bers in the hearing of said appeal or the rendition of such decision, is final and conclusive upon the parties entitled to take said appeal, the court did not commit error in sustaining the plaintiffs' objection to questions or proofs offered by the defendants in an endeavor to show fraud in the doing of the public work upon which the assessment in question was predicated.

APPEAL from a judgment of the Superior Court of Imperial County. W. H. Thomas, Judge Presiding. Affirmed.

The facts are stated in the opinion of the court.

James E. O'Keefe and C. H. Van Winkle for Appellants.

Crouch & Crouch for Respondents.

RICHARDS, J.-This appeal is from a judgment based upon a verdict in the plaintiffs' favor in an action to establish and foreclose the lien of a street assessment.

The appellants make several points upon appeal. [1] The first of these consists in their contention that the trial court erred in overruling their objection to the introduction in evidence of the assessment, diagram, and warrant of the street superintendent upon the ground that no proper foundation had been laid for their introduction. The plaintiffs have produced a witness who testified that he was one of the employees of the city clerk of the city of Imperial, in which said street improvement work had been done, and who in that capacity produced and fully identified the records containing the assessment, warrant, and diagram of the street superintendent of the city, and who further testified that these were to his knowledge part of the official records of said street superintendent's office, and that the said records were kept in the city clerk's office. This testimony was entirely sufficient to furnish the requisite foundation for the introduction in evidence of these records. It is not necessary for the legal custodian of a public record in every case to be present in court to identify it. This may be done by any witness who can speak from his own knowledge in identifying the documents as the official records of the office from which they are produced, as such, and hence the ruling of the court was proper in admitting the assessment, diagram, and warrant in question in evidence.

[2] The next contention of appellants requiring attention is that the offered proof of the fact that the plaintiffs, Rogers Bros. Company and O. & C. Construction Company, were corporations was insufficient, but this objection is without merit, for the reason that the corporate existence and character of these two plaintiffs were alleged to be that of corporations organized and existing under and by virtue of the laws of the state of California. The defendants' denial of these averments was based on the want of information and belief upon the subject. This was an insufficient denial, and amounted to an admission of the alleged fact; hence no evidence was required to prove these averments of the plaintiffs' complaint. (Bartlett Estate Co. v. Fraser, 11 Cal. App. 373, [105 Pac. 130]; Mulcahy v. Buckley, 100 Cal. 487, [35 Pac. 144]; Mullally v. Townsend, 119 Cal. 47, [50 Pac. 1066].)

[3] The next contention of the appellants is that the trial court committed an abuse of discretion in refusing the defendants leave to file an amended answer during the progress of the trial of the case. This action was commenced on January 3, 1915; the answer of the defendants was filed on March 5, 1915; the cause came on for trial on January 17, 1916. The amended answer was not proffered for filing until the trial of the cause had proceeded up to the point where the plaintiffs had fully put in their case. No sufficient reason was given for the defendants' delay in seeking to amend their answer, and this of itself would have been a sufficient ground for the court's refusal to permit the same to be filed. But aside from this, the record herein does not embrace a copy of the proposed amended answer, and this court has no means of knowing its contents, and hence cannot determine whether or not the trial court should in any event have permitted it to be filed, nor whether its refusal to do so was

error.

[4]

[5] The next contention of the appellants is that the trial court was in error in sustaining the objection of the plaintiffs to questions asked or proofs offered by the defendants in an endeavor to show fraud in the doing of the public work upon which the assessment in question is predicated. In so far as these questions asked or proof offered were based upon the averments of the original answer of the defendants herein we are satisfied that no foundation is therein laid for the introduction of such evidence, since the only unfairness or

fraud therein alleged relates solely to the progress of the work, and has reference to matters which are properly the subject of correction by appeal to the city council, whose decision, in the absence of fraud on the part of said council or its members in the hearing of said appeal or the rendition of such decision, is final and conclusive upon the parties entitled to take said appeal. (Girvin v. Simon, 116 Cal. 604, [48 Pac. 720]; McLaughlin v. Knobloch, 161 Cal. 676, [120 Pac. 27]; Lambert v. Bates, 137 Cal. 676, [70 Pac. 777].)

In so far as the appellants' contention as to the existence of fraud on the part of the city council or its members in the hearing or determination of said appeal is concerned, it may be stated that possibly such an issue was presented by the amended answer which the defendants vainly sought to file; but since the said amended answer has not been embraced in the record before us, we are unable to say whether such an issue was so tendered, and hence cannot determine whether the court was in error in its refusal to admit such offered proofs. No question being presented, the judgment is affirmed.

Waste, P. J., and Kerrigan, J., concurred.

