TEMPLE, J. This action was brought to effect the redemption of a tract of land from the lien of a mortgage alleged to have been given by the Brentwood Coal Company, a corporation, to one James T. Sanford. It is alleged that defendant is in possession of the land as assignee of said mortgage, and is holding the land as security. It is also averred that the corporation became insolvent, and was disincorporated; plaintiff being at the time a stockholder, owning 3,000 shares of the capital stock of the corporation. As such stockholder she asserts the right to redeem the land from said mortgage. She charges that the defendant had been in possession for many years, and had received a large amount of rents and profits from the land, of which she asks an accounting, to determine the amount which will be required to enable her to redeem. Many other matters are averred in the complaint, which it is not necessary to state.

Issue was taken by defendant upon many allegations in the complaint, and particularly in regard to the ownership of stock on the part of plaintiff in the said corporation. The denial is full and specific, and the court upon that issue found that "the plaintiff herein was not on the 4th of December, 1883, or prior thereto, and was not at any time since said 4th day of December, 1883, or at the time of the commencement of this action, the owner or holder of three thousand shares, or any shares or share, of the capital stock of said Brentwood Coal Company." This was a finding to the effect that plaintiff had no right to bring the suit, and was not interested in the controversy. That being so, she is not a party aggrieved by the judgment, and cannot appeal therefrom. The appeal is upon the judgment roll, and without a bill of exceptions. No motion for a new trial was made, or, if there was, it does not appear from this record. The finding cannot be questioned on the appeal, nor can we consider errors of law committed at the trial, if such there were. We are asked to consider whether the findings and pleadings support the judgment, and whether they do not necessitate a different judgment; but, as the finding must stand that plaintiff has no interest in the matter, she will not be heard upon those questions. Blythe v. Ayres, 102 Cal. 260, 36 Pac. 522, 41 Am. Rep. 188; In re Blythe's Estate, 108 Cal. 126, 41 Pac. 33. The relief which appellant demands here is that the trial court be directed "to enter final judgment in favor of plaintiff upon the findings and admissions in the pleadings." We are not pointed to any admissions in the pleadings in regard to the ownership on the part of plaintiff of any stock in said corporation, or as to her interest in this controversy, and we have found none. The appeal is dismissed.

We concur. MCFARLAND, J.; VAN DYKE, J.; GAROUTTE, J.

CROSS-EXAMINATION-INSTRUCTION.

1. Under Pen. Code, § 1151, providing that a general verdict on a plea of not guilty is ei ther "guilty" or "not guilty," which imports a conviction or acquittal of the offense charged in the indictment, the designation of the of fense in a general verdict is mere surplusage, and a verdict finding defendant guilty of "burgulary" is valid.

2. Defendant leased a house in which there was no furniture. A vacant house on another farm, about nine miles distant, contained household furniture, which was found in defendant's possession at the time of his arrest. One witness testified that the defendant had borrowed a team about the time the furniture was supposed to have been taken, and another witness testified as to seeing such a team going in the direction of the vacant house, and later return towards the defendant's place. Defendant made many contradictory statements as to where he obtained the furniture. Held sufficient to warrant a conviction for burglary.

3. The fact that a person was living with one guilty of burglary at the time the burglary was committed, and that he made untruthful statements as to where the guilty party obtained the property, is not sufficient evidence to warrant the conviction of such person as participating in the crime.

4. Where, on a prosecution for burglary, the defendant's wife had testified as to the purchase by her husband of the alleged stolen articles, it was proper cross-examination to ask her as to statements, inconsistent with her testimony, at the time of her husband's arrest.

5. On a prosecution for burglary, it was not error to instruct that the possession of stolen property soon after the commission of the alleged offense by the person charged was a circumstance tending to prove their guilt, and that the jury should consider the proximity of the place where the property was found to the place of the alleged burglary, the lapse of time since the property was taken, the character and nature of the property taken, and whether the parties denied or admitted the possession, in determining how far the possession of the property by the accused tended to show his guilt.

6. On a prosecution for burglary it was not error to leave it to the jury to formulate their own verdict on blank forms furnished, stating the degree of guilt of the defendants, if either of them were guilty, and that, if the jury needed further instruction as to framing a verdict, it should return to the court room for such instruction.

Commissioners' decision. Department 1. Appeal from superior court, San Joaquin county; Edward I. Jones, Judge.

Walter Brady and George Helms were convicted of burglary, and they appeal. Affirmed as to Brady, and reversed as to Helms.

