in said action." When the order appointing Bisbee was made, there was nothing before the court except the complaint in Jones against Richter, and, the complaint being expressly referred to in the order, its contents are imported into the order so far as necessary for the purpose of construction. Turning to the complaint in that action, we find that the only property specifically described in it is the fund (then in the hands of Falkner, Bell & Co., but subsequently transferred to the defendant) "arising out of said business"; i. e. the sale of wire cables. At the time of making the order, and long afterwards, it was one of the points in dispute in Jones against Richter whether or not those parties were in fact partners. But they were all the time "alleged" partners, and this fund was particularly described as the property of the "alleged partnership." There is no doubt that the court had jurisdiction over it from the beginning to the end of the litigation, before and after the intervention of Seale, and the only question is whether its order so described it on the day it was made that the receiver could have lawfully demanded its possession. That the description was sufficient for that purpose, I cannot doubt. This particular fund was described in the complaint as a debt due to the partnership therein alleged, and by the terms of the order the receiver was to take possession of all "moneys due or to become due on account of the partnership alleged in the complaint herein."

PIGNAZ v. BURNETT et al. (S. F. 1,184.) (Supreme Court of California. Dec. 2, 1897.) APPEAL-TIME FOR TAKING-APPEALABLE ORDERS -BILL OF EXCEPTIONS-PRESUMPTIONS.

1. Code Civ. Proc. § 939, providing that an appeal from a final judgment might be taken within one year from the entry thereof, was amended by Act March 3, 1897, so as to limit the time to six months. Held, that the amendment did not apply to a judgment entered before its enactment.

2. Where, upon a motion to dismiss an appeal for the reason that no transcript on appeal was served on respondent and filed in the supreme court within the time required, appellants filed an affidavit showing that in due time they prepared and served on respondent's attorney a proposed bill of exceptions, but that the court with whom appellants' bill and respondent's amend ments had been left had not settled or allowed same, so as to permit its filing in the supreme court, the latter court will, in the absence of a counter showing, presume that appellants have kept alive their right to have a bill of exceptions.

3. An order refusing to vacate an order for a writ of assistance is appealable under the statute allowing appeals from any "special order" made after final judgment.

In bank.

Appeal from superior court, city and county of San Francisco.

Action of foreclosure by John N. Pignaz against George W. Burnett and others. There was a judgment for plaintiff, and an order for a writ of assistance issued. From the judgment, and from an order refusing to

vacate the order for a writ of assistance, George W. Burnett and another appeal. On motion to dismiss the appeal. Denied.

Walter J. Thompson, for appellants. Sullivan & Sullivan, for respondent.

TEMPLE, J. This is a motion to dismiss the appeal of George W. Burnett and Annie Frances Burnett from the final judgment, and also from an order refusing to vacate an order for a writ of assistance. The action was for the foreclosure of a mortgage, and one William Nicol was a co-defendant with the appellants. Nicol appeared in the action, and set up his claim to a lien subsequent to the lien of the plaintiff. Judgment was entered August 21, 1896. The appeal was taken July 31, 1897.

A sale of the mortgaged premises under the decree had taken place in November, 1896, at which the plaintiff was the purchaser. Thereafter, and until the 11th day of June, 1897,-according to the verified statements of the appellant,-the sheriff refused to issue a certificate of sale, or to record a duplicate, and also refused to furnish appellants with the necessary data to enable them to redeem the premises from said sale. They also assert that the property was worth much more than was realized from said sale, and that they were ready and desirous of effecting a redemption. The premises not having been redeemed, the sheriff, on the 26th of June, 1897, executed and delivered to the plaintiff a deed, and thereafter, on the 8th of July, 1897, a writ of assistance was issued, requiring the sheriff to put the purchaser in possession. Subsequently appellants obtained an order to show cause on the 23d of July, 1897, why the sheriff should not be restrained from executing the writ. July 30, 1897, the court refused the order applied for. The appeal from the judgment and from the order above recited was taken on the 31st of July, 1897. The grounds of the motion are: (1) The notice of appeal was not served upon defendant Nicol. This point was abandoned at the argument. (2) The notice of appeal was not served and filed within six months after the entry of judgment. (3) The transcript on appeal was not served and filed as required by the rules of the court. And (4) the order is not an appealable order.

