The following is the opinion of Richards, J., in the District Court of Appeal, concurred in by Lennon, P. J., and Kerrigan, J.: cident Commission at the original hearing. | by District Court of Appeal. Rehearing deWe held that the statute of limitations bar-nied. red the second application which related to something having no possible causal connection with the accident originally reported to and investigated by the commission. It is undenied that the site of the inflammation which caused Henne's disability was about the same as the location of the trouble which produced his death. Therefore there is no proper application of the quoted passage to 'the proceeding which we are here reviewing. In the Ehrhart Case we were at pains to point out the rule with reference to a later disorder occurring at the same place as the earlier one and due to the same general causes, for we there said: "Let us suppose, by way of illustration, that after Salvatore's leg had healed and he had returned to work he should have suffered with necrosis of the bone in the vicinity of the frac ture. it would have been perfectly proper for the Industrial Accident Commission to have investigated the second disability and to have determined the facts from the record made at the original hearing and the evidence adduced at the later inquiry, and, if justified by those facts, to have ordered a resumption of payment of an indemnity." And if such power exists with reference to a later development causing compensable disability, it must also inhere in the commission when the ultimate effect of the injury is the workman's death. No other matters presented by the briefs require comment or analysis. The writ is dismissed, and the award affirmed. Under a lease providing that, if there be a sale of the land, the lessee is to be paid for all summer fallow, "providing purchaser wants possession immediately," a sale did not necessarily terminate the lease, whether or not there was any summer fallow, but the purchaser had an option and a reasonable time in which to exercise it, the word "immediately" in such cases not meaning instantly or without any appreciable lapse of time, but meaning a reasonable time dependent on the circumstances existing at the time of the sale and following presently thereafter, and involving the questions of waiver and estoppel. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Immediately.] In Bank. Appeal from Superior Court, Monterey County; J. A. Bardin, Judge. Action in unlawful detainer by Edward Q. McVitty against Obi Flentge. Judgment for defendant, and plaintiff appealed. Reversed This is an appeal from a judgment in the defendant's favor after motion for nonsuit granted. The action was for unlawful detainer. The defendant was in possession of the premises in question under a lease for the term of three years commencing November 1, 1915, at an annual cash rental of $110, payable yearly in adest of one Otto L. Harden, the lessor of the vance. The plaintiff is the successor in interpremises, having purchased the same from him, the conveyance thereof being delivered to said plaintiff on January 22, 1917. The lease under which the defendant claims the right to hold possession for the remainder of its term contains the following provision: "If said land is sold before expiration of said lease, the party of the second part to be paid for all summer fallow at the going price per acre, providing purchaser wants possession immediately." The formal demand for possession on the part of plaintiff as grantee of the lessor was not made until April 6, 1917, and was then refused by the lessee, whereupon this action was begun. Upon the trial it appeared by the pleadings and admissions of the parties that the land had not been summer-fallowed for the previous year. The sole question presented to the court upon the motion for nonsuit and to this court upon appeal is as to the proper construction to be placed upon the above-quoted clause in the defendant's lease, the latter contending that, the demand for possession on the part of the purthe consummation of his purchase of the leased chaser not having been made immediately upon premises, the lessee is entitled to hold for the remainder of the term. The interpretation which we place upon the above-quoted clause does not lead us to sustain this view. The clause in the lease in question was intended by the parties to it to be a reservation in favor of and for the benefit of the lessor, and is to be so interpreted. Civ. Code, § 1069; Diepenbrock v. Luiz, 159 Cal. 716, 115 Pac. 743, L. R. A. 1915C, 234, Ann. Cas. 1912C, 1084. Thus interpreted, it expressed briefly and somewhat vaguely, it is true, the evident intent of the parties that the owner of the premises should have the right to transfer to his grantee the right to the possession thereof upon a sale, and thereby terminate the lease. The only limitation upon that right expressed in the clause conferring it had reference, not to the time when the lease should be terminated, but merely to the terms upon which the grantee of the premises might exercise his right to receive possession. If the land had been summer-fallowed, and if the purchaser desired to obtain the benefit arising from such cultivation in the way of resultant crop, he must have offered to pay the lessee the amount expended by him in summerfallowing the land in order to obtain possession of the premises so as to receive the benefit of the crop, and he must do this immediately upon consummation of his purchase. But in the case at bar there had been no summer-fallowing of the land for the previous year, and hence there was no sum which the purchaser was