the nature of the work to be done under these specifications shall be sustained by the contractor." It may be that a fair construction of these provisions, except as to those in italics, would warrant our holding them to relate to damage during the progress of the work and before the city had accepted it; that the city was to be held harmless merely as to damages resulting from negligence or carelessness of the contractor in prosecuting the work, which it was his duty and within his power to avoid. But as to the clause in italics, it seems to us the purpose had a broader meaning and looked to damage which might arise out of and subsequent to the completed work-practically any damage for which the city would be liable which might originate in "the nature of the work to be done." The reasoning in Brown v. Jenks, 98 Cal. 10, and Alameda Macadamizing Co. v. Pringle, 130 Cal. 226,1 seems to apply with equal force here. The contractor in the first of these cases was to keep the street in repair for five years, and in the second case cited he was to guarantee the work for one year "from injury by ordinary use." The point decided was, that the provision was not only unauthorized by the statute, but that it changed and might increase the burden of the property-owner, for the reason that the contractor could not afford to do the work in the one case or give the guarantee in the other for nothing. "The contractor," it was said, "would charge a higher price for the work when he was forced to contract also for repairs." No one can say that a contractor would agree to stand behind the city and hold it. harmless from damage arising out of the work he had undertaken to do, without some compensation additional to the necessary cost of the material and labor to him, plus a reasonable profit. In thus agreeing he might subject himself to liabilities much greater than the cost of protecting the work for one year "from injury by ordinary use," or greater even than the cost of keeping "the street in repair for the period of five years." It was said in Brown v. Jenks, 98 Cal. 10: "Officers are provided and vested with the power and charged with the duty of seeing that such work is properly done. A bond cannot be substituted for the performance of this duty." The law does not authorize a municipality to escape its liabil 1 80 Am. St. Rep. 124. ity by shifting it to the shoulders of the contractor, and in attempting to do so it imposed conditions that would naturally tend to increase the cost of the work. The judgment and order should be affirmed. Haynes, C., and Gray, C., concurred. For the reasons given in the foregoing opinion the judgment and order are affirmed. Harrison, J., Van Dyke, J., Garoutte, J. Hearing in Bank denied. Beatty, C. J., dissented from the order denying a hearing in Bank. [L. A. No. 989. Department Two.-February 28, 1902.] I. GOLDTREE, Appellant, v. JOHN D. SPRECKELS, Re DISMISSAL spondent. CF DEMURRER SUSTAINED WITHOUT AMENDMENT-TRIAL CAUSE. The trial by the court of an issue of law, upon demurrer to the complaint, without leave to amend, is a trial of the cause which involves a judgment of dismissal, and precludes the right of the plaintiff to dismiss the action before trial, under section 581 of the Code of Civil Procedure. The clerk has no authority to enter a dismissal in such case upon the plaintiff's order, and the court may set such dismissal aside. Id.—DemurreR IMPROPERLY SUSTAINED-ACTION TO ENJOIN DEED UNDER STREET BOND-INVALID ASSESSMENT.-Held, under the authority of Blochman v. Spreckels, ante, p. 662, that a demurrer was properly sustained to a complaint to restrain the defendant from obtaining a deed to plaintiff's lots under a sale upon a street bond for an illegal assessment upon the lots under a void contract, which assumed to shift the liability of the city upon the contractor. APPEAL from a judgment of the Superior Court of San Diego County and from an order setting aside a dismissal by the clerk upon plaintiff's order. E. S. Torrance, Judge. The facts are stated in the opinion. L. L. Boone, and Oscar A. Trippett, for Appellant. CHIPMAN, C.-Plaintiff's complaint contains three alleged causes of action. In the first two plaintiff prays that defendant be restrained from obtaining a deed, following the sale of certain lots situated in San Diego, for non-payment of interest on certain bonds issued to the contractor for street work, under the Street Improvement Act. The third cause of action is to quiet plaintiff's title against any interest or claim of defendant to the property. The amended complaint was filed December 22, 1899. A general demurrer to each cause of action was interposed on December 26, 1899, and on February 24, 1900, the demurrer was argued and submitted to the court for decision, was sustained as to the first two causes of action and overruled as to the third, and, on application of defendant, leave was granted him to answer the third cause of action. No leave was asked by plaintiff, and no order was made allowing plaintiff to amend the complaint as to the first two causes of action. On March 6, 1900, defendant filed his answer to the third cause of action, but sought no affirmative relief. The cause came on for trial May 16, 1900, "on the issues of fact joined by the answer of defendant to the third cause of action," and plaintiff's motion for a continuance was denied. Thereupon plaintiff's counsel announced "in open court that the plaintiff will take a dismissal of this action," to which defendant's attorneys objected, and the court ruled that "the plaintiff is not entitled to dismiss the action as to the first two alleged causes of