then applied to enter the land. Upon the transmission of defend-. ant's proofs to the commissioner of the land office at Washington, that officer, on the seventh of September, 1877, held the land to be mineral in character, but subsequently, and in February, 1878, upon additional evidence touching its character, decided it to be agricultural, and on the fifteenth of May, 1878, said defendant was permitted to enter the land, and having paid therefor, received from the proper officer the proper receipt.

Subsequent to the defendant's settlement upon the land in question, and after he had made proof of his claim thereto in the office of the register and receiver, to wit, in the latter part of the year 1875, one Greene, in the state of Michigan, and one Lamar, in the state of Kansas, made affidavits, as required by statute to obtain land under the act of congress granting additional homesteads to soldiers, and at the same time each of them signed an application in the form required by said act of congress, except that no description of any land was given therein. Each, also, at the same time, together with his wife, signed and acknowledged a paper purporting to be a power of attorney, appointing their true and lawful attorney for them and in their name, place and stead "to enter into and upon and to take possession of any and all pieces and parcels of land in the state of California which we may now own or which we may hereafter acquire or become seized of or in which we may now or hereafter be in any way interested, located under the provisions of the second section, of the act of March 3, 1873, under which laws I am entitled to select and enter one hundred and twenty acres of land in addition to my forty acres homestead, and we further authorize and empower said attorney to grant, bargain, sell, devise, lease and convey and confirm said land or any part thereof to such person or persons, and for such price as to our said attorney shall seem meet, and for that purpose to execute any deed or conveyance thereof." No one was named in the instruments as attorney in fact. After the execution of these papers by Greene and Lamar, and prior to the first of January, 1878, the papers came into the possession of one Snow-in what way does not appear. Some time in the latter part of 1877 one Farr" purchased said papers and the right of said Greene and Lamar to locate land under said claim to an additional homestead." The papers were delivered by Snow to Farr, and thereupon the latter "filled in said application of Greene" with a description of one part, and filled in said application of Lamar” with a description of the other part of the land upon which Faber was settled and which he had applied to enter as already stated.

"Said applications and proofs were thereupon presented to the register of the United States land office at Sacramento, California. Said register thereupon issued his certificates, which were deposited in the general land office at Washington; thereafter, on the first day of May, 1878, letters patent were issued by the government of the United States to the said Greene for the land described in his said application, and also letters patent were issued on the same day to

the said Lamar by the government of the United States for the land described in his application. Each of the said letters patent were delivered to the said Farr, and thereafter, on the twentieth day of May, 1878, Farr inserted in each of the powers of attorney hereinbefore stated to have been signed and acknowledged by Greene and wife and Lamar and wife, the following words, to wit: 'David Johnston of the county of Sacramento, state of California.' Said Johnston thereupon, at the request of Farr and in the name of Greene and Ruth Anne Greene, his wife, made, executed and delivered to the plaintiff herein a good and sufficient conveyance of all the land described in the letters patent issued to said Greene, and on the same day the said Johnston, at the request of said Farr, and in the name of said Lamar and his wife Susan Lamar, made, executed and delivered to the plaintiff herein a good and sufficient conveyance of all the land described in the letters patent to Lamar.”

Plaintiff's cause of action rests upon the deeds thus executed to

him.

Upon these facts we are of opinion that he is not entitled to recover the land from the defendant. When on the fifteenth of May, 1878, defendant was permitted to enter the land pursuant to the proceedings initiated by him in 1872, and to pay for it, receiving from the government the appropriate evidence of payment, he acquired a right which related back to the inception of the proceedings taken by him for its acquisition under the pre-emption laws. The rights thus acquired antedated the beginning of the proceedings under which the plaintiff claims and secured defendant in the possession he had all along held of the land, and entitled him to the ultimate conveyance of the legal title to it.

Judgment affirmed.

MCKINSTRY, J., and MCKEE, J., concurred.

No. 8,353.

AMBROSE v. EVANS.

Department One. Filed October 31, 1884.

