county against Juan M. Luco, I. N. Thorne, and S. F. Ambler, all of said defendants being non-residents of said county; that on the sixth day of March following defendants Thorne and Luco (Ambler not having been served with process) filed in the Justice's Court affidavits, and a motion to dismiss the action on the ground of a want of jurisdiction in the court to try the cause, also separate answers to the complaint; that on the twenty-first day of December, 1885, the case was tried in ́said Justice's Court, but before the trial commenced Thorne and Luco, by consent, withdrew the motion to dismiss the action. Judgment was then rendered against them, and from that they appealed to the Superior Court of Tuolumne County, on questions both of law and fact.

After the filing of the papers on appeal in said Superior Court, the defendants Thorne and Luco moved, upon affidavits, for a change of the place of trial of the cause to the Superior Court of the city and county of San Francisco, upon the ground that their residence then, and at the time of the commencement of the action, was at the latter place.

The court overruled their motion. And it is to compel its action to transfer the case for trial as demanded by their motion that the present proceedings were instituted.

The fact that the defendants voluntarily by consent withdrew their motion to dismiss the case, and went to trial on the merits in the Justice's Court, was a waiver of the question of jurisdiction raised on the motion, under section 848, Code of Civil Procedure, the action being in its nature personal.

The action undoubtedly arose in the Justice's Court of Tuolumne County, and therefore no other Superior Court save of that county had appellate jurisdiction to hear and determine it; and as the Superior Court of the city and county of San Francisco was without jurisdiction so to do, it was proper for the court below to have

refused, as it did, to transfer the cause as requested by the defendants.

This construction of the provisions of section 980, Code of Civil Procedure, relative to a change of place of trial, and of article 6, section 9, of our state constitution, as bearing upon the constitutionality of that former section. as applicable to cases like the one under consideration, is sustained in the case of Gross v. Superior Court, ante, p. 382.

For these reasons, the writ of mandate should be denied and the petition therefor dismissed.

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

The COURT. For the reasons given in the foregoing opinion, the application for a writ of mandate is denied and petition dismissed.

[No. 11410. In Bank. January 18, 1887.]

JOHN HEINLEN, RESPONDENT, v. AUGUST HEILBRON ET AL., APPELLANTS.

NOTICE OF MOTION

NEW TRIAL VACATING DECISION. A notice of intention to move for a new trial need not state that the party moving will ask that the verdict or decision be vacated. PLEADING OBJECTION 10 PARTIES NOW RAISED WAIVER. Under the Code of Civil Procedure, all objections to the misjoinder or non-joinder of parties, either plaintiff or defendant, must be taken by demurrer or answer; otherwise the objections are waived. MISJOINDER OF DEFENDANTS INJUNCTION DIVERSION OF WATER-NONSUIT. — In an action to restrain several defendants from diverting the waters of a stream, and to recover damages for past diversions, an issue raised by the answer as to the misjoinder of defendants becomes immaterial, when a nonsuit is granted as to the defendants alleged to be improperly joined.

ID.

ID.

DAMAGES TO LAND NOT DESCRIBED IN COMPLAINT — APPEAL FROM JUDGMENT. In such an action, the plaintiff cannot recover damages for injuries caused by the diversion to lands owned by him which are not described in the complaint; and where the findings show that such damages were allowed, the error may be taken advantage of on an appeal from the judgment, notwithstanding the same is not specified as error in the bill of exceptions or statement on the motion for a new trial.

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

The facts are stated in the opinion.

Brown & Daggett, and D. S. Terry, for Appellants.

Atwell & Bradley, and G. A. Heinlen, for Respondent.

SEARLS, J. This is an action to recover damages for the diversion of water from Cole Slough, or Kings River, and for a perpetual injunction restraining the defendants from diverting the waters thereof.

