as thus presented, without, as we have seen, authenticating a single paper referred to in it. We are asked to say that the papers and evidence need not be incorporated in the bill of exceptions, but that it is sufficient if they be so earmarked as that they can be identified in the transcript by reference to the catalogued list of papers in the bill, and by a comparison of them with like papers found in the transcript. The court rule was intended to remove all doubt as to what papers were read to the court at the hearing of the motion by requiring them to be incorporated in the bill. This court cannot, under the rule, be asked to search through the transcript to discover papers referred to in the bill of exceptions only by some general description or by their dates and dates of filing. Aside from the labor entailed upon the court by this method, it would lead to uncertainty and doubt, often, as to the papers intended to be included in the bill, and would lack that certainty of authentication which must come alone from the judge who hears the motion. In the present case it is only by conjecture or inference that it can be said that any of the papers found in the printed transcript are the ones which are referred to in the bill of exceptions as having been read at the hearing of the motion. Moreover, the bill of exceptions recites that there was read at the hearing an affidavit of Littlefield filed December 29, 1899, whereas the affidavit by her which is set forth in the transcript is indorsed as having been filed December 30, 1899. It cannot be assumed that this is the one which was read at the hearing. The court said in Melde v. Reynolds, 120 Cal. 234, 52 Pac. 491, "Whether an affidavit was 'used on the hearing' (and the same would be true of any other paper or any evidence thus used) can be determined only by the judge before whom the hearing was had, and as there is no other mode provided by law for authenticating the affidavit which may be used on the hearing of the motion, under rule 29, they cannot be considered on the appeal unless they are incorporated into a bill of exceptions." Citing Spreckels v. Spreckels, 114 Cal. 60, 45 Pac. 1022, and other cases supra.

2. The bills of exceptions not being before us, the only appeal to be considered is from the judgment. So far as appellants Goodsell and Killman are concerned, they answered fully, setting up their interest in the property. The court found the allegations of their answer and defense to be true, and decreed the sale of the mortgaged premises, except certain tracts described in these answers. We do not understand that these appellants claim that the judgment was violative of any of their rights as set up in their answers, or that their rights were not fully protected by the decree.

3. Appellant Littlefield contends that the amended complaint was never served upon her. Her default was entered October 31,

*

1898, and the complaint was amended June 12, 1899. Appellant concedes the rule that proof of service of amended pleadings need not appear in the judgment roll, and that, in the absence of an affirmative showing to the contrary, service will be presumed. It is claimed, however, that the record speaks of what was done to acquire jurisdiction by service of process, and cannot be gainsaid. The claim is that, service not being made on appellant, it opened her default, and that no judgment could be entered against her without first serving this amendment and giving her an opportunity to answer. Citing Thompson v. Johnson, 60 Cal. 292; Linott v. Rowland, 119 Cal. 452, 51 Pac. 687; Witter v. Bachman, 117 Cal. 318, 49 Pac. 202. The amendment was for the sole purpose of making the husbands of defendants Mrs. Littlefield, Mrs. Killman, and Mrs. Thayer parties defendant, alleging that they "claim or have some interest in the mortgaged premises, * but that all of said claims are subordinate to * * * plaintiff's mortgage." In the cases cited by appellant the amendments were clearly in matter of substance. Reinhart v. Lugo, 86 Cal. 395, 24 Pac. 1082, 21 Am. St. Rep. 52, was an action for partition, and the court held that bringing in new parties defendant by amendment, alleging that they have or claim an interest in the subject of partition, is matter of substance. Appellant contends that the same is true under like allegation in an action to foreclose a mortgage. We do not think so. In partition all the interest of all persons in the property must be set forth as far as known to the plaintiff. Code Civ. Proc. § 753. The nature of the action makes the bringing in of a new party matter of substance. But not necessarily so in foreclosure. There is nothing in the record to show that appellant Littlefield was in any way interested in or affected by the appearance of these new parties in the case. We do not think the amendment was as to her in matter of substance, and service on her was unnecessary.