A. V. Scanlan, for appellants. T. L. Ford, Atty. Gen., and C. N. Post, Asst. Atty. Gen. for the People.

CHIPMAN, C. Defendants were jointly accused of the crime of burglary, were tried together and convicted, the jury returning the following verdict: "We, the jury in the above-entitled cause, find Walter Brady and George Helms, defendants, guilty in the first degree for burgulary." Defendants

• Rehearing denied August 6, 1901.

moved for their discharge, and also for a new trial, and both motions were denied, and they appeal from the judgment and from the order denying their motion for a new trial.

1. The motion for discharge was on the ground that the verdict was no verdict, because there is no such offense known to the law as "burgulary"; citing People v. St. Clair, 56 Cal. 406, where the indictment charged an entry into a stable with intent to commit "larcey." It was held that there was no such felony as "larcey" known to the law, and that the maxim idem sonans did not apply. In that case the fatal defect was in the indictment itself, and not in the verdict of the jury. The error here was in the orthography of the word "burglary" as used in the verdict, and was merely a clerical error, which seems to have been overlooked by the court and counsel until the motion for a new trial was made. Where the intention of the jury is unmistakable, mere clerical errors should be disregarded. Jeansch v. Lewis, 1 S. D. 609, 48 N. W. 128. The verdict, being general, and fixing the degree of the crime, would have Been complete had the word "burgulary" been omitted altogether. Pen. Code, § 1151, which provides: "A general verdict upon a plea of not guilty is either 'guilty' or 'not guilty,' which imports a conviction or acquittal of the offense charged in the indictment." The obnoxious word may be rejected as surplusage, if necessary to sustain the judgment. But, aside from the foregoing considerations, we think the word used by the jury cannot be read as any other word than "burglary."

2. It is urged that the evidence is not sufficient to sustain the verdict, for the reason that there was no evidence in any way tending to establish the charge except the possession of the property claimed to have been stolen. We have carefully examined the testimony, and are satisfied that there is sufficient evidence to support the verdict as to defendant Brady, but not as to defendant Helms. It appeared that on July 5, 1900, defendant Brady leased from one Keagle a place in the country, known as the "Pope .Place," situated between Stockton and Lodi, about three miles south of the latter town, and moved into the house on the place with his family, including defendant Helms, and they remained there until July 22, 1900, when defendants were arrested, and that there was no furniture in the house when Brady took possession. This place is about nine miles from the Cy Moreing place, owned by one Solari. On July 7th a vacant house on this place contained the various household articles afterwards found in the house rented by Brady, and the property was fully identified by Solari. He went to his place July 21st, and discovered that the articles were gone, and he testified "that he saw them on the Pope place on July 23, 1900." One Spelti testified that defendants

on July 11, 1900, borrowed from the Lewis ranch, where witness was working, a sorrel horse and bay mare with a sorrel colt; that they were returned to the Lewis ranch, July 23d, by Constable Coleman, of Lodi; that defendants came to witness' place in a wagon, and that Brady's wife and some children were in the wagon. Witness Mrs. America Gum testified that on the 8th of July defendant Brady, with his wife and grandson. came to her house in a light two-horse wagon, and borrowed and took away with him a heavy two-horse wagon. This wagon was afterwards found near the Pope place. Witness Dolan testified that on July 13th. "a little after sundown," he saw two wagons passing in the direction of the Cy Moreing place, about two miles south of where the witness was; he was near the wagons, one of which was a large two-horse wagon, drawn by a bay and sorrel; the other was a "small, heavy-sized spring wagon, with a bed about twelve feet long, drawn by a bay and a brown"; the teams were traveling close together, and "a little sorrel colt traveling with one of the teams, and, going down, he was right near the sorrel horse"; that "the same night, about an hour and a half later, he saw the same teams, wagons, and persons pass him, at the same place, going north; that he was about twenty feet from them, and had a lantern with him; that after they passed he put away his lantern, got on a horse, and followed them about two miles, to what is called the 'Goodwin Place,' where he stayed about an hour, listening to the wagons, which continued north for about two miles, and then turned west in the direction of the Pope place." He did not recognize the persons, and did not testify who they were. He testified that he afterwards saw one of the same wagons "at the Tyndal place, two hundred yards south of the Pope place." This was the same wagon that was borrowed from Mrs. Gum. Another witness "saw defendant Brady and another man, whom he did not know, in Lodi on July 20th, with Mrs. Gum's wagon." Other witnesses testified to seeing on the Pope place the wagons and horses and colt similar in description to those testified to by the witness Dolan. There was much evidence tending to show that defendant Brady made contradictory statements as to where he got the property, claiming that he bought the stove in San Francisco, and that he bought some of the property at a secondhand store in Stockton. When asked to go with the arresting officer to the place referred to in Stockton, he went with him, but was unable to find it, and he made contradictory statements as to where the place was. He also claimed that he bought the articles from an expressman in Stockton named Frank A. Jones, but several witnesses who knew all the junk dealers and expressmen in Stockton, as well as the arresting officers, were unable to locate or

find any such person in Stockton. Without further statement of the evidence, we think the jury had sufficient facts before them to warrant a verdict of guilty as to defendant Brady.

