It

They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner. If he suffers injury, it is either damnum absque injuria, or, in the theory of the law, he is compensated for it by sharing in the general benefits which the regulations are intended and calculated to secure." This ordinance is not unreasonable nor arbitrary nor discriminating. treats all persons alike who are engaged in the business named therein. All have the same rights, and all are subject to the same burdens. It is not unreasonable in the limits of distance fixed. As to the location of the exact spot distant from a church or a schoolhouse or a dwellinghouse, where an ordinance would cease to be reasonable, it is not for this court now to say. The limits here prescribed are those with which we are to deal, and those limitations of distance may well be said to be reasonable. We see no substantial objection that can be made to the validity of this ordinance. Upon the contrary, the subject-matter covered by it is clearly one with which the city had the constitutional right to deal, and the businesses there enumerated are unmistakably those which the municipal authorities had the right to regulate, in the interest of the comfort and good health of the people of the city. The power is vested in the city, by direct grant from the constitution, to control and regulate business undertakings of the character here involved, and petitioner's constitutional rights have in no way been trespassed upon. It is therefore ordered that petitioner be remanded.

BEATTY, C. J. I dissent from the order denying a rehearing of this cause. Not because I think the plaintiff failed to prove facts entitling him to a judgment, but because, in my opinion, the cause was tried in the superior court, and has been decided here, upon an erroneous view of the law.

The issues of fact were submitted to the jury under instructions to the effect that if the bank held the warehouse receipt, properly indorsed by plaintiff's assignors, as security for a loan, at the time defendants purchased and took possession of the wheat, the plaintiff could not maintain the action. It is conceded in the opinion of the court that this theory was correct, but the judgment is affirmed on the ground that the defendants failed to prove the existence of the bailment at the date of the conversion. In

my opinion, the existence of such a bailment at the date of the conversion was no defense to an action to recover compensation for an injury to the reversionary interest of the pledgors commenced after payment of the debt and return of the pledge, and, therefore, I am satisfied that the actual result of the litigation is just. But I cannot assent to the grounds upon which the decision of this court is placed. If the theory of the defense was a sound one, it is clear to my mind that the facts were fully proved.

TEMPLE, J. I dissent from the order refusing a rehearing, because I am convinced that under the instructions the verdict is not warranted by the evidence. I agree with the chief justice as to the law which ought to have governed at the trial.

(5 Cal. Unrep. 115) DOWLING v. ADAMS et al. (No. 15,913.) (Supreme Court of California. Aug. 21, 1895.) CERTIFICATE OF SURVEYOR-AUTHORITY OF CLERK TO SIGN.

Where a city surveyor is required to sign a certificate as to a public improvement, it cannot be signed by his clerk, who had no specific directions from him to sign it. Rauer v. Lowe (Cal.) 40 Pac. 337, followed.

Department 1. Appeal from superior court, city and county of San Francisco; J. M. Troutt, Judge.

Action by one Dowling against one Adams and others. Judgment was rendered for plaintiff, and defendants appeal. Reversed.

Horace W. Philbrook, for appellants. J. C. Bates, for respondent.

PER CURIAM. Action upon a street assessment. The testimony on behalf of the defendants showed that the certificate of the city and county surveyor, which was recorded in the office of the superintendent of streets, was not made by that officer, but that his name was signed thereto by a clerk in his employ, without any specific directions therefor. The testimony upon this point is almost identical with that given in Rauer v. Lowe (Cal.) 40 Pac. 337. Upon the authority of that case, the judgment is reversed.

of a judgment debtor in the hands of any other person to be applied towards the satisfaction of the judgment. Held that, where an affidavit for the examination of the judgment debtor's wife alleged that she held property belonging to the judgment debtor which was conveyed to her to shield it from the judgment, and she filed a verified answer denying that she held any property belonging to the judgment debtor, or that any property was conveyed to her for the purpose stated in the affidavit, the judge could only authorize that suit be brought against her to recover the property claimed, and could not further proceed with her examination.

Commissioners' decision. Department 1. Appeal from superior court, San Diego county; E. S. Torrance, Judge.

Action by William Frisbie Lewis against E. W. Morse and another. Judgment was rendered for plaintiff, and he obtained an order for the examination in supplementary proceedings of Myra I. Conklin and others. From an order dismissing the proceeding, plaintiff appeals. Affirmed.

Works & Works, for appellant. M. A. Luce and Conklin & Hughes, for respondents.