4. Appellant objects to the sufficiency of the affidavit for publication, and that it does not comply with the provisions of Code Civ. Proc. §§ 412, 413, which it is claimed must be read together, and the court had no authority to order publication. Section 412 provides that the court may order service of summons to be made by publication "where the person on whom service is to be made resides out of the state." Section 413, among other things, provides that "in case of publication where the residence of a non-resident or absent defendant is known, the court or judge must direct a copy of the summons and complaint to be forthwith deposited in the post office,. directed to the person to be served, at his place of residence." It is contended that these provisions were not complied with, and that the record so shows. The statement in the affidavit as to Littlefield is, "Resides out of the state of Cali

fornia; her last known address being Stockton Springs, state of Maine." The order of the court was that the summons be published once a week for two months (designating the paper), "and that a copy of the summons and complaint in this action be forthwith deposited in the post office, directed to each of the said persons at their several places of residence, to wit." Then follow the names and addresses as shown in the affidavit, and "to the said Maggie K. Littlefield, Stockton Springs, Maine." The affidavit of mailing shows that the order of the court was complied with. The proof of publication of summons is also duly made. It is contended that the two sections must be read together, -citing Ricketson v. Richardson, 26 Cal. 149, -and that they require the affidavit to state the place of residence, if known, and, if unknown, to so state; that the term "address" will not supply the omission to state the "residence," for the reason that the term "address" is not the equivalent of the term "residence." The trial court treated the designation of the term used as giving the residence of the defendant, and designated the place as the residence. The Century Dictionary defines "address" to be: "A direction for guidance as to a person's abode; hence the place at which a person resides, or the name or place of destination, with any other details necessary for the direction of a letter or package; as, what is your present address? Syn.: Residence, superscription." There is a well-recognized distinction between the term "domicile" and the term "residence." A person may have a residence separate from his domicile. Savage v. Scott, 45 Iowa, 130; Hanson v. Graham, 82 Cal. 631, 23 Pac. 56, 7 L. R. A. 127. The purpose of the statute is to secure, if possible, the delivery of a copy of the summons and complaint to a nonresident defendant, and this the legislature regarded as most likely to be secured by mailing to the place of residence rather than to the domicile,-i. e., to the place where letters and packages were most likely to reach the defendant; and this would be at his residence, which we think the judge was authorized to treat as his residence. Section 52 of the Political Code prescribes certain rules for determining the residence of a citizen of this state, but we do not think they apply necessarily to persons residing out of the state. We may concede the correctness of the construction of the statute given in Ricketson v. Richardson, 26 Cal. 149, but we think that where the plaintiff has by affidavit stated the "address" of the defendant out of the state, and the court has accepted this statement as evidence of the residence, it is sufficient compliance with the statute.

Appellant claims that the clerk had no authority to enter her default under section 585 of the Code of Civil Procedure. It is not necessary to decide whether the clerk may do this, in view of subdivision 3 of that sec

tion. Conceding the contention, the entry of default was but nullity, and could not have injured this defendant.

The foregoing covers substantially all the points properly arising on the appeal.

The judgment and order should be affirmed.

We concur: HAYNES, C.; GRAY, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

TEMPLE, J. I dissent. In my judgment, the opinion is most unfortunate. It authorizes the entry of judgment upon substituted service without a compliance with the statutory requirements, and establishes a rule under which such requirements may be easily evaded. The affidavit to procure publication of the summons is utterly insufficient, in that it does not furnish the court with the necessary data for its service. The necessity of such affidavit was decided in Ricketson v. Richardson, 26 Cal. 149. The affidavit showing service is in like manner defective. These papers must now be made part of the judgment roll. Code Civ. Proc. § 670. The amendment to this section nullifies many decisions in regard to the presumption of due service. If the judgment expressly asserts or implies due service of process, it will be intended that the proof contained in the record is referred to. And if no service is there shown, the judgment cannot be sustained, especially on an appeal from the judgment. That is a direct attack, and the question is whether the record shows jurisdiction, and in such case "the jurisdiction of the court is not to be established by its mere assertion in the judgment that it had acquired jurisdiction." Sichler v. Look, 93 Cal. 600, 29 Pac. 220.

