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lots that should not be counted for either quires that the intention on the part of the partý, Wilson has 173 votes, and Turner 169 voter to identify the ballot must appear. votes. The findings that contestee did re Similar reasons may be given regarding all ceive the highest number of votes cast in of the other provisions supposed to conflict such judicial township for said office of con- with subdivision 4 aforesaid. stable, and that it is not true that contestant It may be further said, with respect to received a majority of said votes, are fully the provision of subdivision 8 of section 1197, supported by the evidence, and the mere fact as amended in 1911 (St. 1911, p. 404), and of that the findings are incorrect as to the ex- subdivision 10 of the amendments of 1913 act number of votes received by each of the (St. 1913, p. 1157) and 1915 (St. 1915, p. 272), parties does not require a reversal.

providing that there shall be printed on the The judgment appealed from is affirmed. ballot certain instructions to voters, one of

which is that distinguishing marks and eraWe concur: SLOSS, J.; MELVIN, J.; sures make the ballot void is not an enactHENSHAW, J.; LORIGAN, J.; LAWLOR, J. ment of substantive law at all, but a mere

provision that certain cautions shall be given SHAW, J. I concur in the opinion of the

to the voter himself. These instructions to CHIEF JUSTICE. I think, however, that voters have been carried down in the same something additional should be said in regard

form from the time when the statute proto the seeming conflict between subdivisions 4 |

vided that every distinguishing mark should of section 1211 of the Political Code and the

invalidate the ballot, and it apparently has preceding portions of the chapter bearing on

not been perceived that subdivision 4 afore the subject of improper marks on the ballot.

said changes the rule in that respect. With respect to all these inconsistencies the case calls for the application of the rule

(171 Cal. 553) expressed in section 4484 of the Political In re VANDERHURST'S ESTATE. Code that, where there are conflicting pro- JACOBS et al. v. VANDERHURST et al. visions in different sections of the same chap

(S. F. 7258.) ter or article, “the provisions of the sections (Supreme Court of California. Dec. 16, 1915. last in numerical order must prevail, unless Modification of Opinion Jan. 12, 1916.) such construction is inconsistent with the

1. APPEAL AND ERROR 1178-REVIEW-DEmeaning of such chapter or article." The

CREE OF DISTRIBUTION. rule is founded in reason, and it exists inde While Code Civ. Proc. $ 1714, abolished pendently of the Code. It therefore for like new trials in probate proceedings except in will reasons applies to conflicting provisions of

contests, an appellate court may, on appeal from

a decree of distribution, order the doing of anydifferent subdivisions of a section. 1 Suth. thing which the probate court should have done Stat. Const. & 268.

in the exercise of its jurisdiction. There is also the rule that specific provi- |_[Ed. Note.--For other cases, see Appeal and sions relating to a particular branch of a

Error, Cent. Dig. 88 4604-4620; Dec. Dig. Om

1178.] subject must govern that branch, “as against

2. WILLA On 761 — CONSTRUCTION — ADMISSIgeneral provisions in other parts of the stat

BILITY OF ACCOUNTS. ute, although the latter, standing alone, | A will declared that the testator had made would be broad enough to include the subject advances to his deceased son, and to the son's

children as shown by his books of account, that to which the more particular provisions re

he had made advances to other children, as evilate." Harrigan v. Home Ins. Co., 128 Cal. denced by their notes, and that it was the testa537, 58 Pac. 180, 61 Pac. 99; Franzden v. tor's will that such advances should be deducted San Diego, 101 Cal. 321, 35 Pac. 897; Earl from the shares of such children. The books of V. Bowen, 146 Cal. 762, 81 Pac. 133; Healy v. I monthly allowances to his two daughters, and al

account showed payment by the testator of Superior Court, 127 Cal. 662, 60 Pac. 428. so contained credits in favor of the daughters,

Since subdivision 4 is later in numerical practically balancing their accounts. The daughorder than any of the provisions conflicting

ters admitted that they had not made any pay.

ments to the testator. Held, that where there therewith, it must, under the rule first stat

were no notes of the daughters showing advanceed, prevail over them, and, since it specifical- ments, the books of account were not admissible ly provides that the intention of the voter to to charge them with the amounts paid as monthidentify his ballot must appear before it the description of the notes were sufficiently

ly allowances, the credits being disallowed, for could be declared invalid because of an unau- definite to be binding. , thorized mark thereon, and there is no other [Ed. Note.-For other cases, see Wills, Cent. specific provision on that precise subject, it Dig. $8 1968, 1969; Dec. Dig. Om761.). must govern that subject, under the rule last |3. WILLS Om759-LEGACIES-ADEMPTION. stated.

