certificate of the clerk identifying the papers contained in it as having constituted a part of the record of the court below.

The settlement of what is called "a statement on appeal to the supreme court," made after a motion for a new tiral had been heard and determined, is not provided for in the code. (People v. Crane, 60 Cal. 279.) It does not appear to have been certified, settled, or signed by the judge of the trial court, and cannot therefore be considered here either as a statement on motion for a new trial or as a bill of exceptions. (Adams v. Dohrmann, 63 Cal. 418, and cases cited.)

There is no identification in any lawful way of any of the papers showing that they were ever used in the proceedings, or constituted any part of the record in the court below. There is nothing in the so-called transcript to indicate that any notice of appeal was ever filed or served.

The judgment roll which the appellate court permitted to be filed, when this condition of what is denominated the transcript was called to its attention, contains nothing, nor does the certificate of the clerk or anything else attached thereto, or before the court, which shows that a notice of appeal has been filed or served. For aught that appears, none has been.

The attempted appeal cannot, therefore, be entertained or heard, and we advise that it be dismissed.

BELCHER, C. C., and HAYNE, C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the appeal is dismissed.

[No. 11875. Department Two.-May 20, 1889.] PEREGRINA P. RODRIGUEZ, RESPONDENT, v. T. G. LAMBERT ET AL., APPELLANTS.

APPEAL-REVIEW OF EVIDENCE-SUBSTANTIAL CONFLICT.-When there is a substantial conflict of evidence upon the points in respect to which the findings are assailed as not justified by the evidence, the findings will not be disturbed by the appellate court.

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

The facts are stated in the opinion.

S. F. Geil, and H. V. Morehouse, for Appellants.

N. A. Dorn, and W. M. R. Parkes, for Respondent.

BELCHER, C. C.-The plaintiff and defendant owned adjacent lots of land in the city of Monterey, and the plaintiff brought this action to recover possession of a strip about eight and seven tenths feet wide along her northern line. The defendant asserted title to the disputed strip under the statute of limitations and by estoppel. The court found against the defendant upon all the issues presented, and rendered judgment for the plaintiff. The appeal is from the judgment and an order denying a new

trial.

It is contended for appellant that the findings were not justified by the evidence, and that the judgment should be reversed for that reason. This contention is based upon the theory that it appears from the evidence that nearly or quite thirty years ago a fence was erected along the line now claimed by appellant, to mark the boundary line between the lots; that this fence was recognized and acquiesced in by the owners of the lots for many years longer than was necessary, under the statute of limitations, to bar a right of entry; and that during all of those years the grantors of appellant

The rec

held and claimed the disputed strip adversely to the grantors of respondent, and thus acquired a title thereto. We cannot concur in this view of the case. ord clearly shows that there was substantial conflict in the evidence as to where the old fence was located, and as to whether the appellant's grantors ever held any of the disputed ground adversely to respondent's grantors. This being so, the well-settled rule in such cases must control in this court.

No other points are made, and we therefore advise that the judgment and order be affirmed.

FOOTE, C., and HAYNE, C., concurred.

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

Hearing in Bank denied.

[No. 11676. Department Two.-May 20, 1889.]

WILLIAM HILL, RESPONDENT, v. CITY CAB AND TRANSFER COMPANY ET AL., DEFENDANTS. C. G. JONES, APPELLANT.