In a case where there is no appearance, and no personal service of summons, it is always possible that the defendant has had no actual notice, and that his property is taken, if such be the effect of the judgment, without a chance to be heard. In such cases the rule has always been, especially upon a direct attack, that all steps provided by the statute must be followed exactly and strictly as enacted. The courts cannot say that some other course is as likely to give notice as that prescribed. A default is a technical advantage taken of an absent party without a consideration of the merits. In this case 14 nonresidents are served with summons by publication. The affidavit of publication as to some shows simply "the last known address," and as to others, "the last known post-office address." The statute requires the summons to be addressed to a defendant at his place of residence. The residence was not shown in any case. One who had purposely prevented the summons from reaching a defendant could truthfully make this affi

davit. Suppose, for instance, the affiant knew that the defendant resided at Portland, Or., but when he last heard of his whereabouts he was at Washington, D. C., Washington would be the last known address, although affiant knew that the stay there was to be only temporary, and that in all likelihood a summons directed to that place would never reach him. If the summons had been directed to Portland, it would probably have reached him wherever he happened to be, for most men provide for the forwarding of their mail. The rule tolerated in the opinion is not the statutory rule, and, if it might be used as I have suggested, it ought not to be sanctioned by the court. I deem it a material and vicious departure.

(137 Cal. 429)

In re BLAKE'S ESTATE. (L. A. 1,106.) (Supreme Court of California. Oct. 7, 1902.) WILLS-TRUSTEES-PAYMENT OF FUND TO

TRUSTEE-INTEREST.

1. A will directed a trust fund to be paid to trustees 12 months after the death of testatrix. On April 2, 1900, the court ordered the executors to pay over the same on the execution of a written agreement with the trustees setting forth the trust. The agreement was made on the 30th day of April, and signed by the executors, but it was not signed by the trustees until July 7th. During such period, and until July 9th, the money was on deposit in a bank of which one of the trustees was cashier. Held, that as, until the trustees signed the agreement and accepted the trust, they had no interest in the trust fund, and no authority to act in relation thereto, the fact that a delay from April 30th to July 9th in executing the agreement was the fault of the persons then appointed trustees did not preclude them from recovering interest on the fund between such dates, as provided by Civ. Code, § 1369, declaring that legacies shall bear interest from the time when they are due and payable.

2. The deposit of the money in the bank to the knowledge of one of the trustees subsequently appointed did not constitute a conditional tender of the money to the trustees.

Commissioners' decision. Department 2. Appeal from superior court, Santa Barbara county; W. S. Day, Judge.

Application by the executors of Ann S. C. Blake to pay over to trustees a certain trust fund bequeathed by the will. From an order directing payment of the fund and refusing interest claimed, the trustees appeal. Modified.

Richard C. Harrison, for appellants. Richards & Carrier, for respondents.

SMITH, C. This is an appeal from a decree directing the executors of the will of deceased to pay over to the appellants, who are trustees of a bequest made by the testatrix to certain charitable uses, the balance of the amount bequeathed, as found to be due by the court. The only point in dispute is as to the item of interest on $60,000 from April 30 to July 9, 1900, amounting to the sum of $805, which it is claimed by the appellants should have been allowed, and with reference to

