judgment. This being true, we are bound to presume that the evidence offered, whatever it was, was sufficient for such purpose. The following cases, out of a multitude that might be cited, will, we think, support our conclusion: Crane v. Brannan, 3 Cal. 192; Siebe v. Joshua etc. Machine Works, 86 Cal. 390, [25 Pac. 14]; Hyde v. Boyle, 89 Cal. 590, [26 Pac. 1092]; Johnston v. Callahan, 146 Cal. 212, [79 Pac. 870]. It follows, therefore, that the said "statement" cannot be considered on this phase of the case, and that the so-called "interlocutory judgment" must be affirmed.

Now, as to the second appeal the appeal from the order denying defendant's motion to set aside his default. At the outset we gather from defendant's bill of exceptions, as disclosed in the transcript, that in support of the motion were read plaintiff's complaint herein, the statement heretofore referred to as having been filed by plaintiff before the entry of the said interlocutory judgment, the affidavits of this defendant, John H. Foley, and H. C. Chase. In opposing said motion, plaintiff served upon defendant's attorneys, filed and introduced in evidence the affidavit of himself and one Noah Williams, traversing in detail every averment of plaintiff's said affidavits. [6] Thus, we see that a very sharp and decided conflict as to the questions presented was present. Under these conditions, we are powerless to interfere with the conclusion of the trial court herein. The rule is, as it has been so frequently stated, both by the supreme court as well as by this court, that "in the consideration of an appeal from an order made upon affidavits, etc., involving the decision of a question of fact, this court is bound by the same rule that controls it where oral testimony is presented for review. If there is any conflict in the affidavits, those in favor of the prevailing party must be taken as true, and the facts stated therein must be taken as established." (Doak v. Bruson, 152 Cal. 17, [91 Pac. 1001]; Hyde v. Boyle, 105 Cal. 102, [38 Pac. 643]; Bernou v. Bernou, 15 Cal. App. 341, [114 Pac. 1000].) Under these circumstances, it is immaterial whether or not there was an affidavit of merits which complied with the legal requirements.

[7] Appellant urges that a motion under section 473 of the Code of Civil Procedure to open a default and vacate an interlocutory judgment is addressed to the discretion of the court, and should be liberally exercised to promote justice

and prevent fraud. In this we agree. And the presumption is that, in the absence of satisfactory showing to the contrary, the lower court so exercised its discretion. In this case our attention has not been called to anything which would show an abuse of discretion by the trial court, and since, as before stated, the deciding of the motion was a matter otherwise purely within the discretion of that court, we are now impotent to disturb the conclusion reached.

[8] In the present case, defendant was served with summons and complaint, but paid no attention thereto. Hence, the contention cannot successfully be maintained, it would seem, that under these circumstances his default was because of inadvertence, mistake, surprise, or excusable neglect. Section 473, supra, reads: "The court may . . . relieve a party . . . from a judgment . . . taken against him through his mistake, inadvertence, surprise, or excusable neglect." Obviously, it does not say that such relief may be granted because of the court's inadvertence, mistake, surprise, or excusable neglect. In the present case it seems to us that the error, if any, was "judicial error," which would be remedied only by appeal from the judgment. (Byrne v. Hoag, 116 Cal. 1, [47 Pac. 775]; Grannis v. Superior Court, 146 Cal. 245, [106 Am. St. Rep. 23, 79 Pac. 891]; Johnston v. Callahan, supra.) [9] It may be observed, in passing, that a court has inherent power to set aside a judgment for fraud upon the court, and the right to so act or grant relief is not derived from section 473, supra. (Stierlen v. Stierlen, 18 Cal. App. 609, [124 Pac. 226].) However, a fraud that will render such relief available does not include a judgment irregularly obtained upon a fraudulent claim or by false testimony. (Parsons v. Weis, 144 Cal. 410, [77 Pac. 1007].) Indeed, a judgment may be unjust, inequitable, and erroneous without being fraudulent or subject to be set aside by a court of equity. (Davis v. Chalfant, 81 Cal. 627, [22 Pac. 972].) By the order appealed from, the court, among other things, found that there was no inadvertence of the court in entering judgment, adjudging that the plaintiff had contributed to the copartnership of Williams & Reed the sum of $18,250.30 in excess of the amount contributed to said copartnership by the defendant. That there was no excusable neglect of the defendant in failing to answer said complaint. That there was no fraud of plaintiff in representing to the court that

he had contributed the sum of $18,250.30 to the copartnership in excess of the amount contributed to said copartnership by the defendant.”

For these reasons, therefore, it follows that the order denying defendant's motion to open the default and set aside the interlocutory judgment must be, and it is, affirmed.

This brings us to the consideration of the third appealthe appeal from the order confirming the sale. Appellant urges five reasons for the reversal of this order, viz.: (1) Insufficiency of the notice of sale; (2) gross inadequacy of price; (3) the sale was without right of redemption; (4) because the shares of water stock were sold as personalty, separate and apart from the land, and the real estate was sold separate and apart from the water stock, which was appurtenant thereto; and (5) because the sale imposes upon appellant a gross injustice. These points were urged in the court below as objections to the confirmation of the sale.

