right in that affidavit that I left it out. I can't remember the details, but I know the judge told me my affidavit was wrong and I came back here and saw Pusey and made an additional affidavit, and I am satisfied it was to show that he exercised the proper diligence in trying to ascertain what her residence was. Now, that is my recollection. I cannot in all these years go into detail, because I don't know." It is significant to observe that Brownell here expressed his idea of the preparation and not of the filing of the alleged second affidavit. Moreover, it was the province of the trial judge to pass upon the credibility of the witness. Numerous depositions were offered to the effect that the reputation of the witness for truth, honesty, and integrity was not good. While these were met by other depositions, the trial court might properly, we think, have wholly disbelieved the testimony quoted, and such a conclusion would be further supported by the consideration that the statement was quite possibly influenced by a desire to make it appear that there. had been no negligence in handling the divorce action. In addition to these considerations, Brownell's testimony itself not only tends to impeach the statement quoted, but contains admissions which positively support the contention of the respondents. Being presented with an affidavit in another divorce action brought by him at about the same time as the one in question which was defective in the same particular as the affidavit filed in the Pusey case, he stated: "Oh, I made a great many affidavits that way. I haven't any doubt but what I did. I was practicing politics in those days more than anything else and was very careless in my business." This statement could have been properly considered by the court as evidence that a second affidavit was not prepared, or that, if it was prepared, it was not filed.

Finally, we have the testimony of the defendant in the divorce action which the appellants evidently regard as very damaging to their case. And so in fact it is. Describing an interview with Pusey subsequent to the divorce, she states: "He had very little to say. I was trying to tell him all the time that he did know where I was all the time. I couldn't hardly realize what this was all about. I remember so well I kept saying to Pusey, 'You did know I was there, Henry. You used to write to me all the time.' He didn't answer me for a while, and finally he said, 'Yes, I did know where you

were. If the court believed this testimony, as it might properly have done, it would follow that Pusey could only have executed a proper affidavit by committing perjury.

are not ready to hold that the court was bound to presume that he made a second affidavit if it had further to presume and say that in so doing he made a perjured affidavit.

[2] We are satisfied that the evidence, considered as a whole, is sufficient to support the finding that no second affidavit was in fact filed.

[3] But it is contended on behalf of the appellants that the testimony of Julia Proctor, the defendant in the divorce action, was improperly received. The effect of the decision of the court was to hold that Julia Proctor was at all times the wife of the appellant, Henry F. Pusey. The appellants, however, were contending throughout the case that the decree of divorce was valid and that from and after that decree Julia Proctor ceased to be the wife of the appellant Pusey. Under these circumstances, the appellants offered the objection that her testimony was incompetent, irrelevant, and immaterial. Under some circumstances this general objection might be considered sufficient to raise the point that the testimony sought to be adduced was privileged under that portion of section 1881 of the Code of Civil Procedure, which reads: "A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband, without his consent." (Humphrey v. Pope, 1 Cal. App. 374, [82 Pac. 223].) In this case, however, there had been a decree of divorce the validity of which was the matter in dispute. After that decree, both parties to the marriage had attempted to contract marriage and had entered into the marriage relation with other parties. The appellants, who were seeking to establish the validity of the decree of divorce, cannot, then, well be allowed to claim that by their general objection they were seeking the benefit of a relation which they claimed did not in fact exist. To properly apprise the court of its nature the objection should, to say the least, have been made in definite and unequivocal language.

[4] It is true that Julia Proctor testified to communications between herself and her husband before as well as after the decree of divorce and that it is further provided in section 1881 of the Code of Civil Procedure that neither husband nor wife can, even after the termination of the marriage,

be examined, without the consent of the other, as to any communication made by one to the other during the marriage. It is to be noted, however, that the point sought to be shown by the communications here in question was the act of communicating and not the nature or character of the communications themselves, the purpose of the inquiry being to show that the appellant Pusey knew the whereabouts of his wife. These circumstances present a proper case for the application of the rule stated in 4 Wigmore on Evidence, section 2337: "The privilege has for its object the security from apprehension of disclosure, a security in consequence of which confidences will be freely given and not withheld. The protection therefore extends only to communications, i. e., utterances, not acts-the reasoning being analogous to that which establishes a similar limitation for communications between attorney and client . . . We think, therefore, that the purpose of the inquiry being to show the act of communicating and not the disclosures involved in the communications, the testimony does not come within the inhibition of the statute.

