachment levy was made prior to the expiration of the year of the lien as prescribed by section 813.

[1] Since the attachment in this particular kind of case does not create or extend the lien, but the lien is complete and sufficient prior to the attachment, we think that the argument based upon the absence of an attachment must fail. Neither do we agree that the code provision concerning this lien must be strictly construed. It is a part of the Code of Civil Procedure and is to be construed in view of the requirement stated in section 4 thereof, that "its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and to

promote justice. [2] So construed, it is reasonable to say that the commencement of an action in the form provided by section 814, et seq., during said period of one year for the purpose of enforcing such lien, gives the court a jurisdiction which cannot be lost merely because the necessary or unnecessary delays of litigation may postpone the entry of judgment until after the expiration of said period.

[3] The fact that by reason of defendant's discharge in bankruptcy it became impossible to obtain a personal judgment against him, furnishes no valid reason for claiming that an existing lien of this character cannot be enforced against the specific property covered thereby. The condition is analogous to that which exists where a lien has been placed by attachment against property of a non-resident debtor, against whom personal service cannot be had, and where the jurisdictional steps are confined to the publication of summons. In such case, although the judgment rendered has no force as a personal judgment, it furnishes a legal basis for satisfaction of the demand out of the attached property. In that class of cases, as well as in actions like the present, the proceedings are said to be quasi in rem. (Olsen v. Birch & Co., 133 Cal. 479, 483.)

Appellant's counsel points out that the lien claimed here is a secret lien and insists that we are here concerned, not only with the rights of plaintiff and defendant, but with the rights of third parties, such as purchasers, encumbrancers, or other lien claimants, who may be precluded by some admission, estoppel, or fiction of consent running against this defendant. There is nothing in the record here to show that anybody is concerned as to the validity of this judgment other than the plaintiff and defendant. The defendant has had his day in court and has been protected against any personal judgment. If the proceedings herein are not sufficient to give title against all the world in favor of a purchaser at the execution sale, and if perchance the effect of such sale would be to pass nothing more than the title of the defendant, with or without being subject to other liens, that is a matter which need not concern the defendant, since at least the lien is good against him.

It is also claimed that the findings are not supported by the evidence, and especially that some of the allegations of assignment of claims to the plaintiff were not proved. We have examined the record and are satisfied that there is sufficient evidence of the assignments and of the authority to make those assignments as to all of the claims included in the judgment. The claims set forth in the 4th, 12th, 15th, 16th, 17th and 19th counts of the complaint are not included in the judgment. The amount of the judgment shows that it is the sum of the other claims, with legal interest thereon from the time of completion of the yacht to the date of entry of the judgment.

The judgment is affirmed.

We concur:

JAMES, J.
SHAW, J.

CONREY, P. J.

Civil No. 1287. First Appellate District. January 20, 1914. BETTS SPRING CO., Plaintiff and Respondent, v. JARDINE MACHINERY CO. (a Corporation), Defendant; JOSEPH B. JARDINE, Defendant and Appellant.

[1] TRIAL REFUSAL OF CONTINUANCE-ABSENCE OF DEFENDANTABUSE OF DISCRETION.-It is an abuse of discretion to refuse the continuance of the trial of an action on the ground of the absence of the defendant, where it is shown by the statement of the plaintiff's own counsel that no previous continuance had been requested and that the cause had been on the court's calendar for two years, and by the uncontradicted affidavit of the counsel for the defendant that the defendant, who was the only witness to prove his own defense, was ill, and in search of health had journeyed to Europe, from where he would return in two months.

[2] ID. CONTINUANCE OF TRIAL-DISCRETION-APPEAL.-It is a well-settled rule of law that an application for a continuance is addressed to the sound discretion of the trial court, and that its action thereon will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion.

Appeal from the Superior Court of the City and County of San Francisco-Clarence A. Raker, Judge.

For Appellant-Louis H. Brownstone.

For Respondent-S. J. Hankins, Rufus H. Kimball.

This is an appeal by defendant Joseph B. Jardine from the judgment and from an order denying his motion for a new trial.

In support of the appeal it is first claimed that the court erred in denying appellant's motion for a continuance, and that for this error the judgment should be reversed.

We agree with this contention, and will therefore confine the discussion to this point.

When the case was called for trial counsel for appellant moved for a continuance of the trial, and filed on behalf of his client an affidavit, averring that three months prior thereto the appellant had suffered a stroke of apoplexy, and shortly thereafter visited Europe, where he went on the advice of his physician in an endeavor to regain his health; that he was in Scotland at the present time, and it would be two months before he returned to San Francisco. The affidavit also averred that the appellant was the only witness to prove the matters and things set forth in his defense. There was no counteraffidavit; but Mr. J. S. Reid (who, it appears, represented the plaintiff at that time) made a statement in open court to the effect that the case had been on the calendar of one of the departments of the court for two years; that it had been on the present extra session court calendar for three weeks. Viewing this statement, for argument's sake, as a proper matter for the consideration of the court; and remembering, too, as stated by Mr. Reid, that no motion for a continuance had theretofore been made by the appellant, nevertheless we are of the opinion, the averments in the affidavit of appellant's counsel being undisputed, that the continuance should have been granted.