Under Civ. Code, 88 1351, 1397, declaring

that advancements shall not be taken as adempApplying these rules, we will see that the

tion of general legacies unless such intention is provision of subdivision 1 of section 1211 de expressed, and that all gifts are made as adclaring that “in canvassing the votes any bal- vancements if expressed in the gift to be so lot which is not made as provided in this

made, payments by testator of monthly allow

ances to his daughters, which were not evidencact shall be void" must yield to the later and

ed by promissory notes, cannot be treated as ad. specific provision of subdivision 4 which re-vancements, where the testator declared that the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

advancements to his children were evidenced by form to the findings. The cited section as notes.

amended merely fixes the procedure in a case [Ed. Note. For other cases, see Wills, Cent.

of this sort by doing away with the cumberDig. $$ 1961–1966; Dec. Dig. Om759.).

some process of a motion for a new trial. It 4. WILLS 759 — ADVANCEMENTS - ADEMP.

does not deprive this court of the right to exTION. Advancements made before a will was ex

amine the record and to direct the lower ecuted cannot be considered in distributing the

court to do anything which may be proper estate, unless specified in the will.

in the exercise of its probate jurisdiction. [Ed. Note.-For other cases, see Wills, Cent. The amendment to section 1714, Code of Civil Dig. 88 1961-1966; Dec. Dig. 759.)

Procedure, merely conformed to the declara5. WILLS 487 - CONSTRUCTION - FORMAL tions of this court that usually in probate WILLS.

litigation motions for new trials and appeals In construing a will, a former will which was revoked cannot be considered.

therefrom needlessly raised difficult quesJEd. Note. For other cases, see Wills. Cent. tions. Estate of Geary, 146 Cal. 107, 79 Pac. Dig. 88 1023, 1026-1032; Dec. Dig. 487.] 855; Estate of Franklin, 133 Cal. 587, 65 6. WILLS Om719—"CONTESTS''-WHAT ARE. I Pac. 1081.

That legatees opposed the petition of other [2] William Vanderhurst originally had a legatees for distribution, claiming that they family of seven children. When his will was were not entitled to share under the will, does

made in 1912, two of his sons had died, leavnot show a contest of the will, but a proceeding for its construction; therefore the opponents

ing children. The will was an elaborate one. will not be denied right to take under a provi After providing for certain specific legacies sion, if any legatee or devisee should contest the

and gifts it bequeathed and devised to each will, his share should be $1.

living child one-seventh of the residue, and [Ed. Note.--For other cases, see Wills, Cent. Dig. 88 1722–1725; Dec. Dig. 719.

provided for two trusts, each of one-seventh For other definitions, see Words and Phrases,

of the said residue, for the benefit of the First and Second Series, Contest.]

children of the two deceased sons. The tenth

paragraph was the one about which the disDepartment 2. Appeal from Superior

agreement arose. It was as follows: Court, Monterey County; B. V. Sargent,

"Inasmuch as I have from time to time, made Judge.

advances to my deceased son Robert Lee VanIn the matter of the Estate of William derhurst, and to his three children, named hereerburst deceg sed. Petition by Mary A. in, amounting to the full sum of $4,954.50, as

is shown by my books of account, and to others Jacobs and another for distribution, opposed

of my children, which advances to them, is repby William M. Vanderhurst and another. resented by their promissory notes now in my From the decree of distribution, petitioners possession: It is my will, intention and desire

that in the settlement and distribution of my appeal. Reversed.

estate, that the amounts so advanced by me as Joseph J. Webb, of San Francisco (John K. | herein set forth, to my said children and grand

children, shall be deducted from any money or Alexander, of Salinas, of counsel), for appel

other property that would come to them, or eilants. Vincent Surr, of San Francisco, and ther of them, and that represented by the trust J. A. Bardin, of Salinas, for respondents. estate mentioned and described in the eighth' Alexander & Alexander, of Salinas, for ex

and 'ninth' sub-divisions of this my last will,

and that the surplus thus arising, be given and ecutors.

