guardian, then standing as sole defendant, demurred, the demurrer was overruled, and plaintiff had judgment. In this court the judgment was reversed, with directions to dismiss the action. In that case there was no alternative but to dismiss, as the plaintiff had voluntarily dismissed the action as to the incompetent, who was the real party, and without whom the action could not proceed. Such a result should be avoided, if possible, not only because of the expense and delay, but because it might result in the entire loss of meritorious claims through the operation of the statute of limitations. In this case I think the action should not be dismissed, and that this result may be reached without raising a conflict with the cases cited. This action was properly commenced by H. S. Dixon in his own name before he became insane, and was not dismissed. The order substituting the guardian as plaintiff was erroneous, but was not intended as a dismissal of the action as to the incompetent, and should not be given that effect. I advise that the judgment be reversed, and the cause remanded, with directions to amend the said order to the effect that, it appearing to the court that since the commencement of the action the plaintiff had been adjudged to be insane, and that J. R. Dixon had been appointed the guardian of his person and estate, it is ordered that in all further proceedings in the action the incompetent plaintiff appear and be represented by his said guardian. The plaintiff should also have leave to reform the complaint so as to conform thereto, and to this opinion, and that a new trial be granted.

ADAMS v. DE BOOM. (No. 15,818.) (Supreme Court of California. March 20, 1895.) HARMLESS ERROR-FINDINGS.

1. Where two actions between the same parties were consolidated, and judgment rendered for plaintiff in one action, it is immaterial, on an appeal by defendant, that the complaint in the other action did not state facts constituting a cause of action.

2. An action to enforce a contract to convey land in consideration of plaintiff's doing certain grading, and an action to recover for the grading in three counts,-First, the reasonable value thereof; second, the price therefor under a written contract; and, third, the value of extra grading, -were consolidated. The court found for defendant as to the first action, and for plaintiff as to the second, on the second count, and for $350 "in addition to said written contract." Held, that the finding of the additional sum related to and was supported by either the first or third count of the second action.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; Eugene R. Garber, Judge. Two actions by Edward Adams against R. C. De Boom. The actions were consolidated, and from a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

Gordon & Young, for appellant. Andrew Craig and W. T. Craig, for respondent.

VANCLIEF, C. The plaintiff brought two actions against the defendant on alleged causes of action assigned to him by James McCoy (numbered in the superior court, respectively, 41,597 and 41,598), which, by stipulation of the parties, were consolidated and tried together as one action. No. 41,598 was an action to enforce specific performance of a written contract between defendant and McCoy, whereby the former, on specified conditions, agreed to convey to the latter a lot of land in the city of San Francisco. The consideration for the conveyance was estimated at $700, to be paid as follows: Onehalf ($350) by grading certain lots for defendant, as specified in the agreement, and the balance in cash. It was alleged in the complaint that the lots had been graded according to the agreement, and that plaintiff, as assignee of the contract, had tendered to defendant the balance of $350, and demanded a deed for the lot, and that defendant had refused to convey, etc. No. 41,597 was an action in three counts: The first to recover $472.50 as the reasonable value of work and labor done by McCoy for defendant in grading certain lots at defendant's request. The second count differs from the first only in that the work is alleged to have been done under special agreement, whereby the defendant promised to pay for the work at a certain price per day's work. The third count is for extra work in furnishing and dumping upon defendant's property, at his request, 5,000 cubic yards of "extra earth," the reasonable value of which was 10 cents per yard, amounting to $500. The court denied the equitable relief (specific performance) asked in No. 41,593, but found for plaintiff on the second count of the complaint in No. 41,597 in full, $472.50, and, in addition thereto, found $350 due plaintiff, but whether on the first or third count of No. 41,597 does not clearly appear, though it does appear that it was not for work done under the written contract of which specific performance was sought by No. 41,598. Upon these findings, judgment was rendered in favor of plaintiff for $822.50. The defendant appeals from the judgment, and from an order denying his motion for a new trial.

Counsel for appellant claims nothing on the appeal from the order, but on the appeal from the judgment contends: (1) That the complaint in No. 41,598 for specific performance does not state facts constituting a cause

of action; and (2) that the findings do not support the judgment for a larger sum than $472.50 founded on the second count of No. 41,597, and furnishes no foundation for the additional $350.