At the time the judgment was entered an appeal could be taken from a final judgment at any time within one year after its entry. March 3, 1897, section 939 of the Code of Civil Procedure was so amended as to give only six months after the entry of judgment within which an appeal can be taken. At the time of the amendment the period of six months had already elapsed since the entry of the judgment. There remained, however, 5 months of the time allowed for taking an appeal under the Code before the amendment. The act took effect 60 days after its passage, at which time 9 months had elapsed since the entry of judgment. The appeal was tak

en after that time, but within the period of 12 months from the entry of judgment. If the amendment operated retrospectively, it cut off the right of appeal immediately upon the taking effect of the act, affording no opportunity whatever thereafter for the exercise of this privilege, and depriving this court, so far as the legislature can, of its jurisdiction in the cases upon which it would so operate. To make this statute applicable to judgments entered before it went into effect, is to give it a retroactive effect. But it is no objection to the validity of a statute to say that it is retrospective in its operation. The question is, is the amendment an ex post facto 'aw, or does it impair the obligation of contracts? and also, perhaps, whether it deprives any one of vested rights. If it does none of these things, it is no objection to it that it applies to pending cases or past transactions. Laws which create new obligations, or impose new duties, or exact new penalties because of past transactions, have been universally reprobated by civil and common law writers, and it is to be presumed that no statute is intended to have such effect, unless the contrary clearly appears. This is especially so where to give the statute retrospective effect would work manifest injustice. ExIsting laws, it is said, enter into and become part and parcel of contracts to which they are applicable. How obvious it is, therefore, that all should be able to contract obligations with knowledge of the laws which thus enter into them. It is quite obvious that great hardship is likely to result if a retroactive effect is given to this statute. One may be presumed to know the laws of the land, but the very instant this amendment took effect, if it be retroactive, the right of appeal was cut off at once. No time whatever was given to appeal in those cases in which judgments had been entered six months or more previously. Unless it is absolutely necessary, we should not impute such an intention to the legislature. In view of the construction which has almost invariably been given to statutes of this character, I feel sure that the legislature intended that its operation should be limited to judgments thereafter entered.

The motion to dismiss the appeal from the judgmen. is also based upon the fact that no transcript on appeal was filed in this court, and that more than 40 days have elapsed since said appeal was taken. In reply, the appellants filed an affidavit showing that the appeal was taken on the 31st of July, 1897, and "that thereafter, and in due time, as provided by law, these appellants [this affiant and the other defendant, Annie F. Burnett] prepared and served on the respondent's attorneys a bill of exceptions to be used on the appeal from said order and judgment, and thereafter and in due time the respondent's attorneys served their amendments to the said proposed bill of exceptions, and thereafter the said amendments were refused by 51 P.-4

the appellants, and the said proposed bill of exceptions, with the said amendments, were left with the judge for settlement, and are not yet settled or allowed by the said judge, and the transcript cannot be filed until the same have been settled." There is no counter showing, and, although a bill of exceptions upon appeal from the order simply could not be used on the appeal from the judgment, it is, in the nature of things, possible that the right of the defendants to have a bill of exceptions on the appeal from the judgment has been kept alive until the present time; and, in view of the upcontradicted affidavit, we must presume it was done. the moving papers it is merely shown that no bill of exceptions or statement on appeal has ever been settled.