action stated in the amended complaint, for the reason that a trial has been heretofore had by the court, by sustaining the demurrer to each of said two alleged causes of action, on the ground that neither of them stated facts sufficient to constitute a cause of action." After the court had announced its decision, and on the same day, plaintiff's attorneys filed a written request to the clerk to dismiss the action, and the clerk immediately entered an order of dismissal. Plaintiff's attorneys the same day came into court and called its attention to the entry of the clerk, and again moved a dismissal of the action. Whereupon the court ordered that the entry of dismissal by the clerk be set aside and canceled, on the sole ground that the clerk had no authority to make the entry. Plaintiff's counsel then moved to dismiss the third cause of action, without prejudice to the right of plaintiff concerning the proceedings theretofore had (referring spe cifically to the aforesaid rulings of the court as to the first two causes of action), and the court granted the motion and dismissed the third cause of action. Thereupon defendant's attorneys moved for judgment in defendant's favor on the first two alleged causes of action, which motion the court granted. The judgment was dated May 16, 1900, and was entered May 22, 1900. It recites the foregoing facts, and adjudges that plaintiff recover nothing on the first and second causes of action, and that plaintiff is not entitled to any relief on either of said causes of action, and also adjudges the dismissal of the third cause of action. Plaintiff appeals from the order canceling the entry of dismissal by the clerk, and he also appeals from the judgment on the demurrer. Section 581 of the Code of Civil Procedure provides as follows: "An action may be dismissed, or a judgment of nonsuit entered, in the following cases: 1. By the plaintiff himself, by written request to the clerk, filed among the papers in the case, at any time before trial, upon payment of costs; provided a counterclaim has not been made, or affirmative relief sought by the cross-complaint or answer of the defendant." Section 148 of the Practice Act was substantially the same as section 581 of the Code of Civil Procedure, except by statute of March 9, 1897, (Stats. 1897, p. 98,) the words in italics were added to the section. In Hancock Ditch Co. v. Bradford, 13 Cal. 637, the parties had gone to trial and the testimony for plaintiff and defendants had closed, but we infer that the case had not yet been submitted. There was no counterclaim made by defendants. It was held that, under section 148 of the Practice Act, "by 'trial' here is meant the determination or finding in the case . . .At common law, the right of the plaintiff was to take a nonsuit at any time before the jury retired, and we do not construe the statute as altering the rule." The court ordered the nonsuit to be entered. In Brown v. Harter, 18 Cal. 76, the court said, in explaining some possible obscurity in the opinion in Hancock Ditch Co. v. Bradford, 13 Cal. 637: "The Practice Act does not give an arbitrary right to become nonsuit after the case has been finally submitted to the jury, though it exists at any time before such final submission and their retirement." The case had been submitted to the jury, and they had retired to consider of their verdict. The jury returned for further instructions, which having been given the jury again retired, and, being unable to agree, came into court, when the court, of its own motion, instructed them to find for the defendant, plaintiff excepting, and demanding permission to become nonsuited, and that the same be entered before the jury again retired. This permission was denied, and the jury was instructed to find for defendant, which was accordingly done, plaintiff excepting. The order was sustained here. In Heinlin v. Castro, 22 Cal. 100, the case had been tried, submitted, and taken under advisement by the court, and it was held that plaintiff had no right to dismiss the action. The Code of Civil Procedure declares that issues arise on the pleadings, and are of two kinds,-namely, of law and of fact. (Code Civ. Proc., sec. 588.) "An issue of law must be tried by the court, unless it is referred by consent." (Code Civ. Proc., sec. 591.) In Tregambo v. Comanche etc. Mining Co., 57 Cal. 501, the court said: "A trial is the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of determining such issue. When the court hears and determines any issue of fact or of law, for the purpose of determining the rights of the parties, it may be considered a trial." In that case the issue presented was on the application to set aside the default entered against the defendant and allow it to answer, and this motion was made before the trial on the merits. The point decided was that it was a "trial" within the meaning of the word as used in section 650 of the Code of Civil Procedure. So it was held in Finn v. Spagnoli, 67 Cal. 330,—that the hearing and disposition of a motion for a new trial is a trial. A statute of the United States providing for the removal of causes required the filing of the petition to be "at or before the term at which said cause could be first tried, and before the trial thereof." What was meant by the term "trial," used in this statute, was decided in Alley v. Nott, 111 U. S. 472, opinion by Chief Justice Waite. The suit was begun in the supreme court of New York. Demurrers to the complaint were interposed on the ground "that it did not state facts sufficient to constitute a cause of action." The issues of law raised by the demurrers were brought to trial, |