1. No relief was granted on the complaint in No. 41,598, and therefore it is immaterial to appellant whether that complaint states a cause of action or not.

2. That the finding of the additional $350 is a sufficient finding that defendant was indebted to plaintiff in that sum in addition to the sum of $472.50 is unquestionable; and the only intelligible objection to it made by appellant is that it is improperly founded on the complaint in No. 41,598. This, however, is negatived by the finding itself, which states that the indebtedness of $350 was for work and labor "in addition to said written contract," on which alone the complaint in No. 41,598 counted. Therefore, the finding in question must be attributed to the complaint in No. 41,597, and is sufficiently supported by either the first or the third count of that complaint. I think the judgment and order should be affirmed.

We concur: HAYNES, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

(106 Cal. 498)

SAN JOSE IMP. CO. v. AUZERAIS. (No. 15,693.)

(Supreme Court of California. March 20, 1895.) PUBLIC IMPROVEMENTS -SUFFICIENCY OF RESOLUTION-VALIDITY OF ASSESSMENT.

1. Under St. 1891, c. 147, § 3, providing that, before ordering any improvements, the city council shall pass a resolution of intention so to do, describing the work, a resolution for the improvement of a street, "to consist of the construction therein of granite or artificial stone curbing," does not give the city jurisdiction to order the work done.

2. When the city council fails to acquire jurisdiction to order an improvement because of a failure to describe the same in its resolution of intention, as provided by St. 1891, c. 147, § 3, the defendant, in an action to enforce the assessment, may defend the action without first appealing to the city council.

Department 1. Appeal from superior court, Santa Clara county; John Reynolds, Judge. Action by the San José Improvement Company against one Auzerais to enforce an assessment. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Affirmed.

H. V. Morehouse and Hiram D. Tuttle, for appellant. William Matthews, for respondent.

HARRISON, J. The mayor and common council of the city of San José passed a resolution May 18, 1891, declaring its intention to order the improvement of a portion of El Dorado street, "said improvement to consist of the construction therein of granite or

artificial stone curbing on both sides thereof to the official curb grade, excepting therefrom any laid upon the grade; also excavating the roadway of said street to a suitable subgrade, and improving the same as fol lows: [Giving a description of pavement to be laid upon the street.]" The city council having afterwards ordered that the work described in the foregoing resolution be done, a contract therefor was entered into by the appellant. The present action is brought to enforce against certain lands upon the line of El Dorado street an assessment which was issued to the appellant upon the completion of the work. A demurrer to the complaint filed on behalf of the defendant was overruled by the court, and, the cause having been afterwards tried, judgment was rendered in favor of the defendant. From this judgment, and an order denying a new trial, the plaintiff has appealed.

Under the principles laid down in Bolton v. Gilleran (No. 15,397; Cal.) 38 Pac. 881, the city council did not acquire jurisdiction to order the work done. The requirement in section 3 of the street improvement act (St. 1891, p. 196) 1 that, in order to acquire ju risdiction to improve a street, the city council shall pass a resolution of intention "describing the work," was not observed. By this statute the legislature has required the city council to determine the character and extent of any improvement that is to be made upon the public streets; but in the present case that body, instead of itself determining this matter, has not even designated the officer or person by whom the character of the improvement shall be determined. It was the duty of the city council to determine, in the first instance, whether the curbs to be constructed along the line of the street should be of granite or of artificial stone; but, instead of so doing, that body has left this matter undetermined, and in every subsequent step in the proceeding, including the contract for doing the work, the same uncertainty exists. By the terms of the contract, the plaintiff was allowed to place granite curbs along the street at the rate of one dollar per lineal foot, or cement curbs at the rate of sixty cents per foot, without any limitation upon its choice, except the advantage to be derived from using one instead of the other of these materials. The vice of such a proceeding was fully pointed out in Bolton v. Gilleran, supra, and need not be here repeated. It follows that the demurrer to the complaint should have been sustained. As the evidence offered at the trial was in accordance with the averments of the complaint, the judgment in favor of the defendant was the only one that could be rendered thereon.

SAN JOSE IMP. CO. v. DE SAISSET. (No. 15,691.) (Supreme Court of California. March 20, 1895.) Department 1. Appeal from superior court, Santa Clara county; John Reynolds, Judge.