bound to tender or which the lessee was entitled to receive as a condition of surrendering possession of the premises; and therefore there was no necessity for an immediate demand and payment on the part of the purchaser in order to retain his right to such possession. The fact that there happened to be a volunteer crop upon the land is a false quantity in the case, for the reason that the lease contained no reservation of any right in the lessee by which he was to be paid for such required the purchaser to exercise his right crop, or was to have any right to possession of to take possession without any delay whatthe premises for the purpose of harvesting the same. His lease was terminated upon the trans- ever, and that by his delay in doing so from fer; and the only right retained by him was the January 22d to April 6th of the same year right of being paid for the cost of summer- the purchaser lost his right to take possesfallowing the land in case he had made such out- sion. Upon a new trial the defendant will lay previous to the sale. In such event only was he entitled to an immediate demand for posses- have the opportunity of proving, as alleged in sion and to the repayment of the amount of his his second defense, that the plaintiff, shortly outlay. Otherwise the purchaser was entitled to before his, purchase, notified the defendant the possession of the property upon his proper that he would not interfere with the defenddemand therefor whenever made. Such demand was made on April 6, 1917; and in respect to ant's possession until November 1, 1917, and both form and time was such as to have entitled that, relying upon said notice, defendant the plaintiff to possession of the premises. This being so, we are of the opinion that the defend-proceeded to cultivate a portion of the prem ant's motion for a new trial was improperly ises and to raise a crop thereon, which had granted, and that the judgment in the defend- partly matured at the time the defendant ant's favor based thereon must be reversed; and it is so ordered. C. F. Lacey, of Salinas, for appellant. Alex Webster and Chas. R. Nelson, both of Paso Robles, for respondent. PER CURIAM. The petition for a rehearing is denied. It is necessary to say, however, that in our opinion the decision of that court as to the effect of the reservation in the lease is not exactly correct. A sale of the land by the vendor would not, of necessity, terminate the lease. The purchaser would, upon such sale, have the option to terminate the lease, pay the cost of summer-fallowing at the going price, if any had been done, and take possession of the land, or of allowing the tenant to hold possession during the term of the lease. The phrase "providing purchaser wants possession immediately" does not mean that the buyer must take possession forthwith after his purchase or not at all. The word "immediately," when it refers to something to be done after a preceding event, where the thing to be done involves further inquiry or the exercise of discretion or of an election, does not mean that the thing must be done instantly or without any appreciable lapse of time after the preceding event. In such cases it is almost universally construed to mean that the succeeding act must be done within a reasonable time after the preceding event. First National Bank v. Haug, 52 Iowa, 538, 3 N. W. 627; Cashau v. N. W. Nat. Ins. Co., 5 Fed. Cas. 270; Fidelity, etc., Co. v. Robertson, 136 Ala. 379, 412, 34 South. 933. The question what is a reasonable time would depend upon the circumstances existing at the time of the sale and following presently thereafter. The defendant in his answer alleged facts which, if true, would show that the option of the purchaser to take possession under the reservation was not exercised within a reasonable time after his purchase, and which would have the effect of a waiver on his part, or create an estoppel which would defeat his right to possession at the time this action was begun. But he did not avail himself of this defense, but saw fit to rest his case upon a motion for a nonsuit, upon the theory that the reservation in the lease asserted his right to possession under the reservation. With this modification the defendant should have no difficulty in preserving such rights as he may have. CARTER v. SUPERIOR COURT OF KERN (Supreme Court of California. Dec. 15, 1917.) Under Code Civ. Proc. § 1036, providing that a nonresident plaintiff may be required to give security for costs, and that until an undertaking executed by two or more is filed with the clerk conditioned that "they" will pay such costs, the proceeding must be stayed, and section 1037, providing that after 30 days from the service of notice requiring security, and on proof that it has not been filed, the court may order a dismissal, and in view of section 1056, providing that a corporation qualified as required by law may be accepted as a sole and sufficient surety, an undertaking by a corporate surety is sufficient, and its qualification need not appear therein. 2. COSTS 121-SECURITY FOR COSTS-SUFFI CIENCY-STATUTE. of a nonresident plaintiff that the "plaintiff" A surety company's undertaking on the part would pay costs, charges, etc., containing no express promise by the surety to pay any sum of money, was insufficient. 