money and the costs of suit. Nor could the payments already made pursuant to the terms of the contract have been recovered back if the vendee had refused to complete his purchase, even if this clause of forfeiture had not been inserted in the contract." (Italics ours.)

In a concurring opinion by Mr. Justice Harrison in the Glock case and concurred in by Garoutte and Van Fleet, J. J., it is said: "The provision that in case of default by the plaintiff to comply with his agreement he should forfeit his right to whatever moneys he might theretofore have paid, and the defendant should be released from all obligation to convey the property, was but a declaration in express terms of what would have been the legal rights of the parties without such provision. The plaintiff had agreed to pay the money to the defendant as a condition precedent to his right to demand a conveyance of the land, and as the consideration for the defendant's agreement to make the conveyance, and he could not by his mere default become entitled to repossess himself of the money which he had paid under this express agreement."

In List v. Moore, 20 Cal. App. 623, it is said, referring to the cases cited by the attorneys therein: "It is declared that the right of the vendor to retain the part of the purchase price paid after the default of the vendee is independent of any express clause in the contract for forfeiture of rights or for retention of the purchase money as liquidated damages, that such clauses are merely declarations in express terms of the legal rights of the parties under such a contract, without them, and that the validity of such express clauses is immaterial. It is furthermore held that in such case it is only where the vendor, after default of the vendee, agrees to a mutual abandonment and rescission that the vendee is entitled to receive the purchase money paid."

14] We have said that the notice of the forfeiture and demand for the return to plaintiff of the possession of the lands did not constitute an abandonment and rescission of the contract. In Oursler v. Thacher, 152 Cal. 745, the notice of forfeiture is very much like the one in this case, and it was in that case held that the notice or the act of giving it did not involve or constitute a rescission. The court said: "Plaintiffs had the right without abandoning or rescinding the contract to insist that by the terms thereof defendants, by reason of their default, had no further right thereunder. . . . Their notice of forfeiture and demand for possession of the mining property were strictly in line with this claim, and were in no sense a repudiation or abandonment of the contract or a consent to a rescission thereof. . . . There being no rescission or abandonment of the contract by the plaintiffs, and the plaintiffs at all times having insisted on the contract and stood on its terms, and being in no respect in default, the vendees in default were not entitled to recover either the moneys paid by them to plaintiffs or the moneys expended in developing the property." (See, also, Glock v. Howard & Wilson Colony Co., supra, and cases therein cited, on what does and does not constitute in such a case as this a rescission of the contract.)

There is no occasion for the entertainment of the remotest doubt that the case here comes within the doctrines of the Glock and other cases above cited, and that the judgment appealed from should, therefore, be affirmed. It is so ordered.

We concur:

BURNETT, J.

CHIPMAN, P. J.

HART, J.

Civil No. 2558. First Appellate District. November 11, 1918. E. HUFFAKER, Plaintiff and Appellant, v. JOHN GRAY, Defendant and Respondent.

[1] JUDGMENT-FRAUD-THEFT AND SUPPRESSION OF PAPERS NECESSARY TO DEFENSE INSUFFICIENT GROUND FOR ANNULMENT.-A court of equity will not set aside a judgment on the ground of fraud in its procurement, unless the fraud was extrinsic or collateral to the questions examined and determined in the action, and prevented a fair submission of the controversy; and, the fact that the plaintiff stole from defendant certain papers necessary to a proper defense of the action, which was not discovered until after the judgment had become final, is not sufficient to warrant the annulment of the judgment.

Appeal from the Superior Court of Alameda County-Everett J. Brown, Judge.

For Appellant-Rodolph Hatfield, E. Huffaker.

For Respondent-John L. McVey.

This is an appeal from a final judgment rendered upon a demurrer by the superior Court of the county of Alameda.

A bill in equity was filed to vacate and set aside a judgment in the case of John Gray v. E. Huffaker, rendered by the same court on January 30, 1915. The allegations of the bill are that the judgment sought to be vacated was procured by fraud on the part of the plaintiff in that action for the reason that said plaintiff stole from defendant certain papers enumerated and described in said bill, which papers were necessary for a proper defense to said action; that on account of being deprived of such written evidence, defendant was unable by his own testimony to sustain his defense; that defendant did not discover the fact that the said papers had been stolen by plaintiff until thirty days before bringing the present action. A demurrer to the bill was sustained. The question upon this appeal is as to the correctness of the ruling on demurrer. The issue being raised by demurrer, we assume, for a decision of the question involved, that all the allegations of the complaint are true.

