all respects as the child of the person adopting," and is to "have all the rights, and be subject to all the duties, of the legal relation of parent and child," the right to succeed to the estate of the deceased parent must be included. Estate of Wardell, 57 Cal. 491. See, also, Ross v. Ross, 129 Mass. 266. 2. So far as the action of Maldonado v. Maldonado affected the status of the parties and the custody of the child, it was a proceeding in rem, and service by publication in such cases is good. Pennoyer v. Neff, 95 U. S. 714. The recital in the judgment that the defendant was duly served with process is consistent with the proof of service. It is the fact of service which gives the court jurisdiction, not the proof of service; and the court had authority to receive the amended affidavits of service after judgment, and before the roll was made up. Mason v. Messenger, 17 Iowa, 261; Rickards v. Ladd, 4 Pac. Coast Law J. 52; Allison v. Thomas, 14 Pac. Rep. 309. The affidavits of service, and the recitals in the judgment, are conclusive. The affidavit on application for an order of publication, and the order of publication, cannot be considered. They are no part of the roll. Hahn v. Kelley, 34 Cal. 391; McCauley v. Fulton, 44 Cal. 355. Belcher v. Chambers, 53 Cal. 635, is not in point. In that case, as in Pennoyer v. Ness, the judgment considered was a personal judgment against a non-resident, without personal service or process. So far as the rule established in Hahn v. Kelley is applicable to proceedings in rem, it has not been overruled. The judgment referred to in that case was for money,—the deficiency after foreclosure and sale. The court had jurisdiction of the defendant, and the subsequent proceedings, from the time that publication of summons was complete. Code Civil Proc. 416. The fact that judgment was rendered upon default entered before the time allowing the defendant to answer had expired, rendered the judgment erroneous, simply, not void. A judgment thus rendered can be attacked only upon motion or by appeal, and by the parties in interest. Maldonado is the only party aggrieved by the decree, and he is the only one who can attack it in any way. Alderson v. Bell, 9 Cal. 321; Mitchell v. Aten, 14 Pac. Rep. 497. 3. It is contended that the order is void because it was made by the court, and not by the judge. The order appears to have been made in open court, but it is a written order, signed by the judge, and filed in the proceedings. The words "by this court," in the order, may be treated, we think, as surplusage. An order made by the judge at chambers, in a case requiring action by the court, may, for good reasons, be held to be invalid, but no such reasons can be urged in cases like this. The power which the judge might have exercised in his chambers was exercised in open court; and the fact that the clerk and sheriff were present cannot affect the validity of his judicial act. 4. The judge who signed the order-Honorable B. T. WILLIAMS, of Ventura county--had the same power as the judge of Los Angeles county, for whom he was acting. Section 71, Code Civil Proc. It must be presumed, in the absence of a showing to the contrary, that he was acting upon the request of the governor, or of one of the judges of the superior court of Los Angeles county. 5. The decree was signed by the judge on October 19, and was filed with the clerk on October 22, 1885. Thus rendered, it was binding on the parties and privies, althought not entered until January 5, 1887. The clerk could not, by his failure to perform a ministerial duty, abridge the rights of any party interested. Casement v. Ringgold, 28 Cal. 339; Gray v. Palmer, Id. 422. The order is affirmed. We concur: MCFARLAND, J.; SHARPSTEIN, J.; TEMPLE, J.; MCKINSTRY, J.; THORNTON, J. I dissent: SEARLS, C. J. (75 Cal. 205) PATENT BRICK Co. et al. v. MOORE et al. (No. 9,958.) 1. NEW TRIAL-INSUFFICIENCY OF EVIDENCE-STATEMENT OF CASE. On the hearing of a motion for a new trial, where the statement of the case contained no specification of the particulars wherein the evidence was alleged to have been insufficient to justify the decision, the court below properly disregarded the statement as to that ground. 2. SAME-ERRORS OF LAW-FAILURE TO TAKE EXCEPTIONS. Where it appears from the statement of the case that there were no exceptions whatever taken at any time during the trial to any act of the court, the court is justified in refusing to grant a new trial upon the ground that the decision is against the law. 3. SAME-ISSUES NOT RAISED AT TRIAL. On a motion by defendant for a new trial, made on bill of exceptions and statement of the case, in an action to foreclose a mechanic's lien, because a certain bond, introduced in evidence without objection, which appears in the statement of the case as signed by plaintiffs, as sureties for the contractors who built the building upon which the lien is claimed, containing an express stipulation that the building should be delivered clear of all liens, worked an equitable estoppel in pais, and pre vented the foreclosure of plaintiffs' lien, held, that as there was nothing in the find ings to indicate that such a clause existed in the bond, and no issue being made, based upon such a contention, the trial court, not being informed by the statement of the case that the defendant claimed the evidence derived from that clause in the bond did not justify the decision, was not bound to make a finding not responsive to the pleadings, and the motion for a new trial was properly refused. 