to who the owner or owners of the property may be is the very matter in dispute in this action. If the affiant intends by this phrase to refer to the plaintiffs, and is to be understood as deposing that Edward Funkenstein is in possession of any book, paper or document containing entries, receipts, payments or agreements running in the names of the plaintiffs in the action, and tending in any material way to show in them an actual or admitted interest in the property in question or in its proceeds after the death of Tobe Funkenstein, the affiant should have so expressly stated; or, if the affiant is to be understood as claiming that any such book or paper in the possession of Edward Funkenstein contains specific matter, tending to show that after the date of the alleged deed of gift from Tobe Funkenstein to the defendants, she still retained her interest in said property up to the time of her death notwithstanding said deed, the affiant should have expressly set forth that fact in his affidavit. On the other hand, if the books, papers and documents in the possession of Edward Funkenstein contained entries, receipts, writings or agreements relating to said property or the proceeds thereof, in the names only of the defendants to the action, and made, issued, taken or drawn by them or by their agent on their behalf, such books, papers or documents would reasonably contain no material evidence in aid of the plaintiffs' case, and no admissible evidence in support of the defendants' claim of title; or, if any of such books, papers or documents so made, issued or taken would be admissible upon any theory of the case it was the duty of the affiant to set forth the facts and reasons showing wherein their materiality and admissibility consist; and it was not sufficient in his affidavit to merely rely upon the legal conclusion stated in general terms that such books, papers and documents would be material.

Finally, the entire failure of the affiant to identify with any particularity of description any specific book or paper or document constitutes, in our opinion, a fatal objection to the jurisdiction of the trial court to make the order in question, or to further proceed to punish the said defendant for its violation. The mere fact that a party seeking an inspection of private papers in the possession of another is unable to specify the particular thing to which he desires access, does not justify a departure from the strict requirement of the constitution; but even if in any case it could be held to do so, the plaintiffs in this case are in no position to plead their ignorance of detail as an excuse for the fatal generality of their affidavit; for it appears affirmatively and without denial that the deposition of Edward Funkenstein has been taken by the plaintiffs in this action, and it nowhere appears that he therein attempted any concealment of any fact respecting the books and papers in his possession about which the plaintiffs might need to be informed in order to the preparation of a proper affidavit as the basis for an order of inspection.

These views render unnecessary a consideration of the question as to the effect of defendants' appeal upon the jurisdiction of

the trial court to further proceed with an enforcement of the order after the perfection of such appeal.

Let the writ issue as prayed for.

Civil No. 1423. Second Appellate District. January 9, 1914. JOHN LAPIQUE, Plaintiff and Appellant, v. GEORGE J. DENIS et al., Defendants and Respondents.

[1] PLEADING-ACTION ΤΟ RECOVER RENTS-FOURTH AMENDED COMPLAINT UNCERTAINTY-SUSTAINING OF DEMURRER WITHOUT LEAVE TO AMEND PROPER ORDER.-It is held in this action to recover judgment against the defendants (nine in number besides respondents) for a certain sum of money alleged to have been received "by them" as rentals from property fraudulently included in the administration of the estate of the deceased husband of the plaintiff's assignor, that from the allegations of the fourth amended complaint it cannot be determined in what capacity either of the defendants is sought to be charged or held liable, or what relation either of them bore to the deceased, or to his estate, or to its executor or special administrator; or when any of the sums of money for which they were to account were collected or received by them; or what facts existed either in the intentions or within the knowledge of the defendants which justified the plaintiff in alleging that the defendants acted corruptly or for the purpose of divesting plaintiff's grantor of any right possessed by him, and that, therefore, the court rightly sustained the demurrer to such complaint without leave to amend.

Appeal from the Superior Court of Los Angeles County-J. P. Wood, Judge.

For Appellant-J. Lapique, in pro. per.

For Respondents George J. Denis and E. A. Meserve-Denis & Loewenthal.

For Respondent Willoughby Cole-Cole & Cole.

