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said A. M. Peralta, and of his heirs, executors, or assigns, and for not doing so, said William W. Chipman and G. Aughinbaugh, their heirs or assigns, are bound to pay all damages," etc.

Nothing can be clearer, we think, from the language of the deed than that the land conveyed had for its boundaries the sea-water and the line about 300 yards from the brickyard house, and extending from the point or end of the San Leandro slough to the point or end of San Antonio slough.

In respect to the offered proof of quantity, it is sufficient to say that the deed contains no mention whatever of the quantity of land in the tract conveyed.

In our opinion there was no error in the ruling of the court below, and therefore the judgment and order are affirmed.

We concur: MCKINSTRY, J.; MCKEE, J.

HALL V. HEBARD. (No. 8,792.)

Filed November 19, 1885.

Department 1. Appeal from Superior court, county of Alameda.

The facts in this case were similar to those in Dent v. Bird, No. 8,791, ante, 504, George W. Tyler and John T. Humphreys, for appellant.

B. S. Brooks, Geo. Leviston, Mastick, Belcher & Mastick, and Greathouse & Blanding, for respondent.

BY THE COURT. On the authority of Dent v. Bird, ante, 504, judgment and order


(67 Cal. 661)

HIRSHFELDT v. CROSS, Judge. (No. 11,262.)

Filed November 19, 1885.


Where an administrator's account, as presented, is not sufficiently specific, the superior court sitting as a court of probate may require the administrator to make the account more specific; and if, pending the settlement of such account, the administrator presents a second account, the court may order him to combine such accounts, and to present one account of his administration, which shall be full and complete up to the time of its rendition.

Department 1. Application for mandamus.

Wal. J. Tuska, for petitioner.

Stetson & Houghton, for respondent.

Ross, J. This is an application for a writ of mandate to compel the respondent to enter an order settling an annual account of the petitioner as administrator of the estate of Allen E. Rose, deceased. It appears from the papers submitted that the petitioner was appointed administrator of the estate in question by the superior court of Kern county in the year 1880, and in the latter part of the following year filed his first account of his administration. This account was settled by the superior court, and from the order of settlement an appeal was taken to this court by the parties in interest, who were

dissatisfied therewith. The appeal being heard, the order was reversed and the cause remanded for further proceedings, which were had in the superior court, and which resulted in another order of settlement, from which the contestants again appealed, and on the hearing of which appeal they were again successful; the order being reversed and cause remanded for further proceedings. After the cause went back the second time, it was transferred by reason of the disqualification of the then superior judge of Kern county to the superior court of the county of Tulare, of which court the respondent herein is judge. And there the hearing of the account again came up, testimony was taken, and an opinion written and filed by the. judge, reviewing the account, and directing an order to be drawn settling the account in accordance with the views expressed in the opinion. The judge's opinion was prepared without the benefit of the brief of the contestants,-the latter having failed to reach him through some inadvertence; but subsequently, and before the making of the order settling the account, did do so, and in examining it the judge became satisfied that in some respects the opinion formed by him and expressed in writing was erroneous, and that the account as rendered was not sufficiently specific to enable the court properly to pass upon it. And, as pending the long and necessarily costly litigation over the first account, the administrator had filed a second one which had not been settled, nor set down for settlement, and as by reason of errors in the first, a further accounting was necessary, the court entered an order directing the administrator to present one account of his administration of the estate, which should be full and complete up to the time of its rendition. We think the court was right. If the first account was not sufficiently specific, the court clearly had the power to require the administrator to make it more specific. The probate court is the guardian of the estates of deceased persons, and has control of the person appointed by it to administer the estate, subject to review as provided by law. It is its duty to require full and fair accounts on the part of administrators; and where the estate is so circumstanced as that one account will result in saving expense, and better and more clearly presenting the accounts of the representative of the estate, it is not only the right, but the duty, of the court to require the one account. Of course, upon its settlement, the administrator is entitled to a full hearing, and, if aggrieved by the settlement, has his appeal from the action of the probate court settling the account.

Writ denied and proceedings dismissed.

We concur: MCKEE, J.; McKINSTRY, J.

(68 Cal. 24)


Filed November 19, 1885.


The superior court obtains jurisdiction of an appeal from a justice's court if the notice of appeal is served and filed and the undertaking on appeal filed within the time prescribed by statute, and cannot then dismiss the appeal for want of jurisdiction; and it is immaterial in what order the acts necessary to the perfection of the appeal are done.

In Bank. Application for certiorari.

Geo. Blanchard and Chas. A. Swisler, for petitioner.

Irwin & Irwin, for respondent.

MORRISON, C. J. The opinion and orders heretofore filed herein are vacated and set aside, and the following will stand as the opinion and judgment of the court:

Application for a writ of certiorari.

The petition in this case sets forth that on the fourteenth day of June, 1884, one William Went recovered a judgment against petitioner in a justice's court, in the county of El Dorado, for a sum of money therein stated; that on the twenty-third day of June a notice of appeal in said case was served, and filed on the following day, and on the twenty-eighth of June, 1884, a bond on appeal was duly filed. The petition alleges that the appeal was in all respects regular and according to law, but that on the eleventh day of February, 1885, the cause was brought on for hearing before the superior court of El Dorado county, when a motion was made to dismiss the appeal, which was granted on the grounds, as the order of dismissal shows, "that the notice of appeal was served on the twentythird day of June, 1884, and filed on the 24th; that the bond was filed on the 28th."

