proceedings, and in them any defense going either to its validity or amount could be pleaded. * * In them he may set forth, by way of defense, all his grievances;" citing Reclamation Dist. No. 108 v. Evans, supra. It is not pretended that the defendant had any opportunity to be heard as to the propriety or legality of the assessment before this action was commenced; but it is claimed that, having been heard as to the propriety of the formation of the district, and the inclusion of his lands therein, the order of the board of supervisors including his lands is conclusive of the legality of the subsequent assessment of them. But the legality of no subsequent assessment was in question, or could have been questioned, before the supervisors on the hearing of the petition for the formation of the district. While, as we have seen, the order of the board of supervisors was conclusive, as against the defendant, that the district including his lands was lawfully organized, it was not, and could not have been, so far-reaching as to touch the question whether subsequent assessments would be lawfully imposed according to benefits.

It is further contended that defendant's defense is a collateral attack upon the determination of the assessment commissioners, and therefore not permissible. Conceding it to be a collateral attack (which I think questionable), yet a collateral attack is precluded only where the judgment, order, or determination attacked was, or may be presumed to have been, the result or effect of due process of law, which implies that the party against whom such judgment, order, or determination was rendered or made was heard, or had an opportunity to be heard, in his defense. But where it does not appear and cannot be presumed that such party was heard, or had an opportunity to be heard, any judgment, order, or determination against him is without due process of law and void; and, consequently, may be attacked collaterally. That the Political Code provides no opportunity for the owner of the land assessed to be heard as to the equality of assessments according to benefits, except in defense of the action for the enforcement of such assessments, is not doubted, and has been so decided (Reclamation Dist. v. Hagar, 66 Cal. 54, 4 Pac. 945; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 4 Sup. Ct. 663); nor does any other law provide for such opportunity. Therefore there is no ground upon which it can be presumed that defendant was heard or had an opportunity to be heard, and it does not appear that he was heard. It follows that, if he is to be denied a hearing in defense of this action, he will be deprived of his property without due process of law, contrary to section 13, art. 1, of the constitution of this state, and the fourteenth amendment of the constitution of the United States. As shown in the opinion of Mr. Justice Field, above cited, absolute equality of assessments

according to benefits is not practically attainable, and may be only approximated, even by competent and honest assessors or commissioners. Yet any material overrating of benefits and consequent assessments, injurious to the taxpayer, and not within the maxim de minimis, may be pleaded and proved as a defense to an action to enforce the assessment, whether such overrating be the result of fraud, negligence, or incompetence of the commissioners; for it would be no recompense, and but poor consolation, to the landowner who has been overtaxed without a hearing to be assured that the unlawful burden put upon him was the result of an honest judgment of incompetent or negligent commissioners. And the issue as to this should be determined by the tribunal of original jurisdiction (whether a court or a board of equalization) according to a satisfactory preponderance of evidence, allowing just weight to what may appear to have been the honest judgment of the commissioners.

3. I think defendant's land is sufficiently described in the assessment list. Although the abbreviations used are not those ordinarily used, they are such as are uniformly used in that list, and must have been understood by all taxpayers who examined them. For example, the W. 1⁄2 of S. E. 4 of section 28, Tp. 17, is described thus: "W.2 of S. E.4 of Sec. 28, Tp. 17;" and by such abbreviations all subdivisions of sections in the list are described.

4. It is contended by appellant that F. A. Blakely was disqualified for the office or position of commissioner to view and assess the land, for the reason that he was interested in the matter of those assessments. But the only evidence of his interest is that at the time he was appointed commissioner, and during the time he acted as such, he was the secretary of the board of trustees of the district, receiving a salary. He owned no land in the district, and had no pecuniary interest that could have been affected by the assessments, though he received his appointment to the office of secretary from the trustees of the district, who owned a majority of the land in the district, and held that office at their pleasure. The law (Pol. Code, § 3456) requires the board of supervisors by which the district was formed to "appoint three commissioners, disinterested persons, residents of the county in which the district or some part thereof is situated, who must view and assess upon the lands situated within the district a charge proportionate to the whole expense and to the benefits which will result from such works." I think Blakely was a "disinterested person" in the sense of this section of the Political Code, and that the most that can be properly said against his appointment is that, if his relation to the board of trustees of the district was known to the board of supervisors at the time he was appointed, the appointment was injudicious, because the appointee, under such circumstances, was liable

LOWER KINGS RIVER RECLAMATION DIST., NO. 531, v. PHILLIPS et al. (No. 18,344.)1

(Supreme Court of California.