Separate demurrers to the fourth amended complaint were filed by the three respondents above named. The court having sustained said demurrers without leave to amend, judgments of dismissal were entered in favor of the said respondents, and the plaintiff appeals from said judgments.

The judgments recite the fact that similar demurrers to the preceding complaints in this action had been sustained by the court and that the plaintiff had failed to amend in the respects required as a result of the sustaining of said demurrers, and that therefore in sustaining these demurrers the orders were made without leave to amend.

As to the first count of the complaint it is sufficient to say that the plaintiff does not therein allege any assignment or transfer to the plaintiff of the property or rights of action of Antoine Begon, the person whose claims to a right of action against the defendants are set forth in said first count.

The second count of the complaint begins by adopting all of the paragraphs of the first count as parts of the second, and adds certain other paragraphs. In one of these it is alleged "that for value received, before the filing of this fourth amended complaint, said surviving husband of Maria Begon, deceased, Antoine Begon,

duly assigned, conveyed, sold and transferred to John Lapique, this plaintiff, all his claims", etc. Demand is "for an accounting of all moneys collected and received from the estate of Maria Begon, deceased, by each and all of the defendants, from the 9th day of November, 1894, down to the date of judgment in this action", and for judgment against the defendants and each of them for a certain large sum of money, alleged to have been received by "the defendants" as rentals from property included in said administration, but which plaintiff says was community property of Antoine and Maria Begon.

Besides the respondents on this appeal, nine other defendants are named in the complaint. According to the allegations of the complaint, letters of special administration and letters testamentary were issued upon the estate of Maria Begon, deceased, at two certain dates in December, 1894. It is then alleged, "that ever since said last named date said defendant has been and now is the duly appointed, qualified and acting special administratrix and executrix of the estate of Maria Begon, deceased". The complaint does not state which defendant was so appointed. Inconsistently with this allegation, other allegations are made charging that the will which was admitted to probate was in fact not the last will and testament of said deceased, and that the defendants in procuring the admission to probate of the so-called will represented that they were acting at the request of Antoine Begon and that the property described in their petition was the separate property of his deceased wife, whereas the plaintiff says that in fact such representations were untrue. It is not alleged that the defendants knew that said representations were untrue, or did anything to prevent the matter from being determined on its merits, and it is not alleged that Antoine Begon was ignorant of the proceedings in probate. The only statement approaching such an allegation is that the petition for probate was heard by the court on a certain day "without notice in writing" to said surviving husband.

It is alleged that the acts of the defendants in said probate proceedings, and in collecting rents from the properties mentioned, were done "as agents, attorneys at law, legatees, devisees, so-called, and trustees of plaintiff's grantor, and were taken in said probate court by each and all of said defendants corruptly and for the purpose of divesting and cheating said grantor of his estate in said community property".

[1] The demurrers are made upon the ground that the complaint does not state a cause of action, and also upon various grounds showing that the complaint is for various reasons uncertain, and for like reasons unintelligible and for like reasons ambiguous. Many of these points are well taken and it is unnecessary to review them at length. The complaint abounds in confused statements and in forms of statement such as those of paragraph 15, which set forth certain findings made in an action now pending on appeal in the supreme court, without alleging the facts stated in said findings as facts provable in this case. From the allegations in the complaint it cannot be determined in what capacity

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either of these three defendants is sought to be charged or held liable, or what relation either of them bore to Antoine Begon or to said estate or to its executor or special administrator; or when any of the sums of money for which they are to account were collected or received by them; or what facts existed either in the intentions or within the knowledge of the defendants which justify the plaintiff in alleging that the defendants acted corruptly or for the purpose of divesting plaintiff's grantor of any right possessed by him.

The judgments appealed from are affirmed.

We concur:

JAMES, J.
SHAW, J.

CONREY, P. J.

Civil No. 1448. Second Appellate District. January 9, 1914. CITY OF HANFORD (a Municipal Corporation), Plaintiff and Respondent, v. D. C. WILLIAMS, City Clerk of the City of Hanford, Defendant and Appellant.