In

The contention that the order refusing to restrain the sheriff from executing the writ is not appealable certainly finds warrant in numerous decisions of this court. In effect, the motion was to vacate the order for the writ, and to recall the writ. Henly v. Hastings, 3 Cal. 341, seems to be the first in this line of decisions. An ex parte order had been made striking out a marginal entry of satisfaction of a judgment. The appeal was from an order refusing to vacate this order. The court said the first order was wrong, and the refusal to alter it any number of times would not make it less so. The appeal should have been from the first order, and not from a mere determination of the court to abide by it. The next two cases upon the subject were People v. Grant, 45 Cal. 97, and Mayor, etc., v. Fulton, Id. 316. In both of these cases the court declined to follow Henly v. Hastings, but attempted to discriminate the cases. In the first it was said that the rule could not apply where the party appealing from the second order could not have appealed from the first. Therefore, where a person not a party to the suit is purchaser, and his grantee obtains a writ of assistance, the person who had been ejected, but who contended that he was not in privity with the defendaut in the suit, could move to vacate the writ, and appeal from an order denying his application. It is obvious that this appellant did not really move to vacate the order, but to be restored to possession as one improperly ejected. The writ did not run against him. In Mayor, etc., v. Fulton the defendant in the action moved to vacate the order allowing the writ, which had been issued ex parte upon the application of the grantee of the original purchaser. The court held the grantee of the purchaser to be a mere intruder, and therefore the writ was irregularly issued, and therefore the defendant may not have had notice, "for, in the absence of notice of the application actually given, a party is not held to knowledge of the entry of an order obtained by one who is not already a recognized adversary in the case." And, as he might not know of the order until it would be too late to appeal from the first order, the

case is made an exception. The hardship of such a rule is apparent, but I fail to see that the writ was irregularly issued, or that it was issued at the instance of an intruder. It is not expected that the purchaser at such a sale will be the adverse party in the case. Indeed, it has been thought that he cannot purchase without special provision to that effect in the decree. If the grantee of the original purchaser is entitled to the writ at all, he is in no sense an intruder. The simple fact is that the court found that the rule would operate unjustly, and refused to enforce it. The court recognized the fact that to enforce such a rule in that case would be practically to deny an appeal, and it would often amount to the same thing if the party injured is compelled to appeal from an ex parte order, where, having no opportunity to make a showing, he cannot present his case to the appellate tribunal; and frequently, too, he would have no notice of the order until it is too late to appeal. In Henly v. Hastings the defendant may have paid the judgment, and, having seen that satisfaction was duly entered, his case was ended. He was not bound to watch for further proceedings, nor was he presumed to have notice of the ex parte restoration of the judgment.

The appellate jurisdiction comes from the constitution, and not from the statute. The statute procedure, however, recognizes fully the right of appeal when it provides that all orders made before judgment may be reviewed on appeal from the judgment, and all special orders after judgment are themselves appealable. The order appealed from is a special order, made after judgment, and comes within the terms of the statute. So, also, did the orders involved in the cases relied upon by the respondent. The only possible reason for refusing to entertain appeals in those cases was that the party aggrieved had already had an opportunity to appeal from the same ruling, and cannot extend his time for taking an appeal by making the court repeat its ruling. But the reason cannot apply where no appeal could be taken from the first order, or when such an appeal would be vain for lack of a record showing the rights of the aggrieved party. The cases above cited from 45 Cal. are made exceptions to the rule on that ground, and these cases are approved in Green v. Hebbard, 95 Cal. 39, 30 Pac. 202. As to every order finally disposing of the rights of the parties as to any matter involved in the litigation,-orders, final in the sense that the question cannot be again considered in the case, the parties affected have a right to be heard. When they are made ex parte, the right to move to vacate the order, and upon such motion to show cause against the order, is implied. In such case the only appeal which can avail is an appeal from the order refusing to vacate. In no other. way, where evidence is submitted, can the appellant present to this court his showing against

the order. To say he cannot do this is to deny him his right of appeal.

With the general rule laid down in the numerous cases cited by respondent I have no quarrel. Exceptions to the rule have heretofore been made, and this case falls within the reason of those exceptions. It must be admitted that this court has not always properly discriminated between the cases which are within the rule and those which are not. They will not justify us, however, in refusing to appellant a right secured to him by the constitution and the statute.

