sane and incompetent; and by leave of the court a complaint in intervention was filed on her behalf, in which the same facts were alleged as were alleged in the answer of Ezra. Upon the trial of the cause the court found in accordance with the allegations of this answer, and rendered judgment in favor of the intervener. The plaintiff has appealed.

1. The declaration of homestead filed by the defendant Ezra McCallister was as follows: "Know all men by these presents: That I do hereby certify and declare that I am the head of a family, and that I do now, at the time of making this declaration, actually reside with my family on the land and premises hereinafter described [here follows a description]. That my family consists of myself and my four minor children, to wit, Lawrence McCallister, aged eleven years; Annie, aged fourteen years; Eliza, aged twelve years; and Rhoda, aged six years. That it is my intention to use and claim the said lot of land and premises above described, together with the dwelling house thereon, and its appurtenances, as a homestead, and I do hereby select and claim the same as a homestead. That the actual cash value of said property I estimate to be two thousand dollars." It is contended on behalf of the appellant that, inasmuch as he failed to state in the declaration that he was a married man, he is precluded from claiming the privileges incident to the homestead of a married man, and that the homestead must be considered as that of "another person," provided for in chapter 3 of the title in the Civil Code relating to homesteads. The mode in which a homestead is to be created, as well as the legal incidents which attach to its existence, are purely statutory. Section 1260 of the Civil Code declares that a homestead, not exceeding $5,000 in value, may be selected and claimed "by any head of a family"; and in section 1261 the phrase "head of a family" is declared to include the husband, when the claimant is a married person. The homestead authorized by chapter 3 is for any person "other than the head of a family." Section 1262, Civ. Code, declares that the husband, or other head of a family, must execute and file with the recorder a declaration, which, by section 1263, must contain "a statement showing that the person making it is the head of a family." In Jones v. Waddy, 66 Cal. 457, 6 Pac. 92, it was held that a statement by the declarant that he is the head of a family is a statement of the ultimate fact required by this section, and is sufficient. It must be held, therefore, that the above declaration was sufficient to impress the land with the incidents of a homestead. McCallister was the head of a family, and so stated in his declaration, and he was also the husband of a living wife; and the property selected was the community property of himself and his said wife. As he was not required to

state in his declaration whether he was married, or who were the members of his family, the statement or omission of those facts did not impair the sufficiency of the declaration, or prevent its inurement to the benefit of his wife. By filing the declaration for record, the land therein described was impressed with all the legal incidents which the statute gives to a homestead, one of which is an exemption from forced sale. Civ. Code, § 1240. The exception to this exemption which is provided in section 1241 has no application to the present case, for the reason that the mortgage set forth in the complaint was not executed "by the husband and wife," nor was McCallister, at the time of its execution, "an unmarried claimant." A declaration of homestead, properly executed and acknowledged by a married man, when filed for record, immediately inures to the benefit of his wife, whether she is ignorant thereof, or is fully acquainted with the transaction. Nor does the fact that she is insane deprive her of its benefits, or give to the husband any greater interest in the estate, or authorize him to incumber it, except in the mode provided by statute. St. 1873-74, p. 582. The filing of the declaration for record is a notice to all who may thereafter deal with the property that, if the declarant is a married person, the homestead cannot be conveyed or incumbered "unless the instrument by which it is conveyed or incumbered is executed or acknowledged by both husband and wife.” Civ. Code, § 1242. Whether the declarant is a married person, or not, is a question of fact, which must be determined by whoever would take a conveyance or incumbrance of the property; and no statement or act of the husband alone can obviate the necessity of the wife's uniting in the instrument of conveyance or incumbrance, or deprive her of her estate in the property. The record of the declaration is a sufficient notice to all persons to put them upon inquiry; and if they fail to make such inquiry, or to take such steps as will protect them in their dealings with the husband, the loss should fall on them, rather than on the wife, who has in no respect contributed thereto. Inasmuch as the plaintiff procured Mary McCallister, who is described as the wife of Ezra, to unite with him in the execution of the mortgage, it cannot contend that it relied upon the recorded declaration as affording a presumption that McCallister was unmarried. The representations by McCallister that she was his wife, whether such representations were by direct statement, or the presumption arising from their having lived together as husband and wife, were but self-serving declarations and representations on his part, and could not, in any respect, bind or affect the respondent. Whether Mary was in fact the wife of Ezra, or whether she personated his wife, was to be determined by the plaintiff at its risk;

and its reliance upon any statements or information to that effect given by Ezra cannot serve as a protection against the claim of Amanda, or be a substitute for the truth. Whether Ezra would be estopped from denying the validity of the mortgage, if he alone were affected, need not be considered. See, however, Gagliardo v. Dumont, 54 Cal. 499. It is very clear that Amanda is not estopped from asserting the invalidity of the mortgage by any act of her husband, or from claiming to be his wife by the fact that he has recognized another woman as such.

