quired, the compensation agreed upon would seem to be reasonable, without regard to future contingencies. About the time the building was completed, defendant, by power of attorney, appointed his son, who was then in Los Angeles, as his agent in the management of his business there while he was detained in the East. A controversy or quarrel soon arose between Laughlin, Jr., and the plaintiff about the management of the building, in reference to which the latter testifies: "I could not say just what I said to him, but I probably gave him to understand that I never had considered he was in charge of the building. Mr. Laughlin never had told me that he would be in charge. The fact is, Mr. Laughlin went away, I supposed, leaving me in charge of the building. He left about the 9th or 10th of July, and my recollection is that the power of attorney was made on the evening of the 9th of July, and up to that time Mr. Laughlin, Sr., had not said anything about any changes in his relations with reference to the building." The finding that the plaintiff was discharged by the defendant without any reasonable or lawful cause or excuse is not supported by the evidence.

2. Even if the terms of the agreement had been that the employment from the time ténants began to pay rent, should be "permanent," that would not, as a matter of law, have deprived either party of the right to terminate the employment at any time. Civ. Code, § 1999. "Permanent employment," as defined by Bouvier, means "employment for an indefinite time, which may be severed by either party." Law Dict. tit. "Permanent Employment." In Lord v. Goldberg, 81 Cal. 596, 22 Pac. 1126, 15 Am. St. Rep. 82, the plaintiff entered the defendant's employment as solicitor for customers for groceries, at a salary of $20 per week. The salary was to increase in proportion to the new business brought in. The plaintiff hesitated to accept the position unless assured that it would be permanent, and the defendant replied, "It will be permanent," and signed a written statement saying, "His position is permanent, so long as he desires to make it so." Plaintiff remained in the employment of the defendant five months, and, as his salary was greater than the increased profits of the business, defendant offered a lower scale, which plaintiff declined, and their relations were thereupon severed without further negotiations. This court, in passing upon the case, held that the finding of the court that he was wrongfully and without just or reasonable cause dismissed from the employment was not supported by the evidence, and adds: "But, however this may be, it is clear that plaintiff's employment was not intended to be for life, or for any fixed or certain period. It was to be 'permanent,' but that only meant that it was to continue indefinitely, and until one or the other of the parties should

wish, for some good reason, to sever the relation." In Perry v. Wheeler, 12 Bush, 541, the plaintiff was elected permanent rector of a church, but was afterwards, as he claimed, wrongfully dismissed. The court said: "Appellant, by his counsel, insists that he was the permanent rector of Grace Church, and had the right to retain his position during life, unless he should become incapacitated for the performance of clerical duties by age or disease, or unless he should disqualify himself by immoral or unchristian conduct, or by the abandonment of the faith and practices of the Protestant Episcopal Church. He certainly was elected permanent rector, but we do not understand the term 'permanent,' as used in this case, to mean that the parties were to be bound together by ties to be dissolved only by mutual consent, or for sufficient legal or ecclesiastical reasons. We understand that Dr. Perry was called as the rector of the church for an indefinite period, and that it was intended he should continue to hold the place until one or the other of the contracting parties should desire to terminate the connection, in which case the dissatisfied party was to have the right to be relieved of further obligation to the other, upon fair and equitable terms, and after reasonable notice." In Elderton v. Emmens, 4 C. B. 478, it was claimed that the plaintiff was retained and employed as a permanent attorney and solicitor of the defendant company, and had been wrongfully discharged. But it was held that the word "permanent," as used in the resolution of appointment, denoted no more than a general employment, as contradistinguished from an occasional or special employment. Therefore, if the agreement had been that the employment should be permanent after the tenants commenced paying rent, as claimed by appellant, it was subject in law to be terminated at the pleasure of either party; and the termination of the employment was not, therefore, a breach of the contract, and the decision of the court on this point is contrary to law.

The court finds that before the commencement of the action the defendant tendered to the plaintiff a sufficient sum, together with what had been previously paid him, to cover all the indebtedness due from defendant to plaintiff for services rendered after the 1st day of May, 1897, at the rate of $60 a month, up to the time the tenants commenced paying rent, and at the rate of $150 per month thereafter, and that subsequently the sum so tendered was paid into court.

For the foregoing reasons, the judgment and order are reversed, and the cause remanded, with directions to the court below to enter judgment in favor of the plaintiff for the sum so paid into court, but without costs.