There is no evidence connecting Helms with the taking or with the possession of the goods, except that he was living in the house with Brady. There was evidence that Helms told a witness that Brady got the articles where Brady had told the witness he got them; that Helms was with Brady when the latter got a team from the Lewis ranch, but not when he got the wagon from Mrs. Gum, which was hired to Brady. So far as appears, defendant Brady had a team and wagon of his own, and it appears that on July 9, 1890, some articles of furniture were delivered to Brady at the Union Transportation Company's wharf at Stockton. Helms was seen with Brady about July 22d, and he testified that he was living with him on July 9th. But there is no evidence that he had possession of the stolen property or made any claim to it whatever or had anything to do with it. If he made statements contrary to the truth as to where Brady got it, that fact would not tend to show that Helms aided in stealing it. He was not asked to explain his possession of the property, and made no explanation, for the obvious reason that he was not in possession of it.

3. Mrs. Brady was a witness for defendants, and on cross-examination the district attorney asked her the following question: "Q. Mrs. Brady, do you remember being in the sheriff's office on the 24th of July, 1900?" Defendants objected as not cross-examination. The question was completed by stating the persons present, after which the witness was interrogated at considerable length as to what was said by her at that time relative to certain of the stolen, articles and where her husband got them. She had testified in chief that her husband purchased the property in question in Stockton on July 9th from one Jones, and paid $18 for it, taking Jones' receipt for the money. It was competent on cross-examination to impeach the witness by showing that she had made statements inconsistent with her testimony, relative to the matter about which she had testified in chief, and the cross-examination was to lay the proper foundation. We see no error in the ruling.

4. The following instructions are objected to: "The court instructs the jury that the possession of stolen property recently after the commission of the alleged offense by the persons charged, if you find any such property to have been in their possession, if unexplained, is a circumstance tending to prove their guilt; and if the jury believe from the evidence that the defendants were found with the stolen property in their possession, if you find any was feloniously taken, then, to determine the weight to be attached to that circumstance as tending to prove guilt,

the jury should consider all the circumstances attending such possession, proximity of the place where found to the place of the alleged burglary, the lapse of time since the property was taken, the character and nature of the property taken, whether the property was concealed, whether the parties denied or admitted the possession, and the demeanor and character of the accused. All of these circumstances, so far as they have been proved, are proper to be taken into account by the jury in determining how far the possession of the property by the accused, if it has been proved, tends to show his or their guilt." The court also gave the following: "Although you cannot, under the information, find the defendants, or either of them, guilty of any offense other than burglary, it would be somewhat difficult to furnish you with the complete form of every possible verdict at which, according to your view of the evidence, you may arrive. The court will therefore furnish you mere blank forms. Upon one of such forms you will formulate your verdict, and your foreman will sign it. You will be careful to dispose of the whole case, observing that there are two defendants, and if you find either or both of them guilty of burglary you will specify whether in the first or second degree. With proper care, you will probably be able to frame a verdict, but, should you need further instruction, you may request the officer in charge of you to return you to the court room for such instruction." We discover no error in either of these instructions. The judgment and order as to defendant Brady should be affirmed, and as to defendant Helms they should be reversed.

Code Civ. Proc. § 399, provides that, in case of change of venue, the court to which the action is transferred has the like jurisdiction as if the case had been originally commenced therein. Section 940 provides that an appeal is taken by filing with the clerk of the court in which the judgment or order appealed from was entered a notice stating the appeal, which is ineffectual unless, within five days after service thereof, an undertaking be filed with the clerk. Held, that appeal from an order changing the place of trial will be dismissed where the notice of appeal and the bill of exceptions settled by the judge of the court of the county from which the change was made, and the undertaking on appeal, were filed in the county to which the cause was transferred, instead of the county in which the action was begun.

In bank. Appeal from superior court, San Mateo county; George H. Buck, Judge.

Action by J. H. Mansfield against D. E. O'Keefe. From an order changing the place of trial, defendant appeals. Dismissed.