distributed to my children, and said trustees for

my grandchildren, in the same shares and proMELVIN, J. Mary A. Jacobs and Lillian

portions as I have indicated in and by this my

will, to the end that none of my children or M. Vanderhurst, daughters of William Van- I grandchildren shall have or receive more than derhurst, deceased, appeal from a decree of an equal share of my estate.' distribution in the estate of said deceased The court interpreted this provision as person.

meaning that the books of account might be The principal matter involved in this ap examined for all purposes, and that all peal is the action of the probate court in charges made therein against the two daughcharging the two appellants with certain ad-ters might be regarded as advancements to vancements. Miss Vanderhurst was thus them. The books, despite the objections of debited with a sum in excess of $9,000 and counsel for appellants, were admitted in eviMrs. Jacobs with something over $2,000. dence, not only to show the charges against [1] Respondents make a preliminary objec- Robert Lee Vanderhurst and his childre

ren and tion to the consideration of the appeal. They against those heirs who had given promissory say that appellants may only receive the aid notes, but for all purposes. The accounts which they seek by a new trial; that mo showed that to each of the daughters Wiltions for new trial have been abolished in / liam Vanderhurst had given a monthly alprobate proceedings except in will contests lowance, and had credited each with a like (section 1714, Code Civ. Proc.), and that on amount, so that according to the books their an appeal from a decree of distribution the accounts were practically closed; the balances court may not order a retrial of the issues, being merely nominal. The court, however, but is limited to discovery of discrepancies permitted evidence, which was.drawn by re(if any exist) between the findings and the de spondents from the appellants themselves, cree and a modification of the decree to con- that they had paid no money to their father, and thereupon the court disregarded the as, where it is to papers not yet existent, or credits, but charged the two daughters with where the reference is so vague as to be inall sums received from their father. Com-applicable to any particular instrument. But menting upon this ruling, counsel for re- this court adopts the language of the Court spondents says in his brief: .

of Appeals of New York in Brown v. Clark, "Indeed, were the will silent as to the father's 77 N. Y. 369, to the effect that any testamenfull intent to treat his children with exact jus-tary document may be incorporated into a tice, a stranger might blunder into the error of | will by reference. provided the language of supposing that the artificial credits shown in the ledger were placed there to absolve these the will clearly identifies the paper or renfair debtors from their obligations."

ders it capable of identification. And the We fail to see how any other conclusion

court in the Plumel matter was discussing could be reached, after reading the will and

not a mere evidence of debt, but a solemn examining the accounts, than that the testa

instrument of testamentary nature, which tor intended to do that very thing—"to ab

was held to be incorporated into another such solve" his daughters from all charges. But

writing by reference. The will specified under the interpretation of the tenth clause

“notes now in my possession.” Surely such of the will which we feel bound to give, the

allusion to notes was capable of being made book of account was not admissible for the

certain. It was quite as definite as the referpurpose of showing advancements to the ap

ence to "books of account." We find no lanpellants. The language of the will very aptly

guage in the will, therefore, which justifies limits and specifies funds to be charged with

the action of the court in charging the shares payments made in the testator's lifetime as

of Mrs. Jacobs and Miss Vanderhurst in their advancements. These are the trust estate

father's estate with debits shown on the created for the benefit of Robert Lee Vander

books of account, or in striking out credits hurst's children, and the shares of those who

formally entered by Mr. William Vanderhurst had given notes to the testator. By no meth

in favor of his daughters. Advancements od of construction which we are able to dis

are not to be taken as ademptions of general cover may the language be given any other

legacies unless such intention is expressed by meaning. Advancements are to be charged the testator.

the testator in writing. Section 1351, Civ. against the shares of Robert Lee Vanderhurst

