UNITED STATES LAND PATENT, CONCLUSIVENESS OF: See Teschemacher v. Thompson, 18 Cal. 11; 79 Am. Dec. 151, and note 162. To attack a patent not void on its face, the party must show affirmatively that the land was not of any special character which would subject it to acquisition under any law of the United States: Leviston v. Ryan, 75 Cal. 293. But the patent from the United States to the city and county of San Francisco for the pueblo lands confirmed to it under the acts of Congress of 1851 and 1864 by decree of the United States circuit court, which patent conforms in its description of lands granted to the final survey made, as provided in the latter act, in accordance with the instructions of the commissioner of the general land-office, is conclusive evidence, as against the state of California, of the right of the city and county of San Francisco to all the lands embraced in the survey, etc.; and the state of California is not a "third person," within the meaning of section 15 of the act of March 3, 1851: People v. City and County of San Francisco, 75 Cal. 388.

[IN BANK.] ESTATE OF NEWMAN.

[75 CALIFORNIA, 213.]

ADOPTED CHILD IS ENTITLED TO SUCCEED BY INHERITANCE TO ESTATE OF ADOPTING PARENT, under sections 227, 228, and 1386 of the Civil Code of California, which provide that the adopted child shall be “regarded and treated in all respects as the child of the person adopting," and shall "have all the rights and be subject to all the duties of the legal relation of parent and child.”

ACTION FOR DIVORCE IS PROCEEDING IN REM, SO FAR AS IT AFFECTS STATUS OF PARTIES and the custody of their minor children, and a service of summons by publication on a non-resident defendant is good. AMENDED AFFIDAVITS OF SERVICE OF SUMMONS BY PUBLICATION MAY BE RECEIVED BY COURT after judginent has been rendered in an action for divorce, and before the roll is made up.

AFFIDAVITS OF SERVICE OF SUMMONS BY PUBLICATION AGAINST NON-RESIDENT DEFENDANT IN ACTION FOR DIVORCE, AND RECITALS THEREOF in judgment, are conclusive upon a collateral attack. The affidavit on the application for the order of publication, and the order therefor, are not part of the judgment roll, and cannot be considered.

JUDGMENT BY DEFAULT, RENDERED BEFORE TIME ALLOWED DEFENDANT TO ANSWER HAS EXPIRED, IS ERRONEOUS SIMPLY, and not void, and can be attacked only upon motion or by appeal, and by the party aggrieved.

ORDER FOR ADOPTION OF MINOR IS NOT VOID BECAUSE MADE IN OPEN COURT instead of by the judge thereof at chambers, as contemplated by section 227 of the Civil Code of California; at all events, where the order was a writing signed by the judge, and filed in the adoption proceedings, although it recited that it was male "by this court." JUDGE OF SUPERIOR COURT OF ONE COUNTY, WHO HOLDS COURT IN ANOTHER, MUST BE PRESUMED TO HAVE LAWFULLY DONE So, in the absence of evidence to the contrary, upon the request of the governor of

the state, or of a judge of the court in the latter county, as provided for by section 71 of the Code of Civil Procedure of California. JUDGMENT OF DIVORCE, AFTER BEING SIGNED by Judge and Filed with CLERK, IS BINDING upon the parties and their privies, although not entered by the clerk.

APPEAL by Michael Newman from an order of the superior court of Los Angeles County granting letters of administration to Mary Maldonado on the estate of Bernard Newman, deceased. The decedent died intestate, November 15, 1886, a resident of the county of Los Angeles, and leaving no blood relations nearer than brothers and sisters. On November 24th following, the respondent Mary Maldonado, the mother and guardian of one George B. Maldonado, a minor, filed a petition for letters of administration on the estate, claiming to be entitled thereto as the guardian of the minor, who was alleged to be the adopted son of the deceased. The appellant, Michael Newman, a brother of the deceased, filed his petition for letters on December 6, 1886, and also filed grounds of opposition to the petition of the respondent, alleging that George B. Maldonado was not the adopted son of the deceased, and was not entitled to succeed to the estate, and that the respondent was a married woman. On the hearing of the contest, the respondent, against the appellant's objections, introduced in evidence the record of the proceedings in the superior court of Los Angeles County in the matter of the adoption of the child, which consisted of a petition to the court, filed June 28, 1886, and an order made the same day for his adoption by B. T. Williams, who appeared to have been at the time the judge of the superior court of Ventura County. The petition in the adoption proceedings alleged that the respondent was the mother of the child; that the father, J. M. Maldonado, was a non-resident of the state; that he had been adjudged guilty of adultery, and deprived of the custody of the child on the ground of neglect; and that on account of the adultery and neglect, the respondent had been divorced from him. The petition stated the consent of the respondent to the adoption, and prayed the adoption by the deceased. The order, after reciting that the respondent had consented, in writing, to the adoption, that she had been previously divorced from her husband, the father of the child, and that he had been adjudged guilty of adultery by the judgment in the action for divorce, and had been deprived of the custody of the child, proceeded: "It is therefore ordered and decreed, and declared by this court, that said George Bernard Maldonado shall henceforth

be the adopted son of said Bernard Newman, and shall be regarded and treated as the child of said Bernard Newman. "Done in open court this twenty-eighth day of June, 1886. "B. T. WILLIAMS, Judge."