Here again we are confronted with a condition almost exactly like the one we have just discussed in connection with the second appeal-that of the matter being presented by both sides on affidavits and other evidence. The evidence being in sharp conflict, and the court having decided that question, we are bound thereby, unless, of course, the evidence before us on its face discloses its insufficiency to support the court's conclusion therein. Appellant urges in his closing brief that, because all these appeals are in the same transcript and the record presents the entire transaction by means of which the respondent seeks to reap an unfair advantage, this court should consider all of the steps taken to accomplish this result, as the transcript presents it, rather than consider each appeal separately without any relation to the others; but our attention is not called to any rule of procedure, or to any law-and this court knows of nonewhich would authorize it to comply with this suggestion. It may be suggested here, too, that we have looked-and in vain-for something that would authorize us so to do. With the exception of the one question of the insufficiency of the evidence, just suggested in connection with the third appeal, our discussion of the points involved on the second appeal apply here.

[10] Of the five points urged for a reversal of the order appealed from, we are of the opinion that only one need be

43 Cal. App.-28

considered, viz., the first-which relates to the insufficiency of the notice of sale given by the sheriff. Section 692 of the Code of Civil Procedure provides how notice of such sale should be given, while section 693 of the same code specifies the penalty which attaches to an officer selling without giving the notice as prescribed. In neither of these sections is there anything that requires the court, or any judge thereof, to direct the giving of the notice. For this reason we think that portion of the interlocutory judgment which directed the sheriff how and when to give the notice referred to unnecessary, and that it therefore may be treated as surplusage. The judgment is full, complete, and enforceable without such provision. Indeed, these two sections, taken together, "enjoin upon the sheriff both the duty and the responsibility of posting and publishing notices of sale as prescribed, which injunction necessarily implies the duty and the responsibility of selecting the place where notices are to be posted and the newspapers in which they are to be published, since they are not specified." (Northern C. I. Trust Co. v. Cadman, 101 Cal. 200, [35 Pac. 557].) It would seem that "the penalty and responsibility of the sheriff are inconsistent with the right or authority of anyone else to dictate places or papers in which notices are to be published, and consistent only with his duty and power to select the place and newspaper in which to publish required notices." (Northern C. I. Trust Co. v. Cadman, supra.) "Questions appertaining to the notice, as well as all others which merely relate to irregularities, are between the officer selling and the parties to the execution." (Kelley v. Desmond, 63 Cal. 517.) Therefore, the portion directing the manner of posting and the places where the notice of sale was to be posted and published may be disregarded. "Neglect of officer making the sale to give notice required by law does not affect the validity of the sale, but the party aggrieved has his remedy against the officer for any injury sustained by reason of such neglect." (Smith v. Randall, 6 Cal. 47, [65 Am. Dec. 475]; Harvey v. Fisk, 9 Cal. 94.)

[11] It would seem useless to discuss this phase of the question further, for under both of the sections mentioned, as we construe them, and the cases decided by our own supreme court, as we understand them, it has been repeatedly held that such a sale as the one under discussion was a valid

sale, even when the statute had not been complied with in any way-no notice of any kind having been given. Under these circumstances it becomes apparent that this court is without power or jurisdiction to set aside the order confirming the sale for this or any of the reasons urged as aforesaid. It follows that the order of the trial court overruling the objections of defendant and confirming the sale must be, and it is, affirmed.

From all that has been said hereinbefore, we think it follows that the fourth appeal-the appeal from the final judgment is not well taken, and that for each of the reasons advanced-while assuming, without so holding, that the judgment in this case is "unjust, inequitable, erroneous, or irregularly obtained by false testimony"-under the law, as we have shown above, we are powerless, in the face of the record before us, to do anything but affirm the judgment. The remedy under these circumstances is against the officer, unless, indeed, the defendant has slept upon his rights. The judgment is affirmed.

Finlayson, P. J., and Sloane, J., concurred.

[Civ. No. 2368. Second Appellate District, Division One.-October 3, 1919.]

CHARLES W. CHASE, Respondent, V. WILLIAM OEHLKE et al., Defendants; F. D. GRIFFITH et al., Appellants.

[1] LANDLORD AND TENANT-ASSIGNMENT OF LEASE LIABILITY OF ASSIGNEES.-Where tenants hold under a mere naked assignment of the lease, their liability is, as to the landlord, limited to their occupancy of the premises and terminates with their abandonment of possession.

[2] ID.-EXPRESS COVENANT TO PAY RENT-OBLIGATIONS OF ASSIGNEES. Where, however, the assignees by express terms in writing covenant and agree to pay the rent reserved in the lease, it presents two sets of obligations and rights: one comprising those due to the

1. Assignment of lease, notes, 10 Am. St. Rep. 557; 15 L. R. A.