was alleged were taken for him by John Hansen, Jr., as his agent; that the latter unlawfully retained the note and refused to deliver it; and, under the general allegation, that he, as one of the defendants named, claimed to have some interest in the premises, etc., as "mortgagee" or otherwise. The complaint prayed for foreclosure in favor of the plaintiff, and for judgment against John Hansen, Jr., for the delivery up of the note. The defendants George Hansen and Eubanks filed a written appearance April 10, 1896, consenting that plaintiff might take judgment against them for the relief prayed for. The answer of the defendant John Hansen, Jr., filed April 18, 1896, admits the execution of the note and mortgage set out in the complaint, etc., the nonpayment of principal or interest, his refusal to deliver the note to the plaintiff, etc., but denies that be took the note and mortgage as agent of plaintiff, and alleges his own ownership of the same. It concludes with a prayer for the foreclosure of the mortgage in his favor. The case on the issues thus made was called for trial on the 8th day of May, 1897, and the court, after ordering judgment in favor of John Hansen, Jr., also ordered him to file a cross complaint; and ac cordingly on May 10, 1897, an amended answer and cross complaint were filed by him. The answer, amended answer, and cross complaint were served on the plaintiff, but not on the defendants George Hansen and Eubanks. Notice of lis pendens was filed by the plaintiff, but not by the defendant. Findings were subsequently filed, and judgment entered May 10, 1897, in favor of defendant John Hansen, Jr., who on a subsequent sale be came the purchaser, and in due time received his deed.

The sole point made by the appellant is that the court had no jurisdiction to render the judgment of foreclosure. But this point we think is untenable. The ownership of the note and mortgage was involved in the sult as made by the original complaint; and the appearance and default of the defendants authorized the court to proceed, so far as they were concerned, to dispose of them, and to adjudge the foreclosure accordingly. The answer of John Hansen, Jr., praying for foreclosure in his favor, was sufficient to empower the court to render the judgment, and there was not even error in doing so. Code Civ. Proc. 437 et seq. Neither the action nor the cause of action set up in the answer was different from that set up in the complaint. The cause of action was the note and mortgage, or, rather, the obligation thereby created. The action was the right of the mortgagee to recover. Frost v. Witter (Cal.) 64 Pac. 705. The sole issue raised by the answer was the ownership of the obligation or action. Civ. Code, §§ 14, 655,-a question in which the defaulting defendants had no concern. If the answer was defective in not re peating the allegations of the compaint as to the execution of the mortgage, etc., it was

aided, and the defect cured, by the allegations of the complaint. 1 Chit. Pl. 703; Bliss, Code Pl. 437, and cases cited; Herd v. Tuohy (Sac. 789), 65 Pac. 139; Johnson v. Polhemus, 99 Cal. 246, 247, 33 Pac. 908, citing Belknap v. Sealey, 2 Duer, 570, and Harden v. Ware, 5 Pac. Coast Law J. 317 (not officially reported). But we do not think it was defective. The cross complaint ordered and subsequently filed was altogether supererogatory. It neither added to nor detracted from the jurisdiction of the court. Still less can the Jurisdiction of the court be successfully attacked. The court had jurisdiction of the subject-matter and all the parties were before it. Its judgment, therefore, even if erroneous, could not be collaterally impeached. Hawes, Parties, § 6; Jones, Mortg. § 1369; White v. Patton, 87 Cal. 152, 25 Pac. 270; Civ. Code Proc. 416. The judgment should be affirmed.

We concur: GRAY, C.; COOPER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is af firmed.

(133 Cal, 64)

HERBERT KRAFT CO. BANK ▼. BAŃK OF ORLAND et al. (Sac. 905.)

(Supreme Court of California. May 28, 1901.) BANK STOCK-ILLEGAL ASSESSMENTS-SALE

FOR DELINQUENCY-COLLATERAL SECURITY -PLEDGEE — RIGHT OF ACTION-REMEDYEQUITY.