The respondent also, for the purpose of showing that she had been divorced from her husband prior to the adoption proceedings, offered in evidence, against the appellant's objections, the complaint and judgment in an action brought by her in the superior court of Los Angeles County against her husband for a divorce on the ground of adultery. The complaint in that action appeared to have been filed July 28, 1885. The judgment of divorce was signed by the judge October 19, 1885, was filed with the clerk October 22, 1885, and was entered January 5, 1887. The judgment recited the default of the defendant, and that he had been duly served with summons by publication. The appellant, for the purpose of showing the invalidity of the judgment, offered in evidence an affidavit for an order of publication of summons, which appeared to have been filed July 19, 1885, nine days before suit was brought, and which recited that the defendant was a resident of Phoenix, Arizona; an order of court, made on the same day, directing the summons to be published in a certain newspaper of Los Angeles at least once a week for two months, and that a copy of the complaint and summons be forthwith deposited in the post-office, directed to the defendant; an affidavit, made October 19, 1885, by the principal clerk of the newspaper, showing that the summons had been published for "two consecutive months, commencing July 1, 1885, and ending October 30, 1885," respectively, twenty-seven days before suit was brought, and eleven days after the judgment was signed; and also an affidavit of the attorney for the plaintiff, showing that on July 18, 1885, ten days before suit was brought, he had deposited in the post-office at Los Angeles a copy of the complaint and summons, addressed to the defendant at Phoenix, Arizona. The respondent thereupon, against the appellant's objections, offered in evidence an amended proof of publication of summons in the divorce suit, filed January 5, 1887, nunc pro tunc as of October 19, 1885; an amended proof of deposit in the post-office of a copy of the complaint and summons in that suit, filed January 5, 1887, nunc pro tunc as of October 19, 1885; and an order made January 5, 1887, allowing the filing of the amended proofs of publication and deposit, and ordering the entry of judgment in

the suit nunc pro tune as of October 19, 1885. The court thereupon ordered letters of administration to be issued to Mary Maldonado.

Matthew L. Sullivan and Stephen M. White, for the appellant. Lucien Shaw and James M. Damron, for the respondent.

PATERSON, J. The provisions of the Civil Code bearing upon the first question presented for our consideration are the following:

"Sec. 227. The judge must. . . . make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting.

"Sec. 228. A child, when adopted, may take the family name of the person adopting. After adoption, the two shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation."

"Sec. 1386. When any person having title to any estate dies without disposing of the estate by will, it is succeeded to and must be distributed. . . . in the following manner:

"1. If the decedent leave no surviving husband or wife, but leave issue, the whole estate goes to such issue; and if such issue consists of more than one child living, or one child living and the lawful issue of one or more deceased children, then the estate goes in equal shares to the children living, or to the child living, and the issue of the deceased child or children, by right of representation."

Under these provisions, we think that an adopted child is entitled to succeed by inheritance to the estate of the adopting parent. The provisions of sections 227 and 228 extend to all the rights and duties of natural parents and children. The language is general and comprehensive. The use of the word "issue" in section 1386 does not limit the right of inheritance to the natural children only. That section prescribes the rule of inheritance. The word "issue" is there used in the same sense as the words "child" and "children." If the adopted child is by virtue of its status to be "regarded and treated in all respects as the child of the person adopting," and is to "have all the rights and be subject to all the duties of the legal relation of parent and child," the right to succeed to the estate of the deceased parent must be included: Estate of Wardell, 57 Cal. 491; see also Ross v. Ross, 129 Mass. 243; 37 Am. Rep. 321.

2. So far as the action of Maldonado v. Maldonado affected the status of the parties and the custody of the child, it was a proceeding in rem, and service by publication in such cases is good: Pennoyer v. Neff, 95 U. S. 714. The recital in the judgment that the defendant was duly served with process is consistent with the proof of service. It is the fact of service which gives the court jurisdiction,-not the proof of service, and the court had authority to receive the amended affidavits of service after judgment and before the roll was made up: Mason v. Messenger, 17 Iowa, 261; Rickards v. Ladd, 4 Pac. C. L. J. 52; Allison v. Thomas, 72 Cal. 562.

The affidavits of service and the recitals in the judgment are conclusive. The affidavit on application for an order of publication, and the order of publication, cannot be considered. They are no part of the roll: Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742; McCauley v. Fulton, 44 Cal. 355. Belcher v. Chambers, 53 Id. 635, is not in point. In that case, as in Pennoyer v. Neff, supra, the judgment considered was a personal judgment against a non-resident without personal service of process. So far as the rule established in Hahn v. Kelly, supra, is applicable to proceedings in rem, it has not been overruled. The judgment referred to in that case was for money, the deficiency after foreclosure and sale.

The court has jurisdiction of the defendant, and the subsequent proceedings, from the time publication of summons was complete: Code Civ. Proc., sec. 416.

The fact that judgment was rendered upon default entered before the time allowing the defendant to answer had expired rendered the judgment erroneous simply, not void. A judgment thus rendered can be attacked only upon motion or by appeal, and by the parties in interest. Maldonado is the only party aggrieved by the decree, and he is the only one who can attack it in any way: Alderson v. Bell, 9 Cal. 321; Mitchell v. Aten, 37 Kan. 33; 1 Am. St. Rep. 231.

3. It is contended that the order is void because it was made by the court, and not by the judge. The order appears to have been made in open court, but it is a written order, signed by the judge and filed in the proceedings. The words "by this court" in the order may be treated, we think, as surplusage. An order made by the judge at chambers in a case requiring action by the court may, for good reasons, be held to be invalid, but no such reasons can be urged in cases like this. The power which the judge might have exercised in his cham