ACTION ON JUDGMENT JURISDICTION-COLLATERAL ATTACK-UNAUTHORIZED APPEARANCE OF ATTORNEY-DEFENSE UPON MERITS.— While equity will not relieve against a judgment, unless there is a defense upon the merits, and while a defendant cannot collaterally assail a judgment in an action at law unless it be void on its face, yet if in an action upon a judgment a defendant should be allowed without opposition to show in defense that the judgment had been obtained against him without personal service, or authorized appearance for him, and that an attorney had appeared for him without authority, and the court finds these facts to be true, the judgment is to be held void the same as if it appeared to be void upon its face; and being void, it cannot be a cause of action, or require a showing of defense upon the merits. ID.-IMPEACHING JUDGMENT COLLATERALLY-CONSTRUCTION OF CODE.Section 1916 of the Code of Civil Procedure simply means that evidence is admissible to impeach the judgment in the cases allowed by

law; and does not change the general rule that a defendant cannot collaterally assail a judgment for want of jurisdiction, unless it be void on its face. But this rule is not that a judgment which is void will be enforced as if valid; but that it cannot be shown to be void except in certain cases. If admitted to be void, or shown to be void without objection, it must be treated as void.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco.

The action was brought on a judgment against the City Cab and Transfer Company and Leander Sawyer, Oliver Hinckley, James Cobblestick, C. G. Jones, Russell J. Wilson, and S. D. Woods, upon a judgment rendered against them jointly in the district court on October 4, 1878, for one thousand dollars, with interest and costs. The defendant C. G. Jones answered that he was never served with summons or process of any kind in the action upon which the judgment was rendered, and never appeared, or authorized any one to appear for or represent him therein; that one S. D. Woods assumed to represent him in said cause and appear for him, but that said Woods was never employed by him for that or any other purpose; and that said Woods had no power or authority whatever to appear for or represent this defendant therein, and this defendant had no knowledge that he had so appeared until a few weeks prior to commencing this action. The court below found the facts thus pleaded in favor of the defendant Jones, but rendered judgment against him notwithstanding, because he presented no defense to the judgment upon the merits. From this judgment defendant Jones appealed.

J. C. Bates, for Appellant.

Appearance of an unauthorized attorney may be shown in assailing a judgment for want of jurisdiction. (Shelton v. Tiffin, 6 How. 186; Bordutha v. Goodrich, 3 Gray, 509; Ferguson v. Crawford, 70 N. Y. 253; 26 Am. Rep. 589; Robson v. Eaton, 1 Term Rep. 62; Reynolds v. Flem

The judgment may

ing, 30 Kan. 106; 46 Am. Rep. 86.) be shown to be void for want of jurisdiction. (Handswirth v. Sullivan, 6 Mont. 203; Earle v. McVeigh, 91 U. S. 507; Clark v. Little, 41 Iowa, 497.)

Thompson & Thompson, for Respondent, cited People v. Mariposa Company, 39 Cal. 683; Boston Tunnel Company v. McKenzie, 67 Cal. 485; Tyrrell v. Baldwin, 67 Cal. 1; Foote v. Richmond, 42 Cal. 439; Civ. Code, sec. 19; Golden Gale M. Co. v. Superior Court, 65 Cal. 187; Ayres v. Palmer, 57 Cal. 316.

BELCHER, C. C.-This was an action upon the judg ment of a court of general jurisdiction. The defendant pleaded in defense that said judgment had been obtained without service upon him or any authorized appearance on his behalf. The court below found these facts to be true, but rendered judgment against defendant, upon the ground that he did not show that he had a meritorious defense to the original action. We think that this was

error.

It is true that a court of equity will not give relief against a judgment unless it be shown that the complainant had a defense upon the merits. Equity in such case will simply hold its hand and leave the parties to their rights at law. It is also true that at law a defendant cannot collaterally assail a judgment unless it be void on its face. This was held after careful consideration in Carpentier v. Oakland, 30 Cal. 439, and the general doctrine of that case has recently becn approved. (Hodgdon v. S. P. R. R. Co., 75 Cal. 648.) And it is in accordance with the preponderance of authority elsewhere. (See Freeman on Judgments, 3d ed., sec. 116.) In New York, where a contrary doctrine seems to prevail, it is admitted that the rule there rests upon the local law of that state, and "finds no support in adjudications elsewhere." (Ferguson v. Crawford, 70 N. Y. 267; 26 Am. Rep. 589.) And we do not understand that our