3. COSTS 137 - NONRESIDENT PLAINTIFF FAILURE TO FILE SECURITY-JURISDICTION. Under such provisions, the failure to file such undertaking does not deprive the court of jurisdiction of the action, or operate as a dismotion to dismiss in the absence of anything exmissal thereof, though the court should grant a cusing the failure to file the security, but in the absence of a dismissal it retains jurisdiction, and the security may be filed at any time before dis missal. ANGELLOTTI, C. J. Petitioner, Carter, is a defendant in an action pending in the superior court of Kern county, in which one Mary V. Douthit, a resident of the state of Oregon at and ever since the commencement of the action, is the plaintiff. He regularly made demand as provided by sections 1036 and 1037, Code of Civil Procedure, for se curity for the costs and charges which might be awarded against the plaintiff in the action. Within 30 days of such demand the plaintiff filed what is claimed to be a sufficient undertaking in the sum of $300 with the Fidelity & Casualty Company of New York as sole surety. Claiming that no such undertaking as is required by the law had ever been filed, Carter, after the expiration of 30 days from the date of the demand, made a motion in the superior court that the action be dismissed. The superior court, apparently holding the undertaking sufficient, denied the motion, and is about to proceed with the trial of the case. Carter then instituted this proceeding in the District Court of Appeal of the Second Appellate District to obtain a writ of prohibition restraining further proceedings in said action in the superior court. Judgment was therein given perpetually restraining all further proceedings in the superior court. On petition to this court, this judgment was vacated, and the matter ordered heard herein. [1] Section 1036, Code of Civil Procedure, provides that, when the plaintiff in an action or special proceeding resides out of the state, security for the costs and charges which may be awarded against him may be required by the defendant. It further provides: "When required, all proceedings in the action or special proceeding must be stayed until an undertaking, executed by two or more persons, is filed with the clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action. * * not exceeding the sum of three hundred dollars." * Section 1037 provides that: "After the lapse of thirty days from the service of notice that security is required, upon proof thereof, and that no undertaking as required has been filed, the court or judge may order the action or special proceeding to be dis Any suggestion that the undertaking filed is insufficient because executed by only one surety, instead of two or more, as provided in section 1036, Code of Civil Procedure, is answered by section 1056, Code of Civil Procedure, which provides that a corporation qualified as required by law for that purpose may be accepted as sole and sufficient surety in all cases where an undertaking with any number of sureties is authorized or required. It is not claimed that the surety here was not in fact such a corporation; the only claim in that connection being that such fact does not appear from the undertaking itself. We do not consider it essential to the validity of the undertaking that such fact appear on its face. The statute makes no such requirement. The vital thing is that it is in fact qualified as provided by law. [2] The remaining objection is more serious, and is the one upon which the learned District Court of Appeal based its conclusion that a sufficient undertaking had not been filed. As we have seen, section 1036, Code of Civil Procedure, requires that the undertaking must be to the effect "that they (the sureties) will pay such costs and charges," etc. The undertaking filed does not expressly so provide; the express undertaking and promise therein being simply one "on the part of the plaintiff that said plaintiff will pay all costs and charges which may be awarded * * * not exceedagainst the plaintiff, ing the sum of $300." Nowhere therein does the surety expressly promise to pay any money or expressly declare itself bound in any sum of money. In view of the recent decision of this court in San Luis Obispo Co. v. Ryal et al., 165 Pac. 1, it is certainly at least very doubtful whether any recovery thereon could be had by Carter. However this may be, it is not the kind of undertaking prescribed by the statute, which calls for one in which the sureties themselves expressly promise to pay such costs and charges as may be awarded against the plaintiff, not exceeding the specified sum. We are of the opinion that a defendant demanding security for costs, etc., under section 1036, Code of Civil Procedure, has the right to insist upon an undertaking measuring fully up to the requirements of the section, and that in the particular under discussion this bond did not do so. [3] It does not follow, however, that because of this failure on her part the superior court may be perpetually restrained from all further proceedings in the action. The failure to file such an undertaking within 30 days from the service of notice that security is required or at all does not deprive the court of jurisdiction of the action, or operate as a dismissal thereof. Certainly the statute does not so provide. There is no requirement in the statute that the undertaking must be filed within any specified time, and no requirement that the action must be * * * up filed within a specified time. Section 1037, Code of Civil Procedure, the section relative to dismissal, simply provides that: "After the lapse of thirty days from the service of notice that security is required, on proof thereof and that no undertaking as required has been filed, the court or judge may order the action to be dismissed." In the connection in which it is used, there is no reasonable ground for reading the word "may" as "must." Doubtless the court should grant such a motion to dismiss in the absence of circumstances tending to excuse