thereafter, in obedience to said summons and not voluntarily" the petitioner demurred to the complaint on the grounds "that the court has no jurisdiction either of the person of the defendant or the subject matter of the action," and that the "complaint does not state facts sufficient to constitute a cause of action"; that the court overruled the demurrer and the defendant answered, alleging "that the court has no jurisdiction of the person of the defendant or of the subject matter of the action for the reason that the defendant is not, and never was, a resident of the said Stockton township, and the alleged contract to pay for the said pretended work and labor specified in said complaint, was not made in said Stockton township nor to be performed therein," denying the allegations of the complaint, and pleading a settlement and payment of the alleged indebtedness; that "at the trial of said cause in the justice's court the defendant called the attention of the justice to the fact that it had no jurisdiction of the subject matter of the action or of the person of the defendant, and objected to the justice's court determining any question but that of jurisdiction. The justice's court then and there overruled the defendant's objection . . . and rendered judgment against the defendant"; that the defendant appealed from such judgment "upon questions of both law and fact"; that in the superior court "the defendant. .. called the attention of said court to the fact that neither the justice's court nor the said superior court had jurisdiction of the subject matter of the action or of the person of the defendant, and then and there objected to the court determining any question but that of jurisdiction, but the defendant, as the judge of the said superior court, overruled the defendant's said objection and rendered judgment against said defendant"; that "neither the said justice's court nor the said superior court had jurisdiction in said case of the subject matter of the action or of the person of the defendant, for the reason that it does not appear on the face of the complaint, or in the judgments entered therein, or in any of the records of said case, that either the said justice's court . . . or the said superior jurisdiction of the subject matter of the jurisdiction of the person of the defendant."

court . . . had action... or

[1] Proof that a defendant resides in a judicial township in which he is sued is jurisdictional but it is not required that the fact of such residence shall "appear on the face of the complaint, or in the judgment entered therein, or in any of the records" in the case. (Jolley v. Foltz, 34 Cal. 321. See, also, In re Williams, 102 Cal. 70 [41 Am. St. Rep. 163, 36 Pac. 407].) By his answer the defendant tendered the issue that his residence was not in Stockton township. By his appeal he asked the superior court to decide that issue. The court certainly had jurisdiction to determine the question thus raised. It does not appear from the petition that the court decided the question against petitioner's contention on insufficient evidence or without an opportunity to prove his place of residence. It must be presumed that there was evidence to support the judgment, even if the sufficiency of the evidence could be inquired into in this proceeding.

Petitioner relies on the case of Holbrook v. Superior Court, 106 Cal. 589 [39 Pac. 936], in support of his contention that the defense of want of jurisdiction can be raised by answer. At the time that case was decided section 890, subdivision 4, of the Code of Civil Procedure provided for the dismissal of an action "when it is objected at the trial, and appears by the evidence, that the action is brought in the wrong county, or township, or city." In 1905, subdivision 4 was amended to provide for a dismissal "when the action is brought in the wrong county, or township, or city" and it is silent as to the manner in which the question may be raised. In Vance v. Superior Court, 48 Cal. App. 327 [191 Pac. 945], where the facts were similar to those here, the court said: "By his general appearance in the justice's and superior court petitioner waived his right to raise the question of jurisdiction," citing Olcese v. Justice's Court, 156 Cal. 82 [103 Pac. 317], and American Law Book Co. v. Superior Court, 164 Cal. 327 [128 Pac. 921]. (See, also, Roberts v. Police Court, 185 Cal. 65 [195 Pac. 1053].) The provision of section 832 of the Code of Civil Procedure to the effect that actions such as that here involved must be commenced and tried "in the township or city in which the defendant resides" relates to the jurisdiction over the person of the defendant. (Ohio Southern R. Co. v. Morey, 47 Ohio St. 207 [7 L. R. A. 701, 24 N. E.

269].) This proceeding is sought to review the action of the superior court, not that of the justice's court. "This court has never recognized the right of a petitioner to writ of certiorari to review the judgment of a justice's court after appeal taken and determined in the superior court." (Olcese v. Justice's Court, supra.) "By its appeal to the superior court the petitioner submitted the question of want of jurisdiction of its person to the superior court and . . . the tribunal to which the appeal was thus prosecuted had the right to decide that question incorrectly as well as correctly." (American Law Book Co. v. Superior Court, supra.) "If such tribunal has regularly pursued its authority, our inquiry stops.' (Matter of Hughes, 159 Cal. 360, 363 [113 Pac. 684, 686].) It does not appear from the petition herein that the superior court did not regularly pursue its authority.