John E. Richards and Jas. T. O'Keefe, for appellant. H. E. Highton, for respondent.

VAN DYKE, J. Motion to dismiss an appeal. The appeal is taken by defendant, or attempted to be taken, from an order of the superior court of the county of San Mateo changing the place of trial of said cause therefrom to the superior court of the county of Santa Clara. The motion to dismiss the appeal is based upon the ground that the notice of appeal from said order, as well as the bill of exceptions settled by the judge of said county, and the undertaking on appeal, were each and all filed in the superior court of the county of Santa Clara, instead of being filed in the superior court of the county of San Mateo, in which court said order appealed from was entered, and that as matter of law no appeal has been taken from the order transferring the trial of said cause. "An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney." Code Civ. Proc. § 940. The same section declares that "the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived by the adverse party in writing." The next section provides that the undertaking on appeal must be executed on the part of the appellant, by at least two sureties, in a sum not exceeding three hundred dollars, "or that sum must be deposited with the clerk with whom the judgment or order was entered, to abide the event of e appeal." In support of the motion the respondent has submitted a certificate from the county clerk of Santa Clara county, showing that the notice of appeal from said order, and the bill of exceptions settled by the judge of the superior court of San Mateo county, and the undertaking on appeal, were filed in said Santa Clara county, and a certificate from the county clerk of San Mateo county, in which it is stated that no notice of appeal from said order has been filed in that county.

The appellant, in resisting the motion to dismiss, admits that section 940 is applicable to appeals in general, but contends that an appeal from an order changing a place of trial is exceptional, and that it is controlled by section 399 of the Code of Civil Procedure, which provides that, in case of a change of place of trial, "the court to which an action or proceeding is transferred has and exercises over the same the like jurisdiction as if it had

been originally commenced therein." The meaning of that provision, as the language imports, is that the court to which the action is transferred, from that time forward, has a like jurisdiction over the trial of the action, or other proceeding relating thereto, as though the action had been commenced therein, but not over orders or proceedings had prior thereto by a court of another county. The appellant from that order must furnish this court, among other papers, with a copy of the order appealed from. Code Civ. Proc. § 951. The order appealed from in this case must have been entered in the minutes of the court in which it was granted. Code Civ. Proc. § 1003. And the clerk of that court would be the proper one to furnish a copy of said order for the appellant. The alleged error complained of was committed by the superior court of San Mateo county, and the relief is sought as against that court, and the notice of appeal and undertaking must be filed in the court from whose judgment or order the appeal is taken. The only cases cited by the appellant in resisting the motion are Krumdick v. Crump, 98 Cal. 117, 32 Pac. 800, and Brady v. Times-Mirror Co., 106 Cal. 56, 39 Pac. 209. In both of these cases the court below refused to transfer the trial of the cause, and the appeals were taken from such order. They have no bearing on the question involved on this motion to dismiss. The appeal not having been taken in the manner prescribed by law, the motion to dismiss must be granted; and it is so ordered.

We concur: BEATTY, C. J.; TEMPLE, J.; MCFARLAND, J.

(133 Cal. 364)

JACOBS et al. v. SUPERIOR COURT et al. (S. F. 2,816.)

(Supreme Court of California. July 15, 1901.) PROHIBITION-ARRESTING PROCEEDINGS IN RECEIVERSHIP-ADEQUATE REMEDY.

Since Code Civ. Proc. §§ 939, 943, provide for an appeal from an order appointing a receiver, and for stay of the order by undertaking on appeal, prohibition will not lie to arrest proceedings in a receivership; section 1103 authorizing writ of prohibition only where there is not an adequate remedy at law.

In bank. Petition by Jacobs & Flack for writ of prohibition to arrest certain proceedings in superior court. Dismissed.

Jacobs & Flack, in pro. per. Joseph H. Budd and Campbell, Metson & Campbell, for respondent. S. M. Spurrier, for receiver.