HAYNES, C. Appeal from an order dismissing proceedings supplementary to execution. Lewis obtained judgment in the superior court of San Diego county against E. W. Morse and N. H. Conklin for a large sum of money, upon which execution was issued, and returned nulla bona. He afterwards filed in said court an affidavit, entitled in said cause, alleging the foregoing facts, and further alleging, on information and belief, that defendant Conklin, for the purpose of avoiding payment of said judgment, conveyed a large amount of property owned by him to Myra I. Conklin, his wife, and to Ralph L. Conklin, his son, who hold said property in their own names, and are thereby aiding and assisting him to shield it from sale to satisfy plaintiff's said judgment. Like allegations were made of conveyances by defendant Morse to his wife, Mary C. Morse, and that she had conveyed part thereof to one Daniel Schuyler. And upon this affidavit he asked that an order be issued, requiring the said judgment debtors and Mary C. Morse, Myra I. Conklin, Ralph L. Conklin, and Daniel Schuyler "to appear and be examined as to the property of said Morse and Conklin, and for such other relief as is provided by law." Mrs. Conklin filed a written and verified answer to plaintiff's affidavit, specifically denying that she held any property belonging to her husband in her name or possession or control, and alleged "that she in good faith claims and owns in her own right all property now in her name or possession, or under her control, or that was in her possession or name or control when any of the papers in this cause were served upon her." She further denied that her husband had conveyed to her any property for the purpose charged in plaintiff's affidavit, and alleged that she then was, and since 1867 had been, the wife of said N. H. Conklin, and prayed that she be no further examined therein, and that she be discharged

with her costs. Mrs. Morse filed a similar verified answer. Upon the hearing, Mrs. Conklin was called by the plaintiff, and after testifying to her residence, that she was the wife of N. H. Conklin, and after giving the date and place of her marriage, was asked the following question: "What property, if any, did you have at that time?" Whereupon her counsel interposed the following objections: "(1) That Mrs. Conklin cannot be examined under the statute in this proceeding, because she is the wife of the defendant Conklin, and he objects to her being examined. (2) That -and, of course, we shall have to prove this by laying a predicate that she claims all the property in her own right, and it is in her possession; and when she claims it the court cannot make examination in this proceeding, but suit can be instituted against her by plaintiff for the recovery of the property." The objections were sustained, and plaintiff excepted. The same objections were made to the examination of Mrs. Morse, the same ruling had, and exception taken. Defendants then consented that an order be made authorizing plaintiff to institute suit to recover said property, to which counsel for plaintiff replied that "he wanted the property turned over." Some other testimony was heard, and, the evidence being concluded, the court dismissed the proceeding; and this appeal is from the judg ment of dismissal, the proceedings being embodied in a bill of exceptions.

Two questions are discussed by counsel for appellant: (1) Whether the wife was a competent witness, the husband objecting; and (2) whether any order could have been legally made by the court against Mrs. Conklin or Mrs. Morse other than one authorizing the plaintiff to bring an action against them for the recovery of the property alleged to have been conveyed to them by the judgment debtors, as provided in section 720 of the Code of Civil Procedure, they having, by their answers under oath, claimed ownership in good faith of the property conveyed to them respectively. The first of these questions need not be considered, as the judgment or order dismissing the proceeding must be affirmed under the second objection made by counsel for Mrs. Conklin and Mrs. Morse, plaintiff having declined to accept an order granting leave to bring an action for the recovery of the property.

This proceeding was brought under the provisions of the Code of Civil Procedure entitled "Proceedings Supplementary to the Execution," of which sections 717 and 720 are as follows:

"717. After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, or upon proof by affidavit or otherwise, to the satisfaction of the judge, that any person or corporation has property of such judgment debtor, or is indebted to him in an amount exceeding fifty dollars, the judge may, by an order, require such person or cor

poration, or any officer or member thereof, to appear at a specified time and place before him, or a referee appointed by him, and answer concerning the same."

"720. If it appear that a person or corporation, alleged to have property of the judgment debtor, or to be indebted to him, claims an interest in the property adverse to him, or denies the debt, the court or judge may authorize, by an order made to that effect, the judgment creditor to institute an action against such person or corporation for the recovery of such interest or debt; and the court or judge may, by order, forbid a transfer or other disposition of such interest or debt, until an action can be commenced and prosecuted to judgment. Such order may be modified or vacated by the judge granting the same, or the court in which the action is brought, at any time, upon such terms as may be just."

