should, perhaps, be alleged to have been made by the principal. But no such recognition of the maxim "that which is done by another he himself does" is requisite to the validity of a notice under the Mechanics' Lien law. As contractor Scheibel had authority to enter into a sub-contract, by virtue of which the sub-contractor might acquire a lien, and as an agent empowered to do so, he was authorized to enter into an original contract for and on behalf of Trautner. Scheibel swore as a witness that defendant requested him to employ plaintiff to do the work for which the latter now claims the lien. Such work and materials constituted no portion of the work and materials to be done and furnished by Scheibel by the terms of his original contract with defendant. The notice of lien is not vitiated by the words "as a contractor." Those words are surplusage and do not detract from the effect of the statement that Scheibel, in employing plaintiff, acted as agent for the defendant. The nonsuit should have been denied. Order reversed and cause remanded for a new trial. DEPARTMENT No. 1. [Filed May 30, 1883.] FANNING, APPELLANT, v. LEVISTON ET AL., RESPONDENTS. STREET ASSESSMENT-OFFICIAL GRADE OF VALLEJO STREET. The official grade of Vallejo street, between Montgomery and Kearny, San Francisco, was established by the adoption, in 1853, of the Board of Engineers' report and the passage of Ordinance No. 608. Appeal from Superior Court, San Francisco. J. M. Wood for appellant. Wm. Leviston for respondents. MCKEE, J., delivered the opinion of the Court: Action to foreclose a street assessment in San Francisco, for the grading of Vallejo street, on "Telegraph Hill," from Montgomery to Kearny. Upon one of the issues raised by the pleadings the Court found that the grade of the street had never been officially established; and the only question discussed on the appeal is that this finding is not sustained by the evidence. It was proved by evidence, in which there was no conflict, that in the year 1854 a Board of Engineers reported in writing to the Common Council of the city of San Francisco, grades for all the streets of the city, with reference to a basis which had been fixed and adopted by the Council in the year 1853. The Common Council adopted the report, and by Ordinance No. 608 it was ordained that the grades, as specifically defined by the report, be the permanent grades of the streets of the city. That part of the ordinance which relates to the grade and intermediate grades of Vallejo street, is as follows: "Montgomery and Vallejo streets, one hundred and fifteen feet above base. Kearny and Vallejo streets, one hundred and forty-two feet above base. Montgomery and Greenwich streets, one hundred and thirty feet above base. Kearny and Greenwich streets, two hundred and thirty feet above base. Second and Townsend, thirty feet above base. * * * * Grades of points of streets intermediate between crossings. On Townsend street, 265 feet west of Second street, between Second and Third streets, 68 feet over base. On Townsend street, 285 feet west of Second street, 68 feet above base. On Greenwich street, between Dupont and Kearny, 137 feet 6 inches east of Dupont, 162 feet above base. On Greenwich street, between Dupont and Kearny, 68 feet 9 inches west of Kearny, 206 feet above base." Accompanying the report of the engineers were certain profiles, on which were drawn lines of the grades of the streets, and marked figures of the heights of the grades from the base; and the profiles as part of the report were incorporated into the ordinance. But the profile of the grade of Vallejo street shows that the blue line indicating the grade was not continued from Montgomery to Kearny street. A break occurs in the line between those intermediate streets, and instead of the blue line of the grade there is given a dotted line, which is explained by a note to the report incorporated in the ordinance, as follows: "NOTE. On the official profile, where dotted lines occur (in blue), or surface lines are left, the grade defers to the surface. Upon this it is contended that there was no grade reported or established on Vallejo street between Montgomery and Kearny. 66 But the figures of the profile at the ends of the dotted line represented the heights of the grade of the street from the base of the city, and the dotted line represented the grade-line from Montgomery to Kearny, as the surface or middle line of the street. In other words, the grade of Vallejo street from Montgomery to Kearny, along the dotted line, defers to the surface." The natural surface of the hill at those points corresponded to the heights of the grade at the same points above the base of the city, and the level of the surface indicated by the points and the figures was the line of the grade. To that level it might have been necessary, in grading the street, to cut down the hill on one side and fill up on the other. It follows, when the city adopted the profiles accompanying the report of the Board of Engineers, which was incorporated in Ordinance No. 608, and ordained that the grades, as specifically defined in the report, should be the permanent grades of the streets of the city, that the grade of the street in question was officially established. Judgment and order reversed, and cause remanded. I concur in the judgment: McKinstry, J. IN BANK. [Filed May 28, 