claim," which the court held was the subject of partition, the same as other real property. But why? Because, as was said in Merritt v. Judd, 14 Cal. 59, "our courts have given mining claims the recognition of legal estates of freehold; and, as to all practical purposes, if we except some doctrine of abandonment, not, perhaps, applicable to such estates, they unquestionably are.

The working of a mine under a bare "mining right" has been uniformly considered by courts of equity as a species of trade. Hence the legal relations existing between two or more persons interested in such a right is that of a qualified partnership; and the remedies relating to a mining partnership are available for the assertion or violation of any right arising out of it. Section 684 and chapter 4, tit. X, Civil Code; Rich v. Davis, 6 Cal. 164; Duryea v. Burt, 28 Cal. 569; Settembre v. Putnam, 30 Cal. 490.

Judgment affirmed.

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

GILMORE v. AMERICAN CENT. INS. Co.

Filed February 13, 1884.

A party bringing suits against two insurance companies, it was stipulated by the respective attorneys that upon a final determination in the first suit a similar judgment should be entered in the second. A motion for judgment pursuant to the stipulation is not a trial on the merits; if a party is entitled to judgment it is upon the stipulation and not on the merits. A motion for a new trial is therefore irregular, and should be dissmissed.

While proceedings are pending for the review of a judgment, either on appeal or motion for a new trial, the litigation on the merits is not ended and there is not a final determination of the rights of the parties, even if it become final as to an appeal therefrom.

A reversal of a judgment prematurely entered as a stipulation does not prejudice the right to move for a judginent pursuant to the stipulation.

Department 1.

Gray & Haven, T. C. Van Ness, and Gardner & Stevens, for appellant.

J. Brunson & Wells, for respondent.

MCKEE, J. Pending two actions in the Seventeenth judicial district court of Los Angeles county, one of which was entitled Lucy Gillmore v. The Lycoming Fire Insurance Company of Muncy, Pennsylvania, and the other, Lucy Gillmore v. The American Central Insurance Company of St. Louis, each of which was brought upon a policy

of insurance to recover for loss by fire, the attorneys of the respective parties, in the last-named action, entered into the following stipulation, which was filed and entered upon the court minutes as an order of the court, viz.:

"This cause being called regularly for trial, the parties appearing by their respective attorneys, and both parties consenting in open court that the issues in this cause are identical with those of the other action pending in this court, No. 4,799, entitled Lucy Gillmore v. The Lycoming Fire Insurance Company, of Muncy, Pa. It is stipulated and agreed that all proceedings herein shall be stayed until final judgment and decision in said action wherein the Lycoming Fire Insurance Company, of Muncy, Pa., is defendant, and in case of an appeal in said last-named action, then said proceedings are stayed until the final determination of such appeal, and upon such final determination, judgment, and decision in said action, wherein said the Lycoming, etc., is defendant, either party, without notice, shall and may cause to be entered a judgment in this action corresponding to and like the said final judgment, and of the same date, in said other action; and if such judgment shall be for the plaintiff, the amount for which the same shall be entered shall be $650 and costs; and if for the defendant, then for its costs, allowed by law. "An order pursuant to this stipulation shall be entered in the minutes of this court, twelfth May, 1879."

The action named in the stipulation was tried and decided in favor of the plaintiff, but the defendant moved to set aside the judgment entered therein, and for a new trial. The motion was denied; and from the judgment and order denying the motion the defendant appealed. On appeal, the judgment and order were reversed and the cause remanded, with directions to the court below to sustain the demurrer to the complaint in the action, with leave to the plaintiff to amend. In obedience to the direction of the appellate court, the demurrer to the complaint was sustained; the plaintiff amended her complaint, and the cause was again tried and decided in favor of the plaintiff, and judgment was entered in her favor against the defendant on March 14, 1881. A year elapsed, and no appeal from the judgment was taken. Then the attorneys for the plaintiff in this action, in which the stipulation was filed, moved the court to enter judgment in favor of the plaintiff pursuant to the stipulation; and the court on the seventeenth of March, 1882, rendered and entered judgment accordingly. The present appeal is from this judgment, and also from an order denying a motion to vacate it. There is also an appeal from an order denying a motion for a new trial.

It is contended that the judgment in the action of Lucy Gilmore v. The Lycoming Insurance Company, of Muncy, Pennsylvania, became final, within the meaning of the stipulation, after a year had elapsed from its entry without taking an appeal from it. But although no appeal had been taken from the judgment within statutory time, pro

ceedings were pending upon a motion made by the defendant in the case to vacate the judgment and grant a new trial. That motion subjected the judgment to be reviewed, and made it liable to be set aside. The judgment was therefore not final, in the sense of the stipulation as to the right of the parties affected by it, and could not become so until the motion for a new trial had been disposed of. Hills v. Sherwood, 33 Cal. 474. While proceedings are pending for the review of a judgment, either on appeal or motion for a new trial, the litigation on the merits of the case between the parties is not ended; and until litigation on the merits is ended there is no finality to the judgment in the sense of a final determination of the rights of the parties, although it may have become final for the purpose of an appeal from it. As, therefore, the motion for a new trial in the Lycoming Insurance Company Case was not heard and determined until more than nine months after the entry of the judgment appealed from, the judgment was prematurely entered. If, now, no appeal has been taken from the order denying the motion for a new trial, in consequence of which the order has become absolute and the judgment final, the reversal of the judgment prematurely entered on the stipulation will not prejudice the right to move for judgment pursuant to the stipulation. A motion for judgment pursuant to stipulation cannot be considered a trial on the merits. If a party to such stipulation is entitled to judgment, it is upon the stipulation, which has been entered as an order of the court, and not upon a trial of the case. The motion for a new trial was therefore irregular, and should have been dismissed.