J.

We concur: HARRISON, J.; GAROUTTE

(136 Cal. 19)

WARD V. DUNNE, Judge. (S. F. 3,014.) (Supreme Court of California. March 12, 1902.)

CRIMINAL LAW-APPEALABLE ORDER-ENTRY OF JUDGMENT NUNC PRO TUNC.

Pen. Code, § 1237, subd. 3, authorizes an appeal from an order made after judgment affecting substantial rights. Petitioner was convicted of a felony, and the judgment affirmed by the supreme court. On the going down of the remittitur to the superior court, it was there discovered that no proper entry of judg ment had been made, and the trial judge made an order directing the entry nunc pro tunc. Held, that the latter order was appealable, within the statute.

In banc. Petition of Bernard Ward for a writ of mandamus against Frank H. Dunne, judge of the superior court. Writ awarded.

Geo. D. Collins, for petitioner. J. J. Lerman, for respondent.

BEATTY, J. Mandamus to compel the settlement of a bill of exceptions. From the return to our alternative writ, and the facts stated and agreed to at the hearing, the case may be stated as follows: On the 2d of December, 1899, a judgment was pronounced against the petitioner convicting him of felony embezzlement and sentencing him to the state prison at Folsom. From that judg ment he appealed to this court, and the transcript of the record filed here contained a copy of a judgment in due form, which was by this court affirmed. Upon the going down of the remittitur to the superior court, it was there discovered for the first time that no proper entry of the judgment had ever been made. It was one of those rubber stamp entries of which we have had previous experience, where the stamp failed to make a distinct impression and the blanks were not filled out, the result being that there was no intelligible judgment of record. The trial judge, upon making this discovery, on November 19, 1901, made an order directing the entry of a judgment nunc pro tunc as of the 2d day of December, 1899, the order containing recitals that the judgment was duly rendered at that date, but that the clerk had failed to enter it fully and correctly. From this order directing the entry of a nunc pro tunc judgment the petitioner at once appealed, and within 10 days upon proper notice to the district attorney, presented to the trial judge his draft of a bill of exceptions to the making of the order, and requested its settlement. This demand was refused by the trial judge, and the present proceeding was instituted to compel him to settle a proper bill. Two reasons are assigned by the respondent for his refusal to settle the bill of exceptions: First, that it was not presented within due time after judgment was rendered, as required by section 1171 of the Penal Code: second, that the order of November 19th was not an order after final judgment, affecting a substantial right of the petitioner. If the

second or these reasons is unfounded, the first has no application to the case. The present appeal is not from the judgment, but is an appeal from an order after judgment, from which, if it affects any substantial right of the petitioner, he has an undoubted right to appeal. Id. § 1237, subd. 3. That the order does affect the substantial rights of the petitioner is clear, for while under the order he can be committed to Folsom, and there imprisoned, without the order he cannot be imprisoned. The only commitment to the state prison-the only authority to the warden for the detention of a convict-is a certified copy of the judgment (Id. § 1216), and there can be no copy of a judgment which has no existence of record, but remains solely in the breast of the judge. This order, therefore, for the entry of a judgment nunc pro tunc was essential to the imprisonment of the petitioner, and he has a right to appeal to this court upon the question whether it was authorized by the showing made at the time of its entry. To that end a bill of exceptions setting forth the grounds of the proceeding is essential. The statute, in plain terms, gives the right to the bill of exceptions (Id. § 1172, subd. 5), and the proper practice was pursued in seeking its settlement.

Id.

§ 1174). The case of People v. Lenon, 79 Cal. 631, 21 Pac. 967, is cited to the proposition that an order directing the entry of judgment nunc pro tunc in a criminal case is not appealable. But no such proposition was there decided. The appeal was entertained, and the order affirmed, upon the ground that it was properly made in that case, but it does not follow that it would be affirmed in every case, and under all circumstances. It was said in that case that the entry of a judgment duly pronounced is a ministerial act, and it was suggested that under the circumstances of that case the clerk could probably have performed that ministerial act without an order of the court. But it was not held or intimated that, when the circumstances are such that the court feels called upon to make an order for the entry of judgment nunc pro tunc, such order is not appealable. Every inference from the decision is to the contrary. There is some criticism of the course pursued by the petitioner in first appealing from the judgment presenting a transcript here, containing a copy of a judgment purporting to have been duly entered, and after affirmance claiming that no judgment was ever entered. This is not very material, but the criticism appears to be misdirected. The petitioner was required to appeal from the judgment within one year from its rendition (Pen. Code, § 1239), and to obtain a stay of proceedings he must appeal promptly, without waiting for the entry of the judgment. In the making up and filing of the transcript he had no part. All that was done by the clerk without his intervention, and when it was filed here he was as well justified as the attorney general