1883.] ADAMS ET AL., RESPONDENTS, v. DOHRMAN, APPELLANT. SUNDAY SUPREME COURT-PRACTICE. The Constitution and the Statute have declared that the Supreme Court "shall always be open for the transaction of business;" consequently held, that an order that a cause in which judgment had been rendered by a Department be heard in bank should be set aside where it appeared that it was made on Monday, the 31st day after the judgment by the Department. The order could have been made on Sunday, the 30th day, and it should not have been excluded. Appeal from Superior Court, San Francisco. E. S. Pillsbury for respondents. J. M. Burnett for appellant. By the COURT: On the 15th day of December, 1882, Department One of this Court affirmed the judgment appealed from herein, and on the 15th day of January, 1883, the Court made an order that the case be heard in bank. The Constitution (Sec. 2, Art. VI,) provides that "where a cause has been allotted to one of the Departments (as this cause was) and a judgment thereon, the order (that the same be heard and decided in bank) must be made within thirty days after such judgment, $ * and if so made it shall have the effect to vacate and set aside said judgment. *** If the order be not made within the time above limited the judgment shall be final." The respondent now moves to have the order of January 15, 1883, vacated, on the ground that it was not made within thirty days after the judgment of the Department had been pronounced. As to the fact that the order was not made within the time prescribed there can be no controversy. But the thirtieth day after the judgment of the Department was pronounced fell on Sunday, and the order was made on the following Monday. There is a general provision in the Code that the time in which any Act provided by law is to be done is computed by excluding the last day if it be a holiday. (C. C. P. 12.) And as Sunday is a holiday, it is contended by appellant's counsel that the last day upon which an order that this case should be heard in bank could be made, being Sunday, it must be excluded, and if excluded the order made on the following day was made within thirty days after the judgment had been pronounced in the Department. Whether in the absence of other provisions of the Code and the Constitution relating to this same subject that would be so, it is not now necessary to decide, because the Constitution declares that this Court "shall always be open for the transaction of business," and the Legislature, when prescribing on what days Courts may be held and judicial business transacted, provides that the Supreme Court shall always be open for the for the transaction of business," and that provision is inserted among the exceptions to the general rule that no Court shall be open or transact any judicial business on Sunday. (C. C. P. 133, 134.) It is therefore quite clear that this Court might have been open for the transaction of business on the last of the thirty days within which an order that this case be heard in bank could be made, and there is no legal reason why it should not have acted on that day, and consequently no reason why the judgment of the Department should not have become final at the expiration of that day. The Court is not required to take any formal action in regard to a judgment pronounced by a Department within thirty days thereafter. The Constitution simply limits the time within which an order that it be heard in bank may be made. The Court may act or not, as it chooses within that time, but it cannot, after the expiration of that time, order a cause to be heard in bank. That the framers of the Constitution did not intend that the law relating to holidays should apply to this Supreme Court, is made apparent by a comparison of the clause of the Constitution which declares that the Supreme Court "shall always be open for the transaction of business," with the provision that the Superior Courts "shall be always open (legal holidays and non-judicial days excepted)." The provision (Section 12 C. C. P.) of the Code upon which appellant relies does not attempt to define what days shall be non-judicial. But that is done in Section 133, and, as before stated, the Supreme Court is expressly excepted from its operation. Motion granted. DEPARTMENT No. 1. [Filed May 30, 1883.] No. 8165. BAYLY, RESPONDENT, v. MUEHE, APPELLANT. MORTGAGE- FORECLOSURE-PARTIES-HEIRS-ADMINISTRATION. Heirs of the mortgagor are not necessary parties to a foreclosure against his executor or administrator. Appeal from Superior Court, San Francisco. Stetson & Houghton for respondent. F. J. Castlehun for appellant. Ross, J., delivered the opinion of the Court: One Baker owned a tract of land which he mortgaged to one Livermore, and then died intestate, leaving surviving him certain heirs-at-law. An administratrix of his estate was appointed, to whom the mortgage claim was presented, and the same was duly approved and allowed. Livermore then commenced suit against the administratrix to foreclose the mortgage. To that suit none of the heirs of the mortgagor were made parties. The proceedings in the action were regularly had and taken, and resulted in the entry of a decree of foreclosure in the usual form, the issuance of an order of sale, the sale of the mortgaged premises pursuant to its directions, and the execution of the sheriff's deed in due course of time. |