plaint. The cause was tried by a jury, and day of January, 1906, the defendar.t prepared a verdict returned for the plaintiff for the and forwarded to Ilon, George E. Church, a sum of $500, and thereupon judgment enter- judge of the superior court of the county of ed in his favor for that amount. The ap- Fresno, who presided at the trial of this peal is fro:n the judgment, accompanied by cause, a blank order and application for an a statement of the case.

extension of the time within which to pre1. It is insisted that the court should have pare and serve his statement to and including sustained the demurrer to the complaint on the 29th day of January, 1906. Said blank the ground of uncertainty. The particular order was received by Judge Church on the objection to the complaint in this particular 5th day of January, 1906, and on that day is that the allegations charging the defend-signed by him; but through inadvertence on ant with the negligence in the management, the part of the judge the order was not forcontrol and operation of its ditch and the warded to the clerk of the court in which headgate thereto, and through which it is the cause was tried until the 9th day of claimed the destruction of plaintiff's crops January, 1906, on which day the order was and damage to his freehold was causeal, are received by said clerk, and thereupon filed not sufficiently direct and specific. The with the other papers as a part of the record rationale of the rule requiring certainty in of the case. It will thus be observed that pleading is that the opposing party may be while the order extending the time was made fully cognizant of the facts upon which signed by the judge before the expiration the plaintiff relies and which the defendant of the time within which, under the statute, must meet by denial or in avoidance. The the statement may be proposed and served, complaint might perhaps have been more it did not become a matter of record until particular and direct in its averments as to two days after the lajise of that time. It is the manner in which the defendant was contended by the respondent that, because guilty of the negligence charged against it, the statement was not served within the ten yet we think its allegations are sufficient, days allowed by the express mandate of the and that by them the defendant was fully statute, the judge lost jurisdiction to settle notified of the facts it was required to an- and allow the same, and that appellant swer or otherwise combat, as the exigencies should, in order to have been relieved of the of its defense might demand. Moreover, the default, have made application for such reanswer sprucifically denies al the material lief under section 473 of the Code of Civil averments, and thus the issues involving all Procedure, upon the ground of "mistake, inthe important questions which could arise advertence, surprise or excusable neglect." were fairly made and squarely presented. Several cases are called to our attention Therefore, even if it were conceded that the which, it is claimed, support the contention court erred in its ruling on the demurrer, of respondent. But the cases cited, upon the the same was cured by the full and com- facts, are not precisely in point, nor have we plete denials of the answer. Besides, it is been directed to any cases where exactly the not every erroneous ruling of the trial court same state of facts marks the proceedings inin this regard that demands a reversal of volving the proposal, service, settlement and the judgment. Substantial injury to defend- allowance of the statement. In Vinson v. L. ant must have resulted from the action of A. Pac. R. R. Co., 147 Cal. 483, 82 Pac. 53, the court. Holland v. McDade, 125 Cal. 353. where the defendant failed altogether to pro58 Pac. 9; Jager v. Cal. Bridge Co., 104 Cal. pose and serve the statement within the 542, 38 Pac. 413; Stephenson v. Deuel, 12.5 statutory time, and the court upon a showing Cal. 656, 58 Pac. 258; Williams v. Casebeer, of excusable neglect relieved him of his de126 Cal. 77, 58 Pac. 380; Rooney V. Gray fault by granting him further time within Bros., 145 Cal. 753, 79 Pac. 523; Code Civ. which to propose and serve such statement, Proc. § 475. The issuable facts having been the Supreme Court, speaking through Mr. tendered in such manner by the pleadings Justice Angellotti, inter alia, says: “Whethas to present for trial a clear-cut issue upon er or not the circumstances of a particular the two important questions of damage and case are such that the mistake or inadvertnegligence, the defendant could have suffered ence should be excused is a question the no injury, and, as the answer and the trial determination of which must of necessity clearly attest, did not suffer any injury.