1. Where a bank levied assessments on cer tain shares, and not on others, the shares being sold at public auction for delinquency, and onefourth of its capital stock had not been subscribed, which is a condition precedent to the power to levy assessments by Civ. Code, 331, such assessments were void, and an ac tion by a party holding such stock as security, to compel the bank to recognize it as a stockholder, is not barred by, or included within, section 347, providing that no action must be sustained to recover stock sold for delinquent assessments on the ground of irregularity in the assessment, unless the sum for which the stock is sold be first tendered, or within Code Civ. Proc. § 341, subd. 2, providing that an ac tion must be commenced within six months to recover stock sold for a delinquent assessment, as provided in Civ. Code, § 347.

2. Where a party held stock of defendant bank as security, and the bank illegally levied an assessment thereon, and sold it for delinquency at public auction, the holder of the stock was not compelled to resort to a suit for damages for conversion, but could retain its security, and obtain relief in a suit in equity to compel the bank to recognize it as a stockholder, under a prayer for such relief as to the court may seem proper.

3. Certificates of stock, assigned as security for an indebtedness, give the holder, as pledgee of the stock, a right to maintain an action to compel defendant corporation to recognize it as a stockholder, after an illegal levy of assessment on the stock and sale thereof for delinquency.

Commissioners' decision. Department 1. Appeal from superior court, Glenn county; Oval Pirkey, Judge.

Action by the Herbert Kraft Company Bank against the Bank of Orland and others to obtain recognition as a stockholder. From & judgment for defendants, plaintiff appeals. Reversed.

R. E. Ragland and E. A. Bridgford, for appellant. F. Freeman and Chas. L. Donohoe, for respondents.

COOPER, C. This is an appeal from the judgment for the purpose of reviewing the order sustaining defendants' demurrer to the amended complaint. It is alleged that one W. R. Hall, being indebted to one Kraft in the sum of $3,000, on or about the 26th day of January, 1896, caused to be issued to said Kraft, to secure the said indebtedness, a certificate of 70 shares of the capital stock of defendant bank, and that thereafter, to further secure the said sum, said Hall assigned to said Kraft 30 additional shares of said capital stock. The said stock was of the face value of $100 per share. That, subsequent to the transfer by said Hall to said Kraft of the said shares of stock as security, the said Kraft assigned the indebtedness due him by Hall, and the said stock so held as security, to plaintiff, and "said 100 shares of stock were taken as aforesaid by said plaintiff, and have ever since been, and now are, held by it as a pledge as aforesaid, to secure said indebtedness." That there had been issued by defendant bank 1,000 shares of its capital stock. That defendant bank, on the 18th day of May, 1898, "levied, or pretended to levy, an assessment upon said 1,000 shares of subscribed stock, of $32.637 per share." That notice of said assessment was regularly published, the assessment was not paid, and defendant bank, through its directors, made an order that said 100 shares, and other shares upon which the assessment was delinquent, should be sold at public auction, and accordingly, on the 25th day of July, 1898, the said 100 shares, so held by plaintiff as security, were sold to defendants Nelson and Scearce, and a new certificate issued to them. That the capital stock of defendant bank is $500,000, divided into 5,000 shares, of the par value of $100 each, of which only $100,000 has been subscribed, and that one-fourth of the capital stock has not at any time been subscribed. That defendant bank never intended to, and did not, collect the said assessment upon any other stock except that so held by this plaintiff, and that said assessment was not uniform, and was intended as a means of enforcing an indebtedness due by Hall, the original owner of the said 100 shares, to the defendant bank. That the defendants allege and claim that defendants Nelson and Scearce are the owners of, and hold the only title to, said 100 shares of stock. That said Nelson and Scearce are, and at all times were, directors of defendant bank. That defendant bank refuses to recognize this plaintiff as the holder of said stock, or

to permit it to enjoy any of the privileges or benefits of a stockholder of defendant bank. The demurrer was upon several grounds, but we will discuss those only upon which defendants rely. We must presume that all the facts set forth in the amended complaint are true.