4. DAMAGES-LIQUIDATED DAMAGES-UNCERTAINTY OF ACTUAL DAMAGES. Under Code Civil Proc. Cal. § 1671, which provides that parties to a contract may agree upon an amount as liquidated damages when, from the nature of the case, it would be impracticable to fix the actual damages, taken in connection with section 1670, which provides that every contract by which the damages to be paid for a breach thereof is determined in anticipation is to that extent void, except as expressly provided in section 1671, a building contractors' bond, containing a stipulation that, if the building is not completed on a day certain, they should pay $100 for each day of delay as liquidated damages, does not of itself, in the absence of all other evidence upon the subject, make it clear that it would be impracticable to fix the actual damages resulting from the breach of a bond in not completing the building. 5. MECHANICS' LIENS-ATTORNEY'S FEE-DISCRETION OF COURT. Plaintiff in an action to foreclose a mechanic's lien asked for an attorney's fee. The defendant, in his answer, did not claim that no fee should be allowed, but that a smaller fee than that asked for would be sufficient. Held, that the parties had left it to the discretion of the trial court to fix the amount, and his decision, having been judiciously made, will not be disturbed. 6. SAME-MATERIALS USED IN BUILDING-FINDINGS-APPEAL. On appeal from a judgment in plaintiffs' favor, in an action to foreclose a mechanic's lien, when the complaint states and the findings show that the materials furnished were sold to be used, and were used, upon the building, and that the claim was assigned to plaintiff, and the statement of the case cannot be examined to see if the evidence upon these points is sufficient, and from the record there does not appear to have been any exceptions taken, it will be presumed that the findings were based upon sufficient evidence. An allegation in the pleading that a claim was transferred and assigned in writing is an allegation of a matter of evidence, so far as the statement that it was in writing is concerned; and, when the findings show that the claim was assigned to plaintiff, it will be presumed, in the absence of anything to show to the contrary, that the court found upon sufficient evidence that the claim was assigned in writing. 8. SAME-PERFORMANCE OF LABOR-FINDINGS. From the findings in an action to foreclose a mechanic's lien, to the effect that plaintiff performed labor upon and in the construction of the building at the request of the contractors, it would appear, in the absence of anything to show to the contrary, that plaintiff, as a person, performed the labor upon the building, and was en titled to enforce his lien, having filed his claim under Code Civil Proc. Cal. § 1183, giving mechanics, materiai-men, etc., a lien for all labor performed or materials furnished by them, etc. Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; J. F. SULLIVAN, Judge. The action of William Cronan, et al. v. The Mechanics' Institute and Charles P. Moore, et al. was commenced in July, 1882. Thereafter eight other suits were brought against the same defendants by the Patent Brick Company et al., Charles Hanson et al., A. Gennon et al., Fr. H. Rosenbaum, Asa R. Wells et al., Alpheus Kendall et al., Walter J. Weatherly, and Charles Williams. These nine actions were consolidated and tried together. Each of these actions was brought to foreclose mechanics' liens for materials furnished and work done for defendants Moore et al., contractors in the construction of a building for the Mechanics' Institute, known as the "Mechanics' Pavilion." In the contract it was provided that the building should be completed by the 10th of February, 1882, and the contractors were to pay $100 per day as liquidated damages for every day thereafter that the said work should remain unfinished. A bond was given by the contractors, signed by Hanson and Joost, plaintiffs in these suits, as sureties, containing the same provision. It was also provided that the building should be delivered over to the institute free and clear of all liens; that 75 per cent. of the appraised value of the work should be paid as the work progressed, and the residue 31 days after the entire work was completed and accepted. The contract price was $32,000. Defendants claimed a breach of the contract, and $6,000 damages, for failure to complete the contract, and also that the work was not done in a workman-like manner, in accordance with the terms of the contract, "whereby this defendant was damaged in the sum of eight thousand dollars." At the trial, the court awarded $2,000 damages, but did not allow liquidated damages, and, to save any question, found that defendants had suffered no damages by the alleged breach of the contract. The court found $6,482.60 due the contractors, and awarded the same to the plaintiffs proportionately, and their liens upon the land covered by the building were recognized and foreclosed. From a