Action by the San José Improvement Company against one De Saisset to enforce an assessment. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Affirmed.

H. V. Morehouse and Hiram D. Tuttle, for appellant. William Matthews, for respondent.

PER CURIAM. Upon the authority of Improvement Co. v. Auzerais (this day decided) 39 Pac. 859, the judgment and order appealed from are affirmed.

SAN JOSE IMP. CO. v. PALOMARES. (No. 15,692.)

(Supreme Court of California. March 20, 1895.) Department 1. Appeal from superior court, Santa Clara county; John Reynolds, Judge. Action by the San José Improvement Company against one Palomares to enforce an assessment. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Affirmed.

H. V. Morehouse and Hiram D. Tuttle, for appellant. William Matthews, for respondent.

PER CURIAM. Upon the authority of Improvement Co. v. Auzerais (this day decided)39 Pac. 859, the judgment and order appealed from are affirmed.

(106 Cal. 562)

In re EVANS' ESTATE. (No. 18,414.) (Supreme Court of California. March 21, 1895.)

ADOPTION-SUFFICIENCY Of Order.

Under Civ. Code, § 227, providing, in adoption proceedings, that the judge "must make an order declaring that the child shall thenceforth be regarded and treated as the child of the person adopting," an order, indorsed on an agreement of adoption, reciting that the agree ment of adoption is "hereby approved, and ordered to be filed with the clerk." is sufficient to entitle the adopted child to a distributive share of the estate of the person adopting it, especially where it has lived with such person, as his child, for 10 years. Harrison, J., dissenting. In bank. Appeal from superior court, Tulare county; Justin Jacobs, Judge.

In the matter of the estate of Samuel W.

Evans, deceased. Appeal from an order declaring Hattie Evans to be the legally adopted daughter of deceased. Affirmed.

Lamberson & Middlecoff, for appellants. W. B. Wallace and E. O. Larkins, for respondent.

GAROUTTE, J. Upon the hearing of the petition for the distribution of the estate of Samuel W. Evans, deceased, a contest arose as to the right of Hattie Evans to inherit as a child of said deceased. Her status as such child is dependent upon the validity of certain adoption papers, she claiming to be the adopted child of deceased by virtue of these papers. The trial court declared her legally adopted, and entitled to a child's share of the estate, and this appeal is prosecuted from such decree.

As appears by the findings of fact, when Hattie Brown was about nine years of age she became an orphan, and was taken to the household of Samuel W. Evans and wife. That within a few months thereafter said Evans and his wife; Ellen, in company with said Hattie, all being residents of Tulare county, came before the judge of the superior court of said county, at the court room thereof, and thereupon said Evans executed an agreement of adoption, in the following words: "I, Samuel Evans, of Tulare county, state of California, of the age of forty-one years, a married man, and the husband of Ellen M. Evans, have agreed, and by these presents do agree, to adopt, and do adopt, the minor child, Hattie Brown, who is of the age of ten years past, and the child of Charles Brown and Brown, both of whom are now dead; and I hereby further agree to treat the said minor child, Hattie Brown, in all respects, as my own lawful child should be treated. Given under my hand, this 16th day of January, A. D. 1882." The findings further state, that upon the aforesaid agreement of adoption Ellen M. Evans, the wife of Samuel W. Evans, attached her written consent to the adoption of said Hattie; that the judge examined said Evans and his said wife, Ellen, and became satisfied that it would be for the best interests of the child that adoption should be declared, and thereupon indorsed upon the agreement of adoption the following order: "County of Tulare-ss.: The hereto-attached agreement of Samuel Evans, adopting the minor child, Hattie Brown, aged about nine years, whose parents are both dead, is hereby approved by me, and ordered filed with the county clerk of said Tulare county, state of California. William W. Cross, Superior Judge. Dated January 16, 1882." It further appears that this agreement was filed in the county clerk's office, and that said Hattie assumed the name of Evans, and thereupon lived with the said Samuel Evans, as his child, for 10 years, and until the date of his death.

