the sheriff, thereby causing great expense to the parties litigant, and the court was anxious and desirous of hearing said cause; that the argument of said cause required careful and extensive preparation, occupying more than four days of affiant's time, and the trial thereof occupied three days, and the affiant's argument one day; that when said action of Ashley v. Ferguson was set for hearing, as aforesaid, affiant had not been informed of the time of the hearing of said action of Lodtman against Schluter, and immediately upon receiving the information he endeavored to displace the case of Ashley v. Ferguson, but the superior judge of Santa Cruz County informed the affiant that it would take its vacation on the twentieth day of June, 1884, and no business would be done in said court until August 1, 1884; that if said action of Ashley v. Ferguson was not heard on the appointed day, it would not be heard for over two months thereafter.

"That thereupon, and about one week before the sixteenth day of June, 1884, affiant wrote or telegraphed to W. L. Dudley, Esq., that it would be impossible for affiant to be in Modesto on the sixteenth day of June, 1884, and received no answer to such letter or dispatch, and affiant firmly believed that said cause would not be heard on said day last aforesaid, but that the same would be continued. Affiant also telegraphed to the judge of said Superior Court of Stanislaus County that it would be impossible for him (affiant) to attend said Superior Court on said day, and affiant having taken all those steps believed that the cause would not be tried in his absence. Affiant never received any notice of motion or any information that said action would be dismissed for want of prosecution.

"Affiant further states that the defendant Schluter has never been served with process in said action; that after the service on the defendants who have appeared herein, affiant took pains to find out the whereabouts of

said Schluter, and has written and caused to be written a large number of letters to find the whereabouts of said Schluter, but to all of them he received answer that Schluter cannot be found. He has been informed within the last five months that said Schluter is confined in one of the state insane asylums, and has made inquiries relating thereto, but has not been able to obtain a definite knowledge on the subject, though he has communicated with the authorities of the various insane asylums of the state.

"Affiant further states that the only information he has had about the setting of said cause for trial is by the letter hereto attached.

"Affiant further says that plaintiffs are anxious to prosete said action; that he has informed them, and believes that they have a good and substantial cause of action on the merits of the case. J. M. LESSER.”

By it such circumstances appear as might at least have warranted the judge in hesitating to deny the motion to vacate the judgment of dismissal for want of prosecution of the action. In such cases this court has held it to be permissible that upon proper conditions such a judgment may be set aside. (Watson v. S. F. & H. B. R. R. Co., 41 Cal. 17-21.)

We do not therefore perceive that as to the case in hand the judge below abused the discretion which was vested in him by law.

The order appealed from should be affirmed.

SEARLS, C., and BELCHER, C. C., concurred.

The COURT. For the reasons given in the foregoing opinion, the order is affirmed.

LXXI. CAL.

1

[No. 11216 Department Two. September 24, 1886.]

WILLIAM B. AUSTIN, APPELLANT, v. G. W. ANDREWS, Respondent.

PRACTICE

ID.

ID.

ΤΑΚΕΝ

EVIDENCE
APPEAL.

EXCEPTION ΤΟ ADMISSION . MUST BE An objection to the admission of evidence will not be considered on appeal, unless an exception to the ruling of the court in admitting the evidence was reserved at the trial. EJECTMENT DECLARATIONS OF PRIOR OWNER. In an action of ejectment, evidence of the declarations of a prior owner of the land as to its boundaries, and of the circumstances under which the declarations were made, is admissible against a party claiming under him.

DEEDS.

Certain deeds under which the defendant claimed title to the land in controversy, held, properly admitted in evidence.

APPEAL from a judgment of the Superior Court of San Joaquin County, and from an order refusing a new trial.

The facts are stated in the opinion.

J. A. Louttit, and Woods & Levinsky, for Appellant.

W. L. Dudley, and S. A. Booker, for Respondent.

BELCHER, C. C. This is an action of ejectment to recover possession of a small piece of land situate in San Joaquin County.

The case was tried by the court, and judgment rendered in favor of defendant, from which, and from an order denying a new trial, the plaintiff appealed.

The court found that the plaintiff was not the owner of the land when the action was commenced, nor when it was tried, and that the defendant was the owner of it, and entitled to its possession.

There was testimony tending to support the findings, and under the well-established rule in this court, we cannot say that a new trial should have been granted for insufficiency of evidence.

There was no error in admitting in evidence the deed, dated December 4, 1872, from Morrow to Groves and the defendant; that deed conveyed to the grantees

named a section of land, with the exception of a piece lying in the southwest corner of the southwest quarter of the section on which was situated the village of Farmington, and which had been previously deeded away. The land in controversy was within the west half of the section, and according to the undisputed testimony of the defendant and Groves was not within the village of Farmington.

There was also no error in admitting in evidence the deed of October 1, 1874, from Groves to the defendant; that deed conveyed to the defendant all the interest in the section of land referred to, acquired by Groves under the deed from Morrow.

The defendant offered in evidence several tax receipts, showing that he had paid taxes on all the west half of the section referred to, except the lands in the town of Farmington. The plaintiff objected to these receipts being received in evidence, and his objections were overruled, but he took no exception to the rulings, and therefore cannot now be heard to complain of them as

erroneous.

There is nothing in the point that the court erred in permitting McCulloch to testify as to what Witham said in reference to the lot in controversy prior to his purchase of it. The plaintiff claimed title through deeds from McCulloch to Witham, and Witham to himself. McCulloch was called as a witness for defendant, and was asked to state, if at the time he sold to Witham, Witham said anything to him about the northern boundary of the lot. He answered that when Witham came to see him about trading for the place he asked how far the lot extended north, and witness replied that it extended to a certain fence which he pointed out. In this question we see nothing objectionable. Any statement made by McCulloch while an owner as to the boundaries claimed by him was admissible, and it was proper to show how the statement came to be made.

The facts in the case of Shiels v. Haley, 61 Cal. 157, upon which the appellant relies, are not like the facts in this case. There the court found "that by mutual mistake defendant had been in possession, without claim or right of title thereto" of the property in question. Here there is no such finding, and no evidence to warrant such

a one.

The appeal from the judgment, it having been taken more than a year after the judgment was entered, should be dismissed, and the order denying the motion for new trial should be affirmed.

SEARLS, C., and FOOTE, C., concurred.

The COURT.- For the reasons given in the foregoing opinion, the appeal from the judgment is dismissed, and the order is affirmed.

[No. 11060. In Bank.

September 24, 1886.]

EU

PHILIP CORCORAN ET AL., RESPONDENTS, V. COR-
NELIUS DESMOND ET AL., APPELLANTS.
GENE SULLIVAN, INTERVenor and ResPONDENT.

APPEAL

JUDGMENT

ORDER MADE AFTER

UNDERTAKING INSUFFICIENCY OF.-The appellants appealed from the judgment and from an order refusing to set it aside. But one undertaking on appeal was filed, which recited the judgment and order appealed from, and provided that, in consideration of such appeal, the appellants would pay all damages and costs which might be awarded against them on the appeal, or on a dismissal thereof, not exceeding three hundred dollars. The undertaking contained a further provision and promise for a stay of execution under the judgment as provided by section 145 of the Code of Civil Procedure. Held, that the undertaking was insufficient to support either the appeal from the judgment or the appeal from the order.

APPEAL from a judgment of the Superior Court of Calaveras County, and from an order refusing to vacate and set aside the judgment.