[Civ. No. 3004. First Appellate District, Division One.-September 2, 1919.]

PETER JOHNSON, Respondent, v. HEDVIG NELSON et al., Appellants.

[1] EXECUTIONS-PREMATURE MOTION TO SET ASIDE RETURN OF SALE -RIGHT TO RENEW MOTION.-In an action to foreclose a mortgage, an order denying a motion, made prior to the return of sale by the sheriff, to vacate such return and directing a new order of sale to be issued, does not render the matter res adjudicata as to a second motion made for the same purpose after such return of sale has been made.

[2] ID.-RES ADJUDICATA-DOCTRINE NOT APPLICABLE TO MOTIONS.The doctrine of res adjudicata does not apply to motions, the matter of their renewal being in the discretion of the trial court.

2. Rule of res adjudicata as applicable to motions in pending action, note, Ann. Cas. 1914D, 974.

43 Cal. App.-8

[3] ID.-UNSATISFACTORY RETURN BY SHERIFF - SETTING ASIDE EX PARTE.-A trial court, having had brought to its attention that the sheriff, as its officer, has made an equivocal and unsatisfactory return upon an order of sale issued to him in an action to foreclose a mortgage, and that the same was unsatisfied, has full power ex parte to set aside such return and direct a new order of sale to be issued and executed.

APPEAL from an order of the Superior Court of Los Angeles County setting aside a sheriff's return of sale and directing a new order of sale to be issued. Pat R. Parker, Judge Presiding. Affirmed.

The facts are stated in the opinion of the court.

John F. Poole and Wm. Lewis for Appellants.

Charles J. Kelly and D. A. Stuart for Respondent.

RICHARDS, J.-This is an appeal from an order made after final judgment setting aside a sheriff's return of sale for the foreclosure of a mortgage and directing a new order of sale to be issued.

The facts are undisputed and are as follows: The mortgage was duly foreclosed and a decree of sale of the mortgaged premises made and entered, and an order of sale duly issued thereon and placed in the hands of the sheriff for execution. On the day on which the sale was advertised to take place the plaintiff and also one of his attorneys were present at the time and place of sale; the plaintiff personally made a bid of an amount somewhat less than the total sum then due. His attorney also on his behalf made a bid of the total sum due. There were no other bidders. A misunderstanding arose between the sheriff and the plaintiff as to the sum actually bid, the sheriff insisting that he had struck off the property for the amount of the plaintiff's personal bid. Thereupon, and before the sheriff had made any return of sale, the plaintiff moved the court for an order vacating and setting aside the sale. When this motion came on for hearing, the sheriff not yet having made his return of sale, the court denied the motion. Thereafter the sheriff made his return of sale which, while reciting the fact that the property was sold, returned the order of sale as wholly unsatisfied.

Thereupon the plaintiff moved the court to set aside this return of sale and direct a new order of sale to be issued. Upon the hearing of this motion the court granted the same, and from its order to that effect this appeal has been taken.

[1] The first point urged by the appellants is that the trial court had no jurisdiction to make the order appealed from, for the reason that the first order of said court denying the plaintiff's motion to vacate the sheriff's return of sale rendered the matter res adjudicata, and hence the court had no power to grant the plaintiff's second motion to set aside the return of sale. The point is utterly without merit for two reasons: First, that the two motions are dissimilar in the important respect that at the time the plaintiff's first motion was made no return of sale had yet been made by the sheriff, and the motion was therefore premature and doubtless was denied for that reason; while said return of sale was on file when the second motion was made, presenting an entirely different situation to the trial court; [2] and the second reason why the point is without merit is that under the settled practice in this state the doctrine of res adjudicata does not apply to motions, the matter of their renewal being in the discretion of the trial court. (Ford v. Doyle, 44 Cal. 635; Bowers v. Cherokee Bob, 46 Cal. 279; Johnston v. Brown, 115 Cal. 694, [47 Pac. 686]; Gay v. Gay, 146 Cal. 237, [79 Pac. 885].)

The next contention of the appellants is that the court was in error in granting the motion in question because all of the proper parties to the action had not been served with notice of the motion. This appeal has been taken by a number of persons other than the original mortgagor and main defendant in the action. The record before us does not contain any of the pleadings or proceedings in the case prior to the making and entry of the decree of foreclosure, and we have, therefore, no means of knowing except from the terms of said decree who the defendants in the action were, or what issues were presented by them, or in what way any of them may have been interested in the proceedings in the case subsequent to the entry of the decree of foreclosure and issuance of the order of sale. The record before us, however, discloses that a number of these appealing defendants appeared upon the hearing of said motion to set aside the sheriff's return of sale, and at that time made no objection that they themselves had