entirely omitted, and the rule of the statute is that such irregular or defective performance shall not defeat the incorporation when drawn into question collaterally. The omission of the names and number of the first trustees from the articles of association, the failure to file a duplicate of the articles with the secretary of state, * * * insufficient acknowledgment, are irregularities that will not defeat the corporation. A substantial compliance with the requirements of the statute will be sufficient to show a corporation de jure in an action between the corporation and a private person." "It has been frequently held that, although many of the acts required to be performed in order to make a complete organization of the corporation may have been irregularly performed, or entirely omitted, yet such irregularities and defects will not defeat the incorporation where the questions are raised collaterally." Bank v. Spires, 126 Cal. 545, 58 Pac. 1049, and cases cited. The respondent seems to rely upon Martin v. Deetz, 102 Cal. 55, 36 Pac. 368, 41 Am. St. Rep. 151, but in that case, as stated in the opinion of the court: "The directors named in the articles for the first year never met or acted, but deliberately refused to do so; no stock was ever issued; no persons ever met, or pretended to meet, in corporate body assembled: no officers were ever elected; no person was ever appointed by the asserted corporation to represent it in any way, or to act as its agent; no journal or record of the proceedings of the body corporate was ever kept; and it was never in a position to exercise, or to pretend to exercise, any of the powers granted to corporations." In this case the law was substantially complied with. Articles of the incorporation, properly signed and acknowledged, were, it seems, handed to the county clerk, or rather his deputy; and the fact that said officer (the county clerk being at the same time county recorder) marked the document as filed with the recorder, instead of with the county clerk, would not have the effect to defeat the formation of the corporation. incorporators and trustees thereafter met and organized in the usual manner, elected officers, and adopted a seal and by-laws. The corporation thereupon purchased and received a conveyance by deed of the real property selected under the direction of the city authorities as the site for the proposed gas works,-being the land in question in this action,-for which it paid the sum of $1,000, and also received a transfer of the franchises granted by said city for carrying on said work, purchased some gas retorts, and commenced digging the pit for the gasometer. These acts constituted an organization and commencement to transact business as a corporation within the meaning of the law. It appears, however, that it failed to go on with the work of erecting gas works or to transact any business after November, 1870. Appellant suggests that this failure to proceed further was because other parties about that time erected gas works at The | that place, and this failure to carry on the business for which the company was formed for so many years is urged by the respondent as another ground in support of his contention that the plaintiff was not a corporation when this action was brought. But a corporation once formed and organized according to law does not become dissolved or cease to exist merely because of a failure to transact business. Its term of life is prescribed by law, and only at the instance of the state can its existence in the meantime be questioned. This rule applies also in case of a de facto corporation. By the statute existing at the date that this corporation was formed (and a similar provision is carried into the Civil Code) it is declared: "If any corporation, formed under the laws of this state, shall not organize and commence the transaction of its business within one year from the date of its incorporation, its corporate powers shall cease: provided that the question of the due incor poration of any company, claiming in good faith to be a corporation under the laws of this state, and doing business as such corporation, or of its right to exercise corporate powers, shall not be inquired into collaterally, in any private suit to which such de facto corporation may be a party; but such inquiry may be had at the suit of the state or information of the attorney-general." Section 6, act concerning corporations, as amended in 1862 (St. 1862, p. 110). It is further suggested by respondent that the deed to the plaintiff corporation of the real estate involved in this action bears date four days before the articles of the incorporation were filed; but a deed takes effect, not from its date, but from its delivery, and the fact that it was delivered after the corporation was formed is shown by the proceedings of the trustees. At one of their meetings a resolution was adopted that said deed, together with the franchises from the city assigned to the corporation, and other company papers. should be deposited at a certain place for safe-keeping. There is nothing in the point that the attorneys who brought this action had no authority to do so. At the hearing of the motion to dismiss, Mr. Boyd testified: "I directed Messrs. Withington and Carter to institute this action; but before doing so I saw Mr. Perry and the widow of Wallace Woodworth, who is administratrix of her husband's estate, and they consented to the bringing of this action and desired the action to be brought. Mr. Perry represented the interests of the Woodworth estate." He further