We concur: FOOTE, C.; HAYNE, C.

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

(83 Cal. 490)

against defendants through their mistake, inadvertence, surprise, and excusable neglect. It appears from the certificate of the judge of the superior court that the trial calendar of said court was regularly called on August 30, 1886; that the case at bar was on said calendar, and being regularly called, was answered

(Supreme Court of California. March 31, 1890.)

FOOTE, C. This is an appeal from an order changing the place of the trial of an action. The papers in the transcript upon which the action of the court below is alleged to have been based are not shown, either by bill of exceptions or certificate of the judge, to have been used on the hearing of the motion, which was granted. The certificate of the clerk appended to the transcript is in no sense such identification as is necessary, (Von Glahn v. Brennan, 81 Cal. 261-264, 22 Pac. Rep. 596; Walsh v. Hutchings, 60 Cal. 228, 229; Nash v. Harris, 57 Cal. 243, 244; Larkin v. Larkin, 76 Cal. 323, 324, 18 Pac. Rep. 396,) and the presumption is that the action of the court below was correct. We therefore advise that the order be affirmed.

We concur: BELCHER, C. C.; HAYNE, C. PER CURIAM. For the reasons given in the foregoing opinion the order is affirmed.

(83 Cal. 452)

O'CONNOR v. ELLMAKER et al. (No.
12,322.)

(Supreme Court of California. March 19, 1890.) JUDGMENT-DEFAULT-DISCRETION.

Plaintiff's attorney answered "Ready" on call of the calendar, but when the case was reached for trial both plaintiff and her attorney were absent, and it was continued to a later day. When then reached, both being again absent, judgment by default was entered. Held not an abuse of discretion to refuse to set aside the default on the ground that the attorrey had mistaken the date of the number of a journal in which the calendar was published.

Department 2. Appeal from superior court, city and county of San Francisco; JAMES G. MAGUIRE, Judge.

Frank O'Connor, (Sullivan & Sullivan, of counsel,) for appellant. W. T. Baggett, for respondents.

made, five cases were set for each day; that the case at bar was regularly reached on September 16, 1886, and that, neither plaintiff nor her attorney being present, the trial was continued to September 20, 1886, and that on said last-named day, plaintiff and her attorney being again absent, the case was taken up and heard, and judgment rendered for defendants. The excuse set forth in the affidavit of appellant's attorney is that he did not think that the case would be reached so soon; that he was deceived by mistaking the date of a certain number of the San Francisco Law Journal, in which the calendars of the various courts of the city are published daily; and that he did not think that the case judgment was rendered. Under these cirat bar would be heard on the said day when cumstances, we cannot say that the court below abused its discretion in denying the motion. The facts are essentially different from those of Dodge v. Ridenour, (62 Cal. 263,) and the other cases cited by appellant. Order affirmed.

We concur: THORNTON, J.; SHARPSTEIN, J.

(83 Cal. 457)

COTTRELL v. COTTRELL. (No. 12,310.) (Supreme Court of California. March 21, 1890.) DIVORCE-VACATION OF JUDGMENT - ABSENCE OF DEFENDANT.

1. Where, after issue has been joined in a divorce suit, the cause is removed from one department of the superior court of San Francisco to another, without notice to defendant, a judgment therein rendered against him on the same day, and in his absence, should be set aside on his motion. 2. It is not necessary, in setting aside a judgment obtained by default in divorce proceedings, to impose costs on defendant as a condition of relief.

3. Nor need the motion be supported by an affidavit of merits. Following McBlane v. McBlane, 20 Pac. Rep. 61.

4. No affidavits are required in such case.

In bank. Appeal from superior court, city and county of San Francisco; F. W. LAWLOR, Judge.

Robt. Ash and Ash & Mathews, for appellant. Taylor & Craig, for respondent.

MCFARLAND, J. This is an appeal by plaintiff from an order setting aside a judgment in her favor. The action was for divorce, and the defendant had filed a verified answer denying all the averments of the complaint. On May 24, 1887, the presiding judge of the superior court of San Francisco made an order transferring the case from department No. 1 of said court, in which it was pending, to department No. 8 of said court. On the same day the case was taken

up for trial in department 8, in the absence of defendant or his counsel, and judgment was on said day entered for plaintiff. Notice of the judgment was immediately served on defendant's counsel, who on the same day (May 24, 1887) gave notice to plaintiff's counsel of a motion for an order to set aside the proceedings "on the ground that the transfer of said cause from department No. 1 to department No. 8 was made without notice to or the consent of said defendant, and all proceedings had in said department No. 8 were without notice or knowledge of defendant or his counsel." On the day set for the hearing the order was granted, and from this order plaintiff appeals.

