[Civ. No. 1042. Third Appellate District.-December 3, 1912.] FRANK R. DEVLIN, Petitioner, v. ARTHUR WRIGHT and Others, Members of the Board of Supervisors of San Joaquin County et al., Respondents.

PRESIDENTIAL ELECTION-CANVASS OF RETURNS-RETURNS TO SECRETARY OF STATE-MANDAMUS DISALLOWED.-By stipulation in open court, the writ of mandamus is denied on the authority of Devlin v. Donnelly, ante, p. 495.

PETITION for Writ of Mandate to the Board of Supervisors of San Joaquin County.

Charles O. Busick, and Clinton L. White, for Petitioner.

Hugh B. Bradford, and J. Q. Brown, for Respondents.

THE COURT. By stipulation, in open court, it was agreed that the decision in the case of Frank R. Devlin v. J. H. Donnelly et al. (No. 1041), ante, p. 495 [129 Pac. 607], should be determinative of the decision in this case. On the authority of that case, the writ is denied.

[Civ. No. 1065. First Appellate District.-December 13, 1912.] STATE COMMISSION IN LUNACY, Petitioner, v. JOHN WELCH, as Treasurer of the County of San Benito, State of California, and ELMER DOWDY, as Auditor of San Benito County, Respondents.

LUNACY COMMISSION-ACTIONS BY-HOME FOR FEEBLE MINDED.-Judgment affirmed on the authority of State Commission in Lunacy v. Welch, ante, p. 624.

APPEAL from a judgment of the Superior Court of San Benito County. M. T. Dooling, Judge.

The facts are stated in the opinion of the court.

Robert L. Beardslee, John W. Stetson, and C. P. Cutten, for Petitioner.

Briggs & Hudner, and H. W. Scott, for Respondents.

HALL, J.-This is an appeal from a judgment entered against plaintiff after order sustaining defendant's demurrer to plaintiff's complaint.

The action is in all respects similar to the action No. 1066, ante, p. 624 [129 Pac. 974], this day decided, except that it covers a different period of time, and the auditor is joined with the treasurer.

For the same reasons stated in the opinion in the action against the treasurer (No. 1066) plaintiff had no capacity to sue either the treasurer or the auditor, and no cause of action is stated against the treasurer. The court, therefore, did not err in sustaining the demurrer, and the judgment must be affirmed.

It is so ordered.

Lennon, P. J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 11, 1913.

INDEX-VOL. 20.

ABATEMENT. See Mechanics' Liens.

ACCOUNTING. See Partnership, 3-23.

AFFIDAVIT OF MERITS. See Judgment, 9-11.

AGENCY. See Broker; Mortgage, 1, 2.

APPEAL.

1. APPEAL FROM ORDER TAXING COSTS-REVIEW-AMOUNT IMMATERIAL.
It is settled that the amount of money involved in an appeal from
an order of the superior court taxing costs is not determinative of
the jurisdiction of the appellate court to review the same, and such
appeal cannot properly be dismissed regardless of amount involved.
(Meyer v. Perkins, 661.)

2. APPEAL FROM JUDGMENT

DISMISSAL LIMITED REVIEW - ORDER
DENYING NEW TRIAL.-Where an appeal was taken both from the
judgment, and from an order denying a new trial, and it appears
that the appeal from the judgment was taken more than six months
after its entry-that appeal may be dismissed; and the review must
be limited to the appeal from the order. (Breidenbach v. McCor-
mick Company, 184.)

3. ALTERNATIVE METHOD-DUTY OF ATTORNEYS TO PRESENT CASE
-FAILURE-SUFFICIENCY OF EVIDENCE NOT REVIEWED.-Where an
appeal is taken under the alternative method provided in section 953a
of the Code of Civil Procedure, no printed transcript of the record
is provided for; but it is the duty of the attorneys to present in their
briefs, or a supplement thereto, such portions of the record as they
may rely upon to call to the attention of the court; and where the
appellant wholly neglects that duty, the sufficiency of the evidence
to support a finding will not be reviewed upon appeal. (Williams
v. Hawkins, 161.)

4. ABSENCE OF JUDGMENT IN MANDAMUS-ORDER SUSTAINING DEMUR-
RER TO PETITION-WANT OF JURISDICTION-DISMISSAL.-An appeal
does not lie from an order sustaining or overruling a demurrer to
a petition for a writ of mandamus. The action of the court upon
the demurrer can only be reviewed upon the appeal from the final
judgment entered in the proceedings, and where no final judg-
ment appears in the record, the court has no jurisdiction of the
appeal, and it must be dismissed. (Hanke v. McLaughlin, 204.)

APPEAL (Continued).

5. APPEAL FROM JUDGMENT NEW METHOD TIME FOR FILING REPORTER'S TRANSCRIPT-DIRECTORY PROVISION-ABSENCE OF PENALTY. Upon an appeal from the judgment taken under the new method embodied in section 953a of the Code of Civil Procedure, where the appellant requested a reporter's transcript, and the court ordered the same to be prepared and filed, it became the duty of the reporter to prepare and file the same within twenty days; yet it is held that the time limited for filing the same is directory, and not jurisdictional, since no penalty is attached, either under the statute or the rules of the court, to the failure of the reporter to file the same within the time limited. (Smith v. Jaccard, 280.)