[1] MUNICIPAL CORPORATIONS-COUNTERSIGNING OF MUNICIPAL BONDS-MANDAMUS-VALIDITY OF ELECTION-RULINGS IN COUNTING OF BALLOTS NOT PREJUDICIAL. It is held on this appeal by a city clerk from a judgment granting a peremptory writ of mandate commanding him to countersign certain municipal bonds, that conceding all that appellant claims as to the erroneous rulings of the court in counting the ballots voted at the election on the question of the issuance of the bonds, that the bonds were carried by more than a two-thirds vote of the legal ballots cast.

[2] ID. APPEAL REVERSAL OF JUDGMENT-RULE.-No judgment, decision or decree shall be reversed or affected by reason of any error, ruling, instruction or defect unless it shall appear from the record that such error, ruling, instruction or defect was prejudicial, and also that by reason thereof the party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction or defect had not occurred or existed.

Appeal from the Superior Court of Kings County-J. A. Allen, Judge presiding.

For Appellant J. L. C. Irwin.

For Respondent-F. E. Kilpatrick.

The petition of plaintiff for a peremptory writ of mandate, commanding defendant as city clerk to countersign 80 municipal bonds therein described, was granted. Defendant appeals from the judgment and an order denying his motion for a new trial.

The court found that, for certain reasons stated, a number of the ballots cast, both for and against the issuance of the bonds, were not entitled to be counted; that of the number of ballots voted at the special election held for submitting to the electors of the city of Hanford the question of the issuance of the bonds, 813 thereof were legal and valid, and of the legal ballots so cast whereby the voters gave expression to their choice as to whether or not the bonds should be issued, 543 thereof were in favor of the issuance of the bonds and 267 were opposed to

the proposed issuance thereof. Of the 12 ballots excluded from the count by the court, appellant attacks the rulings of the court only as to 7 thereof, thus conceding the ruling in excluding the other 5 ballots to be correct. Of these 7 ballots which he insists should have been counted, 4 were voted in opposition to the issuance of the bonds and 3 were in favor of the issuance thereof. Hence, if the court had not committed the alleged errors, but had counted the 7 ballots exactly as appellant insists it should have done, it would have added 4 votes to the 267 counted against the bonds, making a total of 271 votes opposed to the proposition, and added 3 votes to the 543 cast in favor thereof, making a total of 546 votes in favor of the issuance of the bonds. [1] It thus appears that, conceding all that appellant claims, the bonds were carried by a vote of more than two-thirds of the legal ballots voted at the special election submitting the proposition to the voters of the city. Conceding, therefore, that the court erred in its rulings as claimed by appellant, it is apparent that defendant's rights were not prejudiced by reason of such rulings. Had the rulings been otherwise, such fact could not have affected the result. [2] "No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed." (Sec. 475, Code Civ. Proc.) While there is a difference of three votes in the number of ballots found by the court to have been actually cast and the total number of votes as found by the court to have been cast for and against the proposition, we cannot presume that the three votes thus unaccounted for in the findings were in fact cast in opposition to the proposition; on the contrary, every intendment being in favor of the judgment, we must assume that they were favorable, rather than otherwise, to the issuance of the bonds. As presented by counsel for appellant, the appeal is wholly without merit. The order and judgment are, therefore, affirmed.

We concur:

CONREY, P. J.

JAMES, J.

SHAW, J.

Civil No. 1432. Second Appellate District. January 9, 1914. SAN PEDRO, LOS ANGELES & SALT LAKE RAILROAD COMPANY (a Corporation), Plaintiff and Appellant, v. H. L. PILLSBURY, as City Tax and License Collector of the City of Long Beach, Defendant and Respondent.

[1] STREET LAW-RAILROAD RIGHT OF WAY-LIABILITY FOR STREET IMPROVEMENT WORK.-A municipality possesses no right to levy an assessment against the right of way of a railroad corporation