The cause was tried by the court, a jury having been waived, findings in writing filed, upon which judgment in favor of plaintiff was rendered for one hundred dollars damages, and awarding a perpetual injunction against defendants, restraining them from maintaining any dam or dams in Cole Slough or the channel thereof, or from in any manner interfering with the waters thereof, or obstructing or diverting the same from their natural channel, etc.

From this judgment, and from an order denying a new trial, defendants appeal.

It is objected on the part of the respondent that the notice of motion for a new trial (a copy of which is inserted in the bill of exceptions, and thereby made a part of the record) is insufficient, in that while it notified respondent that defendants would "make and submit to said court above named a motion for a new trial of said. cause," and designated the grounds of said motion, yet did not specify that they would ask that the former verdict or other decision be vacated, etc.

The statute (Code Civ. Proc., sec. 657) provides that "the former verdict or other decision may be vacated, and a new trial granted on the application of the party aggrieved, for any of the following causes," etc.

The section quoted does not make provision for a notice of the motion, but section 659 requires that "the

party intending to move for a new trial must, within ten days after the verdict of the jury, or after notice of the decision, . . . . file with the clerk and serve upon the adverse party a notice of his intention, designating the grounds upon which the motion will be made,"

etc.

In Bauder v. Tyrrel, 59 Cal. 99, it was said: “The section regarding the notice of motion for a new trial does not require that the notice shall in terms contain a notice of motion that the decision should be vacated. The order granting a new trial does of itself vacate the decision.

That must be its necessary effect; for how can there be a new trial if the former decision stands?"

In Kimple v. Conway, 69 Cal. 71, a notice of motion for "a rehearing or new trial," was construed to be a notice of motion for a new trial, and that the words "rehearing" and "new trial" were used as synonymous.

The language used in the notice indicated clearly the intention of the moving party; such notice was not defective in any of the specific requirements of section 659, and was therefore sufficient.

The complaint charges all the defendants jointly with having wrongfully built dams, headgates, etc., in Cole Slough, and a water ditch or canal therefrom, and thereby diverting a large portion of the waters thereof from plaintiff.

There were two answers filed in the cause; one by the defendants James and Burrell, and another by the defendants composing the firm of Poly, Heilbron & Co., in each of which answers said defendants pleaded a misjoinder of parties defendants.

At the trial a motion for nonsuit was made on the part of defendants James and Burrell, who had answered separately, which motion the court at first overruled, but subsequently granted, upon the ground that there was no sufficient evidence against them to make a case either for damages or for an injunction.

Thereupon, upon motion of the plaintiff, leave was granted by the court to amend the complaint by striking therefrom the names of said James and Burrell as defendants.

Defendants Heilbron, and others of the firm of Poly, Heilbron & Co., who had answered separately, also moved for a nonsuit, upon the ground that it appeared from the evidence that there was a misjoinder of parties defendants, in that the acts as proved showed separate and distinct wrongs and injuries committed by defendants James and Burrell, from those proven against these defendants, and that no collusion or joint injuries by all the defendants was proven, etc.

The court denied the motion, and its action is assigned

as error.

Misjoinder of Parties Defendant. In actions ex contractu, if too many parties were made co-defendants under the common-law rule, advantage could be taken of the misjoinder, -1. If the defect appeared on the face of the record by demurrer; 2. By motion for nonsuit at the trial; 3. By motion in arrest of judgment; or 4. By writ of error. (7 Taunt. 352; 1 Chit. Pl. 50, and cases cited.)

In actions ex delicto, no advantage could generally be taken by the defendant of a misjoinder of parties defendant, and the only effect of a misjoinder was that the parties who should not have been included in the action were entitled to a verdict at the trial. (Archbold's (Archbold's Plead

ings, 72.)

To this general rule there was, however, the exception that where the tort could not, in point of law, be joint, as in case of slander and some others, the misjoinder was ground for demurrer, or after verdict for motion in arrest of judgment, or writ of error.

But in these exceptional cases, the objection was aided by the plaintiff's taking a verdict against one only, or, if several damages were assessed against each, by enter