1. It is claimed that the action is barred by the provisions of Civ. Code, § 347, which is as follows: "No action must be sustained to recover stock sold for delinquent assessments, upon the ground of irregularity in the assessment, irregularity or defect of the notice of sale, or defect or irregularity in the sale, unless the party seeking to maintain such action first pays or tenders to the corporation, or the party holding the stock sold, the sum for which the same was sold, together with all subsequent assessments which may have been paid thereon, and interest on such sums from the time they were paid; and no such action must be sustained unless the same is commenced by the filing of a complaint and the issuing of a summons thereon within six months after such sale was made;" and by subdivision 2, § 341, Code Civ. Proc., which provides that an action must be commenced within six months "to recover stock sold for a delinquent assessment as provided in section 347 of the Civil Code." It is said that the court below sustained the demurrer upon this ground. We do not think the action was barred under the provisions herein quoted. This is not an action to recover the stock sold. Neither is the action for the purpose of recovering damages for its conversion. Section 347, Civ. Code, applies only where the action is for the recovery upon the ground of irregularity in the assessment, irregularity or defect in the notice of sale, or defect or irregularity in the sale. The assessment in this case was not an irregular assessment merely, but a void one. If onefourth of the capital stock had not been subscribed, the defendant bank had no power to levy the assessment. Civ. Code, § 331; Investment Co. v. Merrill, 108 Cal. 492, 41 Pac. 487; Railway Co. v. Hartman, 116 Cal. 262, 48 Pac. 65. An assessment upon certain of the shareholders and not others, is invalid. Mor. Priv. Corp. §§ 154, 305; Kohler v. Agassiz, 99 Cal. 15, 33 Pac. 741.

2. It is claimed that the complaint does not state facts sufficient to constitute a cause of action. The main argument under this head is that the complaint states a cause of action in equity in the nature of an action to quiet title to personal property. We are not inclined to view the complaint in so strict a technical sense. It may not be a model of pleading, but it states the facts, so that we know the points relied upon by the pleader. The prayer of the complaint asks for such relief as to the court may seem proper. If the facts are proven as alleged, we think the court would have no trouble in determining the relief that is

usual and proper in such cases. It is said in Mor. Priv. Corp. § 208: "Upon the same principle, it has been held repeatedly that, if shares in a corporation are transferred upon the books, without the consent of the holder, under a forged assignment or power of attorney, the real owner is not thereby devested of his rights as shareholder, and is entitled to have his shares replaced upon the books, and to recover any dividends which may have accrued upon them. If the corporation refuses to recognize the real owner as a shareholder, or refuses to deliver him a new certificate of shares when entitled thereto, he may obtain specific relief by bill in equity, or may sue the company for the value of the shares." In speaking of the remedy of a stockholder in such case, it is said by Cook, in his work on Stocks,, Stockholders, and Corporation Laws (volume 1, § 389): "He may apply to a court of law for a mandamus to the corporation to compel it to open its books and allow the registry, or to pay him damages if registry is impossible; or he may sue the corporation at law for damages, on the ground that by its refusal it has been guilty of a conversion of his stock." In the case of Dewing v. Perdicaries, 96 U. S. 193, 24 L. Ed. 654, it appeared that a part of the stock of the Charleston Gaslight Company was illegally sold pursuant to a statute of the Confederate States during the Civil War, in 1862, on the ground that it belonged to "alien enemies." In the opinion it is said: "The complainant prays that the sale may be vacated; that the certificates still outstanding, issued to the purchasers and their assignees, may be declared invalid, and ordered to be delivered up and canceled. The complainant had a clear right, on account of the cloud cast upon his title, and of the injury otherwise special to himself, of which he complained, to be heard upon his bills. The entire subject and the necessary parties being before the court, and the court having jurisdiction for one purpose, might well take and exercise it as to everything involved in the controversy." There is no doubt of the authority of a court of equity to give a stockholder relief in such case as is here alleged. Telegraph Co. v. Davenport, 97 U. S. 369, 24 L. Ed. 1047; Pratt v. Manufacturing Co., 123 Mass. 110, 25 Am. Rep. 37; Pollock v. Bank, 7 N. Y. 274, 57 Am. Dec. 520; Moses v. Watson, 65 Ga. 198; Baker v. Wasson, 53 Tex. 155. It would be strange if a court of equity in such case could not grant relief. The plaintiff has a right to the stock held by it, and to dividends upon it, if any such are paid. The defendant bank will not be allowed to levy an assessment without authority, and sell the stock under such void assessment to its own directors, and refuse to allow plaintiff in any way to enjoy the privileges of a stockholder. It is true plaintiff could have brought a suit for damages for conversion but it was not compelled to do so.