testified that he owned one-quarter of the stock. Perry one-half, and the estate of Woodworth one-quarter; and that directors Taggart, John Goller, and Wallace Woodworth had died several years prior. It appears, therefore, that the suit was brought upon the authority of the president and secretary and those who represented all the stock of the corporation at the time. And under the same authority' or re tainer, for all that appears, the same attorneys took the appeal, and are now prosecuting the same in this court. Yet respondent has not even suggested that they are here without authority, or that the corporation appellant has not authorized them to represent it. Under these circumstances the corporation itself would be held to be bound by the acts of the attorneys, and therefore third parties have no ground for objecting. Pixley v. Railroad Co., 33 Cal. 183, 91 Am. Dec. 623, and cases there cited. The law confers upon the corporation the right to sue, as well as making it liable to be sued. The stockholders individually cannot sue or be sued in respect to their interests in the property held in the name of the corporation. The litigation must be by or against the corporation. And to turn a corporation out of court summarily, as in this case, is to deny the real parties in interest-the stockholders-the right to protect their property according to law. "The existence of a corporation independent of its shareholders is a fiction. Its rights and duties are in reality the rights and duties of persons who compose it, and not of an imaginary being." Mor. Priv. Corp. § 1. The judgment and order are reversed. MEADE COUNTY BANK v. BAILEY et al. (L. A. 1,089.) (Supreme Court of California. Oct. 8, 1902.) SECURITY FOR COSTS-FOREIGN CORPORATION -REQUISITES OF UNDERTAKING. 1. Under Code Civ. Proc. § 1036, providing that when plaintiff is a foreign corporation, and defendant requires security for costs, plaintiff must execute an undertaking to pay such costs as may be awarded against it, not exceeding $300, and section 1037, authorizing the dismissal of the action if plaintiff fails for 30 days after the service of the notice requiring security to file such undertaking, an action by a foreign corporation is properly dismissed when it fails, for 30 days after notice, to give the prescribed undertaking, though it files within such period a bond in the sum of $50, as required by an ex parte order of a judge of the court. Department 1. Appeal from superior court, Los Angeles county; N. P. Conroy, Judge. Action by the Meade County Bank against Henry E. Bailey and another. From a judgment dismissing the action in favor of one of the defendants for failure to file security for costs, plaintiff appeals. Affirmed. Bernard Potter and Dyer & Potter, for appellant. E. W. Camp and Sidney J. Parsons, for respondents. VAN DYKE, J. Plaintiff is a corporation organized and doing business under and by virtue of the laws of the state of South Dakota. Action was brought in the superior court of Los Angeles county against the defendants upon a judgment obtained against them in said state of South Dakota. The defendant Parsons, upon being served, appeared in said action December 1, 1900, and on the same day gave and served notice on the plaintiff, demanding security for costs. Thereafter, December 20, 1900, the plaintiff applied to a judge of said court, without notice to said defendant, to fix the amount of the bond, and the said judge thereupon by an ex parte order, fixed said bond in the penal sum of $50. On the 2d day of January, 1901, the said defendant, by his attorney, served on the plaintiff and filed a notice of a motion to dismiss said action for want of the undertaking for costs as required by law; and after hearing upon said order to show cause, on the 15th day of January, 1901, the court entered an order dismissing said action. The appeal is taken from such judgment dismissing the action in favor of defendant Parsons for failure to file security for costs. The contention of the appellant is that the bond filed in the sum of $50, as required by the ex parte order of said judge, was a compliance with the statute, and it was error, therefore, for the court to dismiss the action. The provision of the Code on the subject is as follows: "When the plaintiff in an action resides out of the state, or is a foreign corporation, security for the costs and charges, which may be awarded against such plaintiff, may be required by the defendant. When required, all proceedings in the action must be stayed until an undertaking, executed by two or more persons, is filed with the clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, not exceeding the sum of three hundred dollars. A new or an additional undertaking may be ordered by the court or judge, upon proof that the original undertaking is insufficient security, and proceedings in the action stayed until such new or additional undertaking is executed and filed." Code Civ. Proc. § 1036. The requirement in reference to this Bond for costs against foreign corporations is almost in the exact language of the so-called cost bond on appeal. The undertaking on appeal is required to be executed by at least two sureties, "to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal or on dismissal thereof, not exceeding three hundred dollars." Code Civ. Proc. 941. In both cases the amount as well as the condition of the bond is prescribed by the Code, and the court has nothing to do with fixing the same. The statute vests in the defendant the right to have the bond, and the court cannot, against his