judgment overruling a motion for a new trial, made on a bill of exceptions and statement of the case, defendants appealed, assigning error. Estee, Wilson & McCutcheon, for appellants. D. H. Whittemore, Arthur Rodgers, K. M. Smith, A. N. Drown, Cutler & Eisner, Wm. H. H. Hart, Wm. H. Fifield, and Jarboe, Hornson & Goodfellow, for respondents. FOOTE, C. Nine separate actions were instituted in the trial court for the foreclosure of mechanics' liens against certain property belong to the Mechanics' Institute, arising out of a building contract which the institute had entered into with Charles P. Moore et al. Those several actions were by order of court consolidated into one, and tried without a jury. Judgment of foreclosure in behalf of all the lien claimants was rendered; and from that, and an order refusing to grant a motion for a new trial, the Mechanics' Institute has appealed. The grounds upon which the motion for a new trial proceeded, as set out in the notice of intention, were: First, insufficiency of the evidence to justify the decision; second, that the decision is against law; third, errors in law, occurring on the trial, and excepted to by the defendant. We will first consider the case as it affects the appellant and Charles Hanson et al., respondents. There is no specification in the statement of the case of the particulars wherein the evidence is alleged to have been insufficient to justify the decision; therefore the court below was obliged to disregard the statement as to that ground for a new trial. As to the second ground, it appears from the statement that there was no exception whatever taken at any time during the trial to any act of the court; so that it was justified in refusing to grant a new trial upon that ground. It is claimed for the appellant that the court should not have given a decision in favor of enforcing the lien of Hanson et al., and should not have rendered a judgment of foreclosure in their favor because a certain bond which appears in the statement of the case as signed by Hanson and one Joost, as sureties for C. P. Moore et al., (the contractors in the building of the insti tute,) contained an express stipulation that the building should be delivered over to the appellant free and clear of all liens. It is argued that inasmuch as Hanson and Joost signed such a bond as sureties, they cannot be allowed to foreclose a lien for materials furnished the contractors, Moore et al., which were used to complete the appellant's building. It is said that the clause in the bond above referred to worked as an equitable estoppel in pais, and prevented Hanson and Joost from foreclosing their alleged lien. There is nothing in the findings which indicates that any such clause existed in the bond, and there is no issue made by the pleadings based upon any such contention as is here made. As the trial court was not informed, in the statement of the case, that the appellant claimed the evidence to be derived from the recitations of that clause of the bond did not justify the decision, we cannot perceive how the court could have done otherwise than refuse a new trial because of the mere existence of such a clause in the bond, introduced in evidence. But it is further argued that, although an estoppel in pais may not be properly pleaded, yet, where evidence tending to show such an estoppel is introduced without objection, that a verdict based thereon will not be disturbed; and from that it is argued that where such evidence is introduced in a case tried by the court without a jury, that a decision is against law if the trial court omits to make a finding thereon. The case of Davis v. Davis, 26 Cal. 23, is cited to us in support of that view. But we fail to see how it is applicable here. There the party waived his right to object to evidence not responsive to the issues made by the pleadings; and it was very properly held that it was a waiver of an existing right, and for that reason the verdict should not be disturbed, and the case was to be considered as if the estoppel had been pleaded. But we do not understand that it was held in that case that the trial court must make a finding based upon evidence not responsive to the issues made by the pleadings, even although such evidence may have been introduced on the trial without objection. Again, it is urged that the court below was not justified in finding that the appellants had suffered no damage by reason of the delay in the construction of their building. It is said that the bond signed by Hanson and Joost contained a clause that if the building was not completed by a certain day, that they should pay $100 for each day of delay as liquidated damages. But, as we have before said, the court could not, on the motion for a new trial, consider that matter, because there was no specification filed wherein the evidence was alleged to be insufficient to support the decision. But it is pressed upon us that, as the findings show such a clause did exist in that bond, and that it was pleaded by the appellants, as against the right of the respondents to recover, it is apparent from the judgment roll that the court erred in its decision and judgment. We must take the language of the finding which sets out a recital of the bond, in