Matters such as that involved here are largely in the discretion of the trial court, and we see in this case no abuse of discretion. While the various departments of the superior court of San Francisco constitute, theoretically, one court, still, practically, for the purpose of trial of causes, they are distinct as are other superior courts; and to transfer a case from one department to another, and try it on the same day, without any notice whatever to the opposite party, is a very abrupt proceeding, from which, in a divorce case at least, it is not improper to relieve the absent party.

The order was not erroneous because no costs were imposed on the moving party. The cases cited by appellant on that point were made when section 473 of the Code of Civil Procedure and section 68 of the former practice act expressly required the payment of costs as a condition of the relief. is no such requirement now.

There

No affidavit of merits is required on a motion of this character in a divorce suit. McBlain v. McBlain, 77 Cal. 507, 20 Pac. Rep. 61.

The order was not erroneous because "no affidavits were made or used." As above stated, no affidavit of merits was necessary; and there is no statutory provision requiring that proof of any other fact shall be made by affidavit, nor is there any decision of this court to that effect. The bill of exceptions states that "it was then and there shown that on the 24th day of May, 1889, there were on the trial calendar of that day, in department No. 1 of this court, twenty-five cases ahead of this cause; that on that day this cause was reassigned to department 8 of this court, and then brought to trial by plaintiff without notice to defendant or his counsel, and in the absence of defendant and his counsel." This, as before said, is an action for divorce; and the following language of Mr. Justice PATERSON in delivering the opinion of the court in McBlain v. McBlain, supra, may well be restated here: "The parties to the action are not the only people interested in the result thereof. The public lias an interest in the result of every suit for divorce. The policy and the letter of the law concur in guarding against collusion and fraud, and it should be the aim of the court to afford the fullest pos

sible hearing in such matters." The order appealed from is affirmed.

We concur: BEATTY, C. J.; PATERSON, J.; Fox, J.; SHARPSTEIN, J.; THORNTON, J.

(83 Cal. 468)

CHASE et al. v. SOUTH PAC. COAST R. Co. (No. 12,319.)

(Supreme Court of California. March 25, 1890.) VENUE-SUIT AGAINST CORPORATIONS.

1. Under Const. Cal. art. 12, § 16, providing that a corporation may be sued in the county where the obligation or liability arises, or where its principai place of business is situated, a railroad company may be sued for damages for its wrongful refusal to receive and transport plaintiffs' lumber, in the county where there was a tender and refusal, though the complaint alleges that such refusal was due to a conspiracy, not shown to have been entered into in the county, between the company and other lumber dealers, who do not reside in the county, and are not made parties defendant to the suit. The action, in such case, is for damages for the wrongful refusal, and not for the conspiracy.

2. Where the court in which an action is brought has jurisdiction of the subject-matter, the burden is on defendant to show that the cause of action did not arise within its jurisdiction.

Commissioners' decision. Department 2. Appeal from superior court, Santa Cruz county; F. J. MCCANN, Judge.

Pillsbury & Blanding, for appellant. D. M. Delmas, for respondent.

GIBSON, C. This is an appeal from an order of the superior court of the county of Santa Cruz denying the defendant corporation's motion for a change of venue to the city and county of San Francisco. The grounds of the defendant's motion are that the obligation or liability sued upon did not arise in the county of Santa Cruz, and that the defendant's principal place of business is in the city and county of San Francisco. Article 12, § 16, of the constitution of this state, declares: "A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs, or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases." The appellant contends that the action is upon a tort arising from a conspiracy between it and certain lumber dealers, which prevented plaintiffs from carrying on their business, and could only be properly brought in the county where the liability arose, or where the defendant's principal place of business is situated; and, as the complaint does not show where the conspiracy was formed, and the defendant, by the affidavit of its president, having shown that none of the defendant's alleged co-conspirators reside, or ever have resided, in the county of Santa Cruz, and that defendant's principal place of business is at the city and county of San Francisco, the court erred in denying its motion for a change of venue to the city and county where it has its principal place of business.

Counsel for respondent concedes that the principal place of business of the defendant is correctly set forth in the affidavit, but argues that the cause of action is misconstrued by counsel for appellant; that it is for damages resulting from defendant's wrongful refusal to receive and transport plaintiff's lumber upon and over its railroad; and that as defendant's affidavit does not show that such refusal was not made in the county where the action was brought, the motion was properly denied.