will, deprive him of that right, or alter the amount or terms of the bond required. When the demand for security for costs is made in the proper case, the law itself enjoins further proceedings on the part of the plaintiff until the demand is complied with according to the provisions of the Code. After the undertaking or bond, in the sum and form specified, is given, a new or additional undertaking may be ordered by the court when the first is deemed insufficient, but the court has no power to dispense with the giving of the first bond or undertaking as mentioned. The next section of the Code provides that after the lapse of 30 days after the service of notice that security is required, and no undertaking according to law has been filed, the court may order the action to be dismissed. Code Civ. Proc. § 1037. Thirty days having elapsed in this case after the demand for security for costs, and no such undertaking having been given or filed, it was not error for the court to dismiss the action upon notice and motion of said defendant. The judgment is affirmed. (141 Cal. 497) HARRIS v. DUARTE et al. (L. A. 1,075.) (Supreme Court of California. Oct. 8, 1902.) QUIETING TITLE-PRESCRIPTIVE TITLE-INSOLVENCY-HOMESTEAD. 1. Under Civ. Code, § 1007, providing that occupancy for the period sufficient to bar an action for the recovery of property confers a title by prescription, sufficient against all, defendant in an action to quiet title may show title by prescription. 2. One being in possession of property, claiming it as his homestead, at the time of his insolvency, possession for the period of limitations, after the filing of his petition in insolvency, is unnecessary to give him title by prescription. Department 1. Appeal from superior court, Los Angeles county; M. T. Allen, Judge. Action by J. L. Harris against Refugio Duarte and others. Defendants Marius Bellue and wife had judgment, and plaintiff appeals. Affirmed. Charles Lantz and J. W. Swanwick, for appellant. J. Brousseau, for respondents. VAN DYKE, J. Action to quiet title, and judgment for certain of the defendants. The appeal is from an order denying plaintiff's motion for a new trial. Appellant relies upon errors of law occurring at the trial, consisting in overruling plaintiff's objection to the admission of evidence showing prescriptive title in the defendants Bellue, and in admitting a declaration of homestead made by the defendant Marie Bellue; also upon the ground that the evidence is insufficient to justify the findings. It was in issue that the respondents claimed title to a portion of the premises described in the plaintiff's complaint. It was competent and relevant, therefore, to introduce testimony in support of a prescriptive title, as well as a title by deed. Occupancy for the period prescribed by law as sufficient to bar an action for the recovery of the property confers a title thereto, denominated "title by prescription," which is sufficient against all. Civ. Code, § 1007. The testimony was proper, also, to aid the court in construing the declaration of homestead as to the prescription of the premises. The declaration, in the usual way, states that the party making it at that time actually resided with her husband and children on the land and premises therein described (then giving the description), from which description the appellant contends the homestead property did not extend to Jefferson street. Defendant Bellue testified that he, with his wife, resided at Jefferson and Alameda streets, in the city of Los Angeles; that he went on those premises in 1889, and fenced around the property, cultivated it, and built a house on the corner of Jefferson and Alameda streets; that he lived there continuously from that time, and that he was the husband of Marie Bellue at the time of the declaration of homestead; and that she lived on the premises with him as his wife, with their children. He also introduced state, county, and city tax receipts from 1888-89 up to the date of the trial, in 1900, describing the premises as a quarter acre, bounded north by Jefferson street and east by Alameda. Appellant contends that a prescriptive title would not avail the defendants unless the possession continued longer than five years after the filing of the petition in insolvency of defendant Marius, May 12, 1894; but the proceedings in insolvency did not affect the homestead, as that was exempt under the law, and the schedule in the inventory, after giving a description of the property, states that "the foregoing is subject to declaration of homestead by Marie Bellue, wife of petitioner"; and the deed of the assignee in insolvency to the grantor of plaintiff could not convey the homestead tract, even if it purported to do so. Appellant contends that the evidence does not support finding 2, to the effect that the plaintiff is not the owner of the land therein described, as against the respondents, and that there is no determination by the court as to who is the rightful owner of that portion of the property sued for, not embraced in said finding 2. The finding referred to is to the effect that the respondents were the owners of the premises therein described, to wit, the homestead property on the corner of Jefferson and Alameda streets, already referred to, and that the plaintiff had no right, title, or interest in or to the same. Finding 3 is to the effect that the plaintiff is the owner of the land described in the complaint as against all the defendants excepting the respondents, and, as to them, except that part thereof which is described in finding 2. It cannot be said that the findings are not supported by the evidence, and the statement on motion for a new trial does not purport SAN DIEGO SAV. BANK ▼. GOODSELL et al. (L. A. 1,012.)