Martin, of San Francisco, who, as I recollected, had also been employed on the Canadian Pacific Railway; and from him I learned that the said Andrew Onderdonk had an interest in the profits of the contract, namely, the contract for the benefit of said firm as aforesaid, besides a salary of $1,000 a month. Pushing my inquiries further, Mr. Martin, at my solicitation, went to see a Mr. McLaren, who was likewise employed on the work, and Mr. J. McMullen, a subcontractor on said work, both of whom informed Mr. Martin, as he stated to me, that Andrew Onderdonk had an interest in the profits over and above the salary paid him. This information was obtained by me from Mr. Martin, and through him from Mr. McLaren and Mr. McMullen, the latter part of October, 1894.

The amount of the profits

realized by said Onderdonk out of said contract, according to my information obtained as aforesaid, was several hundred thousands of dollars; exceeding, I believe, half a million of dollars. The information so obtained as aforesaid was definite and positive, and I verily believe the same to be true." The affidavit further stated the fact that no judgment of dismissal had ever been entered in the action, and that, upon discovery of the said fraud, plaintiff had retracted and withdrawn his consent to the dismissal of said action and the affidavit closes with the prayer that an order be entered authorizing the withdrawal and retraction of said dismissal.

The affidavit of Scott states that, after the commencement of the action, he undertook the settlement and adjustment of the controversy between the plaintiff and Onderdonk; that, in the performance of said undertaking, affiant had a number of interviews "with said defendant or his agent, and negotiated with him, on behalf of said plaintiff, for an adjustment of their accounts and a settlement of their differences involved in said action; that in said negotiation said defendant gave affiant the items constituting the assets and liabilities of said partnership between plaintiff and defendant, for the purpose of forming the basis of settlement between them; that in discussing the terms of such settlement, and arriving at a conclusion, and in making of such settlement, the defendant, Andrew Onderdonk, stated and declared to affiant that he and plaintiff had obtained a contract to build a section of the Canadian Pacific Railway, but that it became necessary to relinquish the same to other parties, inasmuch as defendant could not otherwise procure the necessary financial assistance to carry out said contract"; that Onderdonk further represented to affiant that he had retained no interest in said contract, and that the only benefit he would receive therefrom was a salary which he was to get as engineer in the construction of said section of railway, and that, beyond such salary, he had no interest growing out of said contract.

With these affidavits, plaintiff also filed this paper, signed by him in person: "Now comes the plaintiff, Miers F. Truett, in the above-entitled action, and withdraws and retracts the order or authorization for a dismissal of said action filed herein by his attorney, Hosmer P. McKoon, on the 26th day of March, 1880. Dated November 1, 1894."

At the hearing of plaintiff's motion in February, 1895, counsel specially appeared for the defendant for the purpose of opposing the same, and to urge a counter motion on behalf of defendant, that a judgment of dismissal be entered as directed by plaintiff in his authorization filed March 26, 1880. The motions were heard together, and the facts shown on the bearing were as above stated. Thereafter, on February 27, 1895, the court made an order denying plaintiff's motion, and granting that of defendant, and judgment was thereupon entered dismissing the action. Plaintiff appeals from said order, and from the judgment.

Certain objections are urged by respondent which would preclude an inquiry into the merits of the real question presented by the appeal, but we deem them untenable. The motion, although technically to set the case for trial, fairly involved the further relief asked by plaintiff's affidavit, that he be relieved from the obligation of his consent to a dismissal. Nor had the court lost jurisdiction to entertain the motion. The action was still pending. It had not been dismissed, for the reason that no judgment of dismissal had been entered as required by the statute. Acock v. Halsey, 90 Cal. 215, 27 Pac. 193; Brady v. Times-Mirror Co., 106 Cal. 56, 39 Pac. 209. Nor can there be any question of the power of the court, if the circumstances justified it, to relieve plaintiff from the obligation of his order of dismissal. It was, in its nature, but a stipulation; and it is always competent for the court to control such conventions, in the interest of justice, where for any reason they have been improvidently entered into. Robinson v. Exempt Fire Co., 103 Cal. 1, 36 Pac. 955. The material question presented, however, is whether, upon the showing made, assuming all the material statements of fact to be true, it was the duty of the court to grant plaintiff's motion, and its refusal to do so was an abuse of discretion. The purpose to be subserved by the motion may be regarded as analogous, in a sense, to that of an action to reopen an account upon the ground of fraud, or to re

scind a contract upon that ground; and assuming, for the purpose of coming to the merits, that such a question may be presented by mere motion, and upon affidavits, the facts relied on should obviously be at least such as, if proved in such a case, would prima facie entitle a plaintiff to relief. We are satisfied that the facts here relied on do not meet that requirement.