2. At the time the action was commenced the land described in the complaint was situate in the county of San Diego, and the action was commenced in the superior court of that county, and was tried in that court January 11, 1894. Subsequent to the commencement of the action the county of Riverside was organized, under an act of the legislature approved March 11, 1893 (St. 1893, p. 158), and the land is included within the boundaries of that county. After the cause had been submitted to the court, and the court had orally announced its decision, the plaintiff moved the court to transfer the cause to Riverside county for trial, upon the ground that by the organization of that county the superior court of San Diego county had lost jurisdiction to proceed further in the case.

The constitution (article 6, § 5) declares that, "all actions for the enforcement of liens" shall be commenced in the county in which the real estate, or some portion thereof, is situated; and at the time this action was "commenced" the property was situate within the boundaries of San Diego. The constitution does not, however, require that the action shall be "tried" in the county in which the property is situated; and the statutory provision in section 392, Code Civ. Proc., that actions "for the foreclosure cf liens and mortgages on real property" must be tried in the county in which the subject of the action, or some part thereof, is situated, "subject to the power of the court to change the place of trial," shows that "the place of trial" is not an element going to the jurisdiction of the court, but is a matter of legislative regulation. The provision for the transfer of certain actions to the superior court of the county of Riverside, which is contained in section 12 of the act providing for the organization of that county, shows the extent of this regulation which the legislature deemed necessary, and implies that only the actions there designated were to be transferred for trial.

3. There was no error in the appointment of a guardian ad litem for Amanda Fisher McCallister. She had an interest in the matter in litigation, and also an interest in the success of the defendant Ezra McCallister. The court was therefore authorized by section 387, Code Civ. Proc., to permit her to become a party to the action. Having been

thus permitted to become a party to the action, and being insane, she could appear only by a general guardian, or a guardian ad litem. The court had the same authority to appoint a guardian ad litem for her before the filing of her complaint in intervention that it has to appoint a guardian ad litem for an infant plaintiff before the action is commenced. As this appointment is a traversable fact, which must be alleged in the complaint (Crawford v. Neal, 56 Cal. 321), it follows that it must be made before the complaint is filed. The objection to the competency or sufficiency of the proof of her insanity cannot be considered, as there is no record before us of the evidence upon which the original appointment was made. The evidence at the trial was sufficient to justify the court in finding that she was insane.

4. That portion of the judgment "that the plaintiff take nothing by this action" is not sustained by the other portions of the record. The defendant Ezra McCallister did not deny the execution of the note set forth in the complaint, and the plaintiff is entitled to a judgment thereon against him.

The judgment in favor of the intervener, Amanda Fisher McCallister, and the order denying a new trial as to her, are affirmed. That portion of the judgment that the plaintiff take nothing by this action is reversed, so far as the same applies to the defendant Ezra McCallister, and the superior court is directed to enter a judgment against him upon the promissory note set forth in the complaint. The costs of this appeal will be taxed against Ezra McCallister.

We concur: GAROUTTE, J.; VAN FLEET, J.

(108 Cal. 235) KOEBIG v. SOUTHERN PAC. CO. et al. (No. 19,558.)

(Supreme Court of California.

July 25, 1895.) VERDICT--ASSESSMENT OF DAMAGES.

Where plaintiff's testimony showed that the loss sustained was the amount claimed in the complaint, and defendants' counsel admitted the value of the property as alleged, it was error for the jury to assess damages in a less amount.

Department 1. Appeal from superior court, Los Angeles county; Waldo M. York, Judge. Action by Julius Koebig against the Southern Pacific Company and others to recover damages for the loss of certain goods. From the judgment therein rendered, and an order denying a new trial, plaintiff appeals. Reversed.