MCFARLAND, J. This is an original petition here for a writ of prohibition to arrest all further proceedings upon a certain order of the respondent, the superior court. appointing a receiver. The appointment of the receiver was made in a certain action brought by one Gillis against one Galvan and others to foreclose a mortgage executed

Gillis on a certain The order appoint

by Galvan and wife to tract of farming land. ing a receiver authorizes him to take possession of said land, with the crops growing thereon, etc. The receiver took possession in accordance with the order, and ousted petitioners, who claim to have been in possession as lessees of the mortgagor, and to have had growing crops on the land. Petitioners argue strenuously that, under the facts shown, they were owners of the growing crops; that the plaintiff in the action, being merely a mortgagee of the naked land, has no legal right, before foreclosure sale, to interfere, by receivership or otherwise, with their possession and control of said crops; and that for these reasons, and other reasons given, the appointment of the receiver was unwarranted. On the other hand, respondents contend that the asserted lease was without consideration, intended merely to delay creditors, and void. But, without examining into these questions, or determining whether or not the appointment of the receiver was proper, and authorized by law, it is sufficient to say that this petition for prohibition cannot be sustained, because petitioners have "a plain, speedy, and adequate remedy in the ordinary course of law," within the meaning of section 1103 of the Code of Civil Procedure. Agassiz v. Superior Court, 90 Cal. 101, 27 Pac. 49; Mines, etc., Soc. v. Same, 91 Cal. 101, 27 Pac. 532; Murphy v. Same, 84 Cal. 596, 24 Pac. 310; Strouse v. Police Court, 85 Cal. 49, 24 Pac. 747. Formerly-and when Havemeyer v. Superior Court, 84 Cal. 327, 24 Pac. 121, 10 L. R. A. 627, 18 Am. St. Rep. 192, was decided -there was no appeal from an order appointing a receiver, but in 1897 (St. 1897, p. 55) section 939 of the Code of Civil Procedure was amended so as to allow such appeal; and at the same time section 943 was amended so as to provide for the staying of an order appointing a receiver by an undertaking on appeal. These amendments were apparently intended to afford a remedy for prodigal, unwise, and unwarranted appointments of receivers (which seems to be a growing evil); and we think that they do afford an adequate remedy, as contemplated by said section 1103 and the decisions of this court on the subject. The fact that a question of jurisdiction arises does not change the rule as to the adequacy of the remedy by appeal. See Agassiz v. Superior Court, supra. The filing of the undertaking operates as a supersedeas, suspends all authority of the receiver under the order, withdraws from him the right to the control and possession of the property involved, and restores the same to the appealing party from whom it had been taken. Buckley v. George, 71 Miss. 550, 15 South. 46; State v. Johnson, 13 Fla. 33; Bank v. Backus, 63 Minn. 115, 65 N. W. 255; Blondheim v. Moore, 11 Md. 365. In the Minnesota case above cited the

court said: "The rights and powers of the receiver being suspended, of which he was duly notified, he should have restored possession of the premises to the appellant; for, his authority to take being inoperative by the suspension, his authority to hold was equally so, both being derived from the same order. The legal effect of the appeal and supersedeas was to withdraw from the receiver the right to the possession of the property, and vest that right in the party from whom it had been taken." In the Florida case, supra, the court said: "No new rights having been created, and the duties of the receiver being superseded, the bond standing in place of the property in his hands, and he having been notified thereof by proper process, it was his duty to restore that which had come to his hands to the parties from whom it had been taken and withheld; for, his authority to take being inoperative by the suspension, his authority to hold was equally so, both being derived from the same order." Therefore the appeal and the undertaking thereon provided by our Code furnish in nearly all cases at least an adequate remedy in the ordinary course of law. The case of Los Angeles City Water Co. v. Los Angeles Co. Sup. Ct., 124 Cal. 385, 57 Pac. 216, appears, at first blush, to be an authority in support of petitioners' contention; but the first part of the syllabus, by inadvertence, gives an inaccurate statement of the decision. It was not there decided that an order improperly appointing a receiver would be annulled on certiorari "notwithstanding the petitioner has appealed therefrom," and given a stay bond, as stated in the syllabus. The short opinion in the case shows that the petition was not to review an order appointing a receiver, but to review subsequent orders which had been made by the superior court "after the peti- · tioner had appealed to this court from an order of said superior court appointing a receiver, etc., and had given an undertaking to stay proceedings in the amount fixed by the judge of said court." The merit of the case had already been decided on the appeal from the order appointing a receiver (see 124 Cal. 368, 57 Pac. 210, 571), and the point was whether the court below, after an appeal from the order appointing a receiver accompanied by a stay bond, had jurisdiction to make certain subsequent orders. See Supreme Court Records, vol. 2047, p. 253. There might, perhaps, be exceptional facts in a case which would call for a writ of prohibition notwithstanding an appeal from an order appointing a receiver; but the general rule is as above stated, and applies to the case at bar. The petition is denied, and the proceeding dismissed.

We concur: BEATTY, C. J.; TEMPLE, J.; VAN DYKE, J.; HENSHAW, J.; GAROUTTE, J.