In the first place, it may be seriously questioned if the facts tend sufficiently to establish any fraudulent act on the part of the defendant. There are some general statements in the affidavits of plaintiff, which, standing alone, would have that tendency, but it appears that those statements are not made from any positive knowledge, but from information derived from others; and, when the source of such information is given, it is seen to rest solely upon some vague, general, second-hand statements of third parties, one of whom plaintiff cannot name, and two of whom he did not himself see, and with no attempt made to state the source or character of knowledge upon which his informants based their alleged statements of facts. For all that appears, the entire fabric of plaintiff's information may consist of the idlest and most unfounded rumors. The affidavit of Martin does not state that he knows anything of the facts. All his affidavit may be taken to substantiate is that he told plaintiff certain things himself, and interviewed McLaren and McMullen on the subject, who made certain statements to the affiant; but as to the truth or authenticity of his own statements, or those of McLaren and McMullen, he does not pretend to state. The affidavit of Scott states the only tangible fact in the whole showing,-that defendant did represent that the Canadian Railroad contract had been disposed of without profit to the partnership. But there is nothing which competently negatives the truth of this statement, or which necessarily shows that, if defendant did thereafter in fact make money out of that contract, it was not under some subsequent arrangement, and in a manner entirely in consonance with the truth of his representations. We do not think that the court was bound to base a finding of fraud for any purpose, or to any extent, upon such evidence. The presumption is always against fraud,-a presumption approximating in strength to that of innocence of crime; and it should not be deemed overcome, even prima facie, upon a showing so intangible and shadowy. Heller v. Manufacturing Co., 116 Cal. 127, 47 Pac. 1016; Ex parte Fkumoto (Cal.) 52 Pac. 726.

But in the next place, assuming that the evidence was sufficient to make a prima facie case of fraud, there is an absolute want of any showing of diligence in the plaintiff in moving for relief in the premises. Plaintiff was aware, at the time of the settlement, of the existence of the railroad contract, and that it had been taken in behalf of the firm.

He so states in his affidavit. The parties in that settlement were dealing at arm's length, -in the face of litigation, and yet the plaintiff took no measures whatsoever to verify the statements of defendant as to the actual facts with reference to this contract. He rested supinely and in blind confidence, so far as appears, upon those representations, notwithstanding the conduct of the defendant had been such, as alleged in the complaint, to arouse his just suspicions, and put him upon inquiry as to the defendant's good faith. There is nothing shown to indicate that defendant in any way prevented an independent inquiry by plaintiff into the facts as to the status of that contract. It is to be presumed plaintiff knew, because he does not negative such presumption, the source or channel through which the contract had been secured, and there is nothing to show that the slightest inquiry at that source would not have disclosed whether defendant's representations were true or false. It does not even appear that plaintiff examined the books of the partnership to ascertain what there appeared as to this contract. They might themselves have shown the truth or falsity of defendant's claim. It is not alleged that he was denied access to the books in the making of the settlement, and yet there is nothing to show what appeared therefrom. There is no claim that they had been in any way falsified or tampered with for the purpose of covering up the true status as to this contract. Notwithstanding these facts, neither then, nor for more than 14 years thereafter, did plaintiff make the slightest effort to probe the truth of defendant's representations, and there is not the faintest effort to show why he did not. It was certainly not by reason of the confidence reposed, or which he had a right to repose, in the defendant. That, as we have suggested, is negatived by the averments in his sworn complaint. This lack of diligence is as fatal to the relief here sought as it would be in a direct action to recover for the fraud. Equity abhors a stale claim, and it was incumbent upon plaintiff to show facts excusing his long delay in asserting the fraud. It is not enough to assert merely that the discovery was not sooner made. It must appear that it could not have been made by the exercise of reasonable diligence. And all that reasonable diligence would have disclosed, plaintiff is presumed to have known; means of knowledge in such a case being the equivalent of the knowledge which it would have produced. Wood v. Carpenter, 101 U. S. 135; Teall v. Slaven, 40 Fed. 774. Under the circumstances, we think the court below was fully justified in denying plaintiff the relief sought, and that plaintiff got all he could reasonably ask, in having the judgment entered without prejudice to another action. The order and judgment are affirmed.

We concur: HARRISON, J.; GAROUTTE, J.; MCFARLAND, J.; HENSHAW, J.

(120 Cal. 634)

In re WEED'S ESTATE. (Sac. 379.) (Supreme Court of California. April 26, 1898.) RESIDENCE-LOSS BY LEAVING STATE.