E. S. Pillsbury, Stephen M. White, and White & Monroe, for appellant. A. B. Hotchkiss, for respondents.

VAN FLEET, J. Action to recover of defendants $34,891.26 as damages alleged to

have been occasioned by the destruction of certain brandies, wines, liquors, and other personal property, swept away by the Los Angeles river during high water, by reason, as alleged by plaintiff, of said river being obstructed and diverted by a railroad bridge constructed by the predecessor of defendants, and maintained by the latter, and which bridge, it is alleged, was so faultily and negligently constructed and maintained as to constitute a dangerous nuisance, in that it was not of sufficient space or size to admit of the flow of the waters of the river beneath it, whereby they were dammed up and caused to leave their banks and wash away and destroy the property in question. The cause was tried by a jury, which rendered a verdict for plaintiff of $500. From the judgment entered thereon, and an order denying a new trial, plaintiff appeals.

There is but one question necessary to be noticed. It is contended by plaintiff that there was no evidence to support the finding of the jury as to the amount of damage suffered by plaintiff, and that the verdict in that regard is against the instruction of the court, and therefore contrary to law. The court instructed the jury, among other things: "It is conceded that the property described in the complaint as having been destroyed was of the value stated in the complaint; and, if you find that said property was destroyed in the manner and under the circumstances as stated in the complaint,, it will be your duty to render a verdict for the admitted value thereof." It is claimed by plaintiff that this instruction was based upon the fact that the evidence given, on the part of plaintiff, as to quantity and value of goods destroyed, clearly established the damages as alleged in the complaint, and that this evidence was wholly without conflict, and uncontradicted by defendants, who not only put in no evidence on the question, but admitted at the trial that, if liable at all, they were liable for the damages alleged in the complaint. Defendants deny this. They claim that the evidence given by plaintiff as to the quantity of goods destroyed was not direct or positive, or such as the jury were bound to believe; that there was no admission by defendants of the quantity of goods destroyed, but only as to the value per gallon of the goods which plaintiff should prove to have been eventually lost; and, further, that the instruction quoted does not, and was not intended to, charge the jury that the quantity of goods lost was admitted, but that the jury were at liberty to find, on that question, either for or against plaintiff's evidence. The position of defendants is not supported by the record. The evidence on the part of plaintiff was such as, in the absence of any countervailing proof by defendants on the subject, left the jury no room to find that any of the property was destroyed, if not all. The testimony of the witness Kohler was sufficiently direct and positive. He testified explicitly

and in detail as to the various items lost, and their value, and then stated: "The total loss was $34,891.20. The various items which I have enumerated, composing that sum total, constitute, in my opinion, a fair and moderate estimate of the loss sustained," etc. The construction attempted to be put upon the testimony of the witness that he was then stating the quantity and value of goods originally swept away, and not what was actually lost, over and above the amount eventually recovered, is not borne out by an examination of the witness' whole testimony. But, furthermore, we think the record fully establishes plaintiff's claim that defendants admitted, not only the value, but the quantity, of the goods lost, to be as claimed by plaintiff. We can put no other construction upon the statements of defendants' counsel that will make them consistent with his conduct of the trial. During the examination of a witness by one of plaintiff's counsel on the subject of the lost property, it was suggested that he ask the witness as to value. Counsel for defendants thereupon said: "There is no dispute about the value. I concede that the valuation is reasonable, if we are liable at all." Were it not for what followed there might possibly be room for the claim of defendants that this admission referred only to the value per gailon, and not to quantity of goods lost. At a later stage in the trial, however, when a question arose between counsel as to the materiality of certain evidence, one of plaintiff's counsel said: "But we are suing for specific damages anterior to this time; specific and defined. It is not the damage to the freehold, but the damages described in the complaint for a list of articles which you admit yourself," to which defendants' counsel replied: "If we are liable at all." It is perfectly obvious from this that defendants' admission went to the quantity and value of the property, as alleged, and thereby covered the damages as claimed. Furthermore, that the court so understood counsel's position is apparent. This is clearly indicated by the instruction quoted, which is in no way modified by other parts of the charge. The jury are not left free to assess the amount of damages suffered by plaintiff in the event they find for the latter. As claimed by plaintiff, the only question left to the jury was whether the property was destroyed in the manner and under the circumstances alleged. If they found that issue in the affirmative, they were bound, under the court's instruction, to assess the damages at the amount claimed in the complaint. That they did so find is necessarily implied from the verdict, since a verdict in favor of plaintiff was a finding for him upon all the material issues. The verdict, however, not only ignores the admitted facts as to the amount of damages suffered, but plainly disregards the charge of the court upon that point. It is therefore, in that regard, both unsupported by the evidence and contrary to law. The judgment and order

1. A motion to set aside a judgment by default merely because the judgment roll did not show that a copy of the summons by publication had been deposited in the post office was properly denied, where the entry of default and the judgment recite that defendant had been regularly summoned, and where no request was made for leave to answer, nor a defense on the merits exhibited.