In the recent cases of In re Johnson's Es

tate, 98 Cal. 531, 33 Pac. 460, and In re Williams' Estate, 102 Cal. 70, 36 Pac. 407, it may be said that the entire law bearing upon the question of the adoption of minors has been reviewed, and the principles governing this branch of the law lucidly and forcibly stated. For these reasons, we are not disposed to again enter into a discussion of the general principles bearing upon this class of cases; and, upon an examination of appellant's record, we see nothing to impress us with the contention that the adoption papers here shown are void. Various irregularities in the proceedings are urged, but after these papers were executed before the judge, and this man and this child lived together as father and daughter for 10 years, and down to the day of his death, it requires more than mere irregularities to brush aside and annul a relationship entered into with all honesty of purpose, lived up to for many years, and only severed by the hand of death. Section 227 of the Civil Code provides: "The judge must examine all persons appearing before him pursuant to the last section, each separately, and if satisfied that the interests of the child will be promoted by the adoption, he must make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting." And it is now claimed that no compliance has been had with the provisions of this section, in this: that no order was made by the judge declaring the child to be the child of the person adopting. We think the order indorsed by the judge upon the agreement of adoption fully satisfies this provision of the law, and, in effect, does exactly what is contemplated by the provision. statute lays down no rules by which the form of the judge's order shall be measured, and its sufficiency tested. The real purpose of the statute, in requiring the parties to come before the judge, is to enable him either to ratify or reject the contract of adoption, as seems best to him, in the interest of the child, and such was the course pursued in the present case. For these reasons, we conclude that the order indorsed upon the contract of adoption by the judge was a sufficient compliance with section 226 of the Civil Code. The order appealed from is affirmed.

The

We concur: BEATTY, C. J.; McFARLAND, J.; VAN FLEET, J.

I dissent: HARRISON, J.

(5 Cal. Unrep. 3)

DE CAMP v. BRYSON. (No. 19,493.) (Supreme Court of California. March 20, 1895.) APPEAL-REVIEW-ORDER GRANTING NEW TRIAL.

Where the evidence is conflicting on all the material issues an order granting a new trial by a judge who did not preside at the trial will not be disturbed. unless there is a clear abuse of discretion.

Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; J. W. McKinley, Judge.

Action by Charles W. Bryson against C. E. De Camp. There was a judgment for plaintiff, and from an order denying a new trial defendant appeals. Affirmed.

Jay E. Hunter, for appellant. J. T. Rearden and L. H. Valentine, for respondent.

SEARLS, C. This is an action to recover $800 and interest paid by the assignor of plaintiff to the defendant upon a contract for the purchase of real estate from said defendant by plaintiff's assignor, and which contract was alleged to have been rescinded by said assignor by reason of a breach thereof by defendant. Plaintiff had judgment for $871 and costs. Defendant moved for a new trial, which was granted. The appeal is by plaintiff from the order granting the new trial.

The cause was tried before Hon. W. P. Wade, judge of department 3 of the superior court in and for the county of Los Angeles, without a jury; written findings filed in favor of plaintiff upon which judgment was entered. Hon. W. P. Wade died before the motion for a new trial was perfected, and the statement on such motion was settled and the motion granted by Hon. J. W. McKinley, judge of depatmrent 6 of the same court. The motion was based largely upon the insufficiency of the evidence to sup port the findings. The specifications of insufficiency are quite full and explicit. The errors of law complained of did not warrant the interposition of the court, and it is urged by appellant that as the court granting the motion did not hear the testimony at the trial, or have the witnesses before it, it was in no better position to judge as to the propriety of granting the motion than this court, and hence that on this appeal the question should be passed upon precisely as though the motion for a new trial were submitted here. The evidence involved a substantial conflict upon nearly every important issue in the case, and we are unable to say upon a review of the whole case, that the court below erred in granting the motion. The case was a close one, upon the facts, and we confess some doubt as to the propriety of the action of the court below; but, in the very nature of things, something must be conceded to the discretionary powers vested in courts of original jurisdiction. This consideration suffices to resolve our doubt in favor of the action of such court. The order appealed from should be affirmed.

We concur: HAYNES, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the order appealed from is affirmed.

(106 Cal. 493)

In re ROBINSON'S ESTATE. (No. 15,830.) 1 (Supreme Court of California. March 20,

1895.)

PROBATE OF WILL PETITION FOR REVOCATIONRIGHT TO JURY TRIAL-REVIEW ON APPEAL-WAIVER OF ERROR.