the failure to file the required undertaking, and perhaps, where the evidence is without conflict and tends to show no excuse, could be compelled to do so by mandate. But, whether it grants or denies the motion, it is acting in the exercise of its jurisdiction, and in the absence of a dismissal the court retains jurisdiction of the action. It seems clear also that the required undertaking may be filed at any time prior to dismissal. [4] Even if the statute be so construed as to require such filing within the 30 days, there can be no doubt that the trial court, in the exercise of a sound discretion, could permit such filing, and should do so where it appears that a party in good faith has originally endeavored to comply with the statute by filing an undertaking which was defective. This has been expressly held in relation to the bond required in actions for libel and slander to secure the defendant as to costs and charges, where the statute expressly provided that "an action brought without filing the undertaking shall be dismissed." The decisions under this act fully sustain our views on the question of jurisdiction and the power of the court on motion for dismissal for failure to file bond. Dixon v. Allen, 69 Cal. 527, 11 Pac. 179; Stinson v. Carpenter, 78 Cal. 571, 21 Pac. 304; Becker v. Schmidlin, 153 Cal. 669, 671, 96 Pac. 280. In the last case cited, it was assumed by this court that the bond filed was in fact void. But it was apparent that counsel for the plaintiff was at least acting in good faith under a belief that it was valid, when he filed it. The order of the lower court refusing leave to plaintiff to file a new bond and dismissing the action was reversed. The court said: That the undertaking, as here, was intended to secure defendant in the costs and charges which might ultimately be awarded him, and that "the provision is for his sole benefit, and, this being true, the discretion vested in the court of permitting plaintiff to file a new undertaking which will afford a defendant all the protection the law intends should be exercised to effect that end." In Dixon v. Allen, supra, no bond was filed, and the trial court denied a motion for dismissal, giving plaintiff leave to file such a bond, which was subsequently done. This court said: "The statute does not deprive the superior court of jurisdiction in case the undertaking is not filed. The object of the statute is accomplished, if, when the objection is made, the secured the costs and charges, which may be awarded to him." See, also, Farmer v. Warner, 64 Kan. 878, 68 Pac. 1127. In the recent case of Estate of Baker, 168 Pac. 881, 882, this court said, speaking of a supposed failure to comply with the requirements of the statute here involved (sections 1036 and 1037, Code Civ. Proc.): "It does not follow that the court is bound to dismiss it, or that, if it refuses to do so, its further proceedings therein are without jurisdiction and void." The case of Meade County Bank v. Bailey, 137 Cal. 447, 70 Pac. 297, relied on by petitioner, is not in conflict with anything we have said. There the trial court dismissed the action because no proper bond was ever filed, and the matter came before this court on appeal from such order. The opinion does not suggest that any showing of excuse was made in the lower court or that there was any offer to file a proper bond therein, and it was held that the court did not err in dismissing the action. This [5] However, it is clear that proceedings in the action should be stayed pending the filing of the required undertaking. much is expressly provided in section 1036, Code of Civil Procedure, and manifestly is essential to accomplish the object of the statute. Of this provision it was said in Meade County Bank v. Bailey, supra: "The statute vests in the defendant the right to have the bond, and the court cannot against his will deprive him of that right, or alter the amount or terms of the bond required. When the demand for security for costs is made in the proper case, the law itself enjoins further proceedings on the part of the plaintiff until the demand is complied with according to the provisions of the Code." Will prohibition lie to prevent such further proceedings pending the filing of the undertaking? Where the court refuses to dismiss an action for failure to file the required undertaking, and is proceeding to try the cause without any undertaking being on file, manifestly the defendant has no plain, speedy, and adequate remedy in the ordinary course of law. A similar situation was presented in Hayne v. Justices Court, 82 Cal. 284, 23 Pac. 125, 16 Am. St. Rep. 114, where the lower court was proceeding to try a case in disregard of the provisions of section 45 of the Insolvency Act, which plainly prohibited prosecution to final judgment of actions against the debtor until the question of his discharge was determined. This court there said: "This is a plain and direct prohibition against any further proceedings in the justice's court, and the petitioner, having brought himself within the statute, is entitled to the relief prayed for. * A court that proceeds in the trial of a cause against an express prohibition of a statute is exceeding its jurisdiction, and may be prevented by prohibition from this court." * ** It appears to us that in no other way could the petitioner here receive the protection is certainly sufficient authority for the proposition that, seeking and insisting upon such protection, he is entitled to have proceedings stayed in the lower court, pending the filing of the required bond, by prohibition. It is ordered that a peremptory writ of prohibition issue prohibiting