[1] The motion for continuance was made under section 594 of

the Code of Civil Procedure, which provides that a court may for good cause postpone the trial of a case in the absence of a party. [2] It is a well-settled rule of law that an application for a continuance is addressed to the sound discretion of the trial court, and that its action thereon will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion. In this case the defendant was ill, and in search of health had journeyed to Europe, from whence he would return in two months; he was the only witness to prove his defense; there was no intimation that the motion was not made in good faith, nor was there any showing that the plaintiff would be injured or prejudiced by the delay. The plaintiff himself (on whom rests the duty of taking the initiative in bringing an action on for trial) showed that this cause had been on the court's calendar for two years; and while it may be a matter of notoriety that in the past the crowded condition of the calendar of the superior court of San Francisco caused much delay in bringing matters to a hearing, yet that condition would not account for two years' inaction if any reasonable effort of plaintiff had been made to force progress. These being the undisputed circumstances of the case, it must be held that the court abused its discretion in denying the appellant's motion for a continuance. This view finds ample support in the following cases: Jaffe v. Lilienthal, 101 Cal. 175; McMahan v. Norick, 12 Okl. 125; Storer v. Heitfeld et al., 17 Idaho 113, 125.) There is nothing hostile to the views here expressed in the cases relied upon by the plaintiff. In each of those cases there was a conflict in the showing made for the continuance; and that reason alone would have justified the appellate court in refusing to interfere with the trial court's action.

The judgment and order are reversed.

We concur:

RICHARDS, J.

LENNON, P. J.

KERRIGAN, J.

Crim. No. 490. First Appellate District. Jannuary 20, 1914. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, V. CALOGERO BALESTIERI, Defendant and Appellant.

BY

[1] CRIMINAL LAW-MURDER BEATING-EVIDENCE-PHOTOGRAPHS OF HEAD AND FACE OF DECEASED PROPER EVIDENCE.-The admission in evidence in a prosecution for murder of several large and very vivid and striking, though correct, photographs of the head and face of the deceased showing how the same had been bruised and battered, is not erroneous, notwithstanding that the same might awaken feelings of horror and, perhaps, indignation in the minds of the jury.

[2] ID. EVIDENCE PHOTOGRAPHS-RULE.-Photographs may be used upon the trial to exhibit particular locations or objects where it is important that the jury should have a clear idea thereof, and the situation may thus be better indicated than by the testimony of witnesses, or where they will conduce to a better or clearer understanding of such testimony.

[3] CIENT

ID.-ID.-TAKING OF PHOTOGRAPHS TO JURY ROOM-INSUFFIOBJECTION—APPEAL OBJECTION NOT REVIEWABLE.-Alleged error in the taking by the jury of such photographs with them to the jury room cannot be made for the first time on appeal, where the only objection urged at the trial to such order was the objection previously made to their introduction in evidence.

[4] ID.-JURY-TAKING OF "PAPERS" TO JURY ROOM-CONSTRUCTION OF CODE.-Photographs, pictures, diagrams and like fixed representations to the eye, the details of which would otherwise be properly presentable to the ear in oral testimony, come fairly within the meaning of the word "papers" used in section 1137 of the Penal Code defining what the jury may take with them to the jury room.

[5] ID.-ID.-ID.-ID.-CODE SECTION EXTENSION OF COMMON LAW RULE.-Section 912 of the Code of Civil Procedure, which is identical in terms with section 1137 of the Penal Code, is to be construed as an extension and not a limitation of the common law rule relating to exhibits, and the court may permit the jury to take with them and use in their deliberations any exhibit (except depositions) where the circumstances call for it.

Appeal from the Superior Court of Marin County-Edgar T. Zook, Judge.

For Appellant-Martinelli & Greer.

For Respondent-U. S. Webb, Attorney-General.

The defendant was convicted of the crime of murder, and sentenced to imprisonment for life. He appeals from the judgment and order denying his motion for a new trial.

The following are substantially the facts of the case: On the 16th day of April, 1913, Ernest Reynaud and Milton S. Clark, two deputy fish and game commissioners, acting upon information that the fish and game laws were being violated at or near Paradise Cove on the Marin county shore of the San Francisco bay, went to that place for the purpose of intercepting and arresting violators of the law. They there found two fishermen, named Antone Balestieri and Salvatore Balestieri, brothers, and also uncles of the defendant, engaged in fishing with a net of the size of mesh prohibited by law, and placed them under arrest. Entering the launch these fishermen were using they started with them to San Rafael, the decedent, Ernest Raynaud, taking his place in the stern and operating the tiller. They were presently overtaken by another launch in which was the defendant with two other men. The defendant, a young man of the age of 22 years, and also a fisherman, though not directly connected with his uncles in the business, had been fishing with his two brothers in the same vicinity. The men under arrest spoke and understood English very imperfectly, and hence asked this defendant to come aboard their launch and act as an interpreter. He was allowed to do so, and seated himself in the stern beside Reynaud. A dispute presently arose between the arrested men and the officers over the request of the former to have taken with them a net other than the illegal net with which it was claimed that they had been fishing, which request the officers refused. This led to an assault upon the arresting officers by the arrested men, during which several shots were fired by the deputies, killing Salvatore