HARRISON, J. (concurring). The superior court, by its order of November 19, 1901, purported to correct the minutes of its action on December 2, 1899, in rendering judgment against the petitioner herein, so that the same might correctly set forth the judgment then pronounced and rendered. The order sets forth a judgment which it declares is "the true and correct judgment as the same was in fact made, given and rendered by the court on the second day of December, 1899," and orders "that this order be entered nunc pro tunc as of Saturday, December 2, 1899." The power of a court of record to cause its acts and proceedings to be correctly set forth in its records, and for that purpose to cause its records to be corrected in accordance with the facts, is undoubted. Kaufman v. Shain, 111 Cal. 16, 43 Pac. 393, 52 Am. St. Rep. 139. The court cannot, however, under the form of an amendment of its records make of record a judgment that was never in fact giv

en.

Such action by it will be set aside upon proper proceedings therefor. The party affected by such amendment may show that the order therefor does not correctly set forth the judgment which was in fact rendered. The defendant in a criminal case is given the right to appeal from any order after judgment which affects his substantial rights, but whether his substantial rights are affected by such order cannot be determined unless he can have a bill of exceptions showing the facts in reference thereto. If the order made herein November 19, 1901, has the effect to change the judgment which was rendered December 2, 1899, his substantial rights are affected thereby. The order does not upon its face purport to render a new judgment, or to change the judgment theretofore rendered, and the judgment which is set forth therein as the actual judgment rendered by the court on December 2, 1899, is identical in terms with the judgment which is set forth in the transcript on appeal from that judgment, and which was affirmed in this court October 11, 1901. People v. Ward (Cr. 710) 66 Pac. 372. If this is in fact the judgment which was then rendered, the superior court was justified in refusing to settle any bill of exceptions thereon, but, as the petitioner has the right to appeal from the order and to show that the court erred in finding that it was the same judgment, the court should settle a bill of exceptions in reference to said order. I therefore concur in the judgment.

I concur: MCFARLAND, J.

VAN DYKE, J. This case comes up on the judgment roll without a bill of exceptions. The action is for a money demand. The complaint alleges that the defendant made and executed a promissory note in words and figures following, to wit: "Pasadena, Cal., February 1, 1896. 1,000.00. Ten days after date (no grace), for value received, I promise to pay to the order of the First National Bank of Pasadena, one thousand ($1,000.00) dollars, with interest payable monthly at the rate of eight per cent. per annum." And it is further provided in the said note that, should the note run over due, it shall bear interest from maturity at the rate of 15 per cent., and that, in case suit is commenced thereon, an additional sum of 10 per cent. on the principal shall be paid as attorney's fees. Certain collateral securities are mentioned as having been turned over as security for the payment of said note. After copying the note in full, the complaint proceeds: "Whereby he promised to pay plaintiff the sum of one thousand ($1,000.00) dollars, with interest at the time and in the manner therein specified, and then and there delivered the said note to the said plaintiff. That at the same time the defendant, as a pledge to secure the repayment of said note, delivered to plaintiff the following described certificates of stock, to wit" (giving the certificates of stock referred to). The complaint further avers that the plaintiff paid the assessments on the stocks put up by the defendant as security for the note, and concludes by the averment that the plaintiff is still the holder and owner of said note; that no part of the principal sum of the same or interest thereon has been paid to plaintiff, nor the sum paid as assessments upon the said stock. The different certificates of stock referred to are attached to and made part of the complaint. Judgment is asked for the amount due on the note, with interest, including an attorney's fee, and that the pledged stock be ordered sold, and the proceeds applied to the satisfaction of said Judgment. The defendant demurred to this 1 Rehearing denied April 7, 1902.

complaint, which, being overruled, he interposed an answer thereto, and upon the trial the findings and judgment went for the plaintiff.