PLEDGE OF CERTIFICATES OF STOCK BY DEPOSITARY-RIGHTS OF Owner and Pledgee.The real owner of certificates of stock, who endorses and delivers the same to a third person for safe keeping, cannot recover such certificates from the pledgee of the depositary, until the demand for which they were given in pledge is satisfied.

THE SAME SALE OF CERTIFICATES BY PLEdgee, Pending ACTION FOR POSSESSION.-If, pending an action to recover possession of such certificates, the pledgee sells the same for more than enough to satisfy his demand, the owner is not entitled to a judgment for such excess, because it did not constitute any part of his cause of action.

APPEAL from a judgment of the superior county of San Francisco, entered in favor of an order denying the defendant a new trial. facts.

court for the city and the plaintiff, and from The opinion states the

Roche & Disbeck, for the appellant.

Sawyer & Ball, for the respondent.

MCKEE, J. This was an action to recover twenty shares of railroad stock, or its value.

The case shows that a corporation, known as the Guatemala Central Railroad Company, issued to W. G. Miller fifty shares of its stock; and Miller, being the owner of the same, endorsed and delivered it to Henry Toomey for safe keeping. Toomey afterwards, viz., on the fourth of September, 1879, "cut up" the original stock, and delivered twenty shares of the same to Gomer Evans, the defendant in the action, as security for a loan of $350. While Evans was the holder of these twenty shares, Miller, the original owner of the stock, by an instrument in writing, assigned the same, "together with all causes of action therefor," to Samuel Ambrose, the plaintiff in the action, who immediately notified Evans of the assignment, and demanded of him a return of the stock; but Evans refused to deliver the stock, and, on the twenty-fifth of October, 1880, Ambrose commenced the action in hand to recover the stock, or its value, charging that Toomey had unlawfully transferred it, and that the defendant wrongfully retained the same.

But the endorsement and delivery of the stock by Miller to Toomey, clothed the latter with the indicia of the legal ownership of the stock, so as to enable him to deal with it as his own; and when he, as owner, pledged the twenty shares as security for the payment of a debt which he owed to Evans, the transaction was legal, and the transfer of the stock for that purpose, vested the pledgee with a right to it as security for the money advanced. Evans, therefore, as holder of the stock in pledge, was rightfully in possession of the stock when Ambrose demanded it of him, and when this action was commenced, and he was entitled to hold it until the demand for which he had it in pledge was satisfied.

It is said, however, and the court finds, that the pledgee sold the stock in open market, and realized from the sale the sum of $550, over and above the amount necessary to satisfy his demand, and that he wrongfully claims this surplus, and refuses to pay it to the plaintiff, who is entitled thereto.

But this sale, as found by the court, was made on the sixth of November, 1880, after the commencement of the action in hand; and, while it is true, that the surplus, which remained in the hands of the pledgee after the satisfaction of his demand, did not belong to him, the plaintiff was not entitled to recover it, because it did not constitute any part of his cause of action.

The judgment is, therefore, erroneous. Judgment and order reversed, and cause remanded for further proceedings. MCKINSTRY, J., and Ross, J., concurred.

No. 7,130.

ALEXANDER V. MUNICIPAL COURT OF APPEALS.

Department One. Filed October 31, 1884.

CERTIORARI-OBJECT OF THE WRIT-NO REHEARING PERMISSIBLE AFTER JUDGMENT. An error or irregularity committed in the exercise of a court's jurisdiction is not reviewable on certiorari. A rehearing after judgment on a writ of review cannot be had in the lower court. The case is heard there upon the return made to the writ; and the only question upon the return is, whether the court, whose judgment or order is the subject-matter of review, pursued its jurisdiction. The judgment rendered on that question is reviewable only on appeal.

DISMISSAL OF APPEAL BY MUNICIPAL COURT OF APPEALS-NOTICE OF TO APPELLANT.— The municipal court of appeals of the city and county of San Francisco, had jurisdiction to dismiss an appeal from the justices' court taken on questions of law and fact, after the same has been placed on the calendar by stipulation of the parties, if the appellant fails to appear at the trial, although no notice of the motion to dismiss had been given. Such dismissal, even, if irregular, not reviewable on certiorari.

APPEAL from a judgment of the superior court of the city and county of San Francisco. The opinion states the facts.