considering this matter, as the error, if any, is to be determined on the judgment roll. It does not anywhere appear in the findings that, "from the nature of the case" in hand, it was "impracticable or extremely difficult to fix the actual damage" that would result from non-completion of the building by a certain date. Section 1671, Code Civil Proc. Nor does it appear any where in the judgment roll that such was the nature of the That being so, we cannot perceive how the contention of the appellant is maintainable, when we come to consider the language of the section supra, taken in connection with section 1670, Civil Code, which is as follows: "Every contract by which the amount of damage to be paid, or compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided in the next section." As a matter of course, we do not mean to declare that there may not be cases where, from their very nature, (the point made by the appellants,) parties may themselves anticipate and fix liquidated damages to be recovered on a breach case. of contract, but it must always, as it seems to us, be demonstrated by satisfactory evidence that the case is one where such liquidated damages may, under the statute, be contracted for and recovered. In the present case there is nothing in the record to show that it was impracticable or extremely difficult to have fixed the actual damage which would result by the failure of the contractors to complete the building by the date mentioned in their contract. Certainly, the stipulation in the bond does not of itself, in the absence of all other evidence upon the subject, make it clear that it would be extremely difficult or impracticable to fix the actual damages that would result from a breach of the bond in not finishing the building by a certain date. It would appear, therefore, that the findings do support the decision, and that it was not against law, so far as it affects the rights of the appellants and Hanson and Joost. Upon the matter of the allowance of an attorney's fee, the institute, in its answer, does not claim that no fee should be allowed, but simply claims that $250 would be a sufficient fee. It was therefore left by all parties to the discretion of the trial court to fix the amount of that fee, and we do not see but what it has been judiciously exercised. It is claimed that the decree in favor of W. J. Weatherly was erroneously entered by the trial court; that the lien established in his favor is not valid, and cannot be enforced, because, as the appellant alleges, it does not appear that the material was expressly furnished for the building; that Whittier, Fuller & Co., who furnished the materials, had assigned it in writing to Weatherly; or that the bill or demand therefor was in writing. The statement of the case could not be examined to see if the evidence on these points was insufficient to justify the decision, because there were no particulars specified in which the evidence was alleged to be insufficient. There does not appear to have been any exception or objection taken to any action of the court during the trial. The findings show and the complaint states that the materials furnished by Whittier, Fuller & Co. were sold to be used, and were used, in the building, and that the claim was assigned and transferred to W. J. Weatherly by Whittier, Fuller & Co. We think that this finding, to the effect that materials were furnished to be used in the building, and were used in the construction and erection of the building, was sufficient taken with the allegations of the complaint as to those same matters, to bring this case within the rule laid down on the point in question in Holmes v. Richet, 56 Cal. 307; Bottomly v. Church, 2 Cal. 90. And when it is said, in the finding, that the claim was transferred and assigned to respondent, it will be presumed, in the absence of anything to show to the contrary, that the court thus found upon sufficient evidence that the claim was assigned in writing. The rule laid down in Ritter v. Stevenson, 7 Cal. 388, cited to us to support the appellant's contention as to this matter, declares a rule of evidence, for in that case it affirmatively appeared that the assignment of the claim and lien was oral. In this case it does not anywhere appear that the assignment and transfer was oral; and when the court, in its finding, says it was transferred and assigned, it must be presumed that the evidence showed it to be a legal transfer and assignment in writing, since we are confined to the judgment roll in considering the question. Error on appeal must be affirmatively shown. Hayne, New Trials & App. § 241; Mulcahy v. Glazier, 51 Cal. 626. The assignment to Weatherly is pleaded in the same language as that of the findings, and this is sufficient. Millard v. Hathaway, 27 Cal. 140; Hayne, New Trials & App § 242, subd. b. Findings should not consist of mere matters of evidence; and an allegation in the pleading that the claim was transferred and assigned in writing is an allegation of a matter of evidence, so far as the statement that it was in writing is concerned, and need not be found. It is claimed that the court erred in finding that Charles Williams was entitled to a lien. We cannot examine the statement of the case to ascertain |