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ply a ’ien on the land it covers, and it gives no right of possession of the land, tho mortgagor's possession during the period allowed by the statute for instituting a suit of foreclosure is not adverse to the rights of the mortgagee, but is subordinate thereto; and the same is true as to the possession of the mortgagor's grantee, although such grantee hold under covenants warranting the title. Gordan v. Sayre, (Fla.) 3 South. Rep. 329. See, also, as to the character of the occupancy necessary to constitute adverse possession, Hyne v. Osborn, (Mich.) 28 N. W. Rep. 621, and pote; Scott v. Woodruff, (Ark.) 4 S. W. Rep. 908; Witt v. Railway Co., (Minn.)

35 N. W. Rep. 862; Dame v. Chandler, (Ga.) 4 S. E. Rep. 765; Todd v. Todd, (Ill.) 7 N. E. Rep. 585; Locke v. Whitney, (N. H.) 3 Atl. Rep. 920; Merrill v. Tobin, 30 Fed. Rep. 738; Roots v. Beck, (Ind.) N. E. Rep. 698; Iron-Works v. Wadhams, (Mass.) 9 N. E. Rep. 1; Evans v. Templeton, (Tex.) 6 S. W. Rep. 813; Dame v. Chandler, (Ga.) 4 S. E. Rep. 765; Riggs v. Riley, (Ind.) 15 N. E. Rep. 253.

(2 Cal. Unrep. 843)

PEOPLE v. O'LEARY. (No. 20,358.)*

(Supreme Court of California. February 29, 1888.) 1. CRIMINAL LAW-PLEAS-FORMER ACQUITTAL.

Deering's Pen. Code Cal. $ 1017, provides that a plea must be entered upon the minutes of the court in substantially the following form: “(3) If he plead a former conviction or acquittal: *The defendant pleads that he has already been convicted (or acquitted) of the offense charged by the judgment of the court of,'”etc. “(4) If he plead once in jeopardy: The defendant pleads that he has been once in jeopardy for the offense charged, (specifying the time, place, and court.]'”. Defendant asked to have entered, as a plea of former acquittal: "Defendant pleads that he has already been acquitted of the offense charged by the judgment of this court, rendered at this court-room on the 14th day of February, 1887, when defendant's demurrer to plaintiff's information was sustained by the court, and said court then and there or at any time failed to render its opinion that the objection to said demurrer could ever be cured by filing a new information.” Held a sufficient plea of former ac

quittal. 2. SAME-FORMER JEOPARDY.

Defendant asked to have entered, as a plea of once in jeopardy: “Pleads, further, that he has been once in jeopardy, he having on the day of January, 1887, been placed on trial for the offense now alleged in the information before the justice court of Cache Creek township and a jury, which court was a competent court, and which jury was a competent jury; and witnesses against defendant were sworn before said jury, and, before the final submission of said matter to said jury, the jury was discharged, against the objection of the defendant.” Held a sufficient plea of once

in jeopardy. 3. SAME-FAILURE OF CLERK TO ENTER PLEA PROPERLY.

Held, further, that the failure of the clerk to make the entry as fully as he ought

to have done, could not prejudice defendant. 4. SAME_VERDICT-Not RESPONSIVE TO PLEAS.

Defendant entered three pleas: First, not guilty; second, a former acquittal; third, once in jeopardy. The jury found only on the first. Held, that there could be no conviction without a verdict on each plea. Commissioners' decision. In bank. Appeal from superior court, Yolo county; C. H. GAROUTTE, Judge.

Information against Arthur O'Leary for practicing medicine without a certificate. Defendant was convicted, and appeals.

R. Clark, for appellant. Geo. A. Johnson, Atty. Gen., for the People.

BELCHER, C. C. The information filed against the defendant charged him with practicing medicine at a time when he had not obtained a certificate autlıorizing him to do so, as required by the “Act to regulate the practice of medicine in the state of California,” (Deering's Pen. Code, pp. 625-629.) The defendant demurred to the information, and his demurrer was overruled. We see no error in this ruling. The information charged the offense in language sutliciently full and explicit. The defendant then pleaded not guilty, and asked to have further pleas entered as follows: “Further pleading to said information, defendant pleads that he has already been acquitted of the offense charged by the judgment of this court, rendered at this court-room on the 14th day of February, 1887, when defendant's demurrer to plaintiff's information was sustained by the court, and said court then and there or at any time faileil

*Reversed in banc. See 18 Pac. 856, 77 Cal. 30.