Section 718 provides for the examination of witnesses "in the same manner as upon the trial of an issue"; and section 719 provides that "the judge or referee may order any property of a judgment debtor * * in the hands of such debtor or any other person to be applied towards the satisfac

tion of the judgment."

I think it entirely clear, upon the face of the statute, that no order could be legally made requiring Mrs. Morse or Mrs. Conklin to surrender the property mentioned in the affidavit of the plaintiff, and its application in satisfaction of his judgment, otherwise than upon their admission that it was the property of the judgment debtor. To make such order in relation to property which they claimed to own in their own right, if it could have any effect or operation, would be to deprive them of their property upon a sunmary proceeding, and without due process of law. If the plaintiff claims or believes their title under the conveyances mentioned in his affidavit to be invalid, an issue as to such ownership and title should be properly made and tried in an appropriate action, in which the verdict of a jury or the findings of a court may be regularly had determining those questions, and upon which a judgment could be regularly entered by which the parties would be conclusively bound. But this precise question has been decided by this court in McDowell v. Bell, 86 Cal. 615, 25 Pac. 128, where, under facts similar to those involved in this case, the court below granted the order subjecting the property to the satisfaction of the judgment, and this court held that in granting such order the court below exceeded its jurisdiction; that "his only power in the premises was to make an order authorizing the judgment creditor to institute an action in the proper court" for the recovery of the property,—and granted a writ of prohibition restraining the enforcement of the order. Counsel for appellant cite Herrlich v. Kaufmann, 99 Cal. 271, 33 Pac. 857, to the effect that the Code provisions for supplementary proceedings are a substitute for

a creditor's bill, and say: "To hold that because the party brought in to answer says, 'I claim this property in my own right,' he cannot be required to answer at all, and the court can only order that a suit be brought, would make the proceeding a mere farce, instead of a substitute for a creditor's bill." It is quite evident, however, that the Code provisions relating to proceedings supplementary to execution, without the provisions contained in section 720, could not take the place of a creditor's bill, where, as here, the judgment debtor had "conveyed" the property to a third person, who claimed title under such conveyance. The order dismissing the proceeding should be affirmed.

We concur: SEARLS, C.; VANCLIEF, C.

PER CURIAM. For the reasons given in the foregoing opinion, the order appealed from is affirmed.

(108 Cal. 513)

BANK OF LASSEN COUNTY v. SHERER. (No. 18,394.)

(Supreme Court of California. Aug. 9, 1895.) NOTE-EXECUTION--TRANSFER-JURY FEE.

1. There is no error in requiring a party, in accordance with a rule of court, to deposit jury fees as a condition to having a jury.

2. Validity of a note made payable to the order of the maker, and indorsed by him with proper spelling of his name, is not affected by the fact that in signing the note the "s" was omitted from his given name, "Josiah."

3. A note made payable to the order of the maker, and delivered by him indorsed, is thereafter transferable by delivery, like a note payable to bearer, without further indorsement.

Department 2. Appeal from superior court, Lassen county; W. T. Masten, Judge.

Action by the Bank of Lassen County against Josiah Sherer. Judgment for plaintiff. Defendant appeals. Affirmed.

Spencer & Raker and F. C. Spencer, for appellant. Goodwin & Goodwin, for respondent.

MCFARLAND, J. This action is upon three promissory notes made by defendant, Sherer, and judgment was rendered against him for the amount of the three notes. He appeals from the judgment and from an order denying a new trial.

The contest is only over the note for $260.50, mentioned in the first count of the complaint, except so far as certain general objections hereinafter stated, to the validity of the judgment, cover the whole case. We will briefly notice the main points made for reversal.

1. As to the alleged disqualification of the judge who tried the case, it is sufficient to say that the transcript does not show that either he or his uncle, J. T. Masten, owned any stock of the corporation plaintiff at the time of the trial and decision of this case; while the affidavits filed at the hearing in this

court-in response to affidavit filed by appellant-show affirmatively that the judge never owned any of said stock, and that the uncle, who at one time had owned two shares of said stock, had sold it before the commencement of this action.

2. The judgment cannot be reversed on account of contradictory findings. It was averred in the complaint that the plaintiff is a corporation, and the appellant, for the purpose of a defense which was not tenable, also averred in the answer that the plaintiff is a corporation; and, as the court found that all the averments of the complaint are true, and all the averments of the answer are untrue, it is contended by appellant that the findings are contradictory, because they are to the effect that respondent is and is not a corporation. There is, perhaps, a possibility of this point being somewhat ingenious, but findings have no office to perform concerning a matter about which there is no issue.