6. DUTY OF APPELLANT AS TO TRANSCRIPT-QUESTION OF Diligence— DISCRETION.—It is the duty of the appellant, as the moving party, to take the necessary steps to secure the filing of the transcript; and for want of diligence in such matter, it is within the power of the trial court to terminate his proceedings for procuring the same; yet the determination of the question whether or not there has been due diligence in such matter, is one lying largely in the discretion of the trial court, with which the appellate court will not interfere, unless there has been an abuse of discretion. It is held that the trial court did not abuse its discretion in overruling objections to the transcript, and certifying to its correctness. (Id.) 7. NEW METHOD - PREPARING TRANSCRIPT

- CONSTRUCTION OF CODE PROVISIONS PROCEEDINGS NOT JURISDICTIONAL.-The purpose of section 953a, in connection with sections 953b and 953c, is to provide a method for preparing the record or transcript to be filed in the proper appellate court in support of the appeal. None of the proceedings therein prescribed are jurisdictional to the appeal. (By the supreme court, on denying rehearing.) (Id.)

8. ALTERNATIVE METHODS OF APPEAL-DELAY IN FILING TRANSCRIPT— QUESTION OF DILIGENCE DISMISSAL JURISDICTION.-An appeal may be taken either in the manner provided by sections 940 and 941 of the Code of Civil Procedure, or in that provided in sections 941a, 941b and 941c of that code. When properly taken by either method, the appellate court has jurisdiction of the appeal, even if no transcript on appeal is ever filed to support it. It may dismiss the appeal for delay in filing the transcript; but such dismissal will be for want of diligence in prosecuting the appeal; and not for lack of jurisdiction of the appeal. (By the supreme court, on denying rehearing.) (Id.)

9. PROCEEDINGS UNDER NEW METHOD IN AID OF APPEAL QUESTION of DILIGENCE-DETERMINATION IN APPELLATE COURT.-The proceedings under the new method provided in section 953a of the Code of Civil Procedure are in aid of the appeal, and the final determination of the question whether they have been diligently prosecuted must

APPEAL (Continued).

remain in the appellate court to which the appeal is properly taken. (By the supreme court, on denying rehearing.) (Id.) 10. REVIEW OF INSUFFICIENCY OF EVIDENCE-GENERAL SPECIFICATIONPARTICULARS REQUIRED EXCEPTION-PARTICULAR FINDING ASSAILED AS WHOLLY UNSUPPORTED.—Upon appeal from a judgment and from an order denying a new trial, where insufficiency of the evidence is relied upon for a reversal, a general specification "that the evidence is wholly insufficient to justify a judgment in favor of the plaintiffs," is improper, as not in compliance with section 648 of the Code of Civil Procedure, requiring a specification of the particulars wherein the evidence is insufficient to justify the decision. But where a particular finding is assailed as being wholly without evidence to support it, a more particular specification is not required. (Rousseau v. Cohn, 469.)

11. APPEAL FROM JUDGMENT NEW METHOD NOTICE OF ENTRY NOT GIVEN REVIEW OF INSUFFICIENCY OF EVIDENCE TO SUPPORT FINDINGS.-Where an appeal from the judgment is taken within six months after its entry under the new method, and the record does not show that any notice of the entry of the judgment was given to the appellant, the appellant is entitled to a review of the insufficiency of the evidence to support the findings. (Rossi v. Beaulieu Vineyard, 770.)

12. JOINT ACTION IN JUSTICE'S COURT FOR SERVICES-REFUSAL TO DISMISS-FAILURE TO SERVE CODEFENDANT-ABSENCE OF JUDGMENT —Certiorari.—Where there was a joint action in the justices' court for services, and upon appeal to the superior court there was a .motion to dismiss the appeal on the ground that the codefendant had not been served with the notice of the appeal, which was denied, the order refusing to dismiss such appeal, will not be annulled upon certiorari, where it appears that no judgment had been rendered against such codefendant. (Jackson v. Superior Court, 638.)

13. NOTICE LIMITED TO "ADVERSE PARTY"-NATURE OF "ADVERSE PARTY."-Upon appeal the service of the notice is only required to be made upon an "adverse party" who is such within the meaning of section 940 of the Code of Civil Procedure, which is one "whose interest in the subject matter of the appeal is adverse to or will be affected by the reversal or modification of the judgment or order from which the appeal has been taken." (Id.) 14. APPEAL FROM JUDGMENT NOT TAKEN IN TIME-DISMISSAL FOR DELAY -INSUFFICIENCY OF COMPLAINT NOT REVIEWABLE.-An attempted appeal from a judgment taken more than fifteen months after the entry of the judgment is ineffectual, and must be dismissed. Since the insufficiency of the complaint can only be reviewed upon an