* (Supreme Court of California. Oct. 7, 1902.) MORTGAGES-SERVICE-SUMMONS PUBLICA TION-APPEAL-WAIVER-STATUTES. 1. Where a defendant in mortgage foreclosure, moving to vacate an order for publication of summons, did not appear specially, and on denial of the motion appeared generally, and answered to the merits, there was a submission to the jurisdiction so that it could not be questioned on appeal. 2. Where a defendant in mortgage foreclosure appears generally, he submits to the jurisdiction, and cannot thereafter raise a question as to imperfections in the order of publication, etc. 3. Code Civ. Proc. § 951, provides that on appeal from an order, save one granting or refusing a new trial, the appellant must furnish the court with a copy of the order and papers used on the hearing. Rule 29 of the supreme court (64 Pac. xii) provides that on appeal from the orders of the superior court the papers used on the hearing of the motion must be authenticated by incorporating the same in a bill of exceptions. On appeal from an order in mortgage foreclosure denying a motion to vacate an order for publication of summons, the bill of exceptions stated that in support of the motion appellant "read the following papers,' and then followed descriptions of several papers by reference to their character, date of filing, etc. Appended was a stipulation that the "foregoing be allowed as a bill of exceptions," and the judge signed the bill "in accordance with the stipulation." None of the papers were incorporated in the bill. Held, that the bill could not be considered, not being in accordance with the statute and rule. 4. Where a bill of exceptions recites that there was read at the hearing of a motion an affidavit filed December 29, 1889, while the affdavit in the transcript is indorsed as filed December 30th, it cannot be presumed that it is the one read at the hearing. 5. In mortgage foreclosure, an amended complaint was for the purpose of making the husbands of certain defendants parties defendant, alleging that they "claimed some interest in the premises." Held, that on appeal, in the absence of anything in the record to show that appellant was affected by the bringing in of the new parties, a contention that failure to serve the amended pleading opened a default entered against her was of no merit. 6. Pol. Code, § 52, prescribes certain rules for determining the residence of a person. Code Civ. Proc. § 412, provides that the court may order service of summons by publication when the person on whom service is to be made "resides" out of the state. Section 413 provides that in case of publication, where the residence of a nonresident or absent defendant is known, the court must direct a copy of the summons and complaint to be mailed to the person to be served, at his place of "residence." The affidarit of a complainant stated that a defendant "resided" out of the state, and that her "last known address" was S., in Maine; and the court ordered a copy of the summons, etc., to 2. See Appearance, vol. 3, Cent. Dig. § 128. *Rehearing denied November 6, 1902. CHIPMAN, C. Foreclosure. The complaint sets forth the ordinary action to foreclose a mortgage executed by Edward L. Goodsell and his wife, Kate Goodsell, to secure their promissory note for $15,000. The appeal is by Mrs. Goodsell, and by defendants Sarah Killman and Maggie K. Littlefield, from the judgment, in favor of plaintiff, on the judgment roll, and upon three bills of exceptions, namely: (1) Bill of exceptions of defendant Kate Goodsell and defendant People's Trust Company, taken at the hearing of motion for an order vacating the order for publication of summons, made July 27, 1898, and to set aside all subsequent proceedings. (2) Bill of exceptions of defendants Kate Goodsell and Sarah Killman, taken at the hearing of their motion for an order vacating the order of publication of the two summonses issued in the action, and to vacate and quash the summons issued June 14, 1899, and to vacate and quash the service by publication of both said summonses. (3) Bill of exceptions of defendant Maggie Littlefield, taken at the hearing of similar motion as last above. As to the bill of exceptions of Goodsell, it cannot be considered, for the reason that she did not appear specially to make her motion, and when it was denied she appeared generally by answer to the merits. Nor can the bill of exceptions of Goodsell and Killman be considered, for the reason that, be fore their joint motion was made, both of them appeared generally and answered to the merits. These appearances were without reservation, and constituted a submission to the jurisdiction, regardless of any imperfections in the order of publication of summons, or other proceedings by which they were brought into court. Respondent objects to the consideration of appellant Littlefield's bill of exceptions, or of any of this appellant's assignments of error, because the bill of exceptions does not set forth or contain the notice of motion, nor the substance thereof, nor the papers and evidence used at the hearing. Like objec * * * tion was made to a consideration of the other bills of exceptions, but as the two appellants, Goodsell and Killman, answered, it is not necessary to consider them. The bill of exceptions of Littlefield states that, in support of the motion, appellant "read the following papers in the above-entitled action, on file in the