Code. Section 1397 of the Civil Code is as and his children in accordance with the book

follows: accounts, and all notes are to be regarded as

"All gifts and grants are made as advance

ments, if expressed in the gift or grant to be evidences of advancements. Respondents

so made; or if charged in writing by the dececontend that the closing words of the para- dent as an advancement, or acknowledged in graph compel a different interpretation. By writing as such, by the child or other successor the first part of the tenth paragraph the tes

or heir." tator had provided a method of determining. There were no promissory notes produced the amounts to be subtracted before division at the hearing in the probate court which the of the property and the words "to the end appellants, or either of them, had executed that none of my children or grandchildren in favor of the testator. The will itself, as · shall have or receive more than an equal we have seen, did not charge them with any share of my estate” merely declare his pur-sums paid to them as advancements, and no pose in charging these advancements. The writing was produced whereby they were mere fact that the court believed the method chargeable under section 1397 of the Civil chosen might not achieve the purposed end Code. Surely there was nothing in the books would not justify charges against certain of account which would justify their admisheirs which were not directed in the will. sion under section 1397, Civil Code, or by Such impositions may not be made by the which the testator evinced any intent to court in an effort to achieve equal distribu- charge the items against his daughters as adtion. To permit such a course would be vancements rather than gifts or loans. Esequivalent to allowing the court to make a tate of Hayne, 165 Cal. 573, 133 Pac. 277, will for the decedent. If the closing words of Ann. Cas. 1915A, 926. On the contrary, the the tenth clause would justify the court in credits indicated that Mr. Vanderhurst ingoing to such lengths to achieve equal dis-tended the payments as gifts, except, pertribution, then might the specific legacies to haps, the trifling balances against the daughthe daughters with like reason be disregard-ters, and those may be regarded as loans ed, because such legacies, in a sense, were op- rather than advancements. posed to an evenly divided bestowal of dece [4] Moreover, it is a general rule that addent's estate.

vancements made before the will was exe[3] Respondents contend that the descrip-cuted cannot be considered in distributing the tions of the notes contained in the will are estate unless specified in the will, because it too vague to be of binding force, and in this is presumed that the testator had in view all behalf they cite certain cases. One of these previous advancements when he made his is Estate of Plumel, 151 Cal. 82, 90 Pac. 192, will and acted accordingly, so as to make the 121 Am. St. Rep. 100, which correctly states final division conform to his actual wishes. the rule that reference in a will may be of Estate of Hayne, supra; 1 A. & E. Enc. of such character as to exclude parol testimony; Law (20 Ed.) p. 760, & 2; Bowron v. Kent, 190

N. Y, 432, 83 N. E. 472; Needles v. Needles, maintain prohibition to prevent a trial of the 7 Ohio St. 432, 70 Am. Dec. 85.

issues between the plaintiff and the defendant The judgment must be reversed because of

to whom a new trial was awarded.

[Ed. Note.-For other cases, see Prohibition, the errors in charging appellants with any | Cent. Dig. 88 57-60; Dec. Dig. Om 15.] sums as advancements. This conclusion

3. PROHIBITION 9 - WRIT-WHEN Issumakes it unnecessary for us to discuss all of

LABLE. the matters appearing in the briefs. Some of In such case, where the application for writ them, however, require attention.

of prohibition to prevent trying the case anew

as to the other defendants contained the unde[5] The court erred in admitting in evi.

nied allegation that the court was about to retry dence a former will executed by Mr. Vander the case as to all defendants, the defendants hurst in 1906 and revoked by the later will. other than the one who moved for a new trial The will before us must be interpreted by the

were entitled to a writ of prohibition. language used therein, and cannot be varied

(Ed. Note.-For other cases, see Prohibition,

Cent. Dig. 8.35; Dec. Dig. 9.] or explained by an instrument executed several years earlier. Estate of Tompkins, 132 In Bank. Proceeding in prohibition by Cal. 175, 64 Pac. 268.

Kernan Robson against the Superior Court [6] There was a provision in the will that of the State of California in and for the City in case any legatee or devisee contested it and County of San Francisco and others. his or her share of the estate should be $1. Writ issued. Appellants argue that the respondents Wil

| Jas. P. Sweeney, of San Francisco, for pe

los D liam M. and George B. Vanderhurst contested

tested titioner. J. J. Lermen, of San Francisco the will. The mere statement of this conten

(Chas. L. Tilden, of San Francisco, of countion refutes it. They opposed the petition for

sel), for respondents. distribution, but they did not seek, in any way, to contest the will. They merely sought

MELVIN, J. This is a proceeding in pro interpretation of it.

hibition. The petition was addressed to this No other alleged errors merit discussion.

court originally, and an alternative writ was The decree of distribution is reversed.

issued. The facts are as follows: We concur: HENSHAW, J.; LORIGAN, J.