The question arising on this contention is, what is the cause of action? The allegations of the complaint are, in substance, as follows: That plaintiffs, who were and are partners under the firm name of S. H. Chase & Co., on July 7, 1886, and for more than a year prior thereto, have since been, and still are, the lessees of certain timber lands and the owners of certain saw-mills, known as the "Day Mills," located in the Santa Cruz mountains, and were engaged in the business of manufacturing sawed lumber at said mills, and selling the same along the line of the defendant's railroad; that the said railroad, at all times mentioned and referred to, extended from the Santa Cruz mountains to San José, and was owned and operated by the defendant, which was during all said times a railroad corporation organized and existing under the laws of this state, and was a common carrier of goods for hire to and from any point on its railroad; that, in order for plaintiffs to carry on their business profitably, it was indispensable for them to transport their manufactured lumber to market upon defendant's railroad, and from the beginning of the lumber season of the year 1886, to-wit, May 1st, until the 7th of July of the same year, they shipped their manufactured lumber upon the said railroad, and defendant had carried the same for them to all points along the line designated by them; that on or about July 1, 1886, defendant entered into an illegal combination and conspiracy with certain manufacturers and venders of lumber for the purpose of inflating the prices of lumber upon the market, and to give the parties to the conspiracy a monopoly of the lumber trade; and it was agreed by and between the conspirators, including the defendant, that unless the plaintiffs should enter into the conspiracy the defendant should refuse to carry any of their lumber; that on the 7th day of July, 1886, after the formation of the conspiracy against plaintiffs, they brought a load of lumber containing 2,000 feet to the station on the line of said railroad known as "Boulder Creek Station," and which is the nearest station to their sawmills, and during the day-time of said day, while the office of the defendant at the station was open for the transaction of business, the plaintiffs offered the lumber to defendant for the purpose of having the same carried thence to San José, upon the line of the said railroad, and made a demand of defendant that it should so carry the same, and the

plaintiffs at the same time offered to pay, and were ready and able to pay, to the defendant, the customary and reasonable charges for such transportation; although the defendant was then able to carry the lumber, and then and there had the necessary engines, cars, and other appliances for such purpose, it refused to carry the lumber on account of the conspiracy aforesaid, and then and there declared to plaintiffs that it would not carry the lumber unless the plaintiffs joined and became members of the conspiracy aforesaid, which they then and ever since have refused to do, and the defendant has ever since refused to carry any lumber for plaintiffs; that, by reason of the aforesaid refusal of said defendant to carry said lumber, and its expressed determination not to carry any for the plaintiffs, it became and was, and has continued to be, impossible for them to profitably carry on their business of manufacturing lumber at their mills, and, as a result of their business being thus rendered unprofitable, and of their inability to ship lumber on defendant's railroad, they have been compelled to shut down their mills, discharge the men whom they had employed in connection therewith, and to forfeit contracts which they had entered into for the sale of lumber, and also the good-will of their business, whereby they suffered general and special damages.

These allegations, we think, clearly show that the gist of the action is the injury resulting from the defendant's wrongful refusal to carry plaintiffs' lumber to market, because by such refusal plaintiffs were unable to sell their lumber, and consequently could not profitably operate their mills. It is to be observed, also, that the action is not prosecuted against any of the alleged conspirators, except the defendant, who committed the wrong by which plaintiffs claim to have been injured. The conspiracy, it is true, led up to the refusal which caused the injury; but it is merely stated, as introductory matter, to show how the refusal originated, and therefore consists of mere matter of inducement. Gould, Pl. § 9, c. 3; 1 Chit. Pl. 296. And the employment of it in this case seems to be peculiarly appropriate as showing that the refusal of defendant to carry plaintiffs' lumber to market was not an unexplained act, but one performed in the furtherance of an illegal combination, of which the plaintiffs became the victims because they refused to join it.

The only venue laid in the complaint is in the title thereof; there is nothing in the body of it to show within what county the defendant refused to perform its duty as a common carrier towards plaintiffs; but, as the court has jurisdiction of the subject-matter of this action, (Const. Cal. art. 6, § 5; Code Civil Proc. § 76,) and as an action upon the breach of such an obligation may be brought in the county where the breach occurred as well as in the county where the defendant has its principal place of business, (article 12, § 16,

Const., supra,) the action was presumptively brought in the proper county, and it devolved upon the defendant to show, upon its motion, that the breach of its obligation as a common carrier declared upon by plaintiffs did not occur in Santa Cruz county. Having failed to do this, the motion was properly denied; and we therefore advise that the order be affirmed.