1. Whether a person is a resident of the state is a mixed question of law and fact, to be determined by the court.

2. Pol. Code, $$ 52, 1239, provide that a person's residence is the place where he remains when not called elsewhere for labor or other temporary purpose, and to which he returns in seasons of repose, and in which his habitation is fixed, and to which he intends to return when absent; but, if he removes to another state with the intention of remaining an indefinite time, he loses his residence, notwithstanding his intention of returning at some future time. Held, where a husband and wife remove from the state for a temporary purpose, intending to return within a year and a half or two years, and take all their property with them, and remain away nearly five years, although the work which called them away is completed several months previous to their return, that they lose their residence upon leaving the state.

3. Where a husband and wife have lost their residence in this state, the wife cannot regain her residence immediately by returning to the state on the death of her husband.

Commissioners' decision. Department 2. Appeal from superior court, Yolo county; W. H. Grant, Judge.

H. C. Duncan and Mary L. Goldy each filed a petition asking to be appointed administrator of the estate of Theodore E. Weed, deceased. From an order appointing H. C. Duncan administrator, and an order denying a motion for a new trial, Mary L. Goldy appeals. Affirmed.

White & Seymour, for appellant. Byron Ball and J. C. Ball, for respondent.

BELCHER, C. Theodore E. Weed died, intestate, in the county of Yolo, in this state, on the 26th day of March, 1896, being at that time a resident of said county, and leaving an estate therein, consisting of real and personal property, of the value of about $20,000. He left no wife or children and no next of kin residing in this state, unless the appellant, Mary L. Goldy, was so residing. On April 2, 1896, H. C. Duncan, the public administrator of the county, duly filed a petition praying that letters of administration upon the said estate be issued to him; and thereafter, on the 13th day of the same month, Mary L. Goldy filed her petition, stating that she was a niece of said decedent, and praying that letters of administration upon the estate be issued to her. The two petitions were heard together, and thereafter, on June 5, 1896, the court made and filed its findings of fact and conclusions of law, and ordered and adjudged that letters of administration on the estate be issued to the petitioner H. C. Duncan. The court found "that the petitioner Mary L. Goldy was not a bona fide resident of this state at the time her petition was filed herein; nor was she a bona fide resident of this state at the time of the trial"; and, as a conclusion of

law, that she was not competent or entitled to serve as administratrix. There are two appeals in the case. The first was taken August 3, 1896, and is from the order granting the petition of the public administrator for letters of administration upon the estate of said deceased, and refusing appellant's application for such letters; and the second was taken February 7, 1897, and is from an order denying appellant's motion for a new trial.

us.

Appellant contends that the findings were not justified by the evidence, and whether they were justified or not is the only question which need be considered. At the hearing, J. W. Hughes was called as a witness for appellant, and testified that he had been the legal adviser of the said deceased for many years, and at the time of his death had in his possession many of his papers. He then stated: "Upon the death of Mr. Weed, I telegraphed the fact to his relatives at Stamford, Conn., and for some of them to come out and take charge of the estate. In response to my telegram, a brother of Mrs. Goldy came out immediately. He had never been in California before. I learned from him that his sister, Mrs. Goldy, had some years before lived in California; and, in response to telegrams, she came out, and, on arriving at my office in Sacramento, signed her petition for letters of administration herein. Several telegrams passed between I can produce them." On objection of counsel for appellant, the telegrams were excluded by the court. S. N. Goldy, the husband of appellant, was called as a witness, and testified, in substance, that his business was that of a civil engineer, and that he and his wife came to San Francisco in 1889, and rented a furnished flat at No. 180, Clinton Park, in said city, where they lived until the summer of 1891, when they went East; that, when he came to San Francisco, he established an office on California street, in that city; and, when he went East, he did so for the purpose of perfecting an invention on which he was then at work, and obtaining patents thereon; that he then expected it would require eighteen months or two years to perfect his invention and obtain patents thereon, and intended, as soon as that should be accomplished, to return to San Francisco, and establish a business there in connection with his invention; that his invention was a machine for cutting and polishing hard woods, making chair rounds, wagon and buggy spokes, fancy house furnishings, moldings, and picture frames, and working up all character of hard wood requiring a high polish, and that the Pacific Coast, and particularly San Francisco, was peculiarly adapted to the establishment of such a business; that in 1890 he registered and voted in San Francisco, and ever since he moved there, in 1889, he had always considered, and still considered, that city his home, and had no other plans than to reside there, and