office of the clerk of the aboveentitled court, viz.: (1) The said notice of motion, and the affidavit of Maggie K. Littlefield attached thereto, both filed December 29, 1899." Then follow like descriptions of 13 other papers in the case. Neither the notice of the motion nor any other of the papers was incorporated in the bill of exceptions. They are simply described by a brief reference to their character, date of the paper, and date of filing. The bill states that "no other affidavits or other evidence, documentary or otherwise, was offered, used, or read at the hearing of said motion," and recites that the order was made January 9, 1900. Appended is a stipulation, signed by respective counsel, "that the above and foregoing be settled and allowed as the bill of exceptions to the order made January 9, 1900, denying the notice of said defendant for an order vacating," etc. (stating generally the purpose of the motion), “all exceptions and objections reserved" by counsel for plaintiff. The judge signed and settled the bill "in accordance with the above stipulation," and in this form it was served February 2, 1900. In the printed transcript the certificate to the judgment roll by the clerk then follows. After this later certificate is the affidavit of Littlefield, attached to her motion, in which it is stated that she appears especially for the purpose of making the motion, and not otherwise, and noted on it is service of copy on plaintiff's attorney. Appended to the foregoing is a stipulation, signed by respective counsel, "that the foregoing are full. true, and correct copies of the following documents on file and of record in the clerk's office ** 容 * in the aboveentitled action, and of orders in said action entered in the minutes of said court, viz., the judgment roll in said action, the notice of motion of Maggie K. Littlefield to set aside order for publication of summons, etc.. and affidavit of Maggie K. Littlefield filed December 3, 1899" (and some other matters not material to the present question), and "we do further certify that the indorsements of admission of service and file marks of all said documents are correct as stated." Since Herrlich v. McDonald, 80 Cal. 472, 22 Pac. 299, Von Glahn v. Brennan, 81 Cal. 261, 22 Pac. 596, and more especially Somers v. Somers, 81 Cal. 608, 22 Pac. 967, the court has in all cases adhered to the procedure there laid down. Adams v. Andross, 85 Cal. 609, 24 Pac. 842; Shain v. Eikerenkotter, 88 Cal. 14, 25 Pac. 966; White v. White, 88 Cal. 429, 26 Pac. 236; Miller v. Lux, 100 Cal. 609, 35 Pac. 345, 639; Spreckels v. Spreckels, 114 Cal. 60, 45 Pac. 1022; Melde v. Reynolds, 120 Cal. 234, 52 Pac. 491. The appeal from the order must be heard upon the papers used on the hearing in the court below. By section 951 of the Code of Civil Procedure it is provided that "on appeal from a judgment rendered on an appeal, or from an order, except an order granting or refusing a new trial, the appellant must furnish the court with a copy of the notice of appeal, of the judgment or order appealed from, and of papers used on the hearing in the court below." Rule 29 of this court (64 Pac. xii), formerly rule 32, provides how the papers are to be authenticated, and is as follows: "In all cases of appeal to this court from the orders of the superior court the papers and evidence used or taken on the hearing of the motion must be authenticated by incorporating the same in a bill of exceptions, except when another mode of authentication is provided by law." The case here comes under rule 29 (64 Pac. xii) and, unless we can say that the papers and evidence used at the hearing are properly authenticated, we cannot consider the bill of exceptions. The decisions above referred to hold, and the language of the rule is, that the papers and evidence used at the hearing "must be authenticated by incorporating the same in a bill of exceptions"; and this means, must be set forth in and made a part of it. The bill of exceptions taken on the hearing of a motion such as the present one is entirely distinct from the judgment roll, and is intended to be complete in itself for its own purposes. The bill of exceptions certified, as settled by the judge, refers to 14 different papers and documents as used at the hearing, not one of which is incorporated in the bill. The only authentication of the notice of the motion and attached affidavit of Littlefield, which are essential to the consideration of the motion, is by stipulation of counsel. Similarly they authenticate, by stipulation, the correctness of the judgment roll, and add that "the indorsements of admission of service and file marks of all said documents are correctly stated"; this probably for the purpose of aiding this court to identify them. But the judge alone is authorized to authenticate the papers used at the hearing, and this must be done by incorporating them in the bill of exceptions. Appellants seem to contend that giving a brief description of the character of a paper, its date, date of filing, and the name of the person making the affidavit (where an affidavit is the paper), is sufficient, if upon an examination of the transcript a particular paper can somewhere be found answering the description, and no other can be found fitting the description. And it was upon this the ory, apparently, the judge was asked to settle the bill. He followed the stipulation of counsel, but the stipulation was that the skeleton form used should be settled and al lowed, plaintiff "reserving all exceptions and objections," and the judge settled the bill |