respondents from further proceedings in the action of Mary V. Douthit, Plaintiff, v. George D. Carter et al., Defendants, now pending in the superior court of Kern county, in so far as said defendant George D. Carter is concerned, pending the execution and filing by the plaintiff therein of the undertaking for costs and charges required by section 1036, Code of Civil Procedure, saving and excepting to respondents the right and power to entertain and determine any motion for dismissal of said action under the provisions of section 1037, Code of Civil Procedure, as well as the right and power to allow a proper bond to be filed in accord with the requirements of said section 1036, Code of Civil Procedure. "This is an appeal from a judgment in plaintiff's favor in an action brought against the decover the statutory penalty for refusing to fendant as the secretary of a corporation to retransfer shares of stock of said corporation to the plaintiff upon his production of an assignment of the certificate of said stock and his de mand for such transfer. "The facts of the case are practically undisputed and are as follows: On February 15, 1915, one Andrew Ramage was the owner of 200 shares of the capital stock of the Growers' Co-operative Agency, a corporation. On that date an action was commenced against him in the justice's court of the city and county of San Francisco upon a debt, and an attachment was thereupon issued out of said court, which was straightway levied upon the said shares of stock of the defendant in said corporation. On March 15, 1915, said Andrew Ramage sold, indorsed and delivered to Stanley Ramage, the plaintiff herein, 199 shares of said stock, and delivered the certificate evidencing the same to him. The plaintiff immediately presented said certificate to the defendant herein, as the secretary of said corporation, and requested the issuance of a new certificate therefor to him. The defendant then informed the plaintiff and also Andrew Ramage, his assignor, of the fact of said attachment, and stated to the plaintiff that he would sign and issue said stock as soon as said attachment had been released. On August 5, 1915, the plaintiff renewed his demand on the defendant for the issuance to him of said stock. The action against Andrew Ramage was still pending and said attachment had not been discharged or released, and the defendant then stated that he was not at liberty to issue a new certificate for the attached stock, but that he would do so as soon as said attachment had been released. This action was thereupon instituted to recover from the defendant as liqui130-TRANSFER OF STOCK-dated damages the statutory penalty provided by section 324 of the Civil Code. We concur: VICTOR E. SHAW, Judge pro tem.; SLOSS, J.; SHAW, J.; MELVIN, J.; HENSHAW, J. RAMAGE v. GOULD. (S. F. 8206.) (Supreme Court of California. Dec. 15, 1917.) CORPORATIONS ATTACHMENT. An attachment upon corporate stock is merely a lien on the shares, and does not interfere with the right to transfer the title to the stock, and the corporate officers must issue a new certificate to an assignee or be liable to a penalty as provided by Civ. Code, § 324; attachment in such cases being regulated by Code Civ. Proc. § 542, subd. 4, relating to attachment of corporate shares, and not by subdivision 5, relating to attachment of personal property not capable of manual delivery, and section 544, making persons having in their possession or under their control personal property belonging to the defendant liable to the plaintiff, does not apply. In Bank. Appeal from Superior Court, City and County of San Francisco; Geo. A. Sturtevant, Judge. Action by Stanley Ramage against C. W. Gould. Judgment for plaintiff, and defendant appealed. Judgment was affirmed by the District Court of Appeal. On rehearing. "The sole question presented for decision in this case is as to whether the officers of the corporation can refuse to transfer certificates of shares of stock in their corporation to a purchaser and holder thereof demanding such transfer, when a writ of attachment has been levied on the shares or interest of the original holder of such stock, the lien of which attachment has not been released, but is still subsisting at the time of such demand. "We are unable to distinguish this case in principle from the case of Craig v. Hesperia Land & Water Co., 113 Cal. 7, 45 Pac. 10, 35 L. R. A. 306, 54 Am. St. Rep. 316. In that case the action was to recover damages for a conversion of the plaintiff's stock by the officers of the corporation through their failure or refusal to transfer said stock upon demand, the reason for such refusal consisting in the claim that the corporation had a lien on the stock for unpaid tion in that case the Supreme Court says: "The assessments. In upholding the plaintiff's contenlien, however, is upon the shares, and not upon the certificate. The certificate is merely evidence of ownership of the shares. When an old certificate is surrendered, and a new one issued, the new certificate represents the same shares, but the corporation may have upon them, and the the shares themselves remain subject to any lien new owner takes subject to such lien.' It is, however, urged by the appellant that the above case is to be distinguished from the case at bar by the fact that in the case of a corporate lien for unpaid assessments the records of the corporation would disclose such lien and put subsequent transferees of the certificate of stock upon notice thereof; while in the instant case come a matter of corporate record, and purchasthe lien created by the attachment would not beers of the stock under attachment subsequent |