carry on the business above described; that, while in the East, he registered at hotels as from San Francisco, and spent most of his time at Bridgeport, Conn., where he had a friend engaged in the foundry and machine business, whom he employed to construct the greater portion of the castings and other parts of his invention which were made of iron and steel, and could be constructed more cheaply there than in California. On cross-examination, the witness testified that he arrived in Sacramento the day before the trial, and that he had not been in San Francisco since he left there, in the summer of 1891; that he completed the construction of his machine five or six months before he heard of the death of Mr. Weed, and had not made any preparation to return to California. He was then asked by counsel for respondent: "Q. If your machine can be more economically constructed in the East, and the hard woods procured there in large quantities, what reason can you give for saying that you intended to return to California? A. Well, I expected to go into the business of fruit raising with Mr. who was to furnish the capital. Q. Where did you expect to locate your fruit farm? A. At Redding, California. Q. Where is Mr.

? A. He is dead. He died about two years ago." Mrs. Goldy was also called as a witness in her own behalf, and testified substantially as her husband did in regard to their coming to San Francisco in 1889, residing there until 1891, and then returning East. She said: "During all the time of our absence, I considered California as our home, and intended to return to this state. I might not have returned so soon if it had not been for the death of my uncle." And on cross-examination she said: "When we went East, in 1891, we gave up our rooms, and took everything we owned with us." "While in Bridgeport, we rented rooms already furnished, where we lived for over two years. We were living there when we heard of uncle's death. My husband always returned to Bridgeport when away on business." "I would not have returned to California when I did had not uncle died. I came out to administer on his estate, and signed the petition for administration the day I arrived in Sacramento, before I went to San Francisco. When we heard of uncle's death, my brother started for California, expecting to administer on the estate.

* * *

** * **

After my brother arrived in California, we found out that he could not administer on the estate; and, as I had at one time lived in California, they had me come out to administer on the estate. I am living in the same rooms in San Francisco that we occupied at No. 180, Clinton Park, in 1890. I found them vacant, and rented them by the month, already furnished."

The above was, in substance, all the evidence given at the hearing, and the question is: Does it appear therefrom that appel

lant was a bona fide resident of this state at the time she made her application for letters, or at the time of the trial? If not, she was, under our statute (Code Civ. Proc. § 1369), incompetent to serve as administratrix, and her application was properly denied. Whether appellant was a bona fide resident of the state or not was a mixed question of law and fact to be determined by the court. We have no statute declaring what acts are necessary to constitute a bona fide residence in this state, but there are several provisions in the Codes in relation to residence and nonresidence. Among others are the following: Section 52 of the Political Code, under the heading: "Person Composing the People of the State," provides: "Every person has, in law, a residence. In determining the place of residence the following rules are to be observed: (1) It is the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he returns in seasons of repose. (2) There can only be one residence. (3) A residence cannot be lost until another is gained. * (5) The residence of the husband is the residence of the wife. * * ** (7) The residence can be changed only by the union of act and intent." Section 1239 of the same Code, in regard to the residence of persons claiming a right to vote in this state, provides: "(1) That place must be considered and held to be the residence of a person in which his habitation is fixed, and to which whenever he is absent he has the intention of returning. 串 (6) If a person remove to another state with the intention of making it his residence he loses his residence in this state. (7) If a person remove to another state with the intention of remaining there for an indefinite time, and as a place of residence, he loses his residence in this state, notwithstanding he entertains an intention of returning at some future time." We see no conflict in the above provisions, and they are therefore to be construed together as parts of the same statute. Pol. Code, § 4480. And, in accordance with the law as thus declared, Mr. Freeman, in his note to Berry v. Wilcox (Neb.) 48 Am. St. Rep., at page 714 (s. c. 62 N. W. 249), states the rule to be as follows: "If a person actually removes to another place with an intention of remaining there for an indefinite time, and as a place of present domicile, it becomes his place of residence or domicile, notwithstanding he may have a floating intention to return to his old residence at some future time,"-citing several cases.