which the facts, as found, are as follows: By the terms of the will the executors were directed, upon the expiration of 12 months from the death of the testatrix, to pay the sum of $80,000 to certain trustees named in the will, or, in the discretion of the executors, to some other person or persons, upon trusts to be expressed in some instrument securing the application of the legacy to the trusts specified in the will. Under this provision the appellants were appointed trustees by the executors, and on the application of the latter an order was made by the court April 2, 1900, directing them to pay over to the appellants, as trustees, the sum of $60,000, and further directing them to enter into a written agreement with the said trustees expressing the trusts, as provided by the will. Accordingly, on the 30th day of April, 1900, the agreement directed by the court was prepared and signed by the executors, and by them presented to the appellants for signature, but was not signed by them until the 7th day of July, 1900. During this period and until the 9th day of July following, there was on deposit in the First National Bank of Santa Barbara-of which bank during the period named H. P. Lincoln, one of the appellants, was cashier-the sum of $60,000, with written directions to the bank to pay the same to the appellants upon notice to the bank by the attorneys of the executors that the agreement and a receipt for the money had been executed by the appellants; and, such notice having been given July 7, 1900, the money was, on the 9th day of July, placed by the bank to the credit of the appellants. It is found by the court that the delay in the payment was due to the delay of the appellants in executing the agreement and receipt required of them, and accordingly the court refused to allow interest on the sum of $60,000 (the amount ordered to be paid) for the period named. In this, we think, the court erred. By the provisions of the Code, "legacies bear interest from the time when they are due and payable." Civ. Code, § 1369; In re Williams' Estate, 112 Cal. 521, 44 Pac. 808, 53 Am. St. Rep. 224. The case cannot be distinguished in principle from that of Esmond v. Brown, 18 R. I. 48, 25 Atl. 652, cited by the appellant. In that case the legatee had died within a year from the death of the testator, and there was no administrator of his estate until more than a year thereafter, and it was held that interest was recoverable from March 15, 1890, one year from the testator's death. The finding of the court that the delay in payment was owing to the fault of the petitioners is incorrect, and the fact found even impossible. The petitioners were not the individuals signing the petition, but the trustees of the fund, and they did not come into being as such until the agreement was executed and the trust accepted. Until then there were no persons in being to whom the legacy was payable; nor upon their becoming trustees could their rights be affected

by the previous delinquency of one or more of them. Nor can the position of the respondent be sustained that there was in fact a conditional tender of the money. It is not found, nor is it alleged, that a tender was made, but merely that the money was deposited in bank, presumably with the knowledge of one or more of the persons named as trustees. Nor until the trust was accepted and the agreement signed were there any persons in being entitled to receive the money.

We advise that the cause be remanded, with directions to the court below to modify the decree appealed from by allowing interest on the sum of $60,000 as claimed by the appellants, and that, as amended, the decree shall stand affirmed.

We concur: COOPER, C.; GRAY, C.

PER CURIAM. For the reasons given in the foregoing opinion the cause is remanded, with directions to the court below to modify the decree appealed from by allowing interest on the sum of $60,000 as claimed by the appellants, and that, as amended, the decree is affirmed.

(7 Cal. Unrep. 19)

BRYAN v. BRYAN. (Sac. 1,016.) (Supreme Court of California. Oct. 11, 1902.) DIVORCE-EVIDENCE-CRUELTY-NEW TRIAL

APPEAL-REVIEW.

1. Under Code Civ. Proc. § 939, allowing an appeal from a final judgment within six months from entry, where judgment was entered January 15, 1901, and notice of appeal served October 17, 1901, the appeal cannot be considered.

2. The question whether a judgment is the legal conclusion from the facts found cannot be considered on appeal from an order denying a new trial, but only on an appeal from the judgment.

3. In divorce plaintiff testified that defendant often, in the presence of others, accused her of being intimate with other men; that he had a venereal disease, and accused her of giving it to him; that he many times threatened to take the minor child away from plaintiff, and on one occasion took the child away for about two weeks, and would not tell plaintiff where it was; that he called her a prostitute, and left her often without means of support; that she had to support herself; and that the conduct of defendant caused her mental suffering aud bodily injury. Held, that such testimony sustained a finding of extreme cruelty.