There is no doubt that the reasons assigned by the court for making the order of dismissal were wholly insufficient. The notice of appeal was given in time, was filed in time, and so was the bond filed within the time fixed by law. All of these questions were before the court and decided in the case of Coker v. Superior Court, Colusa Co., 58 Cal. 177. It was there held that "to effectuate an appeal from the judgment of a justice of the peace, three things are necessary, viz. the filing of a notice of appeal with the justice, the service of a copy of the notice upon the adverse party, and the filing of a written undertaking; and all these must be done within thirty days after the rendition of the judgment. Sections 974, 978, Code Civil Proc." Here the notice of appeal was served and filed, and the undertaking on appeal was filed, within the time prescribed by the statute, but not in the order named in the statute. The mere order in which the acts are done is not material, but when done within the time limited the appeal is perfected. Coker v. Superior Court, supra. The Coker Case is very much in point, and settles the question

that the appeal was improperly dismissed on the grounds stated in the order of dismissal.

We have shown that the appeal was regularly taken according to the provisions of the Code, and the case was therefore properly in the superior court for trial. Had that court the right to dispose of the appeal in the summary manner in which it did, or was it not the duty of the court, under the circumstances, to dispose of the case on its merits? This court said in the case of Levy v. Superior Court, Yolo Co., 5 Pac. Rep. 353: "That court [the superior court] can neither give to itself jurisdiction by holding an insufficient undertaking sufficient, nor divest itself of jurisdiction by holding a sufficient bond insufficient." Neither could the superior court in the case now before us divest itself of the jurisdiction properly vested in it by the appeal by an arbitrary order dismissing the appeal in the manner complained of.

From the facts appearing in the petition the court erred in dismissing the appeal; therefore the alternative writ prayed for should issue. So ordered.

We concur:


(68 Cal. 26)

KENDALL v. WATERS and others. (No. 9,132.)

Filed November 20, 1885.


Where the evidence is not before the appellate court, the sufficiency thereof to sustain the findings will not be considered on appeal, and the presumption will be that the findings are supported by the evidence.


One person cannot enter upon the possession of another for the purpose of pre-emption.


Where a demurrer to a cross-complaint has been sustained, and no amendments made thereto, no findings are required on issues presented by such cross-complaint.

Department 2. Appeal from superior court, county of Contra


Burnett & Newman and L. Quint, for appellant.

Mills & Jones, for respondent.

MYRICK, J. Ejectment. The plaintiff alleged possession in himself on the first of November, 1881, of certain tracts of land, and ouster by the defendants on that day, and that they withhold the lands from plaintiff. The answers of the defendants denied the possession of plaintiff, denied the entry of defendants and ouster by them, and denied that they withhold the premises from him. The defendants added to their answers, respectively, cross-complaints, to which cross-complaints demurrers were filed and sustained, and the defendants did not avail themselves of leave to amend. The cause was tried

on the complaint, and answer and judgment rendered for plaintiff. The evidence is not before us; therefore we cannot consider any question relating to its sufficiency.

The facts stated in the cross-complaints constituted no defense to the action; therefore the demurrers were properly sustained. It is not an open question that one person cannot enter upon the possession of another for the purpose of pre-emption. The plaintiff declared on prior possession; therefore, under the denials of the answers, the defendants could have offered all the evidence they had tending to show that they had possession prior to the plaintiff. We must presume they attempted to make proof of such possession, and failed.

It is scarcely necessary to say that the court did not err in omitting to find on the issues presented in the cross-complaints. The demurrers having been sustained, and no amendments made, the matters stated in the cross-complaints were not in issue to be determined in the trial court. Judgment affirmed.

We concur:

(2 Cal. Unrep. 558)


HUNTINGTON v. RUSSELL and others. (No. 8,257.)

Filed November 20, 1885.


The agreement mentioned in the opinion construed, and held, that the defendant was not bound to carry on the business therein provided for for any particular time.

Department 2. Appeal from superior court, county of San Luis Obispo.

The intestate and defendant Russell were engaged in a partnership business. Said defendant purchased his partner's interest in the business for a specified price, and agreed to pay a further sum if, in the opinion of certain parties, (the other defendants,) the profits of the business justified him in so doing, the matter to be decided within three years. Defendant Russell soon after sold out the business, and the parties agreed on (the other defendants) decided that the profits did not justify such further payment. Plaintiff alleged such sale and decision to be a fraudulent conspiracy between the defendants. Wm. Leviston and J. M. Wilcoxon, for appellant. Wm. J. Graves and Ernest Graves, for respondents.

MYRICK, J. There is nothing in the agreement made between Huntington and Russell by which Russell was bound to continue the business for any particular time; it was, in effect, that if he should carry it on with certain results, he would pay Huntington a certain sum. There is no fact stated in the complaint which shows that at the time Russell sold out the business it was sold for less than its then value, or that at that time it did not appear advisable to him and his co-de

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