In September, 1908, the Hibernia Savings

& Loan Society sued to foreclose a mortgage Modification of Opinion.

on real property. The original mortgagor

was Theresa Lewin. Jacob Lewin was joinPER CURIAM. Good cause appearing led as her husband, and the other defendants, therefor, it is hereby ordered that the judg-sued as successors to the interest of Mrs. ment of this court in the matter of the above

Lewin in the order in which they were namentitled appeal be and hereby is amended to

ed and as persons who had assumed the payread as follows:

ment of the note secured by the mortgage, "It follows herefrom that the court erred in

were Kernan Robson (petitioner herein), charging the appellants with these advance- Michael O'Toole, Curtis Hillyer (sued as C. ·ments. Wherefore, and to this, extent, the de- H. Lieutemps), John G. Hoyt, the corporacree of distribution is reversed, with directions to the court in probate to modify its decree in

tion known as Tilden, Swayne & Co., and accordance with this opinion and judgment." Louis James. Other defendants were desig.

nated by fictitious names. The cause was

tried, and judgment was given in favor of (171 Cal. 588)

plaintiff. The court found that there had ROBSON V. SUPERIOR COURT IN AND

been successive conveyances, as pleaded, with FOR CITY AND COUNTY OF SAN

corresponding assumptions of the indebtedFRANCISCO et al. (S. F. 7001.)

ness, and drew the conclusions of law that (Supreme Court of California. Dec. 17, 1915.)

plaintiff was entitled to foreclosure and to a 1. New TRIAL 163–EFFECT OF AWARD OF judgment declaring Theresa Lewin, Robson, NEW TRIAL TO CODEFENDANT.

O'Toole, Hillyer (sued as Lieutemps), and Where, in a suit to foreclose a mortgage, in which successive purchasers of the mortgaged Hoyt personally liable for the amount of the property, who had severally assumed payment mortgage debt. The judgment was entered of the mortgage, were made defendants, and a October 5. 1911. deficiency judgment was rendered against all of the defendants, one of the defendants who |

On December 7, 1911, the motion of Hoyt had filed no cross-complaint, and in whose fa- / for a new trial was served and filed. On Devor no affirmative relief had been given, could cember 8, 1911, the foreclosure sale took not be affected by the award of a new trial to I place, the plaintiff becoming the purchaser. one of the defendants in so far as his liability on the deficiency decree as formerly rendered was

and a deficiency judgment, which, on April concerned.

2, 1912, amounted to more than $14,000, was (Ed. Note.-For other cases, see New Trial, on that date docketed against Theresa LewCent. Dig. 88 330-332; Dec. Dig. 163.) in, Robson, O'Toole, Hillyer, and Hoyt. The 2. PROHIBITION O15—PERSONS BENEFICIAL- deed of the commissioner to plaintiff was exLY INTERESTED.

ecuted December 18, 1912. Hoyt's motion for In such case a defendant other than the one to whom a new trial was awarded was not a new trial was denied on February 21, 1913. beneficially interested, and was not entitled to When said motion was called on the court's

calendar on that date, Hoyt did not answer, , ris v. De Celis, 41 Cal. 331, it is said: 'If a mobecause he had agreed with a member of the tion for a new trial is decided by the court befirm of lawyers representing plaintiff that

fore it has been submitted, the order denying or

granting the new trial should be set aside as there should be a continuance. This agree

improvidently made, if application is made ment was not known to the representative of therefor. In Stewart v. Taylor, 68 Cal, 5, 8 that firm who appeared in court on Febru

Pac, 605, it is said: "There is no doubt that

the court in which an irregular order is made ary 21, 1913, and he asked that the matter

and entered may, where the irregularity is apbe submitted. Thereupon the court denied

parent, on suggestion, motion, or ex mero motu, the motion. On February 27, 1913, on the ex set it aside at any time before an appeal is parte application of the plaintiff' the court | taken from it. In Hayne on New Trial, vol.