Judgment and order reversed, and cause remanded for further proceedings.

We concur: MYRICK, J.; MOKINSTRY, J.

MEYER v. PORTER.

Filed February 13, 1884.

A provision in a city charter, that the city shall not be sued upon bonds issued by it, is no answer to a proceeding by mandamus to compel an officer of the city to perform a duty, in connection with the bonds, enjoined upon him by the law under which they were issued.

In regard to the bonds in question, it is the duty of the treasurer to pay them upon maturity out of the fund provided for that purpose, and no warrant is necessary therefor, nor need the coupons be presented to the board of trustees and auditor for examination and audit. The bonds, not being barred by the statute of limitations, the coupons are not.

Department 1.

Rosenbaum & Sheeline, and S. C. Denson, for appellant.

W. 4. Anderson and J. H. McKune, for respondent.

MCKEE, J. Application for a writ of mandate to compel the treasurer of the city of Sacramento to pay, out of funds in the city treasury, certain past due and payable coupons, belonging to bonds issued by the city of Sacramento, of which the plaintiff is the owner and holder. The fund out of which payment is demanded is known as the "interest and sinking fund" of the city of Sacramento. It is admitted there was in that fund, when the coupons were presented and payment demanded, the sum of $100,000, yet the treasurer refused to pay, and the court below sustained him in his refusal. The coupon bonds in the hands of the petitioner were issued under a charter granted to the city in April, 1858. That charter empowered the municipal authorities to issue bonds for the past indebtedness of the former city government, and to set apart and appropriate 55 per cent. of the municipal revenue, when paid into the treasury, "to an interest and sinking fund, which shall be applied to the payment of the annual interest, and the final redemption of bonds issued for city indebtedness, in accordance with the provisions of this act." Sections 34, 35, St. 1858, p. 279. The bonds were therefore issued under a law which provided for their redemption as they became due, with interest thereon, payable annually until redeemed. But the charter also provided that "the city and county shall not be sued in any action whatever; nor shall any of its lands, buildings, improvements, property, franchises, taxes, revenue, actions, choses in action, and effects, be subject to any attachment, levy or sale, or any process whatever, either mesne or final." Section 1, Id.

In 1863 the charter of 1858 was repealed and a new charter substituted. The repeal of the old charter did not impair the validity of contracts made under its provisions. In fact, the substituted charter of 1863 contained the same provision for an "interest and sinking fund" for the payment of the annual interest of the bonds and of their redemption as that contained in the repealed charter; and it also contained an implied prohibition against suits or actions against the city upon any bonds which had been issued under the former charter. Therefore, it is contended that by both the original and substituted charters the holders of these city bonds took and held them with notice that no actions upon them could be maintained against the city. But however that may be, it is no answer to a proceeding by mandamus against an officer of the city to compel the performance of a duty, in connection with the payment of the bonds, which the law, under which they were issued, has specially enjoined upon him. Meyer v. Brown, 12 Pac. C. L. J. 153. If, therefore, it was the clear, legal duty of the treasurer to do the act demanded of him, performance of it can be compelled; and the only question is, was it the duty

of the treasurer to pay the coupons, when presented to him, out of the fund which he had on hand? That fund contained $100,000, and the moneys had been set apart and appropriated for the purpose of the payment of the annual interest and final redemption of the bonds. St. 1858, p. 279; St. 1863, p. 426. The interest was made payable at the office of the treasurer on the first day of January of each year, (section 37, St. 1858, p. 280;) and says section 40 of the same statute: "It shall be the duty of the treasurer to pay the interest on said bonds when the same falls due out of said interest fund as provided in this act." Thus the duty to pay is specially enjoined upon the officer. It is a special duty with regard to the bonds which ⚫ is imperative upon him over and beyond the ordinary duties of his office as prescribed by other provisions of the charter, ordinances, or orders of the municipal authorities. Being a special duty, no other statute, ordinance, or order was requisite for its performance.

Nor was it necessary that the coupons should have been presented to the board of trustees and auditor for examination and audit, as ordinary accounts or claims against the city, under the provisions of sections 2, 5, 8, and 9 of the act of 1863; for as the law under which they and the bonds to which they belonged were issued made it the duty of the treasurer to pay them in the manner and out of the fund provided for that purpose, no warrants were necessary to authorize their payment. Nor is the fact, if it exists, that there are other creditors interested in the fund provided for their payment, who have not demanded payment, any answer to the application of the petitioner. Non-action by others having equal rights with him, in a matter on which his right is founded, cannot prejudice him in the assertion of his right nor excuse non-performance of a duty in connection with it specially enjoined by law. And as the coupons partake of the nature of the bonds to which they belong, and against which the statute of limitations had not run, they were not barred by the statute. Judgment reversed and cause remanded.

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

BY THE COURT. On the authority of Norton v. Zellerbach, 11 Pac. C. L. J. 356, judgment reversed, and cause remanded for a new trial.