The petition is denied.

Hart, J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 24, 1922.

All the Justices concurred.

Richards, J., pro tem., and Myers, J., pro tem., were act

ing.

[Civ. No. 2431. Third Appellate District.-May 27, 1922.] In the Matter of the Application of PETER JULES WILKIE for Naturalization.

[1] NATURALIZATION-JUDGMENT APPEAL.-A judgment in citizenship proceedings is not subject to review by courts of appeal, since the act of Congress of June, 1906, providing for the naturalization of aliens, does not authorize an appeal from such a judgment.

APPEAL from an order of the Superior Court of Sacramento County denying an application for naturalization. J. E. Prewett, Judge Presiding. Appeal dismissed.

The facts are stated in the opinion of the court.

Soren X. Christensen and O. N. Hilton for Appellant.
John T. Williams and T. J. Sheridan for Respondent.

HART, J.-The petitioner, a native of Scotland and a subject of Great Britain, appeals from an order or judg. ment of the superior court in and for the county of Sacramento denying his application to become a naturalized citizen of the United States.

The ground upon which the appeal is predicated is that the court below, in passing upon the evidence, abused its discretion in denying the application.

In limine, the respondent, United States of America, through the United States district attorney for the northern. district of California, has filed a motion to dismiss the appeal upon the following grounds: "First, that the court has no jurisdiction of said appeal; second, that the order attempted to be appealed from is not an appealable order; third, that under the acts of Congress, providing for the naturalization of aliens and authorizing a petition for naturalization to be heard by state courts of record, it is not contemplated or authorized that any appeal be taken from any order made by any state court or United States district court in the premises."

[1] The three grounds above stated involve practically the same proposition, to wit: That an order or judgment of any court, vested with jurisdiction to hear and determine such matters, denying the application of an alien to become, by proceedings in naturalization under the act of Congress of 1906 (c. 3592, 34 Stats. at Large, 596; U. S. Comp. Stats. Supp. 1911, p. 529 [6 Fed. Stats. Ann., 2d ed., p. 952; U. S. Comp. Stats., sec. 4351]), a citizen of the United States is not an appealable order or judgment, and this by virtue of the fact that the said act of Congress does not authorize an appeal from such an order or judgment; that, therefore, there is no authorized means whereby an appellate court may be clothed with jurisdiction to review proceedings in naturalization which have culminated in an order or judgment either denying or allowing an application for citizenship.

The cases in which the act of Congress of June, 1906, has been considered and construed sustain the contention thus advanced by the respondent upon reasons which appear to be sound and quite impregnable.

Section 8, article I, of the federal constitution provides that "the Congress shall have power . . . to establish an uniform rule of naturalization." In obedience to the power thus expressly conferred upon the Congress, naturalization laws were enacted at a very early stage after the organization of the federal government by the adoption of the national constitution and have, as modified or amended from time to time in certain particulars, since remained in existence. Down to the time of the enactment of the act of Congress of 1906, and, in a few instances even after the passage of that act, judgments of United States courts in naturalization proceedings have been reviewed by the appellate courts, and the right to such a review was never questioned, so far as we are contrariwise advised, until the decision in the case of United States v. Dolla, 177 Fed. 101 [21 Ann. Cas. 665, 100 C. C. A. 521]. In that case, the congressional legislation of 1906, authorizing the naturalization of aliens and prescribing the procedure in such proceedings, to which, it may here be suggested, new rules, designed for the more effectual safeguarding of the country against the admission of undesirable foreigners to the rights of citizenship therein, were added by said act, was elaborately reviewed. In said act of Congress no right of appeal from a judgment in citizenship proceedings was expressly granted or authorized, and it was held, in the case just mentioned, that the omission to provide in said act for an appeal in such proceedings was by the Congress thus intended, ex industria, to deny or foreclose such right. The reasoning of the court, in supporting its conclusion, is so forceful and so plainly unimpeachable and the question to which it is addressed of such singular importance at the present time, that we may pardonably reproduce herein an extended excerpt from the court's opinion as follows:

"Under the naturalization law of June 29, 1906, the jurisdiction is conferred upon the courts; the petition for nat uralization is to be filed addressed to the court; notice is to be given by posting; witnesses may be summoned; the United States are given the right to appear and oppose and