2, 199, the author says: 'Where an appealable set aside the order of February 21, 1913. On order was improvidently or inadvertently made. April 4, 1913, the court made and entered the aggrieved party may move the court below an order granting a new trial. This was to set it aside, and may appeal from the order based "upon stipulation filed," which stipu

denying his motion. Thus, where a motion for

a new trial was granted without any submission lation was in the following language:

of the motion, and before the record upon the "It is hereby stipulated that the judgment motion was completed, it was held to be proper heretofore made, rendered and entered in the practice for the aggrieved party to move upon above-entitled action in favor of plaintiff may affidavits to have the order granting the new be vacated and set aside, and that a new trial trial set aside, and the order denying such momay be granted in the above-entitled action. tion was reversed (referring in note to case of Dated April 4, 1913. Tobin & Tobin, Attor- Morris v. De Celis, 41 Cal. 331). The fact that neys for Plaintiff."

the order was made irregularly takes it out of It is conceded that the petitioner, Robson,

the general rule.' See, also, 2 Spelling on New

Trial and Appellate Practice, 8 379. The late had no notice of the application which result-case of Holtum v. Greif, 144 Cal. 521, 78 Pac. ed in the order of February 27, 1913, setting 11, one of the cases relied upon by the petiaside the order denying Hoyt's motion for a tioner, after stating the general rule that an new trial, nor had he notice of the stipulation

order granting or refusing a new trial regularly

made and entered cannot be set aside by the trial upon which was based the order of April 4,

court, states that, if the orders have been en1913.

tered prematurely or by inadvertence, they may Respondents contend that the order set

be set aside on a proper showing. Odd Fellows'

Sav. Bank v. Deuprey, 66 Cal. 170, 4 Pac. 1173, ting aside the previous order by which Hoyt's

and cases cited.'” motion for a new trial had been denied was

| 'It is suggested that Whitney V. Superior fully within the jurisdiction of the court

Court, supra, may be distinguished from the and was made in pursuance of a well-recog

case at bar because, after the motion had nized power. The case of Whitney v. Supe

been restored to the calendar, the counsel rior Court, 147 Cal. 536, 82 Pac. 37, fully

of the respective parties to the litigation apsupports this view. In that case, as here, the

peared and took part in the proceedings in court was dealing with an order made upon

the hearing of the motion for a new trial, ex parte application of counsel, setting aside

and the plaintiff appealed from the order its former order denying the defendant's mo

granting a new trial. But the court in that tion for a new trial. In that case, as here,

case was dealing with a question of juristhe motion for a new trial had been called diction which may not be conferred by acup by plaintiff's counsel in the absence of

quiescence. It was clearly held that the counsel for the moving party and in violation

court had the power to correct its action with of the stipulation that it should not be

reference to defendant's motion. The fact brought to the attention of the court in that

that after his objection to the jurisdiction of manner. Upon the theory that the court had

a court the litigant proceeds in the usual lost jurisdiction to set aside the order de

manner to try the cause or the proceeding nying the motion for a new trial, the success does not preclude him from questioning the ful litigant in the lower court (or his as

power of the court to proceed further. Arsignee) asked for a writ of execution, in

royo Ditch & Water Co. v. Superior Court, spite of the fact that after restoration of the 92 Cal. 52, 28 Pac. 54, 27 Am. St. Rep. 91. It defendant's motion to the calendar and for- was not the theory of the Whitney Case that mal argument thereof the prayer of defend- the plaintiff in the litigation in the superior ant had been granted, and a new trial had court was estopped to deny the jurisdiction been ordered. This court declined to give a of the court to set aside its own order inadwrit of mandamus to compel the clerk of the vertently made. We see no reason to forsuperior court to issue execution. Speaking sake the doctrine of the Whitney Case, which of the litigation in the superior court, Mr. has been the settled law for more than a Justice Van Dyke, delivering the opinion of decade. That case was carefully considered this court, said:

and the opinion of Mr. Justice Van Dyke re"The motion for new trial in that case was ceived the concurrence of four of the Justices by the defendant. He was the moving party.

who are still on this bench. It was brought up, as appears, in the absence of the defendant's attorney, without any argument. It is suggested, however, that the inadvertor opportunity upon the part of the defendant ence which resulted in the entering of the orto be heard, and under the circumstances it was I der denying the motion for a new trial was right and proper for the court to do as it didset aside the order denying the motion for a

an inadvertence of a party relief from which new trial, and thereupon give the moving party might have been obtained under section 473, an opportunity to present the motion. In Mor- Code of Civil Procedure, upon due applica

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