It seems that the facts in this case bring it squarely within the reasoning of the case of Pico v. Cohn, 91 Cal. 129. The discussion in that case fairly answers all the arguments of appellant here. The court there points out that it has been settled beyond all controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony, giving as a reason for the rule, that there must be an end of litigation; and that when parties have once submitted a matter, or have had an opportunity of submitting it, for investigation and determination, and when they have exhausted every means for reviewing such determination in the same proceeding, it must be regarded as final and conclusive unless it can be shown that the jurisdiction of the court has been imposed upon, or that the prevailing party, by some extrinsic or collateral fraud, has prevented a fair submission of the controversy. The court then proceeds to an explanation of the meaning of the term "extrinsic or collateral fraud", and enumerates such instances as: Keeping the unsuccessful party away from the court by false promise of a compromise, or purposely keeping him in ignorance of the suit; or where an attorney fraudulently pretends to represent a party and connives at his defeat, or being regularly employed, corruptly sells out his client's interest. The court then proceeds with the analysis and says:

"In all such instances, the unsuccessful party is really prevented, by the fraudulent contrivance of his adversary, from having a trial; but

when he has a trial, he must be prepared to meet and expose perjury then and there. He knows that a false claim or defense can be supported in no other way; that the very object of the trial is, if possible, to ascertain the truth from the conflict of the evidence, and that, necessarily, the truth or falsity of the testimony must be determined in deciding the issue. The trial is his opportunity for making the truth appear. If, unfortunately, he fails, being overborne by perjured testimony, and if he likewise fails to show the injustice that has been done him on a motion for a new trial, and the judgment is affirmed on appeal, he is without remedy."..

"But counsel for appellant seek to distinguish this case from those in which it has been held that a judgment will not be set aside by reason of its being based upon forged documents or perjured testimony. They say that the fraud committed by Cohn was the bribing of Johnson; that this was collateral and extrinsic; that it was not and could not have been the object of investigation at the trial of the original action. We do not think this distinction can be maintained. The fraud that Cohn committed was the production of perjured evidence in support of his defense. The means by which he induced the witness to swear falsely was but an incident."

[1] We think in the present case, that the fraud by which plaintiff obtained his judgment was by means of his own perjured testimony, because it is alleged that the plaintiff, knowing of the existence of the stolen documents, suppressed them and denied their existence. The theft and suppression of the documents were merely incidents and means of strengthening his perjured testimony. Of course, it may be said if the theft had been proven at the trial, the testimony of the plaintiff would have been discredited; but it is equally true that in the case of Pico v. Cohn, above cited, if the bribery had been proven, the testimony of the witness would have been of no effect.

Appellant has not cited, and we are unable to find any case in this state overruling or modifying the doctrine as expressed in the case herein discussed.

The judgment is affirmed.

We concur:

BEASLY, J. pro tem.

STURTEVANT, J. pro tem.

Civil No. 2705. Second Appellate District.

LENNON, P. J.

November 11, 1918.

CHARLES C. HIRONS and CORDELIA DISHMAN, Plaintiff's and Respondents, v. MONTROSE W. CLARE, EDWIN P. FITCH, WILLIAM KING, A. RAY SAUER, JR., and DANIEL MARTIN, as Members of the Board of Trustees of the City of East San Diego, State of Caifornia, and the BOARD OF TRUSTEES of the City of East San Diego (a Municipal Corporation of the State of California), Defendants and Appellants.

[1] MUNICIPAL CORPORATIONS-EAST SAN DIEGO-CONSOLIDATION WITH SAN DIEGO PRESENTATION OF PETITION-DUTY TO CALL ELECTION-CERTIFICATE OF CLERK AS TO SUFFICIENCY OF PETITION NOT NECESSARY.-When the petition signed by the requisite number of qualified voters of the city of East San Diego requesting that a special election be called to vote upon the question of consolidation with the city of San Diego adjacent and contiguous thereto, was duly filed with the board of trustees of said city of East San Diego, in pursuance of the provisions of the municipal consolidation act, it was the duty of such trustees to call a special election without delay, and the fact that the city clerk, to whom the petition was referred for checking, had not

reported back to them that it was sufficient, would not excuse their calling the election.

[2] ID.-ASSUMPTION OF BONDED INDEBTEDNESS BY LESS THAN TWO-THIRDS VOTE CONSTITUTIONALITY OF MUNICIPAL CONSOLIDATION ACT.-The fact that under the 1915 and 1917 amendments to the municipal consolidation act of 1913 the city of East San Diego might by a majority but less than a twothirds vote assume and become liable for its pro rata of certain bonded indebtedness of the city of San Diego would not raise the question of the constitutionality of the act, unless at the election the proposition should carry by more than a majority but less than the two-thirds required by section 18, article XI of the constitution.

[3] ID.-STEPS REQUIRED MAY BE TAKEN AT OTHER THAN REGULAR MEETINGS OF BOARD.-Most, if not all, of the steps required to be taken by the board of trustees in the calling and holding of such election, may be taken at special or adjourned regular meetings of the board.

Appeal from the Superior Court of Son Diego County-W. A. Sloane, Judge.

For Appellants-F. G. Blood.