It is said that no undertaking was given on the appeal from the order. The failure to give an undertaking was not one of the grounds of the motion, and cannot now be considered. The motion is denied.

We concur: BEATTY, C. J.; HARRISON, J.; GAROUTTE, J.

MCFARLAND, J. I concur in the order.

EMERSON v. THATCHER. (Court of Appeals of Kansas, Northern Department, C. D. Nov. 15, 1897.) ATTACHMENT-VALIDITY OF WRIT-AMENDMENTAPPRAISEMENT OF PROPERTY-ACTION ON CERTIFICATE OF DEPOSIT-PLEADINGS - DIRECTING VERDICT.

1. The clerk of the court issued an attachment at the beginning of this case, and inserted therein $100 as the probable costs, instead of $50, as provided by the statute. This was an irregularity, and did not avoid the writ, and it was competent for the court to allow the same to be corrected by amendment.

2. The failure of the undersheriff to participate with the appraisers in the appraisement of the property is not such an omission in the service of the writ as required the court to quash the writ or set aside the levy as to all the property.

3. In an action by an executor of the depositor named in the certificate of deposit in a bank, and made "payable to the order of himself upon the return of the certificate properly indorsed," it is not necessary, in alleging a demand of payment of the bank by the executor before suit, that the executor should allege that the certificate was properly indorsed at or before the demand.

4. In the trial of a case to a jury, in which, upon the undisputed evidence in the case, the plaintiff is entitled to a verdict, it is not error for the court to give a binding charge to the jury to return such verdict, notwithstanding there was some evidence upon behalf of the defense. (Syllabus by the Court.)

Error from district court, Cloud county; F. W. Sturges, Judge.

Action by C. W. Thatcher, administrator of the estate of Charles Thatcher, deceased, against J. D. Emerson. Plaintiff had judg ment, and defendant brings error. Affirmed.

Caldwell & Ellis, for plaintiff in error. Pulsifer & Alexander, for defendant in error.

MAHAN, P. J. The defendant in error brought an action against the plaintiff in error for the purpose of enforcing his liability as a

stockholder in the Clyde Banking Company, a corporation, organized under the statutes of the state. Emerson is a nonresident, and the proceeding was begun by an attachment levied upon a quarter section of land. The defendant appeared specially, and moved the court to quash the writ of attachment, because the clerk had specified therein the probable amount of costs at $100, instead of $50, as the statute provides; second, because the undersheriff who levied the writ did not participate with the appraisers in the valuation of the property attached. The court denied the motion to quash. Upon the hearing of the motion, the clerk was permitted to amend the writ by striking out the $100, and inserting $50.

Counsel contends under the first assignment of error that the court exceeded its jurisdiction in issuing the writ, and therefore the amendment ought not to have been allowed; that the writ was void, for want of jurisdiction to issue the same, and hence the motion to quash should have been sustained. In support of this contention, counsel cites a large number of authorities to the effect that the judgment of a court without jurisdiction or in excess of its jurisdiction is a void judgment. Our conclusion is that the clerk's error was an irregularity only; did not avoid the writ; that, under the statute, it was amendable, and the court did not abuse its discretion in permitting it to be amended. Neither the error of the clerk nor the action of the court in allowing it to be corrected affected the substantial rights of the defendant. If there had resulted an excessive levy, the court would have, upon motion, discharged such excess of property. The Code requires that all matters which are not prejudicial to the rights of the party shall be disregarded. These remarks apply to the second assignment of error.

