held to be jurisdictional, unless the statute so declares, either expressly or by reasonable implication. Section 974 declares how an appeal is to be taken. Notice of the filing of the undertaking is no part of the process there prescribed. Section 978 provides that an undertaking on appeal must be filed and that unless it is filed, the appeal is "not effectual for any purpose." Section 978a provides that "notice of the filing of the undertaking must be given to respondent." It does not specify whether such notice is to be given before the filing or after the filing, nor within what time, nor whether it is to be written or oral. No action by respondent is made to depend upon or follow the giving of this notice. The exception to the sureties seems to have no direct relation to or connection with this notice. It may be taken before or after any formal notice of the filing of the undertaking, provided it is taken within five days after such filing. There is no declaration that the failure to give this notice will render the appeal ineffectual, or that it will affect the appeal in any manner. The right of appeal is clearly given and the mode of taking it is clearly fixed by section 974. In view of the express declaration of section 978 that if the undertaking is not filed the appeal becomes ineffectual for any purpose, the absence of any such provision with respect to the failure to give notice of such filing is significant, and it indicates that there was no intention to make such notice necessary to the validity of the appeal. It is true, the last clause of section 978a provides that if sureties fail to justify, after exception taken, the appeal shall thereupon be forfeited. Forfeitures are not favored, and the provisions conferring the right of appeal and prescribing the procedure are remedial and should not be unduly hampered with constructive restrictions which will cast doubt upon the jurisdiction of the appellate court. For these reasons we conclude that the giving of this notice is not jurisdictional. The district court of appeal of the second district, in a well considered opinion, hold to the same view. (Jeffries v. Superior Court, 13 Cal. App. 193, [109 Pac. 147].) We approve the reasoning of that opinion.

It follows that the superior court had jurisdiction of the cause on appeal, that its judgment for the plaintiff was not void, and consequently, that the order setting aside that judg ment was beyond the power of that court and is, itself, void.

It is therefore ordered that the order of the superior court of Marin County, made on April 29, 1911, purporting to set aside its judgment rendered on August 31, 1910, in the action of Mill Valley Rochdale Company v. L. T. Parker, be and the same is hereby annulled.

Henshaw, J., Melvin, J., and Beatty, C. J., concurred.

[S. F. No. 5770. Department Two.-March 18, 1912.] PATRICK MCKENNA et al., Appellants, v. MARY MeKENNA et al., Respondents.

UNDUE INFLUENCE-PLEADING-SUFFICIENCY

OF COMPLAINT SETTING ASIDE ASSIGNMENT OF BANK DEPOSIT.-In an action to set aside the gift or assignment of a savings bank deposit on account of the undue influence of the assignee, the complaint, as against a general demurrer, states a cause of action, if it alleges excessive infirmities of mind and body of the assignor, specific false representations by the assignee, and the successful accomplishment of a fraud growing out of this alleged undue influence in inducing the assignor to execute the gift and assignment without an understanding of the act.

ID.-HOW UNDUE INFLUENCE SHOULD BE ALLEGED.-In pleading undue influence it is not sufficient merely to state the nature of the undue influence, but the facts should be alleged with certainty and expressly connected with the transaction sought to be invalidated.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.

The facts are stated in the opinion of the court.

Costello & Costello, and A. W. Brouillet, for Appellants.

Breen & Kelly, for Respondents.

HENSHAW, J.-A general demurrer to the second amended complaint was sustained; plaintiffs, declining to amend, suffered judgment, and from that judgment prosecute this appeal. The action was to avoid a gift or assignment of

twenty-eight hundred dollars on deposit in the Hibernia Savings & Loan Society, the property of Catherine Styles or Catherine McKenna, which moneys, shortly before her death, she gave to defendant Mary McKenna through the medium of an assignment of her bank book. It is alleged that Catherine Styles was at the time 74 years of age and so greatly enfeebled in mind as to have become "childish, and unable at times to talk or to knowingly understand the ordinary affairs of life, or to understand or to transact business"; that she was living with Mary McKenna; that plaintiffs were relatives and next of kin of Catherine Styles and had been upon terms of friendly relationship with her; that Mary McKenna, for the purpose of inducing the deceased Catherine Styles to make this assignment, falsely and fraudulently represented to her that the plaintiffs willfully neglected her and were without natural affection for her, and that their only object in maintaining friendly relations with her was for the purpose of sharing in the disposition of her property. The known falsity of these statements is charged against Mary McKenna. It is further alleged that Catherine McKenna, besides being infirm of mind and body, was without education, could not read or write, and while thus enfeebled was induced by Mary McKenna to make her cross to the assignment by way of affixing her signature thereto; that Catherine McKenna, when she so made her cross as a subscription to the assignment, did not know or understand the contents of the instrument, and did not know or understand the significance of the act which she was induced to perform, and finally that, save for this influence so exercised by Mary McKenna over this debilitated mind, she would not have executed the purported assignment. In support of the judgment thus obtained, respondents cite a list of authorities from this state, with the declaration that they show that in pleading undue influence it is not sufficient merely to state the nature of the undue influence, but the facts should be alleged with certainty and expressly connected with the transaction sought to be invalidated; allegations that influence was overpowering, or that a party was unable to resist, without an allegation of the facts supporting such conclusions, are not sufficient. It is further declared that these authorities show that undue influence, to invalidate a transaction, must amount to force or