2. Though the recital in a judgment that defendant was duly summoned is, in the absence of the affidavit of service, only prima facie evidence of that fact when the judgment is directly attacked, it must be rebutted before the judgment will be set aside.

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

Action by W. W. Whitney against Henry Daggett, C. J. Beauvais, and others, to foreclose a mortgage. From an order denying his motion to vacate the judgment therein rendered, C. J. Beauvais appeals. Affirmed.

Wm. Humphrey, for appellant. Parish & Mossholder, for respondent.

VANCLIEF, C. Action to foreclose a mortgage, in which C. J. Beauvais was made a party defendant on the ground that he "has, or claims to have, some interest in or lien upon" the mortgaged premises, as purchaser, mortgagee, judgment creditor, or otherwise, but which, whatever it may be, is subject and inferior to the lien of said mortgage. Judgment by default was entered against all the defendants on October 14, 1892. On November 10, 1893, C. J. Beauvais, alone, moved the court for an order setting aside and vacating the judgment and decree so far as the same refers to or concerns, and so far as the same affects, his interest in the property described in the judgment. The ground of the motion is, not that summons was not duly served on Beauvais, but "that the papers on file and records in said action fail to show that he was ever served with summons in said action." It appears that the court ordered summons to be served on Beauvais by publication; and the judgment roll contains a proper affidavit for such publication, in which it is stated that the residence of Beauvais was then at Phoenix, in the territory of Arizona. The judgment roll also contains an order for such publication, in which, besides all other

requisites, it was ordered that a copy of the summons and complaint in the action be forthwith deposited in the United States post office at San Diego, Cal., postpaid, directed to said defendant at his place of residence, and also contains sufficient proof, by affidavit of the printer, of publication of the summons according to the order of the court, but contains no evidence that a copy of the summons or complaint had been deposited in any post office. Yet it is stated in the entry of his default, and recited in the judgment, that the defendant Beauvais had been "duly and regularly summoned to answer unto plaintiff's complaint herein," and had made default in that behalf, and that such default had been duly and regularly entered. At the hearing of the motion the mover offered no evidence except the judgment roll, and the plaintiff offered no evidence whatever. Nor did Beauvais offer or ask leave to answer the complaint, or pretend that he had any defense thereto. Nor did he show or claim that he ever had any interest in or lien upon the mortgaged property, nor that he was or would be at all affected by the judgment of foreclosure. The court denied the motion, and from the order denying it the defendant Beauvais brings this appeal.

There is no ground for any pretense that the motion was made under, or is warranted by, section 473 of the Code of Civil Procedure, since it was not made within a year after the entry of the judgment, and no showing of any defense to the action, or injury to the mover, was made. Therefore the motion was properly denied, unless the judgment appears, upon its face, to be void. Jacks v. Baldez, 97 Cal. 91, 31 Pac. 899; People v. Harrison, 84 Cal. 608, 24 Pac. 311. "A judgment void upon its face is one that appears to be void by an inspection of the judgment roll. The mere absence from the roll of a paper-for example, the return of the officer showing a service of the summons-cannot invalidate the judgment, when the judgment itself recites the fact that the defendant was duly served with process." People v. Harrison, supra. To the same effect is Freem. Judgm. § 130. In such case, however, the recital in the judgment is only prima facie evidence of service when, as in this case, the judgment is directly attacked, and is never conclusive except where the attack is collateral. McKinlay v. Tuttle, 42 Cal. 571. But in the case at bar there is no evidence, either in or dehors the record, having the slightest tendency to rebut the recitals in the judgment. I think the order should be affirmed.

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

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

(108 Cal. 261)

LAKESHORE CATTLE CO. v. MODOC

LAND & LIVE-STOCK CO.
(No. 18,330.)

(Supreme Court of California.