1. Where, on probate of a will, a person files a written opposition to its probate, to which a demurrer, on the ground that it does not contain facts sufficient to constitute a ground of opposition, is sustained, and no further opposition is made, the probate is "without contest" (Code Civ. Proc. § 1330) so as to entitle a party petitioning to revoke the probate to a trial by jury.

2. In proceedings to revoke the probate of a will, petitioner, by going to trial after his request for a trial by jury was erroneously refused, does not waive the error.

3. In such a case a motion for a new trial is not a condition precedent to the review of such error on appeal.

4. In proceedings to revoke the probate of a will, petitioner's right to sue for its revocation cannot be questioned for the first time on ap peal.

5. Documents already matters of record should be excluded from the bill of exceptions.

Department 1. Appeal from superior court, Contra Costa county; Jos. P. Jones, Judge.

Proceedings by James P. Robinson and others to revoke the probate of the will of Lester L. Robinson, deceased. From a judgment denying its revocation, petitioners appeal. Reversed.

Geo. B. Merrill, for appellants. Garret W. McEnerney, for respondents.

HARRISON, J.

The last will and testament of Lester L. Robinson and a petition for its probate were filed in the superior court of Contra Costa county May 11, 1892. Prior to the day set for hearing the petition, Sanford Robinson filed a written opposition to its probate, to which the proponents of the will filed a demurrer. Afterwards, and before a hearing upon the demurrer, the contestant filed a stipulation confessing the demurrer as well taken, and upon his consent an order was entered sustaining the demurrer, and giving him additional time within which to file amended grounds of opposition. He did not, however, file any amendment to his opposition, but directed his attorney to abandon further proceedings in reference thereto, and accordingly an order was made that he take nothing by his contest, and the will was admitted to probate October 22, 1892. October 20, 1893, the appellants herein filed in the superior court a petition for the revocation of the probate of the will, which the executors answered, and the court appointed January 6, 1894, as the day for hearing the petition. December 30, 1893, the appellants filed a written demand for a trial by jury, and when the matter was called for hearing on the 6th of January this demand was called to the attention of the court, and, being opposed by the executors, was denied, to which the appellants excepted. The trial of the contest was then had, by the court without a jury, 1 Rehearing denied.

and judgment was rendered denying the petition. From this judgment the present appeal is taken.

Section 1330, Code Civ. Proc., provides: "In all cases of petitions to revoke the probate of a will wherein the original probate was granted without a contest, on written demand of either party, filed three days prior to the hearing, a trial by jury must be had, as in cases of the contest of an original petition to admit a will to probate." It is contended, however, on behalf of the respondents, that, by reason of the opposition to the original probate of the will which was filed by Sanford Robinson, the provisions of this section have no application. Before there can be a "contest" to the probate of a will, the contestant is required by section 1312, Code Civ. Proc., to file "written grounds of opposition" to its probate, and the petitioner and others interested in the will may answer these grounds of opposition; and it is the "issues of fact thus raised" which this section authorizes to be tried by a jury. The "contest" does not arise unless the written grounds of opposition present such issues of fact for determination. There can be no "contest" unless the written grounds of opposition are of such a nature as to form a legal objection to granting the probate of the will; and unless, also, the contestant presents these grounds for the consideration of the court. Unless the grounds of opposition are followed up by an attempt to sustain them, the probate of the will is not contested. If, after filing his opposition, the contestant immediately withdraws it, without invoking any decision of the court thereon, he cannot be said to "contest" the probate; nor can it be held that every document filed by a contestant constitutes a contest, even though it may contain written grounds of opposition, and may be entitled a "contest." The contents and character of the document, and the action taken thereon by the contestant, as well as the action sought by him from the court, must also be considered.

After Sanford Robinson had filed his written grounds of opposition in the present case, he took no further action in support thereof. The proponents of the will demurred to his opposition, upon the express ground "that it did not state facts sufficient to constitute a ground of opposition to the probate of the will," and, also, that it was not in such form or character as entitled it to be considered by the court. His subsequent stipulation confessing the demurrer to be well taken, and the order of the court thereon sustaining the demurrer, rendered his written grounds of opposition ineffect ive for a contest of the probate of the will, unless he should file an amended opposition; and his subsequent failure to file such amended opposition, together with his directions to his attorney to abandon the contest left the proponents without any opposition