10 render its opinion that the objection to said demurrer could ever be cured by filing a new information. Pleads, further, that he has been once in jeopardy, he having, on the day of January, 1887, been placed on trial for the offense now alleged in the information before the justice court of Cache Creek township and a jury, which court was a competent court, and which jury was a competent jury; and witnesses against defendant were sworn before said jury, and, before the final submission of said matter to said jury, the jury was discharged, against the objection of the defendant.” The court refused to allow these pleas to be entered, on the ground that they were not pleas recognized by the statutes, and the defendant excepted to the ruling. As entered upon the minutes of the court, the pleas were as follows: First, defendant pleads not guilty of the offense charged; second, a former acquittal; third, once in jeopardy.” The jury found the defendant guilty, but did not find on the issues of former acquittal and once in jeopardy. Judgment was entered that defendant pay a fine of $500, and, in default of payment, be imprisoned in the county jail for the term of 500 days, or at the rate of one day for each dollar of the fine, and from that judgment he has appealed.

The rule is well settled in this state that if, in a criminal case, there be a plea of not guilty, and also a plea of former conviction or acquittal, the defendant is entitled to a verdict on each plea, and until there is such a verdict there can be no judgment of conviction. People v. Kinsey, 51 Cal. 279; People v. Helbing, 59 Cal. 567; People v. Fuqua, 61 Cal. 3.7. The attorney general, wbile admitting the correctness of the decisions referred to, urges that defendant's pleas of former acquittal and once in jeopardy, as entered by the clerk, did not meet the requirements of section 1017, Pen. Code, and for that reason he was not entitled to any findings upon them. That section provides as follows: "Every plea must be oral, and entered upon the minutes of the court, in substantially the following form: * (3) If he plead a former conviction or acquittal: • The defendant pleads that he has already been convicted (or acquitted) of the offense charged by the judgment of the court of naming it,] rendered at [narning the place,] on the

day of (4) If he plead once in jeopardy: The defendant pleads that he has been once in jeopardy for the offense charged, [specifying the time, place, and court.]”” The pleas of former acquittal and once in jeopardy, as the defendant asked to have them entered, were in substantially the form required by the Code. They were oral, and the clerk was to enter them on the minutes of the court. If the clerk failed to make the entry as fully as he ought to have done, the defendant cannot be made to suffer for that failure. If the failure was by reason of the order of the court, the order was erroneous, and is cause for reversal.

We think the judgment should be reversed, and the cause remanded for a new trial.

We concur: HAYNE, C.; FooTE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is reversed, and the cause remanded for a new trial.

(75 Cal. 199) CHUCK 0. GARRISON et al., (HAWLEY Bros. HARDWARE Co., Intervenor.)

(No. 11,992.) (Supreme Court of California. February 29, 1888.) LIENS-For LABOR ON THRESHING-MACHINE-OWNERSHIP IMMATERIAL. St. Cal. 1885, p. 109, provides: “Every person performing work

in, with, about, or upon any threshing machine * shall have a lien upon the same for the value of his services. Plaintiff worked for defendants on a threshing-machine, and sought to enforce a lien against it. The intervenor complained that it

was the owner of the threshing-machine, and that the defendants were not its agents. Held, that intervenor's complaint was demurrable; the actual ownership of the threshing-machine being immaterial. MCFARLAND, J., dissenting. In bank. Appeal from superior court, Fresno county; J. B. CAMPBELL, Judge.

Action to foreclose a lien on a threshing-machine by Jack Chuck, a Chinaman, plaintiff and respondent, against George W. Garrison and William Falla, defendants, and Hawley Bros. Hardware Company, a corporation, intervenor and appellant. A demurrer to the complaint of intervention was sustained, and the intervenor appeals.

Stuart S. Wright and Olney, Chickering d: Thomas, for appellant. W. B. Cullom and Brown & Daggett, for respondent. .