R. P. Wright, for the appellant.

J. Rothchild, for the respondent.

MCKEE, J. Appeal from a judgment in proceedings on a writ of review, affirming an order made by the late municipal court of appeals of the city and county of San Francisco, dismissing an appeal, and from an order setting aside an order granting a rehearing.

The order dismissing the appeal was made by the municipal court of appeals in a case pending before it on an appeal taken from the judgment of a justice's court, on questions of both law and fact. While the case was there pending, the parties stipulated in writing that it be placed on the calendar of the court for trial, and that was done; but, on the calling of the case in its order on the calendar, for trial, the appellant did not appear, and the court, upon motion of respondent, ordered that the appeal be dismissed for want of prosecution. That order was made and entered without proof of service of notice of the motion upon the appellant; and it is contended that the court exceeded its jurisdiction in making the order without proof of such service.

The contention is founded upon section 980, C. C. P. That section, as it existed at the time of the proceedings which are called in question, provided:

"Upon an appeal heard upon a statement of the case, the county court may review all orders affecting the judgment appealed from, and may set aside or confirm, or modify, any or all of the proceedings subsequent to and dependent upon such judgment, and may, if necessary or proper, order a new trial. When the action is tried anew, on appeal, the trial must be conducted in all respects as trials in the district court. The provisions of this code as to changing the place of trial, and all the provisions as to trials in the district court, are applicable to trials on appeal in the county court. For a failure to prosecute an appeal, or unnecessary delay in bringing it to a hearing, the county court, after notice, may order the appeal to be dismissed," etc.

These provisions regulated the practice of the court in (1) cases where appeals were taken on questions of law alone, (2) where appeals were taken on questions of both law and fact, and, (3) where there was failure to prosecute the appeal, or unnecessary delay in bringing it to a hearing. The last case arose where an appellant failed to do any of the acts required by section 977, C. C. P., in perfecting his appeal, or in causing the papers in the case to be transmitted and filed in the appellate court. For any omissions, or unnecessary delay, in the performance of the requisite acts, the respondent in the case was entitled, after notice to the appellant, to have the appeal dismissed.

But in the case under review, there was no failure to prosecute the appeal, and no unnecessary delay in bringing it to a hearing; for the papers in the case were promptly transmitted to and filed in the appellate court, and the parties stipulated in writing that it should be heard as soon as it was reached in its order upon the calendar of the court. The appeal was therefore not one of the class of cases dismissable, upon notice, for failure to prosecute the appeal, or for unnecessary delay in bringing it to a hearing; it was an appeal ready to be heard and determined on the questions of both law and fact on which it had been taken. If heard on questions of law the appellant was the actor; if on questions of fact, the plaintiff in the action, although respondent on the appeal, was the actor; and, when the case was called for trial, the burden of proof was upon him to make out his case whether the appellant appeared or did not appear. Regularly, therefore, the respondent, when the case was called for trial de novo, ought to have proceeded with the case and taken a judgment. Instead of taking that course he moved to dismiss the appeal. Assuming that that was an irregular proceeding, it did not affect the jurisdiction of the court over the appeal.

In the exercise of its appellate jurisdiction, the court had authority to hear and determine the motion to dismiss. The fact that the motion was made without notice to the non-appearing appellant, was not jurisdictional. The decision of the motion, without requiring proof of notice of the motion, may have been error; but if so, it was error within the jurisdiction of the court, and an error, or irregularity, committed in the exercise of jurisdiction, is not reviewable on certiorari. Therefore, the judgment on the writ of review, affirming the order of the municipal court, was correct; but the subsequent order, granting a re-hearing on the writ, was incorrect, and it was proper for the superior court to set aside that order.

There is no such thing as a re-hearing, after judgment, on a writ of review. The case is heard upon the return made to the writ; and the only question upon the return is, whether the court, whose judgment or order is the subject matter of review, pursued its jurisdiction: Sec. 1,074, C. C. P. The judgment rendered on that question is reviewable only on appeal.

Judgment and order affirmed.

Ross, J., and MCKINSTRY, J., concurred.