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

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

(83 Cal. 473)

CASE V. SUN INs. Co. (No. 12,598.) (Supreme Court of California. March 26, 1890.) INSURANCE-CONDITIONS OF POLICY - LIMITATION OF ACTION.

Where a policy of insurance against fire provides that the loss shall not be payable until 60 days after the assured shall have completed all requirements of the policy, and also that suit must be brought thereon within 12 months after loss, the 12-months limitation does not begin to run until the expiration of the 60 days.

Department 2. Appeal from superior court, city and county of San Francisco; T. K. WILSON, Judge.

Rhodes & Barstow, for appellant. Haggin, Van Ness & Dibble, for respondent.

SHARPSTEIN, J. The policy upon which this action is based contains, among others, the following clause: "It is mutually agreed that no suit or action for the recovery of any claim by virtue of this policy shall be sustainable in any court of law or chancery until appraisement shall be had, if demanded by this company, and in accordance with the printed conditions of this policy, nor unless such suit or action shall be commenced within twelve months next after the fire shall occur." The fire is alleged to have occurred on the 12th day of September, 1884; and this action was commenced on the 22d day of No- | vember, 1885, more than 12 months next after the fire occurred.

The contention of appellant is that at the time of the commencement of the action it was barred by the terms of said stipulation. That contention must prevail unless the clause upon which it is based is modified by some other clause or clauses of the policy. One clause reads as follows: "The amount of loss or damage to be estimated according to the actual, cash, marketable value of the property at the time of the loss, which in no case shall exceed what it would then cost to replace the same, deducting therefrom a suitable amount for any depreciation of such property by reason of age, wear and tear, location, change of style, lack of adaptation to profitable use, or other causes. The adjusted claim under this policy shall be due and payable at the company's office in San Francisco, Cal., sixty days after the full completion by the assured of all the requirements herein contained." Among the requirements therein

contained were the following: "The assured, his, her, and their agents and servants, shall, whenever required, submit to an examination or examinations, under oath, by any person appointed by this company, and subscribe to such examinations when reduced to writing, and shall also produce their books of ac count and other vouchers, and exhibit the same for examination at the office of this company in San Francisco as often as required, and permit extracts and copies thereof to be made. The assured also shail produce certitied copies of all bills and invoices the originals of which have been lost, and shall exhibit all that remains of the said property, damaged or not damaged, for examination, to any person or persons named by this company, and shall also furnish such further particulars, and such certificates of a magistrate or officer charged with the duty of investigating fires, as may be required. The proofs of loss shall be made by the party insured in regular form." It is alleged and proven that appellant exacted a compliance by the assured with all of these requirements, and that the insured complied therewith as rapidly as he was able to, and that he was unable to fully comply therewith before the 16th day of October, 1885,-more than 18 months after the fire occurred, and more than 1 month after the expiration of the time within which an action could be commenced, according to the construction which the appellant's counsel insist should be given to the policy. The adjusted claim under the policy was payable 60 days after the full completion by the assured of all the requirements contained in the policy. No right of action accrued until more than 3 months after it was barred by the 12months limitation clause, unless that clause is modified by some other clause.

In Spare v. Insurance Co., 9 Sawy. 142, 17 Fed. Rep. 568, the court, DEADY, J., said: "On the authority of adjudged cases (Davidson v. Insurance Co., 4 Sawy. 594; Riddlesbarger v. Insurance Co., 7 Wall. 389; May, Ins. § 478) it is admitted by counsel for the plaintiff that this clause in the policy limiting the time within which a suit may be commenced thereon against the defendant is valid, but they contend that it must be read in connection with that other clause which provides that a loss does not become payable until 60 days after the proof of that fact is made; and that, taken together, the reasonable construction of them is that, the right to sue on the policy being postponed until the loss is payable, namely, sixty days after proof thereof, the twelve-months limitation upon such right does not commence to run until that time. This construction is supported by the decided weight of authority, and, in my judgment, is correct on principle." Mayor, etc., v. Insurance Co., 39 N. Y. 45; Hay v. Insurance Co., 77 N. Y. 241; Barber v. Insurance Co., 16 W. Va. 658; Chandler v. Insurance Co., 21 Minn. 85; Steen v. Insurance Co., 89 N. Y. 315; Killips v. Insurance Co., 28 Wis. 472; May, Ins. § 479. “In