65 P.-10

It

has the right to retain the security it holds unimpaired by any wrongful acts of the corporation.

3. The plaintiff has the right to maintain the action as pledgee of the stock. The certificates were assigned to plaintiff. Such certificates are recognized as the evidence of right and ownership, and certainly confer the right upon the holder to protect his special interest therein. Suppose the pledg or of plaintiff has fled from the country, and cannot be served with process; can it be that the plaintiff is unable to enforce its rights or to receive the income from the property it holds as a pledge? We do not think the defendant bank and the purchasers at the void sale can be heard to say that plaintiff has not the capacity to maintain the action. The judgment should be reversed, and the cause remanded, with directions to the court below to overrule the demurrer to the complaint, and allow defendants a reasonable time to answer.

HORN et ux. v. BOISE CITY CANAL CO. (Supreme Court of Idaho. May 20, 1901.) PERSONAL INJURIES-DAMAGES-NEGLIGENCE -DANGEROUS PREMISES.

1. In case of personal injury resulting from carelessness, mental and physical suffering are elements of damage, the amount of which must be left to the good sense and sound judgment of the jury, whose verdict should not be disturbed, except in case of a clear abuse of discretion.

2. The owner of a ditch, which is upon a public street in a city, is under obligation to keep it in such condition as the safety of persons traveling upon the street, and exercising reasonable care to avoid danger, demand; and the failure to keep same in such safe condition is negligence, and renders the owner liable to damages for personal injuries resulting from such condition, in case the injured parties are not guilty of contributory negligence. (Syllabus by the Court.)

Appeal from district court, Ada county; George H. Stewart, Judge.

Action by Jake Horn and wife against the Boise City Canal Company. Judgment for plaintiff's, and defendant appeals. Affirmed.

Joseph W. Huston, for appellant. C. C. Cavanah, for respondents.

PER CURIAM. This action was commenced in the district court of Ada county to recover damages for personal injuries occasioned by the respondent Ardella Horn, wife of the respondent Jake Horn, by walking into a ditch owned by the appellant, the

Boise City Canal Company, running through the city of Boise for a large portion of the way along the north side of Grove street, in said city, but upon the highway. The accident occurred between Eighth and Ninth streets. The respondents were traveling along said highway, returning in a cab from the depot to the Overland Hotel, where they were stopping. After leaving Ninth street, going easterly towards Eighth street, on Grove, one of the cab horses fell; whereupon the driver requested the respondent Mrs. Horn to step out of the cab for fear of an accident, as the horse might, in its struggles to get up, cause the cab to lurch, and thus injure said respondent. The evidence shows that respondent inquired as to where the sidewalk could be found, to which her husband, respondent Jake Horn, replied, "Over there." There were a number of arc lights along the street, and the ground upon this occasion was covered with snow. The respondent Ardella Horn started to the north side of the street, in order to get upon the sidewalk. In approaching the ditch it appeared dark, snow being on either side, and said respondent naturally concluded that the ditch was the sidewalk, and stepped into it; the water being filled with slush ice, running rapidly, and about two feet eight inches in depth. Said respondent lost her footing, sank once or twice, and attracted her husband by her screams, who rescued her from the ditch. Respondent was naturally chilled by her contact with said ice water, and suffered considerably from nervousness during that night, and for some time afterwards suffered more or less physical pain from her ankle being sprained and one of her wrists injured in her fall. The evidence does not show that said respondent lost any time, or was so disabled as to be disqualified from performing her ordinary domestic duties for any length of time, and no actual damage, by way of expense for medical service, was proven at the trial. The amount of damages demanded is $600, for which amount the jury brought in a verdict in favor of the respondents. The evidence shows that Grove street is 80 feet wide; that the accident in question occurred at a point opposite the Hardman Block; that it is 73 feet from the Hardman Block, on the southerly side of the street, to the said ditch, which is on the northerly side of the street, running parallel with said street. Appellant, at the close of the trial, moved for a nonsuit, which motion is as follows: "Defendant moves for a nonsuit, on the ground that the evidence on the part of the plaintiffs fails to show any negligence on the part of the defendant, and does show contributory negligence on the part of the plaintiffs." This motion was overruled by the court. The appellant presenting no evidence, the cause was submitted upon instructions to the jury, which returned the said verdict. Appellant insists upon a reversal upon the following grounds: (1)