be left largely to the court to which ap2. The defendant made a motion for a new plication is made, and it is well settled that trial upon the minutes of the court, and the this court will not interfere with the exsame was denied. No appeal was taken from ercise of the discretion of that tribunal, the order refusing a new trial. Objection is except in a case where a clear abuse of dismade by counsel for the respondent to the cretion is apparent. Particularly is this so consideration upon this appeal of the state- where the discretion is exercised in favor of ment of the case for the alleged reason that the granting of the relief sought, as such the same was not served within the time action tends to bring about a conclusion on allowed by law, and was received too late." the merits, which is always to be desired" It appears from the transcript that the mo- -citins; O'Briep v. Leach, 139 Cal. 220, 72 Pac. tion for a new trial was denied by the court on 1004, 9 Am. St. Rep. 103. In the case at bar the 28th day of December, 1905. On the 4th it is patent that the failure to file the order extending the time with the clerk of the uninjured by the water, and also gathered a court before the expiration of the time for few potatoes from that part of the land che proposal and service of the statement ex- inundated. After gathering the potatoes he pressly prescribed by the statute (section 661, iningled them together; that is, he placed the Code Civ. Proc.) was not due to negligence potatoes from the unflooded land with those on the part of the appellant or his counsel. gathered from the fiooded portion, so that it Application for the extension was made and was impossible for him when testifying to the order signed by the judge in ample time definitely state which part of the 4+ crates for the filing of the same before the lapse of he succeeded in harvesting was from the land the statutory period of 10 days. The fact, of not injured by the water and which part was which we are authorized to take judicial no- gathered from the land thus injured. Plaintice, that the judge who tried the case and to tiff testified, however, that there were about whom application was made for the exten- three times as many potatoes to the hill sion of time resides in another and different grown upon and harvested from the land county and a considerable distance from that not flooded thau were taken from the flooded in which the action was tried, and the fur- land, and that they were much larger than ther fact appearing in the record that he was those taken from the flooded portion. It is at the time of such application at his own contended by the appellant that it was the home, should also be considered in determin- duty of respondent to have kept the potatoes ing whether there was an abuse of discretion harvested from the flooded and unflooded porin the settlement and allowance of the state

tions, respectively, in separate and distinct ment. The statute in terms does not require lots, because approximately the exact quanan order extending the time within which to tity and quality of the damaged potatoes propose and serve a statement of the case could then have been determined by the quanto be filed, and, while we do not hold that tity and quality of the potatoes not damaged. the filing of such an order should not be It is argued that in thus mingling the potamade, we feel justified in declaring that, un- toes respondent destroyed the best and most der all the circumstances shown by the rec- accurate evidence which could have been ord upon this point, there was no abuse of offered upon the questions of quantity and discretion by the judge in the settlement and quality, and therefore should not have been allowance of the statement, but that under permitted by the court to introduce evidence the principles announced in Vinson v. L. A. as to the quantity or extent of the harvest Pac. R. R. Co., supra, it was properly settled upon adjoining lands for the purpose of estaband allowed. Besides, we cannot see how lishing the probable yield upon his land had tbe appellant could have based an application the same been unimpaired or uninjured by for "relier," if the circumstances with refer- the overflow water from the ditch. The conence to the proposal and service of the state- tention is without substantial merit. The ment show that "relief" of any kind was fractional portion of the land uudisturbed by necessary, upon "accident, surprise, inad- the overflow waters from the ditch is not, vertence or excusable neglect" upon his part, according to the testimony, as well adaptel in view of the fact that the delay in filing to sweet potato culture as the other or floodthe order was imputable to the oversight or ed portions, because the latter is lower in inadvertence of the judge himself. Without altitude and possesses a sandy soil peculiarly atteinpting to decide what would be the prop- suitable for the growing of such crops. er legal course in such a case, it may be sug- Therefore, to take the crop 'gathered from gested that it would, indeed, be rather a the higher land, not so productive as the severe rule which would prevent a litigant other, as the criterion, would, of course, have from exhausting every means made available been unfair and unjust. Besides, the testito him by the law for a full and final de- mony shows that the plaintiff, after the termination of questions involving what are water had receded and disappeared from the at least claimed to be his rights through a land, harvested about 21,2 acres of the potacircumstance over which it is impossible for toes, the least damaged by the water, on the him to exercise the least control. There are flooded land, and that a comparison in quan: some other technical objections to the con- tity and quality of the potatoes harvested on sideration of the statement which we think the two portions of the land-the part flooded need not be noticed.

and the part not flooded-showed that those 3. According to the evidence, the banks of from the latter portion were, as before stat. the defendant's ditch broke opposite the land ed, larger in size and more extensive in of plaintiff and flooded all said land, except quantity. Other witnesses-farmers growing a small piece in the southwest corner of the sweet potatoes on land in the neighborhood lot, and embracing about one-half of an acre of the plaintiff's land, and which land is planted in sweet potatoes. The land had similarly situated and of the same character been irrigated twice, and cultivated the same of soil and cultivated under the same connumber ef times. The plaintiff testified that ditions-were permitted to give testimony. "there was a good average stand of potatoes" without objection, as to the number of sacks growing on the land at the time it was flood- of potatoes grown on their lands the year ed. The plaintiff harvested the potatoes in which the damage here complained of was growing on the small portion untouched and sustained, and also as to the average weight of the sacks. This testimony was competent time too remote from that at which the alleg. and relevant, because it tended to show what, ed injury was inflicted to render it admis. under ordinary circumstances, would bave sible in any view. The objection goes rather been, in all probability, the yield of the crop to the weight than to the competency and but for the damage sustained by the over- relevancy of the evidence. We think it was flow of the water from the ditch.