July 27, 1895.) CHANGE OF VENUE-REFUSAL OF MOTION-PAPERS

CONSIDERED-REVIEW.

1. Refusal to change the place of trial will not be disturbed where the allegations of the complaint show the action to have been brought in the proper county, though these facts are controverted by the affidavit presented by defendant on the motion for change.

2. On motion to change place of trial, the court may look into the complaint to see if there is any reason for retaining the cause, though it is not offered as an affidavit in reply to papers read in support of the motion, especially where the notice of motion states that it will be based on affidavits and "all the papers" in the action. Department 1. Appeal from superior court, Modoc county; C. L. Claflin, Judge.

Action by the Lakeshore Cattle Company against the Modoc Land & Live-Stock Company. Defendant moves to change the place of trial. Motion denied, and defendant appeals. Affirmed.

Spencer & Raker and C. A. Raker, for appellant. Farrett T. Richards, G. F. Harris, and H. L. Spargur, for respondent.

HARRISON, J. Appeal from an order denying a motion to change the place of trial. The defendant is a corporation, whose principal place of business is in the city and county of San Francisco, and the present action was brought against it in the superior court for the county of Modoc. After the summons had been served upon the defendant, it made a motion to have the place of trial changed to San Francisco, upon the ground that that was the county of its residence. The motion was denied, and the defendant has appealed.

The facts alleged in the complaint show that the obligation of the defendant to the plaintiff arose in the county of Modoc, and, under the provisions of section 16 of article 12 of the constitution, the action was properly brought in that county. At the hearing of the present motion, the defendant attempted to controvert these averments of the complaint by the affidavit of Bayley, who was its president at the time of the alleged transactions, and urges that, as it appeared from this affidavit that the averments in the complaint were false, the court erred in denying this motion. Without determining whether a court would be authorized in any case to determine that the affidavits presented to it upon a motion of this nature were sufficient to overcome the allegations of the complaint, or to permit those allegations to be determined by affidavits, it is sufficient to say that there is a direct conflict between the affidavit of Bayley and the complaint in the present action, and that we cannot set aside the decision of the court thereon.

The appellant, however, urges that the

court was not authorized to look into the complaint for the purpose of determining whether there was any reason for retaining the cause, and that the affidavit should alone have been considered in determining the motion, inasmuch as the plaintiff did not offer the complaint as an affidavit in reply to the papers read in support of the motion. The defendant, in its notice of motion, had stated that it would be based upon certain affidavits, "and upon all the papers, files, records, and proceedings in the above-entitled action," and at the hearing read this notice of motion, and also its demurrer to the complaint, in which reference was made to the allegations therein. After the moving papers had been read, the plaintiff's counsel, in the course of his argument, read the complaint to the court, and, to the query of the counsel for the defendant whether he was reading the complaint merely by way of argument, replied that he was. There was no error by the court in examining the complaint, even if it had not been read on behalf of the plaintiff. It was made a part of the record on the motion by the act of the defendant; and without such act, since it was a part of the records in the case, the court was authorized to examine it for the purpose of determining the motion. Hollenbach v. Schnabel, 101 Cal. 312, 35 Pac. 872. The order is affirmed.

(108 Cal. 250) (No. 19,412.) July 27, 1895.)

CARDENAS v. MILLER. (Supreme Court of California. UNRECORDED CHATTEL MORTGAGES-VOID AS AGAINST CREDITORS.

An attachment is prior to a chattel mortgage executed before, but recorded after, issuance of the attachment, though the attaching creditor had actual knowledge of the mortgage; Civ. Code, § 2957, declaring that an unrecorded chattel mortgage shall be void as against creditors and subsequent purchasers and incumbrancers in good faith, not being modified by section 1217. providing that an unrecorded instrument is valid as between the parties thereto and those having notice thereof, the latter section being part of a chapter relating to the recording of transfers of real estate. 39 Pac. 783, affirmed.

In bank.

On rehearing. For former opinion, see 39 Pac. 783.

PER CURIAM. Upon further consideration of this cause upon rehearing, we are satisfied with the conclusion reached in department, as expressed in the opinion of Mr. Commissioner SEARLS. The supposed conflict between the opinion of the department and the case of Fette v. Lane (Cal.) 37 Pac. 914, urged in the petition for rehearing, does not exist. The court were there considering the rights of a subsequent mortgagee taking with notice of a prior unrecorded mortgage, and the question as to the rights