Upon the hearing of the motion to quash, the defendant offered in evidence the affidavit of the undersheriff, to the effect that he did not participate with the appraisers in determining the valuation of the property attached, and that he only signed the return of the appraisers for the purpose of identification. To this the plaintiff objected, and the court sustained the objection. If this was error, it was immaterial. It was something over which the plaintiff had no control. It did not affect the substantial rights of the defendant. If, in the exercise of their judgment, the two appraisers, without the concurrence of the undersheriff, levied upon too much property, the excess could have been released upon motion. However, it appears no other property save the quarter section of land was levied upon. This property was an entire tract, and could not well have been divided. There was no such abuse of the process of the court as would have justified it in quashing the writ. Gapen v. Stephenson, 18 Kan. 140. This covers the third assignment of error, as well as the first and second.

The fourth assignment of error is that the court abused its discretion in permitting the

clerk to amend the writ. The Code authorizes the amendment of any pleading, process, or proceeding. An attachment is a process of the court. The error of the clerk was clearly an irregularity, not going to the jurisdiction of the court, and did not result in any prejudice to the rights of the defendant, so that it was immaterial whether the writ was amended or not. It was not sufficient cause to authorize the court to quash it upon the defendant's motion. Bank v. Franklin, 20 Kan. 264-270; Smith v. Payton, 13 Kan. 362; Bogle v. Bloom, 36 Kan. 512, 13 Pac. 793; Railway Co. v. Rierson, 38 Kan. 359, 16 Pac. 443.

The fifth assignment of error is that the court overruled the defendant's demurrer to the petition. The plaintiff's cause of action against the bank, upon which he sought to charge the defendant as a stockholder, was a certificate of deposit issued by the bank to the plaintiff's testator, and "payable to the order of himself, ** * * upon the return of this certificate properly indorsed." While there is an averment of demand on the bank, and a refusal of payment, before suit brought, there is no allegation that the certificate was properly indorsed; nor does the exhibit attached to the petition, purporting to be a copy of the certificate, disclose an indorsement. The contention of the plaintiff in error is that the failure of the petition to allege that at the time the certificate was presented and payment demanded by the plaintiff, as executor of Charles Thatcher, it was properly indorsed, fails to state a cause of action against the stockholder. It may be admitted that, in order to charge the stockholder upon his subscription to the capital stock of the bank, it was necessary that the petition should disclose a cause of action against the bank. But a reasonable interpretation of this contract is that no indorsement was necessary except upon a transfer by Charles Thatcher. It was only necessary that it should be properly indorsed, or that his order in writing to pay the money should accompany the certificate when demand was made by some other person than Charles Thatcher himself,-some person to whom he had assigned or sold the certificate,-that the bank might know upon presentation that such holder had a right to demand the fund. In the case of a demand by an executor, whose title was by operation of law, no such indorsement was necessary. The authority to receive the money upon the certificate was not by any act of Charles Thatcher. It was evidenced by the recorded action of the probate court in granting letters testamentary under the will of Charles Thatcher to the plaintiff. Had the bank seen fit to refuse payment because the plaintiff had not exhibited to them his authority, or for want of knowledge of his authority to make the demand, it would have been incumbent upon him to exhibit such authority, existing, as it did, not by virtue of a judgment of any court of Kansas, but of a court of another state. The reasonable construction of the contract did not require that the cer

tificate should be indorsed either by Charles Thatcher or by the plaintiff, as his executor, as a condition precedent to the payment.

The sixth, seventh, and eighth assignments are based upon an alleged erroneous admission of evidence upon the trial. These assignments of error do not conform to the rules of the court, by failing to set out the evidence, or even by reference directing the court's attention to that part of the record where it may be found; and we shall not consider them.

The ninth assignment of error is that the court gave a peremptory instruction to the jury to find for the plaintiff. The plaintiff's petition stated a cause of action against the defendant, under sections 40, 44, art. 5, c. 23, Gen. St. 1889, in relation to corporations. Upon the trial the plaintiff offered evidence supporting all the material allegations of his case, sufficient to make a prima facie right to recover. The defendant offered in evidence only some records of the meetings of the directors and stockholders, which tended in no manner to defeat the plaintiff's right to recover. There was in fact nothing left for the court to do but to instruct the jury to find a verdict for the plaintiff, and, had it refused upon the request of the plaintiff so to do, it would have been error. Had the court submitted the case to the jury, and had the jury returned a verdict other than that directed by the court, it would have been the duty of the court to have set it aside, and granted a new trial. Upon the facts disclosed, justice has been done, and there is no substantial reason for disturbing the judgment of the court. It is therefore affirmed. All the judges concurring.