[5] Considering the contention that the attack upon the judgment is barred by laches or by the statute of limitations, we find that the appellants have cited no statute the effect of which would be to bar the attack upon the judgment in question. They do indeed cite Estudillo v. Security Loan etc. Co., 149 Cal. 556, [87 Pac. 19], but the language in that case is applicable only to actions in equity for relief on the ground of fraud. Since the judgment here in question is attacked not upon the ground that it is voidable for fraud but upon the ground that it is void for lack of jurisdiction, that case has no bearing upon the issue. Appellants cite numerous cases bearing on the doctrine of laches, but they have failed to show how that doctrine can apply to this case. Nor can it, we think, be asserted that the respondents have in any way slept upon their rights.

[6] Were it not for the elaborate array of cases presented by the appellants, we should consider that any discussion of their fourth point was concluded by the statements in Forbes v. Hyde, 31 Cal. 342, 348: "A judgment absolutely void may be attacked anywhere, directly or collaterally whenever it presents itself, either by parties or strangers. It is simply a nullity, and can be neither a basis nor evidence of any

right whatever." (See, also, Pioneer Land Co. v. Maddux, 109 Cal. 638, [50 Am. St. Rep. 67, 42 Pac. 295], and Adams v. Adams, 154 Mass. 290, [13 L. R. A. 275, 28 N. E. 260].)

[7] An examination of appellants' cases, however, reveals the fact that, practically without exception, it was assumed or clearly shown that the defendant in the action wherein the judgment which was being attacked had been rendered had been regularly brought within the jurisdiction of the court. It is indeed stated in 23 Cyc. 1068, that strangers to the record can attack a judgment only when rights accruing to them prior to its rendition are affected. We have examined all the cases cited to support this statement. In each case property rights had been the subject of adjudication and the rights of the party attacking the judgment had arisen with respect to the property in question after the judgment had been rendered. The judgment was in no case alleged to be void. Obviously, no rule based on these cases has any application to the case at bar. McLeod v. McLeod, 144 Ga. 359, [87 S. E. 286], appears at first glance to support the appellants, but we note that the court decided not that a stranger could not attack a void judgment, but that the judgment in question was not void. It remains only to consider the case of Harpold v. Doyle, 16 Idaho, 671, [102 Pac. 159]. We do find language in support of the appellants' contention in the opinion of Sullivan, J. It appears, however, to be dictum. It was dissented from by Stewart, J., and upon a rehearing of the case it was so qualified as to remove any support it may formerly have afforded to the argument of appellants. Under the circumstances of this case, the respondents are entitled to attack the judgment in the divorce action on the ground that it is void for lack of jurisdiction. They have, we think, been successful in this attack.

The order appealed from is affirmed.

Wilbur, J., and Melvin, J., concurred.

[L. A. No. 4949. Department Two.-May 14, 1919.]

'A. J. HARTFIELD, Appellant, v. CHARLES W. HOWARD et al., Respondents.

[1] ACTION FOR FORECLOSURE-PLEADING DENIAL OF ALLEGATION OF ADVERSE CLAIM-ISSUE NOT RAISED.-In an action for the foreclosure of a mechanic's lien, the averment that the defendants claimed some interest or estate in the property but that said claims were subject and subservient to plaintiff's claim, was not material to plaintiff's cause of action and the denial of such an averment raised no issue.

[2] ID. CLAIM OF ADVERSE AND SUPERIOR RIGHT PRACTICE.—Where in an action for the foreclosure of a mechanic's lien the complaint alleged that the defendants claimed some interest or estate in the property but that said claims were subject and subservient to plaintiff's claim, and the answer admitted that the defendants had and claimed to have some interest in the property and alleged that such interest was prior and superior to that of plaintiff, the proper course of the trial court was to dismiss the defendants from the suit, or specify in the decree that the decree was made without prejudice to the adverse rights of the defendants.

[3] ID.-EVIDENCE-BURDEN OF PROOF-ERRONEOUS JUDGMENT.-In an action for the foreclosure of a mechanic's lien, where the complaint alleged that the defendants claimed, some interest or estate in the property but that said claims were subject to and subservient to plaintiff's claim and the answer of certain defendants alleged their claim was prior and superior to that of plaintiff, the burden of proof was upon defendants to establish their prior claim, and where they introduced no evidence upon the subject of their interest or title, the portion of the judgment adjudicating plaintiff's lien to be subsequent to the interest of such defendants was erroneous.

APPEAL from a judgment of the Superior Court of Los Angeles County. Chas. Wellborn, Judge. Modified and affirmed.

The facts are stated in the opinion of the court.

S. C. Schaefer and A. R. Holston for Appellant.

Milton K. Young and Byron Coleman for Respondents

WILBUR, J.-Judgment was rendered in favor of the plaintiff foreclosing his mechanic's lien. He appeals from