dissolution before suit brought as would defeat a judgment in the plaintiffs' behalf.

Parties bringing suits state the facts constituting their cause of action, defendants deny such facts, which is entirely proper. But a court, in passing upon the issues as made, must find the facts ultimately, or such probative facts as that ultimate facts may be inferred.

Where, as in this case, such action is had by the court, and the facts as found show beyond doubt that the conclusions of law arrived at are correct, the judgment should not be reversed, because the findings do not positively negative either the plaintiffs' or defendant's allegations in their pleadings, in all respects as they are worded, but do so substantially.

It sufficiently appears that the court below did pass on all material issues as made in this cause by the pleadings, and that the facts as found entitle the defendant to the judgment he obtained.

As has been before stated, the evidence was in some respects conflicting, and therefore we cannot say that the findings were not thereby supported. The latter support the judgment, and it and the order denying a new trial should be affirmed.

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

The COURT. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

Rehearing denied.

[No. 11836. Department Two. - January 21, 1887.]

J. C. MASSMAN, PETITIONER, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, RESPONDENT.

JUSTICE'S COURT APPEAL - NONSUIT SUPERIOR COURT MAY GRANT NEW TRIAL. Where a nonsuit has been granted on the trial of an appeal from a Justice's Court, the Superior Court has jurisdiction to grant a new trial.

APPLICATION for a writ of review to annul an order of the Superior Court of the city and county of San Francisco granting a new trial. The action in which the order complained of was made originated in a Justice's Court, and from the judgment there rendered an appeal was taken to the Superior Court. On the trial of the appeal, the plaintiff was nonsuited, and judgment rendered in favor of the petitioner. The plaintiff moved for a new trial, which was granted. On the new trial, a judgment was rendered against the petitioner.

Ladd & Finlayson, for Petitioner.

The COURT. Application for writ of review. The application must be denied. The Superior Court, in our opinion, had jurisdiction to grant a new trial in the case of a nonsuit on the trial of an appeal to it from a Justice's court. (Code Civ. Proc., sec. 980.)

Ordered accordingly.

[No. 11942. Department Two. - January 22, 1887.]

L. H. BAKER, PETITIONER, v. SUPERIOR COURT OF SHASTA COUNTY, RESPONDENT.

CERTIORARI TO SUPERIOR COURT- - NECESSARY PARTY RESPONDENT SERVICE OF WRIT. — In a proceeding by certiorari to review an order of the Superior Court, the court is the only necessary party respondent; and the service of the alternative writ is sufficient, if a copy thereof, together with a copy of the petition for the writ, is served on the judge of the court, and on the attorneys of the party in whose favor the order was made.

ID.

TIME TO PLEAD CANNOT BE EXTENDED BEYOND THIRTY DAYS -REVIEW OF ORDER EXTENDING. - An order of the Superior Court extending the time in which a defendant might plead until ten days after the receipt of the remittitur in another action then pending on appeal in the Supreme Court, in so far as it attempts to extend the time to plead more than thirty days, is in excess of the jurisdiction of the Superior Court, and may be reviewed on certiorari.

APPLICATION for a writ of review to annul an order of the Superior Court of Shasta County, granting a defendant time in which to plead. The alternative writ was directed to the Superior Court as the sole respondent, and a copy thereof, together with a copy of the petition for the writ, was served on the judge of the court, and on the attorneys for the defendant in the action in which the order was made. The further facts are stated in the opinion of the court.

Frisbie & Wiley, for Petitioner.

Eugene B. Cushing, for Respondent.

MCFARLAND, J. We think that the service in this proceeding was sufficient, and that the proper parties are before the court, and therefore the motion to quash is denied.

The return to the writ of review in this proceeding shows that in the case of L. H. Baker, petitioner herein, v. William Banks, defendant, pending in the court of respondent, an order was made by the court on the

twenty-ninth day of December, 1886, extending the time of defendant to answer or demur until ten days after the receipt of the remittitur, in a certain other case of N. J. Pehrson v. John B. Hewitt, then pending on appeal from the court of respondent to this court. The order also contained some directions about a stay of proceedings, but we treat it as being substantially an order extending the time to plead as above stated.

It is clear that the order, so far as it attempted to extend the time to plead more than thirty days, was an excess of jurisdiction (Code Civ. Proc., sec. 1054); and it is equally clear that petitioner has no plain, speedy, and adequate remedy other than certiorari.

As this court may modify the order, we do not deem it necessary to determine whether or not it should be considered as a unit, and therefore totally void.

It is therefore ordered that the order under review be modified so as to extend the time within which the defendant in said case of Baker v. Banks may plead thirty days from and after the twenty-ninth day of December, 1886, and no further.

SHARPSTEIN, J., and THORNTON, J., concurred.

[No. 11842. In Bank. - January 24, 1887.]

IN THE MATTER OF THE APPLICATION FOR THE DISBARMENT OF W. W. KNOTT.

ATTORNEY AT LAW

ID.

PROCEEDING FOR DISBARMENT DISMISSAL. A proceeding for the disbarment of an attorney and counselor at law cannot be dismissed upon the motion of the accuser.

FAULT ATTRIBUTABLE TO YOUTH, INEXPERIENCE, AND IGNORANCE. In a proceeding for the disbarment of an attorney, held, that the conduct of the respondent complained of should be attributed to his youth, inexperience, and ignorance, and that the proceeding should be dismissed.

APPLICATION for the disbarment of an attorney and counselor at law. The facts are stated in the opinion of the court.

Page & Eells, for Complainant.

Rogers Johnson, for Respondent.

The COURT. This is a proceeding to disbar the respondent for making what is claimed to have been a false affidavit in a proceeding to obtain a patent at Washington.

Apparently the affidavit was one which the respondent may have believed to have been literally and technically true, but which was morally false, and was, in effect, an imposition upon the secretary, with whom it was filed.

We have before had occasion to condemn the practice which is too common, of making affidavits to what the affiant may claim to be the legal effect of facts not stated. They are often simply impositions upon the court. In this case the respondent was at the time young and inexperienced, and relied upon the assurance of an older and more experienced lawyer, that he could properly make the affidavit.

It was not really an act as an attorney in our jurisdiction, and could probably only be considered as affecting the moral character of the respondent. The accuser desires to have the proceeding dismissed, saying that he made the accusation under the influence of anger. We do not recognize the right of an accuser to have such a proceeding dismissed; but having examined the evidence, we are inclined, in view of all the circumstances, to attribute the fault, though a grave one, to youth, inexperience, and ignorance.

The proceeding is therefore dismissed.