March 11,

1895.) Department 1. Appeal from superior court, Fresno county: M. K. Harris, Judge.

Action by the Lower Kings River Reclamation District, No. 531, against P. C. Phillips and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

Daggett & Adams, for appellants. S. C. Denson, for respondent.

PER CURIAM. This cause being, in all respects, similar to that of Reclamation Dist. v. Phillips (No. 18.341, this day decided) 39 Pac. 630, the judgment and order herein appealed from are reversed upon the authority of that case, and the cause remanded for a new trial.

LOWER KINGS RIVER RECLAMATION DIST., NO. 531, v. WOOD. (No. 18,343.)1 (Supreme Court of California. March 11,

1895.) Department 1. Appeal from superior court, Fresno county; M. K. Harris, Judge.

Action by the Lower Kings River Reclamation District, No. 531, against George Wood. There was a judgment for plaintiff, and defendant appeals. Reversed.

Daggett & Adams, for appellant. S. C. Denson and Bradley & Farnsworth, for respondent.

PER CURIAM. This cause being in all respects similar to that of Reclamation Dist. v. Philips (No. 18.341, this day decided) 39 Pac. 630. having been tried upon the same evidence, the judgment and order herein are reversed upon the authority of that case, and the cause is remanded for a new trial.

2. Assignments of error, on motion for new trial, that the court erred in rendering judgment in favor of defendant, when the decision and judgment should have been for plaintiff, will be disregarded under Code Civ. Proc. § 659, because of being a mere general objection to the final judgment.

Commissioners' decision. Department 1. Appeal from superior court, Tulare county; William W. Cross, Judge.

Action by Lower Kings River Reclamation District, No. 531, against P. C. Phillips to recover an assessment by such district upon defendant's land, situated therein. From a judgment in favor of defendant, and denial of a new trial, plaintiff appeals. Affirmed.

S. C. Denson and Bradley & Farnsworth, for appellant. Daggett & Adams, for respondent.

VANCLIEF, C. The plaintiff is a corporation purporting to have been organized under provisions of Pol. Code, § 3446 et seq., for the reclamation of swamp and overflowed lands situate in the counties of Fresno and Tulare, the proceedings for the formation of which were initiated by petition to the board of supervisors of the county of Fresno. The object of this action is to recover from defendant an assessment of $1,098.18, levied upon a tract (267 acres) of his land situate in the county of Tulare, where this action was tried. The complaint is in the ordinary form, specially alleging all facts necessary to show that the district was duly organized, that the assessment was properly levied, and that defendant had refused to pay the assessment; but was not verified. The answer of the defendant admits that he is the owner of the land alleged to have been assessed to him, but denies all other allegations of the complaint. It then alleges, substantially, the following further defenses: (1) That the lands assessed to him are not, and never have been, swamp or overflowed lands, but always have been high and dry lands originally owned by the government of the United States and never granted to the state of California; and that defendant's grantor purchased said land directly from the government of the United States as not being swamp or overflowed lands, but duly segregated therefrom by the government surveys. (2) That the commissioners appointed to view and assess said lands were not disinterested persons; that one of them. F. A. Blakely, was interested, and therefore disqualified to act as such commissioner, because he was secretary of the board of trustees of plaintiff under a salary at the time he was appointed, and during ali the time he acted, as such commissioner. (3) That the commissioners did not view the lands of defendant, and did not assess them in proportion to the whole expense of the works and to the benefits resulting from such works; but, on the contrary, arbitrarily assessed the lands of the defendant without regard to any benefit to them resulting from said works; and that said works do not and

in possession of D. and L. were attached. Held, that the return, though it did not specifically state that the sheriff attached certain property by leaving a copy of the writ, together with notice, with L. and D., and that they were in possession of the property, was sufficient as against a subsequent attaching creditor with notice.

Appeal from circuit court, Polk county; George H. Burnett, Judge.

Contest between R. L. Sabin and John S. Michell and others to determine the priority of attaching creditors. There was a judg- | ment for the former, and the latter appeal. Affirmed.