That the damage or injury claimed by the plaintiffs, if any was sustained by the plaintiff's, was not attributable to any negligence of the defendant corporation as the proximate cause thereof; (2) that the evidence fails to show any negligence on the part of defendant; (3) the evidence shows palpable contributory negligence on the part of plaintiffs; (4) there was no proof whatever of damages.

There is no question but that the appellant is the owner of a ditch in the city of Boise, upon one of the public highways. This ditch being upon the public highway, in an inhabited city, it was the duty of appellant, as owner, to keep the same in such condition as not to endanger the life or person of the traveler upon said street. The evidence shows the failure upon the part of appellant to keep this property in such condition. This failure was negligence, and such as renders appellant responsible to persons who, exercising reasonable care, should be injured by reason of such condition of said ditch. We do not think the evidence shows any contributory negligence upon the part of the respondent who was injured. Both she and her husband testified that they were ignorant of the existence of said ditch in that locality. Her attempt to reach the sidewalk, under the circumstances, was natural and prudent. It being night, the immediate locality being but dimly lighted, and the ground on either side of said ditch being covered with snow, the water, as a matter of course, appeared dark, and respondent evidently believed, as testified to by her, that said ditch was the sidewalk.

It is true that the evidence of no witness states any amount of damages, but the respondent suffered more or less physical pain for a considerable length of time. Both mental and physical suffering are elements of damages, and are to be considered, in actions of tort, by the jury. This is one of those cases in which it is impossible to show with reasonable certainty the amount of damages sustained by result of an injury. This being true, the measure must necessarily be left to the good sense and sound discretion of the jury. It is well said in 8 Am. & Eng. Enc. Law (2d Ed.), at page 630, that "in no other class of cases does the amount of damages rest so largely in the discretion of the jury as in those involving the recovery for the infliction of personal injuries, and the courts are very loath to interfere with a verdict in such cases, in the absence of plain evidence that the jury have abused the discretion vested in them." The same authority says: "The real question in all these cases is not whether the amount of the damages awarded by the jury is more or less than is, in the opinion of the court, proper, but whether it is shown that the jury have abused the discretion vested in them." While it appears to us that the verdict of the jury is for rather a large amount for the in

jury received, yet under the evidence in the record, which we have carefully examined, we do not feel authorized to disturb the verdict upon the ground that the jury has abused the discretion vested in it, or that the jury has given an excessive verdict for damages while acting under the influence of passion or prejudice. For the foregoing reasons, the judgment is affirmed. Costs awarded to the respondents.

(7 Ariz. 399)

GRIFFIN v. HURLEY. (Supreme Court of Arizona. June 1, 1901.) MINERS-LABOR FOR LESSEE-MECHANIC'S LIEN-FORECLOSURE.

Where miners perform labor for the lessee of a mine under a contract with him alone, they are not entitled, under Rev. St. par. 2276, to a judgment against the owner of the fee, foreclosing mechanics' liens on the freehold.

Appeal from district court, Yavapai county; before Justice Richard E. Sloan.