WINGROVE v. WILLIAMS. (Court of Appeals of Kansas, Northern Department, C. D. Nov. 15, 1897.)

FILING PLEADINGS-APPEAL-PRESUMPTIONS-DE

-

MURRER TO EVIDENCE DAMAGES ΤΟ
CROPS TRESPASSING ANIMALS.

1. The right of the trial court to grant leave to file pleadings out of time is found in section 106, Code Civ. Proc. This section of the Code leaves the matter of allowing pleadings to be filed out of time wholly in the discretion of the trial court; and, unless the court has abused its discretion in this regard, a judgment should not be reversed for this cause alone.

2. Error will not be presumed; it must be shown. There is no error apparent in the rejection of the husband's testimony offered on behalf of the plaintiff, his wife. The husband is an incompetent witness in a suit wherein his wife is plaintiff, unless the plaintiff shows, or offers to show, that the testimony offered concerned transactions in which he acted as her agent.

3. A demurrer to the evidence was properly sustained by the trial court, in an action for damages to the realty and growing crops upon uninclosed lands, where the evidence fails to show that the herd law had been put in operation by order of the board of county commissioners, in pursuance to chapter 193, Laws 1872, or that the stock were driven upon the land by the defendant, and where the evidence fails to show that plaintiff was the owner of or in possession of said premises.

(Syllabus by the Court.)

Error from district court, Clay county; R. B. Spilman, Judge.

Action by Odille Wingrove against B. K. Williams. Judgment for defendant, and plaintiff brings error. Affirmed.

Chas. Wingrove, for plaintiff in error. F. L. Williams, for defendant in error.

MCELROY, J. This was an action brought by plaintiff in error to recover damages to growing crops, timber, and real estate, caused by defendant in error, permitting his cattle to run at large. The plaintiff alleged in her petition that she was the owner of certain real property, describing the same; that the lands were uninclosed, 25 acres under cultivation, 8 acres in grass, 2 acres of timber; in May, 1894, the defendant wrongfully drove his cattle and other cattle in defendant's possession into and upon such lands; that the stock ate and destroyed the crops, grass, and did break and destroy the timber, and did break and injure the banks of the river. At the November, 1894, term of court, the defendant was given until December 13th to answer, and the case was continued. It appears that the answer was not filed until afterwards, at the March, 1895, term of court. The defendant was allowed to file an answer instanter, and filed a general denial. At the trial, when the plaintiff had rested, the defendant demurred to the evidence. The demurrer was sustained, the jury discharged, and judgment entered against the plaintiff for costs. The plaintiff filed a motion for a new trial, which was overruled, and she presents the case to this court for review, alleging that the trial court erred:

Al

1. That there was an abuse of discretion on the part of the trial court granting defendant leave to file his answer out of time, and on the 20th day of March, 1895. The answer was a general denial. It contained no defense which could in any manner surprise the plaintiff. This was an action in which the plaintiff could not recover without proof. legations of value or of the amount of damages shall not be considered as true by a failure to controvert them. Code Civ. Proc. § 128. The plaintiff says in her brief that her witnesses were present in court to prove her case. She made no application for a postponement or continuance of the trial. It is apparent from the record that she was not taken by surprise either in the matter of defense or evidence. The right of the trial court to grant leave to file pleadings out of time is found in section 106 of the Code of Civil Procedure, which reads: "The court, or any judge thereof in vacation, may, in his discretion and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this act, or by an order enlarge such time." This section of the Code leaves the matter of allowing pleadings to be filed out of time wholly in the discretion of the trial court. Did the trial court abuse its discretion in permitting