Steen v. Insurance Co., supra, 323, the policy contained two similar conditions; and the court, in construing them, said: We think the intention of the defendant was to give the insured a full period of 12 months, within any part of which he might commence his action; and having, by postponement of the time of payment, secured itself from suit, it did not intend to embrace that period within the term after the expiration of which it could not be sued. In other words, the parties cannot be presumed to have suspended the remedy and provided for the running of the period of limitation during the same time. Indeed, the actual case is stronger; not only was the remedy postponed, but the liability even did not exist at the time of the fire, nor until it was fixed and ascertained according to the provisions of the policy. Having thus made the doing of certain things, and a fixed lapse of time thereafter, conditions precedent to the bringing of an action, the parties must be deemed to have contracted in reference to a time when the insured, except for that contract, might be in a condition to bring an action. Under any other construction the two conditions are inconsistent with each other."" This case is distinguishable from Garido v. Insurance Co., 8 Pac. Rep. 512, in which the plaintiff had ample time after his right of action accrued to have commenced it within 12 months after the loss occurred. In this case it was more than 12 months after the fire before an action could be commenced. We must concede, however, that Garido v. Insurance Co., supra, is not altogether in harmony with the cases which we follow in this case. Under the construction which we give to the policy, we think the complaint states a cause of action not barred by the provisions of the policy; and the evidence is sufficient to justify the verdict of the jury. Judgment and order affirmed.

Hearing in bank denied. (2 Idaho [Hasb.] 662)

FURY, Sheriff, v. WHITE et al. (Supreme Court of Idaho. Feb. 24, 1890.) ATTACHMENT-INDEMNIFYING BOND-LIABILITY OF SUBSEQUENT ATTACHING CREDITOR.

Where a sheriff levies on personal property under attachment, and, holding under such levy, receives a second attachment, and levies on the same property under the second attachment, and afterwards, but before sale on either, a third person claiming the property, the second attaching creditor indemnifies the sheriff against loss under the second attachment, and the sheriff sells under execution in the first attachment suit, and pays all the proceeds to the first attaching creditor, the claimant of the property having recovered of the sheriff the value of the property sold, held, (1) that the sheriff cannot recover on the indemnifying bond of the second attaching creditor; (2) the complaint not claiming, nor the proof showing, that after the levy the sheriff did any act under the second attachment, the second attaching creditor is not liable, (BEATTY, C. J., dissenting;) (3) in such case, when the plaintiff has rested, it is not error for the court to instruct the jury to find for the defendant; (4) in such case,

also, the effect of an indemnifying bond must be determined by its own conditions.

(Syllabus by the Court.)

Appeal from district court, Alturas county. Angel & Sullivan, for appellant. Kingsbury & McGowen, for respondents.

BERRY, J Previous to June 21, 1883, the plaintiff, as sheriff of Alturas county, holding two writs of attachment from the probate court of that county,-one in favor of Donaldson and Young, and another in favor of Bartch and Mills,-both issued against one Bolton, levied upon and took into his possession certain personal property as the property of Bolton. After such levy, and while such property was in his possession, the defendant White, on the 21st day of June, placed in the hands of the sheriff a third writ of attachment in his favor, against said Bolton. The answer of White alleges that the sheriff, having such property in his possession, attached to this said writ a schedule of such property, and indorsed thereon that he had levied on the property under said attachment. Aside from this admission by White, there is no evidence of such levy under White's attachment.

It appears that afterwards, the property being claimed by one Braden, an assignee for the creditors of Bolton, a bond of indemnity, dated June 22, 1883, was given to the sheriff by the defendant White as principal, with the defendants Riley and Fox as sureties. That bond is the subject of the action at bar. Its conditions are "that if the obligors shall well and truly indemnify and save harmless the said Fury, sheriff," etc., "of and from all damages, expenses, costs, and charges, and against all loss and liabilities, which he, the said Fury, as sheriff," etc., "shall sustain, or in any wise be put to, by reason of attachment, seizing, levying, taking, or detention by the said sheriff, in his custody, under said attachment [the attachment of White against Bolton] of said property claimed [by said Braden] as aforesaid, then the above obligation to be void."

The case is presented on bill of exceptions; the only exception being to the charge or direction of the court to the jury to find a verdict for the defendant. The appellant, in his brief, states "that on the 6th day of December, 1887, this cause came on for trial before a jury, and the evidence showed that the property described in said indemnity bond had been levied upon under prior attachments which had been served by the plaintiff as sheriff, and was sold under said prior attachments, and not under the attachment in the case in which said indemnifying bond was given, and the appellant admitted that the defendant E. A. White received no part of the money for which said property was sold; that thereupon the defendants moved the court to peremptorily instruct the jury to bring in a verdict for the defendants, which motion was sustained by the court, and the jury was thereupon instructed to, and did,