coercion destroying the free agency as to such transaction, and that the exercise of such undue influence upon the very transaction must be shown. All this is quite true. Still we think that the complaint states sufficient facts to pass a general demurrer. In Estate of McDevitt, 95 Cal. 17, [30 Pac. 101], it is said: "I think the concluding sentence, that at said date, and while in said condition, and unable to resist the importunities of said Andrew, deceased made his mark to said pretended will,' sufficiently connects the alleged undue influence with the testamentary act." In Motz v. Motz, 136 Cal. 558, [69 Pac. 294], there will be found a discussion of the ease with which an aged person of impaired physical and mental powers may be coerced by the "secret machinations. and importunities of designing persons who in the guise of love and friendship have surrounded him and administered to his wants as life and reason have gradually ebbed away." In Estate of Sheppard, 149 Cal. 219, [85 Pac. 312], relied upon by respondents, the allegation was that Mrs. Reed "when the mind of said Joseph Sheppard was weak and enfeebled from the infirmities of age and disease, continued to repeat and continued to prejudice and unduly influence the said Joseph Sheppard against your petitioner." There was in that case no allegation of any facts as to the nature, character, or form of the undue influence, or the charges or accusations against the petitioner which were assumed to have coerced the testator's mind. In the pleading before us there are the infirmities of the mind and body of the deceased alleged, the false representations are specifically set forth, and the successful accomplishment of a fraud growing out of this alleged undue influence in inducing Catherine McKenna to execute a gift and assignment, without an understanding of her act. The judgment appealed from is therefore reversed, with directions to the trial court to overrule the demurrer, with leave to the defendants to answer within such time as may to the said court seem advisable.

Melvin, J., and Lorigan, J., concurred.

Hearing in Bank denied.

[S. F. No. 6086.-In Bank.-March 21, 1912.]

E. J. BOUST et al., Petitioners, v. SUPERIOR COURT OF THE COUNTY OF KERN, Respondent.

[S. F. No. 6087. In Bank.-March 21, 1912.]

E. J. BOUST et al., Petitioners, v. SUPERIOR COURT OF THE COUNTY OF KERN, Respondent.

JUDGMENT-DUTY OF COURT TO CORRECT CLERICAL MISPRISION-OMISSION OF NAMES OF DEFENDANTS-MANDAMUS TO COMPEL, AMENDMENT.-Where a judgment as first entered in an action of forcible entry and detainer fails, as the result of a clerical misprision, to name the defendants against whom it was rendered, it is the duty of the trial court to amend it in conformity with the facts, so that it will properly designate such defendants. The amendment may be made either before or after an appeal from the judgment has been finally determined, and if the trial court refuses to make the correction, mandamus will lie to enforce it.

ID.-EFFECT OF GENERAL JUDGMENT ON PLEADINGS-DEFENDANTS WITHI OUT COUNSEL-A general judgment on the pleadings operates against all the defendants before the court, including those who at the time it was ordered were unrepresented by counsel. ID.-FAILURE TO OVERRULE DEMURRER-APPEAL BY DEMURRANTS FROM JUDGMENT CONSENT TO DISMISSAL OF APPEAL. A defendant, whose demurrer to the complaint had never been determined, and who had appealed from the judgment on the pleadings and afterwards consented to a dismissal of the appeal, cannot be heard to complain of the insertion of his name in the corrected entry of the judgment.

ID. JUDGMENT DULY MADE IN OPEN COURT-COLLATERAL ATTACK.Where the judgment as entered recites that the things therein contained were "ordered, adjudged and decreed," it shows upon its face that it was duly made, and in a proceeding in mandamus to compel its amendment by the insertion of the names of the proper defendants, it cannot be collaterally attacked by showing that it was not made in open court.

APPLICATIONS for Writs of Mandamus directed to the Superior Court of Kern County. Paul W. Bennett, Judge.

The facts are stated in the opinion of the court.