This is a suit to determine and enforce the right to priority of attaching creditors. From the statement of facts as given in the complaint it appears that on and prior to the 28th day of November, 1892, John S. Michell and W. T. Shurtleff were partners doing business under the firm name of John S. Michell; that certain wholesale merchants in Portland had demands against said firm in the aggregate sum of $2,746.91, which, on said day, they sold and assigned to this plaintiff, who has been ever since, and is now, the owner thereof; that on the 29th day of November, 1892, plaintiff commenced an action upon said demands against Michell and Shurtleff as partners, and caused a writ of attachment to be issued and delivered to the sheriff of Polk county, commanding him to attach and safely keep so much of the property of defendants in the writ as might be sufficient to satisfy any judgment plaintiff might recover in said action; that the sheriff duly executed said writ by attaching all the stock of goods, wares, and merchandise belonging to and owned by John S. Michell and W. T. Shurtleff in the town of Falls City, by serving a copy of the writ, together with a notice specifying the property attached, on Willis Leavitt and J. J. Daly, who were then in possession of said stock of goods; that just prior to the service of the writ, Shurtleff, who was in possession of the store, undertook to sell and deliver the stock of goods therein to Willis Leavitt, in trust for certain creditors of Michell and Shurtleff, and that Leavitt and one J. J. Daly immediately took possession thereof; that such sale and delivery were made without the knowledge or assent of the parties for whose benefit they are alleged to have been made, and with an intent to hinder, delay, and defraud the creditors of Michell and Shurtleff, and especially this plaintiff and his assignors; that subsequent to said pretended sale and delivery and the service of plaintiff's attachment, Leavitt and Daly surrendered possession of said goods, wares, and merchandise to the defendant creditors in this suit, who caused the same to be attached in actions prosecuted by them against John S. Michell individually; and that the surrender of such possession was made pursuant to an understanding between Shurtleff, Leavitt, and Daly to defraud the plaintiff, and defeat the lien acquired by virtue of his attachment. The defendants, by

their answer, deny the alleged partnership between Michell and Shurtleff, as well as all the other allegations of the complaint, and allege that the property in question belonged to J. S. Michell individually, and that on the 1st day of December, 1892, they commenced certain actions against him, and caused the property in question to be attached, and that the lien thus acquired is the only lien on said goods, wares, and merchandise. Upon issues joined the cause was tried, resulting in a decree in favor of the plaintiff, from which some of the defendants appeal.

J. J. Balleray, for appellants. J. N. Teal, for respondent.

BEAN, C. J. (after stating the facts). It is contended for defendants that the allegation that Michell and Shurtleff were partners is not sustained by the evidence, but we regard this question as immaterial. The complaint charges a joint and several liability, and it is admitted, as well as alleged, by defendants that the stock of goods in controversy belonged to Michell, and the debt upon which plaintiff's attachment is based is against him; so that, if plaintiff has a cause of action against Michell, it is wholly immaterial, so far as defendants are concerned, whether Shurtleff was liable with him as a partner or not. If the evidence failed to sustain the allegation of partnership, plaintiff was still entitled to a judgment against Michell, and, his property having been seized on attachment, it was liable to sale to satisfy such judgment. Fisk v. Henarie, 14 Or. 29, 13 Pac. 193; Faust v. Goodnow (Colo. App.) 36 Pac. 71; Simpson v. Schulte, 21 Mo. App. 639; Miles v. Wann, 27 Minn. 56, 6 N. W. 417; Congdon v. Monroe, 51 Tex. 109.

It is also claimed that there is a fatal variance between the allegation and proof of the assignment to plaintiff of the accounts upon which this action is based. The complaint alleges that on the 28th day of November, 1892, John S. Michell and W. T. Shurtleff, doing business under the firm name of John S. Michell, were indebted to certain wholesale firms in Portland, and that said firms sold, transferred, and assigned their respective accounts to this plaintiff, who ever since has been, and now is, the owner of the same. To prove the assignment the plaintiff offered in evidence a written instrument entitled "In the matter of J. S. Michell, Falls City, Oregon," which recites that the subscribers thereto sell, assign, and set over and transfer to R. L. Sabin their claims against said Michell. The contention for the defendants is that this instrument only tends to prove the assignment of demands against J. S. Michell individually, and not against Michell and Shurtleff as partners. But the evidence shows that the intention was to assign to the plaintiff the accounts and demands of the assignors against the concern doing business at Falls City under the name of J. S. Michell.