4. Where the testimony is conflicting, findings of fact thereon cannot be disturbed on appeal.

5. The statute provides that when the notice of the motion for a new trial designates, as the ground of the motion, the insufficiency of the evidence to justify the decision, the statement shall specify the particular insufficiency. In divorce, defendant, in his answer and crosscomplaint, alleged acts of adultery with five men, and with others unknown to defendant, and the court found against defendant as to each charge. Defendant assigned that the evidence did not sustain the findings that plaintiff was entitled to a divorce, for defendant had pleaded and proved recrimination under Civ. Code, § 122, and that a divorce should have been denied plaintiff for that reason. Held, that the assignment was insufficient to raise

any question as to the sufficiency of the evidence.

6. In divorce the court found that the allegations of the complaint and cross-complaint as to the date of marriage were true, but that the allegations of the supplemental cross-complaint were untrue. The supplemental crosscomplaint set up a charge of adultery, and "realleged every allegation in the cross-complaint." Defendant contended the findings were inconsistent. Held, that the contention was of no merit, there being no issue as to the date of marriage, nor necessity for a finding thereon.

7. On appeal from an order denying a new trial in divorce the supreme court has no power to modify the provision of the decree providing for the support of a minor child until its majority.

Commissioners' decision. Department 1. Appeal from superior court, Yolo county; E. E. Gaddis, Judge.

Action by Frances Bryan against S. A. Bryan. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

R. Clark, for appellant. Arthur C. Huston and Harry L. Huston, for respondent.

COOPER, C. Action for divorce and custody of minor child. Findings were filed, and judgment thereupon entered in favor of plaintiff, awarding her the custody of the child. Defendant appeals from the judgment and order denying his motion for a new trial.

The judgment was entered January 15, 1901, and the notice of appeal was served and filed October 17, 1901. The appeal from the judgment was, therefore, not taken within six months after its entry, and cannot be considered. Code Civ. Proc. § 939. Nor can we consider the question as to whether or not the judgment is the legal conclusion from the facts found, for the reason that such question can only be raised by appeal from the judgment. We are therefore confined to questions properly involved in the appeal from the order denying a new trial.

The complaint alleges facts showing extreme cruelty on the part of defendant toward plaintiff, and the court below found the allegations to be true. It is claimed that the finding as to extreme cruelty is not supported by the evidence, but we think the evidence of plaintiff is sufficient to sustain the finding. She testified that defendant often, in the presence of other parties, accused her of being intimate with other men; that he had a venereal disease, and accused her of giving it to him; that he many times threatened to take the minor child away from plaintiff, and on one occasion took the child away for a period of about two weeks, and would not tell plaintiff where it was; that he called her a prostitute, and left her often without means of support; that she had to follow dressmaking in order to support herself; that the acts and conduct of defendant caused her great mental suffering and bodily injury. The court below, by the finding, gave credence to the

¶ 7. See Divorce, vol. 17, Cent. Dig. § 806.

many acts narrated by the plaintiff, and under the rule we cannot disturb the finding.