3. The court did not err in requiring appellant, upon his demand for a jury, to deposit $24, as required by a rule of the court. This was held in Conneau v. Geis, 73 Cal. 178, 14 Pac. 580, and we see no good reason for departing from the conclusion reached in that case. In the case at bar there is no doubt that the $24 required by the rule to be deposited is for jury fees; and no suggestion was made by counsel for appellant, when he demanded a jury, that said money was for any other purpose.

4. The evidence supports the findings. The note was made by the appellant, Josiah Sherer, payable "to the order of myself," and was indorsed by him in blank; and the fact that in signing the note at the bottom he left the letter "s" out of the word "Josiah" makes no difference. In the indorsement the name was properly spelled. The proof that he made the note was entirely sufficient to support the finding on that point. Appellant delivered the note, indorsed as aforesaid, to one Fuller. It was delivered by Fuller to one Hawes, who was the manager of the company for which Fuller was acting, and by Hawes to respondent. Respondent became thus the legal holder of the note, with the right to bring an action thereon. It was like a note payable to bearer. Curtis v. Sprague, 51 Cal. 239. The evidence shows, we think, that respondent obtained the note before its maturity, but there was ample proof of consideration. There are no other points necessary to be noticed. Judgment and order appealed from affirmed.

We concur: HENSHAW, J.; TEMPLE, J.

(108 Cal. 522)

HYDE v. BUCKNER, Sheriff, et al. (sac. 4.) (Supreme Court of California. Aug. 19, 1895.) WITNESS-IMPEACHMENT --- TITLE OF GRANTEE DECLARATIONS OF GRANTOR.

1. On an issue between a grantee and a creditor of the grantor as to whether the deed

was given as security, where the creditor called the grantor, who testified that the sale was absolute, it was error to allow another witness for the creditor to testify that the grantor told him he conveyed the land as security.

2. The title of the grantee cannot be impeached by evidence of declarations of the grantor made many years after the conveyance.

In bank. Appeal from superior court, Kings county; Justin Jacobs, Judge.

Action by J. D. Hyde against W. V. Buckner, sheriff, and others, to restrain the sale of land under execution. Judgment was rendered for defendants, and plaintiff appeals. Reversed.

E. O. Larkins, W. B. Wallace, and U. T. Clothfelter, for appellant. Horace L. Smith and Bradley & Farnsworth, for respondents.

TEMPLE, J. This action was brought to restrain the sale, under execution against the property of Peter Van Valer, of certain lands conveyed by Van Valer to plaintiff in October, 1884. The question is whether that deed was intended to secure an indebtedness, and was, therefore, a mortgage. That it was given as security is affirmed by the judgment creditor and denied by the plaintiff. Defendant recovered judgment, and this appeal was taken by plaintiff from the judgment and from a refusal of a new trial.

The main contention here is that the evidence does not sustain the finding of the court upon the issue above stated. After a careful consideration of the evidence, as shown in the record, I do not think the conclusion reached upon that issue can be disturbed here. The evidence is voluminous, and discussion of it would not be useful.

I think, however, the court erred in permitting defendants to prove by the witness Mannheim statements made by Van Valer, nine years after the execution of the deed, impeaching the title conveyed thereby to plaintiff, by showing that it was given as security for a loan. Van Valer had been called by defendants, and, as their witness, had testified, in substance, that the transaction was a sale, and that the relation of debtor and creditor did not continue between himself and Hyde after the execution of the deed; and, further, that there was no understanding, express or otherwise, that Van Valer could repurchase for at least three months after the execution of the deed. Defendants then called Mannheim, and asked him to tell what Van Valer had said to him about the transaction in August, 1893. This was objected to as incompetent. The objection was overruled, the court saying: "I think the evidence is competent for the purpose of ascertaining what the intention of the parties was." The witness then proceeded to testify that Van Valer stated that he had conveyed the land to Hyde simply as security for a loan. This evidence was clearly incompetent to disprove or impeach the title which Hyde claimed to have acquired from Van Valer. It was admissible only to show why

the defendants had called a witness who was adverse to them, and not then, unless they were surprised by his testimony. Beyond this it was entitled to no weight whatever. It could have no force in making an affirmative case for the defendants. Hall v. The Emily Banning, 33 Cal. 522; In re Kennedy's Estate, 104 Cal. 429, 38 Pac. 93. In view of the reason given by the judge for the ruling, we cannot presume that the evidence had no weight in the determination of the principal issue.

The judgment and order are therefore reversed and a new trial ordered.