Action by J. C. Hurley against J. E. Harper and another. From a judgment in favor of plaintiff, defendant N. L. Griffin appeals. Reversed.

Herndon & Norris, for appellant. J. C. Forrest, for appellee.

STREET, C. J. J. C. Hurley brought suit in the district court of Yavapai county against J. E. Harper and N. L. Griffin to recover the sum of $740.95 upon four separate causes of action; the first cause of action, for wages in the sum of $292 for work done by him on the Hidden Treasure mine; the second, for wages due Ben Herr, in the sum of $180; the third, for wages due Joseph Hull, in the sum of $185; and the fourth, for money due Stukey Bros., in the sum of $55.50, for materials furnished to be used in and upon the Hidden Treasure mine,which accounts were assigned to Hurley. He alleged that the work was done and the material furnished on the Hidden Treasure mine, and that the defendants, Harper and Griffin, were the owners and reputed owners and in the actual possession thereof; that mechanics' liens had been filed to cover each of said accounts, and those filed by Herr, Hull, and Stukey Bros. had been assigned to him for a valuable consideration; and he asked that the liens be foreclosed, and the property sold to satisfy the liens. Defendant Harper did not make an appearance, nor answer the complaint. The de fendant Griffin made answer, denying each and every material allegation. The cause was tried to the court without a jury, and the court made its findings of fact, in effect, as follows: That the said defendant N. L. Griffin was on the 6th day of December, 1899, and long prior thereto, and now is, the owner and reputed owner of the Hidden

That

Treasure mining claim. That plaintiff, under a verbal contract and agreement with defendant J. E. Harper, performed work and labor as a miner in and upon said mine from the 6th day of December, 1899, to the 17th day of February, 1900, both inclusive, and that said defendant J. E. Harper is indebted to the plaintiff therefor in the sum of $262, and that said defendant J. E. Har per was on the 17th day of February, 1900, indebted to the persons hereinafter named, upon a verbal contract, for work and labor done and performed as miners for the said defendant in and upon said mine, to wit: To Ben Herr, from the 7th day of December, 1899, to the 17th day of February, 1900, both inclusive, in the sum of $180; to Joseph Hull, from the 7th day of December, 1899, to the 17th day of February, 1900, both inclusive, in the sum of $185. said defendant J. E. Harper at the time said labor and services were performed as aforesaid was in the possession and control of said mining property, under and by virtue of a lease and bond executed by the said defendant N. L. Griffin to the said J. E. Harper, and that said J. C. Hurley, at the time of performing the labor and services for J. E. Harper as aforesaid, knew that said mining property was being operated under a lease and bond from the owner of said mining property, N. L. Griffin, but had no knowledge of the particular terms and conditions of said lease and bond. That each of the above-named persons (Ben Herr and Joseph Hull), for a valuable consideration, on the 19th day of February, 1900, assigned his claim against the said defendant J. E. Harper to this plaintiff, which said claims, together with the amount due plaintiff for his said services as aforesaid, aggregate the sum of $627. The court further found in favor of plaintiff as to filing mechanics' liens to cover said amount, and the bringing of the action in the manner and within the time prescribed by statute. The court made its conclusions of law and judgment as follows, to wit: "That said defendant J. E. Harper is indebted to plaintiff in the sum of $654.47, with interest thereon at the rate of seven per cent. per annum from the date hereof until paid, and that plaintiff is entitled to a lien upon said property therefor. Second. That plaintiff is entitled to a decree foreclosing his said lien, as prayed for in his said complaint, upon the property hereinbefore described, to satisfy the sum of $654.47 and the costs of this suit. Wherefore, by reason of the law and the evidence aforesaid, it is ordered, adjudged, and decreed that the said lien, as it existed on the said 7th day of December, 1899, upon the following property, to wit: The Hidden Treasure mining claim, situate in the Walker mining district, county of Yavapai, territory of Arizona, the notice of location whereof is of record in Book 19 of Mines, p. 383, records of said Yavapai county. Ari.