The point made by the appellant is that the demurrer should have been sustained, as the complaint fails to show a cause of action in the plaintiff. The note is made payable "to the order of the First National Bank of Pasadena," and not to the plaintiff, and therefore, upon the face of the complaint, it appears that the title to the note was in said bank, and there is no allegation that the bank ever indorsed or otherwise transferred the note to the plaintiff; that the expression in the complaint following the transcript of the note, "whereby he promised to pay the plaintiff," etc., is meaningless, and mere surplusage. The respondent, in attempting to answer this contention on the part of the appellant, suggests that the note was filled out upon one of the blanks of said bank, and that by inadvertence and mistake the words "First National Bank of Pasadena" were not erased, and the plaintiff's name inserted in place thereof. This may have been the case, but, if so, the complaint should have stated the facts showing the mistake. As it appears now, the complaint-a copy of said note expressly stating that it is payable to the Bank of Pasadena forming a part thereof, and without any allegation of assignment, indorsement, or other transfer to plaintiff fails to state a cause of action in favor of the plaintiff.

Judgment reversed, and cause remanded, with directions to the court below to sustain the demurrer, with leave to the plaintiff to amend the complaint if so advised.

APPEAL NOTICE-TIME-ADVERSE POSSESSION
-EVIDENCE-FINDINGS-SUFFICIEN-
CY-REVIEW OF APPEAL.

1. An appeal will be dismissed where the notice thereof is not given within the statutory time.

2. On an issue whether a railroad has acquired title to land by adverse possession, evidence that the person whom it had authorized to obtain rights of way for its road had an interview with the landowner, at which the latter agreed that the railroad might enter the land and lay its tracks thereon, provided it put in a station, and that on such performance the owner would make a deed of the right of way, was admissible, although there was no written contract to show that the railroad entered the land under the owner's permission, and not hostilely.

landowner

3. A railroad company and a agreed that, if the former would lay its tracks over the land, and put in a station, the owner would make a deed of the right of way; and thereafter the road was built and operated, "Reversed in banc. See 71 Pac. 352, 138 Cal. 342.

but no station was built, nor did trains stop on the land. Held that, the railroad having gone into possession under permission and in consonance with the owner's title, which it was not to have until the performance of conditions which had not been performed, the possession of the railroad was not adverse to the owner.

4. Where, in a suit to quiet title, plaintiff claimed title by prescription, and it was found that plaintiff had no title, the findings were not open to the criticism because of no express findings as to limitations, inasmuch as the finding of the ultimate fact as to the title included the whole controversy.

5. Whether the findings in a suit to quiet title sustain a judgment giving defendant restitution of possession cannot be examined on an appeal from an order denying a motion for a new trial.

Department 2. Appeal from superior court, Los Angeles county; Lucian Shaw, Judge.

Suit by the Southern California Railroad Company against J. S. Slauson. From a judgment for defendant, plaintiff appeals. Affirmed.

C. N. Sterry and Henry J. Stevens, for appellant. Chas. Silent, for respondent.

MCFARLAND, J. This is an action to quiet title. It is averred in the first count of the complaint that plaintiff is the owner and in possession of a described strip of land between 30 and 40 feet wide and about 1,300 feet in length, and that defendant claims some title or interest therein which is without right; and the prayer is that it be de creed that plaintiff is the owner in fee simple of said land, and that its title thereto be quieted as against defendant. In a second count it is averred that for more than five years plaintiff and its predecessors in interest have been in the exclusive possession of a right of way over said land for the use and purpose of operating a railroad over the same, claiming to be the owner of said right of way adversely to any right, title, claim, etc., of defendant; and the prayer in this count is that the plaintiff's title to such right of way be quieted, etc., as against defendant. The judgment of the court below was in favor of defendant, and plaintiff appeals from an order denying its motion for a new trial. It also attempted to appeal from the judgment, but, as the notice of such appeal was not within the statutory time, the appeal from the judgment is dismissed. There are therefore before this court only such questions as can be considered on the appeal from the order denying a new trial.

The only title asserted by appellant is one based on prescription,-appellant claiming that it had been in the adverse possession of the premises for more than five years before the commencement of the action. The court found against this asserted title by prescription, and the evidence was sufficient to support the findings. During all the time mentioned in the complaint the respondent was the owner in fee of a tract of land which