The question, then, is: Did Goldy and his wife lose their residence in California when they moved East, taking with them all of their property, and established a residence there which they maintained for nearly five years? That their return to the East was for an indefinite time was shown by the fact that it was to perfect an invention and con

struct a machine, which he expected would require eighteen months or two years, but which was not in fact completed until five or six months before he heard of the death of Mr. Weed; and, after it was completed, he made no preparations to return to California. At the commencement of his testimony, Mr. Goldy stated: "I reside at 180 Clinton Park, San Francisco, California, and have resided there since the year 1889." But this was evidently a mere fiction of the imagination. Further on, he stated that, as soon as his invention should be perfected and patents obtained therefor, he intended to return to San Francisco, and "to introduce and establish a business in connection with said invention." But this was inconsistent with other portions of his testimony, and particularly with his statement that, as a reason for returning to California, he expected to go into the business of fruit raising at Redding with a man who had been dead for two years at the time of the trial. Mrs. Goldy came back to California to administer on the estate, and, on the day of her arrival in the state, she signed her application for appointment as administratrix. She left her hubsand at their home in the East, and would not have come at that time if her uncle had not died. But her husband's residence was her residence, and, if he then had no bona fide residence in this state, we fail to see how she could have had. To be a bona fide resident of the state, one must really and in good faith have established a home or place of residence therein, where he lives, and to which, when away on business or pleasure, he returns. We conclude, therefore, in view of all the evidence, that both Mr. and Mrs. Goldy lost their residence in this state when they left the state, in 1891, and went East to live.

But it is urged that, conceding appellant lost her residence in California when she went East with her husband, she regained it immediately upon her return to the state, and became therefore entitled, by her new residence, to letters in preference to the public administrator. Counsel say: "From the moment she set her foot on California soil, in

pril, 1896, and declared her intention to be a resident of the state, and to remain permanently within its borders, she became a bona fide resident of California, just the same as though she had been born here, and never passed beyond its limits." This theory cannot, in our opinion, be sustained; and in effect a similar theory was, in the case of In re Donovan's Estate, 104 Cal. 623, 38 Pac. 456, held untenable. It results that both of the orders appealed from should be affirmed.

We concur: CHIPMAN, C.; BRITT, C.

PER CURIAM. For the reasons given in the foregoing opinion, both the orders appealed from are affirmed.

(5 Cal. Unrep. 980)

FOX v. HALE & NORCROSS SILVER-MIN. CO. et al. (S. F. 683.)1

(Supreme Court of California. April 9, 1898.) FRAUD-COMPLAINT RETRIAL AFTER APPEAL-ISSUES-EVIDENCE-AMENDMENT-ANSWER

LIMITATION OF ACTIONS-Review.

1. In charging fraud, a complaint must state the facts constituting the fraud,-at least, in a general way; and such facts must be alleged with sufficient distinctness to enable the adverse party to come prepared with evidence on the general questions of fraud which will be raised.

2. When, on appeal, the judgment of the lower court is affirmed as to one cause of action, and reversed and remanded for a new trial as to another cause of action, all the issues involved in the cause of action remanded must be retried, though the appellate court deems the evidence sufficient to sustain the judgment of the trial court on one of the issues.

3. When defendants are charged with a fraudulent conspiracy for two purposes, and it is proved for one purpose, the presumptions are still in favor of the innocence of defendants of conspiring for the other purpose.

4. Fraud cannot be conjectured from the fact that defendants have been guilty of other independent frauds. The evidence must be satisfactory, within the rule stated in Code Civ. Proc. 1833, defining “prima facie evidence" as that which suffices for the proof of a particular fact until contradicted and overcome by other evidence.

5. The admissions of questions and answers of witnesses in evidence, which assumed that certain samples of ore were fair samples, and that assays thereof were fair assays, without proof that such was the case, when the question at issue was whether they were fair samples, and whether they were properly assayed,

is error.

6. When the complaint is amended in any material respect, so as to present new questions, on which issue may be taken, defendant may answer, as of course; and in such case the court cannot limit the defenses which may be_interposed.

7. Some of defendants were sued by fictitious names, but the summons was personally served on them. The complaint was afterwards amended so as to properly name defendants. Held, that defendants were made parties, within the statute of limitations, when the summons was served.

8. On the first trial, evidence was taken of plaintiff's right to bring the action as a stockholder of a corporation, and the court found facts authorizing plaintiff to sue in behalf of the company. Defendants did not except to the sufficiency of such evidence, or present the question thereof on appeal. The case was affirmed on appeal as to a certain issue, and remanded for retrial as to another issue. Held, the findings being sufficient to show the right of plaintiff in that regard, that the issue as to the right of plaintiff to bring the action as stockholder was not open for investigation in the second trial, either as to the issue on which a new trial was denied, or as to that on which a new trial was awarded.

9. Where a judgment is affirmed as to certain issues and reversed and remanded for a new trial as to other issues, it is a modification of such judgment, and such action is within the province of the supreme court.

McFarland and Garoutte, JJ., dissenting.

In bank. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge.

Action by M. W. Fox against the Hale & Norcross Silver-Mining Company and others. For opinion on rehearing, see 53 Pac. 169.