whether it was an individual or partnership; and the written assignment, it seems to us, was sufficient to vest the title of such accounts and demands in the plaintiff, and sustained the allegation of ownership in him, whether J. S. Michell was an individual or a partnership. The material and necessary issue for plaintiff to prove, in order to recover, was the ownership of the accounts sued on, and this was met by the written assignment. The allegation in the complaint that the accounts were due plaintiff's assignors from a partnership doing business under the name of J. S. Michell may very properly be held as immaterial in this suit. The case of Thompson v. Rathbun, 18 Or. 202, 22 Pac. 837, cited by defendants, was an action on a promissory note alleged to have been executed and delivered to the Portland Savings Bank, which allegation, the court said, meant a note that was made payable to the Portland Savings Bank by name, or some equivalent expression, by which the bank could be clearly identified as payee; and because the note offered in evidence was not of that character it was held inadmissible. This was an entire failure of proof on a material allegation of the complaint. But in the case at bar the material allegation is proven by the evidence offered, and the failure, if any, is on an immaterial issue.

It is next contended that neither Leavitt nor Daly was in possession of the store at the time the garnishee process was served upon them. Both the referee and the court below found to the contrary, and we think this finding is fully sustained by the testimony. The evidence shows that Michell was out of the state, and that Shurtleff, who was in possession of the store, fearing an attachment, and desiring to prefer certain creditors, a short time before the sheriff arrived at Falls City for the purpose of serving the plaintiff's attachment, by the advice of Daly conveyed the stock of goods to Leavitt by bill of sale, in trust for such favored creditors, without their knowledge or assent, and subject to their approval, and immediately closed the store, and delivered possession of the keys to Leavitt and Daly, who were present and claiming, with the consent and acquiescence of Shurtleff, to be in possession when the sheriff and plaintiff's attorney arrived at Falls City, and who ordered the sheriff, under threats of prosecution for trespass, not to attempt to take possession of the goods, nor force an entrance into the building. Under such circumstances the sheriff was, we think, justified in attaching the property by serving garnishee process upon Leavitt and Daly, and the right of plaintiff thus acquired cannot now be defeated by these defendants, although their possession may have been solely for the purpose of preventing the seizure of the property by plaintiff under his attachment, and thus favoring the other creditors, among whom are these defendants. And, finally, it is contended that the sher

iff's return on the plaintiff's writ of attachment is so defective as to render the attachment nugatory as against the defendants, who are subsequent attaching creditors with notice. The sheriff, after certifying in his return to the manner in which he attached certain real property, states that he served a true copy of the writ, duly certified to by him, upon Willis Leavitt in person, together with "notice to garnishee," and a like copy and notice upon Daly, and that the answer of each of said parties is attached to, and marked, respectively, Exhibits A and C, and made a part of the return. The exhibits referred to, and made a part of the return, and upon which Leavitt's and Daly's answers are indorsed, are copies of the writ, having thereon a notice to the effect that all moneys, goods, credits, and effects, or any other personal property in the possession or under the control of said parties, belonging to the defendants, or either of them, are attached by virtue of the writ. It thus appears that the sheriff not only certifies that he served a copy of the writ and notice of garnishment upon Leavitt and Daly, but he attaches to, and makes a part of, his return, copies of the papers so served, from which it appears that he complied with the statute by leaving a copy of the writ, and a sufficient notice specifying the property attached (O'Brien v. Insurance Co., 56 N. Y. 52), with the persons who were in possession of the same; and hence the return, in our opinion, shows a sufficient compliance with the law to preserve plaintiff's lien as against the defendants, whose attachments were issued and served with notice of the service of plaintiff's writ. It is true, the officer does not certify that he attached certain described property by leaving a copy of the writ, together with a notice specifying such property, with Leavitt and Daly, and that they were in possession of the same, and in this respect the return may be defective; but he does show that he substantially complied with the law providing the manner in which personal property in possession of a third person may be attached, and this is sufficient to preserve the lien as against subsequent attaching creditors with notice, which is the only question for our determination at this time. In such case the courts are not critical as to the language used by the officer in making his return, and it is sufficient if it can be fairly inferred therefrom that he has met the requirements of the law, and to this end it should receive every reasonable intendment and presumption. Murfree, Sher. § 864; Drake, Attachm. § 204; Wade, Attachm. § 149; Ritter v. Scannell, 11 Cal. 238; Governor v. Gibson, 14 Ala. 331; Stoddart v. McMahan, 35 Tex. 268; Newton v. Adams, 4 Vt. 437; Rowan v. Lamb, 4 G. Greene, 468. We conclude, therefore, that plaintiff's lien upon the property in controversy is prior in point of time and in right to that of the defendants, and that the decree of the court below must be affirmed.