SHARPSTEIN, J. The plaintiff alleges that the defendants Garrison and Falla are indebted to him in the sum of $138.25 for work and Jabor performed for them, at their request, on their certain threshing-machine, while engaged in threshing grain in Fresno county, between June 1 and August 14. 1886. Then follows a description of the machine, its appurtenances and value. He alleges that he quit work on said 14th day of August, and that 10 days. have not expired since he ceased so working. He alleges that he has a lien on the machine and its appurtenances for the amount due him for said work, that there is danger of said machine and appurtenances being removed from said county, and prays for a judgment against the said defendant for said sum of $138.25 so due for said work and labor; that E. H. Tucker of Fresno county be appointed by this court to receive and safely keep the said threshing-machine, and all of the said appurtenances, and everything thereto appertaining, whether the same has been properly described herein or not; and that the same, and every part thereof, be sold according to law, and the proceeds thereof be applied to the payment of plaintiff's judgment, and all costs of suit. The summons was served on Garrison, one of the defendants, but the record does not show that it was served on Falla, or that either of the defendants ever appeared in the action. The default of defendant Garrison was entered on the 5th day of October, 1886. On the 11th day of October, 1886, Hawley Bros. Hardware Company, (a corporation,) by leave of the court, filed a complaint in intervention, in which, among other things, it is alleged that at the time of the commencement of the action the intervenor was, and for more than six months prior thereto had been, the owner of the property mentioned in the plaintiff's complaint; that the defendants were not agents or employes of intervenor, nor had they or either of them any power or authority to bind intervenor by any contract, or to create any lien upon said property; that plaintiff performed no work or labor for intervenor "in, with, about, or upon” said property. To the complaint in intervention the plaintiff interposed a general demurrer, which was sustained by the court, and, as the intervenor declined to amend, judgment was awarded the plaintiff for the relief prayed in his complaint. From that judgment intervenor appeals.

Appellant's counsel say “that the order sustaining the demurrer must have been made upon the ground that the title to the property could not have been involved in the action. That is to say, the mere fact that work and labor had been performed in, with, about, or upon’the property gave to the persons who had performed such work or labor a lien upon the property, and all of it, no matter who was the owner of the whole, or of any part thereof." We think the demurrer could have been sustained only on the ground that the actual ownership of the property was an immaterial circumstance. The action is brought under the provisions of the act entitled "An act to secure the wages of persons employed as laborers on threshing-machines," approved March 12, 1885, (St. 1885, p. 109.) It is very short, and we insert it in full:

“Section 1. Every person performing work or labor of any kind in, with,

about, or upon any threshing-machine, the engine, horse-power, wagons, or appurtenances thereof, while engaged in threshing, shall have a lien upon the same to the extent of the value of his services.

“Sec. 2. The lien herein given shall extend for ten days after the person has ceased such work or labor.

“Sec. 3. If judgment shall be recovered in any action to recover for said services for work or labor performed, and said property shall be sold, the proceeds of such sale shall be distributed pro rata to all judgment creditors who have within ten days begun suits to recover judgments for the amount due them for such work.

“Sec. 4. The lien shall expire unless a suit to recover the amount of the claim is brought within ten days after the party ceases work.”

The language of the act is sufficiently comprehensive to include a case like this. We could not exclude such a case from its operation without a material modification of its provisions. This case is clearly within the letter of the law, and we see no reason to doubt that it is just as clearly within the spirit of it. The statute gives the lien, and a court of equity undoubtedly has jurisdiction of an action to foreclose it. We think the court properly sustained the demurrer to the complaint of intervention, and that the judgment should be aflirmed. Judgment affirmed.

We concur: SEARLS, C. J.; TEMPLE, J.; PATERSON, J.

I dissent: MCFARLAND, J.

(75 Cal. 213)

In re NEWMAN'S ESTATE. (No. 12,170.)

(Supreme Court of California. March 1, 1888.) 1. DESCENT AND DISTRIBUTION—"ISSUE”-ADOPTED CHILD.

Civil Code Cal. $ 1386, div. 1, relating to the rule of inheritance, provides: "If the decedent leave no surviving husband or wife, but leave issue, the whole estate goes to such issue; and if such issue shall consist of more than one child,” etc. Held, the word “issue” is used in the same sense as “child," in this section; and sections 227 and 228 of the Code, relating to the status of adopted children, when construed with this section, will entitle an adopted child to succeed to the estate of

the adopting parent. 2. JUDGMENT-DIVORCE-COLLATERAL ATTACK-PROOF OF SERVICE OF SUMMONS.