The defendant, in his answer and crosscomplaint, alleged five different acts of adultery committed by plaintiff with different men, and that at divers other times and places plaintiff "committed adultery with divers and sundry other men unknown to defendant." Defendant prayed for a decree of divorce against plaintiff upon these affirmative allegations. The court found against defendant as to every such allegation, and the findings are in no way attacked. There is no specification as to the insufficiency of the evidence to sustain either of said findings, or any portion of either. The only attempted assignment as to the insufficiency of the evidence to support the findings of the affirmative matters set forth by defendant is the following: "The evidence does not sustain the findings that plaintiff is entitled to a divorce, for the defendant pleaded and proved a case of divorce against plaintiff, which pleadings and proof amounted to a showing of recrimination under section 122 of the Civil Code of this state, and a divorce should have been denied plaintiff for that reason." It will be readily seen that the above is merely a statement to the effect that evidence does not sustain the conclusion of law that plaintiff is entitled to a divorce. It is true the reason is attempted to be given in the statement that "defendant pleaded and proved a case of divorce against plaintiff." The defendant's grounds of divorce, as pleaded by him, consisted of several distinct acts of adultery, and the court found each allegation to be untrue. If the separate findings, or either of them, was not supported by the evidence, it was incumbent upon defendant to specify such finding, and the respects wherein the evidence was insufficient. Not having done so, we cannot examine the pleadings and proof in order to see whether the defendant proved "recrimination" under section 122 of the Civil Code. We must be governed by the findings. They can be attacked in the manner clearly pointed out in the Code, and not otherwise. It has been the tendency of this court of late to look with great liberality upon specifications of insufficiency of evidence, but it has never been held, that it was sufficient to say "the evidence does not sustain the findings." If we were to adopt such rule, it would set at naught the express provision of the Code: "When the notice of the motion designates, as the ground of the motion, the insufficiency of the evidence to justify the verdict or other decision the statement shall specify the particulars in which such evidence is alleged to be insufficient."

The claim is made that the findings are contradictory in this: that the allegation of the complaint and cross-complaint to the effect "that plaintiff and defendant intermarried on the 23d day of November, 1894, and ever since have been, and now are, husband and wife." is found to be true, and elsewhere the 70 P.-20

court finds all the allegations of the second supplemental cross-complaint to be untrue. If we could consider the question on this appeal from the order denying a new trial, we think the finding would have to be held sufficient. The criticism is exceedingly hypercritical. The second supplemental cross-complaint "realleges each and every allegation in his original cross-complaint and first supplemental cross-complaint." In this way, and in this way only, is the former allegation of marriage realleged. The supplemental cross-complaint of itself contains only the single allegation as to adultery, by plaintiff with one Brumfield on July 2, 1900. This the court found to be untrue. There was no issue made by the pleadings as to the marriage, and no necessity of any finding upon the question. The plaintiff alleged it, and defendant did not deny it, but reiterated and alleged it in his cross-complaint and answer.

It is finally claimed that the court had no power to provide in the decree for the support of the minor child-a girl-until it should reach the age of 21 years. We cannot modify the judgment on this appeal from the order denying a new trial. If it goes beyond the power of the court in the respects pointed out, it can at any time be modified. Crater v. Crater, 135 Cal. 633, 67 Pac. 1049.

We advise that the appeal from the judgment be dismissed, and the order denying a new trial affirmed.

We concur: GRAY, C.; SMITH, C.

PER CURIAM. For the reasons given in the foregoing opinion, the appeal from the judgment is dismissed, and the order denying a new trial affirmed.

(137 Cal. 450)

PEOPLE v. CHRETIEN. (Cr. 873.) (Supreme Court of California. Oct. 8, 1902.) FORGERY-FICTITIOUS DEED-FORGERY OF

SIGNATURE-VARIANCE.

1. Pen. Code, § 470, provides that every person who, with intent to defraud another, falsely makes, forges, or counterfeits any deed, or counterfeits or forges the seal or handwriting of another with intent to prejudice any person, is guilty of forgery. Section 476 declares that every person who makes, passes, utters, or publishes with intent to defraud any other person, or who, with like intent, attempts to pass any note, check, or "other instrument in writing for the payment of money or property" of an individual when in fact there is no such individual in existence, knowing the instrument to be fictitious, is punishable, etc. Held, that the words "other instrument,' etc., in section 476, were limited to instruments of the class mentioned in the section, and did not include a deed to which the grantee's signature was that of an individual not in existence; the crime committed by executing such an instrument being covered by section 470.

2. An information charging the forgery of a deed, setting it out in hæc verba, was sufficient, though it failed to allege that the deed was fictitious, such allegation being required only in informations under section 476.

3. Where an information for forgery of a