clearly proper as showing or tending to show 4. It is claimed that the court erred in ad- that the soil of the land was of a nature mitting testimony as to the market value of which rendered it peculiarly suitable for the sweet potatoes raised in the neighborhood of cultivation of potatoes, and for that purpose the plaintiff's land in the year in which the the land had special value. The fact that the alleged damage was suffered. This testimony land was profitably used for potato growing was, of course, directed to the question of five or six or eight years previously to the the ascertainment of the value of the grow- year in which the damage was done bore ing crop at the time of its alleged destruc- directly upon its value for such purpose at tion. In the recent case of Teller v. Bay & the time of the injury or destruction. River Dredging Company (Cal. Sup.) 90 Pac. Errors are assigned in the giving and the 942, the Supreme Court declares that the true rejection of certain instructions by the court. rule upon the point under consideration, as We have examined with solicitous care the well as upon the character of the evidence instructions presented to the jury by the generally which is admissible for the purpose court, and are of the opinion that the law upof determining the amount of compensation on all the vital points involved was fully which should be awarded in cases like the and clearly declared. one at bar, is stated in the case of Lester et We do not regard it necessary to notice all al. v. Highland Boy Gold Mining Company et the points urged here involving criticism of al. (a Utah case), reported in 76 Pac. 341, the rulings of the court in the admission and 27 Utah, 470, 101 Am. St. Rep. 988, as fol- rejection of evidence. It is sufficient to say lows: "In cases of destruction of growing that we have given the record careful concrops, it is proper and important to introduce sideration, and are convinced that it discloses and admit evidence showing the kind of crops no errors prejudicial to the defendant. The the land is capable of producing, the kind of case seems to bave been carefully and fairly crops destroyed, the average yield per acre | tried, and the judgment is, in our opinion, of each kind on the land not destroyed and just, and should not be disturbed. otber similar lands in the immediate neigh- The judgment is, therefore, affirmed. borhood, cultivated in like manner, the stage of the growth of the crops at the time of We concur: CHIPMAN, P. J.; BURinjury or destruction, the expense of cultivat- NETT, J. ing, harvesting, and marketing the crops, and the market value at the time of maturity, or within a reasonable time after the injury or

(6 Cal. A. 5) destruction of the crops, and, while all such

Ex parte ACKERMAN. (Cr. 48.) evidence may be considered by the jury in de

(Court of Appeal, Third District, California.

June 20, 1907. On Rehearing, July termining the amount of damages, if any,

18, 1907.) still the true measure of compensation is the

1. ANIMALS LICENSES ORDINANCES value of the crops in the condition they were Dogs-REPEAL. in at the time of their injury or destruction." An ordinance imposing a license tax on the And the rule is so declared in Teller v. Bay

keeping of dogs is not repealed by implication & River Dredging Company, 2 Cal. App. Dec.

or a subsequent ordinance imposing a license

tax on every kind of business authorized by 224; Shoemaker v. Acker, 116 Cal. 239, 48 law, all shows, etc.: no reference being made Pac. 62, and Ellis v. Tone, 58 Cal. 289. The to the keeping of dogs. rule as thus enunciated answers many other

2. MUNICIPAL CORPORATIONS-OBDINANCES

REPEAL-How AOCOMPLISITED. objections urged by the appellant against the

To accomplish the repeal of an ordinance, record in the case at bar, both as to evidence there must either be language employed expressadmitted and instructions given and refused ly declaring such intention, or there must exist by the court.

in the subsequent ordinance language so incon5. Evidence was offered and received for

sistent with the provisions of the former as to

necessarily effect a repeal by implication. the purpose of showing that the land of

[Ed. Note.-For cases in point, see Cent. Dig. respondent was peculiarly adapted to the vol. 36, Municipal Corporations, & 268.] cultivation of sweet potatoes. The appellant, 3. STATUTES-REPEAL-How ACCOMPLISHED. in bis answer, denies that the land in ques- To accomplish the repeal of a statute, thern tion ever produced at any time "any crops or

must either be language employed expressly de

claring such intention, or there must exist in crop of beans or sweet potatoes of any value

the subsequent statute language so inconsistent whatever.” The witness James was allowed with the provisions of the former as to necesto testify that several years previously to sarily effect a repeal by implication. the year in which the alleged damage oc

[Ed. Note. For cases in point, see Cent. Dig. curred he had planted a portion of said land

vol. 44, Statutes, $ 229.] in sweet potatoes, and had harvested there

4. MUNICIPAL CORPORATIONS-ORDINANCES,

LICENSES-Dogs. from seventy or eighty sacks to the acre. It

An ordinance imposing a license tax on is objected that this testimony related to a and regulating the keeping of dogs is not incon