The validity of an adoption was sought to be impeached by showing that a judgment for divorce, which, if properly obtained, would only require the consent of the parent in custody of the child, was void, because of some irregularities in the proof of the service of the summons by publication, and that judgment was rendered before expiration of defendent's time for answering. Held, that the fact of service, and not the proof, gave the court jurisdiction, and that, after jurisdiction had been

acquired and judgment rendered, the proceedings could not be attacked collaterally.! 3. DIVORCE-DECREE-OPERATIVE ON DELIVERY TO CLERK.

In an action involving the question as to when a decree for divorce became binding upon the parties thereto, it appeared that the decree was signed by the judge, and delivered to the clerk for filing, who neglected to enter it for over a year. Held, that the decree became operative as to the parties from the date of its delivery to

the clerk. 4. ADOPTION_ORDER_VALIDITY-SIGNED BY ACTING JUDGE.

An order for the adoption of a child, made by the court, and signed by an acting judge, was objected to, on the ground that it was not made and signed by the reg. ular judge sitting in chambers. Held, this did not invalidate the order,

SEARLS, C. J., dissents. In bank. Appeal from superior court, Los Angeles county; WILLIAM A. CHENEY, Judge.

Respecting the grounds on which a judgment may be collaterally attacked, sce McCarter v. Neil, (Ark.) 6 S. W. Rep. 731, and note; Nicholson v. Nicholson, (Ind.) 15 N. E. Rep. 223; Decker v. Decker, (N. Y.) Id. 307.

Bernard Newman, a resident of Los Angeles county, died intestate on the 15th day of November, 1886. His estate is valued at $88,000. The next of kin of the deceased are his brother, Michael Newman, the appellant herein, and several nephews and nieces. It is claimed by the respondent that one George B. Maldonado, her child, aged two and one-half years, is the adopted son of the deceased. Mary Maldonado, the mother and guardian of said minor child, claims the right to letters of administration on said estate, under section 1368, Code Civil Proc. Said guardian filed her petition for letters on the 21th day of November, 1886. Appellant, Michael Newman, filed his petition on the 6th day of December, 1886, and also filed grounds of opposition to the petition of said Mary Maldonado; alleging, among other things, that George B. Maldonado is not the adopted child of the deceased, that said child is not entitled to succeed to said estate, that therefore his guardian is not entitled to letters, (section 1365, Code Civil Proc.,) and that said Mary Maldonado is a married woman. In his grounds of opposition, Michael Newman asserted his right to letters of adıninistration. He further set out that the decree for di. vorce claimed by Mary Maldonado from her husband was void, because of certain irregularities in the proof of the service of the summons by publication, and that the judgment was rendered upon default before the expiration of the time allowed defendant in which to answer. He also asserted that the decree, if operative at all, did not become so until nearly six months after the adoption of the child. It appeared that the decree was duly signed by the judge, and delivered to the clerk for filing in October, 1885, who neglected to enter it until in January, 1887. The child was adopted in June, 1886. Newman claims the decree for divorce did not become binding on the parties until entered by the clerk in January, 1887; that as there was no consent of the father to the adoption, as required by law, in case the divorce was void, or did not become binding on the parties until January, 1887, there was therefore no-valid adoption of the child, and the mother had no right to administration.

Matthew 1. Sullivan and Stephen M. White, for appellant. Lucien Shaw and James M. Damron, for respondent.

PATERSON, J. 1. The provisions of the Civil Code bearing upon the first question presented for our consideration are the following:

"Sec. 227. The judge must make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting

“Sec. 228. A child adopted may take the family name of the person adopting. After adoption the two shall sustain towards each other the legal relation of parent and child, and have all the rights, and be subject to all the duties, of that relation."

“Sec. 1386. When any person having title to any estate dies without disposing of the estate by will, it is succeeded to, and must be distributed, in the following manner: (1) If the decedent leave no surviving husband or wife, but leave issue, the whole estate goes to such issue; and if such issue consists of more than one child living, or one child living and the lawful issue of one or more deceased children, then the estate goes in equal shares to the children living, or the child living, and the issue of the deceased child or children, by right of representation."

Under these provisions, we think that an adopted child is entitled to succeed by inheritance to the estate of the adopting parent. The provisions of sections 227 and 228 extend to all the rights and duties of natural parents and children. The language is general and comprehensive. The use of the woril “issue,” in section 1386, does not limit the right of inheritance to natural children only. That section prescribes the rule of inheritance. The word “issue” is there used in the same sense as the words “child” and “children." If the adopted child is, by virtue of its status, to be “regarded and treated in

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