We concur: MCFARLAND, J.; HENSHAW, J.; HARRISON, J.; VAN FLEET, J.

(108 Cal. 535)

WARREN et al. v. FERGUSON. 15,941.)

(Supreme Court of California.

(No.

Aug. 21, 1895.) APPEAL-SERVICE OF NOTICE ON CODEFENDANTCERTIFICATE OF CITY ENGINEER-Au

THORITY OF ASSISTANT TO MAKE.

1. Where, in an action against several parties to establish a lien on land, judgment is rendered against defendants, and the effect of an appeal by one defendant is to establish that there was no lien on which the judgment could be rendered, the appeal will not be dismissed for failure to serve notice thereof on the other defendants. Insurance Co. v. Fisher (Cal.) 39 Pac. 761, followed.

2. A certificate as to the regularity of assessment proceedings signed by an assistant in the city engineer's office by verbal appointment is not sufficient, under St. 1889, p. 168, making such a certificate by the engineer prima facie evidence of the regularity of the assessment. Rauer v. Lowe (Cal.) 40 Pac. 337, followed.

Department 1. Appeal from superior court, city and county of San Francisco; J. M. Troutt, Judge.

Action by Warren and others against Ferguson on a street assessment. Judgment was rendered for plaintiffs, and defendant appeals. Reversed.

T. Z. Blakeman and Benj. Healey, for appellant. J. C. Bates, for respondents.

PER CURIAM. Action upon a street assessment. The respondents have moved to dismiss the appeal upon the ground that a codefendant with the appellant was not served with the notice of appeal. It was held in Insurance Co. v. Fisher (Cal.) 39 Pac. 761, that when, in an action to enforce a lien upon a piece of real estate, judgment has been rendered against several defendants, if the effect of an appeal from that judgment is to establish that there was, in fact, no lien upon which the judgment could be rendered, a reversal of the judgment will not injuriously affect the other defendants, and, therefore, that the appeal will not be dismissed for a failure to serve them with the notice of appeal. The engineer's certificate, which the plaintiff offered in evidence, in connection with the warrant, assessment, and diagram, v.41P.no.4-27

was signed "Wm. M. Fitzhugh, City Engineer. Holcomb;" and the defendant objected to its introduction upon the ground that it did not purport to be signed by the city engineer, but by one Holcomb. The plaintiff thereupon introduced evidence substantially the same as that presented in Rauer v. Lowe (Cal.) 40 Pac. 337, from which it appeared that the certificate had never been signed by the city engineer or by any deputy of his, but that his name had been signed by Holcomb, who was merely an assistant in his office by virtue of a verbal employment. The defendant thereupon renewed his objections, but the court overruled them, and allowed the certificate to be read, and rendered judgment in favor of the plaintiff. Under the principles given in Rauer v. Lowe, supra, this was error. The rule in respect to the acts of an officer de facto, suggested by the respondent, has no application. The statute has declared that certain documents, one of which is the certificate of the engineer, shall be "prima facie evidence of the regularity and correctness of the assessment, and of the prior proceedings and acts of the superintendent of streets and city council upon which said warrant, assessment, and dia- · gram are based, and like evidence of the right of the plaintiff to recover in the action." St. 1889, p. 168. But for this provision of the statute, it would have been incumbent upon the plaintiff to establish every act of the municipality and its officers which is required in order to create the lien of the assessment. If, instead of so doing, the plaintiff would avail himself of the statutory privilege to establish his right of recovery by the prima facie evidence, he must offer competent evidence of every portion of the substituted proofs. In the present case it was essential that the plaintiff should produce a certificate of the city engineer as a part of the evidence which the statute has made a portion of the prima facie evidence necessary to establish his right of action. Upon his failure to do so, the court should have disregarded the evidence offered, and rendered judgment for the defendant. The judgment is reversed.

WILLIAMS v. CUNEO. (No. 15,747.) (Supreme Court of California. Aug. 21, 1895.) Department 1. Appeal from superior court, city and county of San Francisco; James M. Troutt, Judge.

Action by one Williams against one Cuneo on a street assessment. Judgment was rendered for plaintiff, and defendant appeals. Affirmed. Horace W. Philbrook, for appellant. J. C. Bates, for respondent.

PER CURIAM. Action upon a street assessment. The case of Rauer v. Lowe (Cal.) 40 Pac. 337, invoked on behalf of the appellant, has no application to the present_case. The provision making the certificate of the city engineer a portion of the proof for establishing prima fa