For Respondents-Allan Brant, John H. Moore, Will M. Tompkins, Charles E. Sumner.

This is an appeal from a judgment of the superior court, after hearing upon the return of an alternative writ of mandate and defendants' answer thereto, adjudging and ordering that a peremptory writ issue commanding and directing said defendants, as trustees of the city of East San Diego, a municipal corporation of the sixth class, to call and hold a special election for the consolidation of said city with the city of San Diego, adjacent and contiguous thereto, pursuant to the provisions of the municipal consolidation act of 1913, and the amendments thereto of 1915 and 1917.

The court below filed findings of fact wherein it found, generally and specifically, that all the material allegations of the complaint are true. It appears, moreover, from an inspection of the record that all of these allegations were admitted by the failure to deny them in the answer. The complaint being verified, a general denial was insufficient to put them in issue.

From the facts thus established, it appears that a petition was duly filed with said board of trustees of said city of East San Diego, signed by more than one-fourth in number of the qualified electors of said city, asking and requesting that a special election be called to vote upon the question of such consolidation, and that said defendants refused and ever since have refused to call or hold said election.

Appellants' first contention is that they were not required to call said election because it does not appear that the city clerk, to whom the petition was referred by them for checking, ever reported back to them that it was sufficient. Appellants cite Davenport v. City of Los Angeles, 146 Cal. 511. That case is not in point here. It arose under a provision of the charter of Los Angeles, which expressly made such certificate of the city clerk a condition precedent to the action of the city council. The statute under which petitioners are proceeding here does not provide for or require any such certificate. It provides as follows: "Whenever a petition, signed by not less than one-fourth in number of the qualified electors of any municipal corporation, . . . is filed with the legislative body thereof, asking that such municipal corporation and any other municipal corporation contiguous thereto, designated in such petition, . . . be consolidated, such legislative body must, without delay, call a special election," etc. [1] This case is, therefore, ruled by the case of People v. Town of Ontario, 148 Cal. 625, wherein the court says (p. 635): "It is the petition signed by the requisite number that gives the power and creates the duty."

Appellants urge that the municipal consolidation act here in question (Stats. 1913, p. 577), as amended in 1915 and in 1917, is in violation of sertion 18, article XI, of the constitution, which provides: "No county, city, shall incur any indebtedness or liability in any manner or for any purpose exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the qualified electors thereof, voting at an election to be held for that purpose."

The original act, as enacted in 1913, provided for the submission to the voters, at an election held under it, of the question whether or not the city in which they were voting should, in the event of such consolidation, assume and become liable for its pro rata of specified bonded indebtedness which had been theretofore created by the other city with which such consolidation was proposed. It further provided that, in the event of an affirmative two-thirds vote thereon, the property in such city should, after the consolidation, be taxed equally with the property in the other city for the payment of such bonded indebtedness. By the amendments of 1915 and 1917 this provision for a two-thirds affirmative vote was changed to a majority vote; and appellants' contention is that the statute as so amend-d is in violation of the constitutional prohibition above referred to and is, therefore, void.

The first answer which suggests itself is that, so far as disclosed by the record in this case, no question of the incurring or assumption of indebtedness is involved. Appellants in their brief quote what they assert to be a copy of the petition for the election involved in this case, but the record before us does not bear out this assertion. This is an appeal under the alternative method and comes before us on the clerk's transcript alone, which contains duly certified copies of the judgment-roll, the peremptory writ of mandamus, "Exhibit A" (whatever that may be), notice of appeal and notice to prepare transcript. Bound in with this are certain other papers which we might guess are copies of papers which may have been received in evidence during the trial. But there is nothing in the record which in any way identifies them, and we are therefore wholly unwarranted in making such an assumption. [2] If we should assume, however, that the question of the assumption of such bonded indebtedness was involved in the election here sought to be called, it is apparent that the question of the constitutionality of the statute in this connection would not be raised. unless at that election the proposition should receive an affirmative vote of more than a majority and less than two-thirds of the electors, and we are not called upon here to speculate on the question whether or not in such event it would be held that the amendments of 1915 and 1917 were unconstitutional, thus leaving the statute as originally enacted in 1913 in full force and effect.

In view of what we have just said, we do not deem it necessary to consider appellants' contention that if the act be unconstitutional, then it follows that the petition was signed by the voters under a misapprehension as to its effect and cannot be made the basis of any action in the premises. It is further contended that the judgment here is void because of the impossibility of compliance therewith by the defendant trustees. The judgment provided for the issuance of a peremptory writ, commanding defendants to fix the date for the holding of said election not later than fifty days from the service thereof. Appellants call attention to the fact that the regular meetings of the board of trustees of the city of East San Diego are fixed by ordinance to be held on the first and third Tuesdays of each month. They present a schedule of the steps required to be taken in the calling and holding of such election, from which they conclude that