belong to the owner of the fee, is not important. The owner of the fee is not claiming it, and the questions involved pertain to the leasehold interest, as between the present appellant and respondent.

(126 Cal. 551)

ODELL v. BUTTRICK et al. (Sac. 556.) (Supreme Court of California. Nov. 6, 1899.) LANDLORD AND TENANT-UNLAWFUL DE

TAINER-PLEADING.

1. A complaint in unlawful detainer by a tenant after expiration of his term is not defective, because not stating the amount of the rent to be paid, where it avers a lease for a certain yearly rent, which was paid by defendant.

2. A finding in unlawful detainer against a tenant, after the expiration of his term, that defendant is still a tenant, is proper, as, though the term has terminated, the relation exists until the tenant surrenders possession.

Department 2. Appeal from superior court, San Joaquin county.

Action by Mary Odell against Charles Buttrick and L. Buttrick. Judgment for plaintiff, and defendants appeal. Affirmed.

J. G. Swinnerton and Budd & Thompson, for appellants. Louttit & Middlecoff, for respondent.

TEMPLE, J. This is an action for an unlawful detainer by a tenant after the expiration of his term. Defendants appeal from the judgment and from a refusal of a new trial. The court overruled a demurrer to the complaint, and it is charged that the ruling was erroneous. The demurrer was for want of facts, for uncertainty, for ambiguity, and that the complaint is unintelligible. It is now contended that the complaint is defective, because it does not state the amount of the rent to be paid. It is averred that it was for a certain yearly rent which was paid by defendants. As the cause of action is for unlawfully holding over after expiration of the term, no further statement upon the subject was called for, or would have been material if made.

It is said that the findings do not support the judgment.

1. There must have been the conventional relation of landlord and tenant. This is clearly shown by the allegations of the complaint, and by the findings.

2. It is said that the relation must have terminated, and the court finds that the defendants are still tenants. It was necessary that the term should have ended, but the relation still continues until the tenant surrenders possession. See section 325, Code Civ. Proc. Therefore finding 3 does not contradict finding 2.

3. The evidence is very clear that the lease was entered into, and this is really not controverted by the testimony of Charles Buttrick. The judgment and order are affirmed.

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

(126 Cal. 677)

CITY OF SANTA ANA v. BALLARD, Judge. (L. A. 825.) (Supreme Court of California. Nov. 11, 1899.) STATEMENT-SETTLEMENT BY JUDGE-MAN

DAMUS.

SO

Under Code Civ. Proc. §§ 650, 659, it is the duty of the judge to settle a bill of exceptions or statement, when properly presented, and, if it contains redundant or useless matter, to strike it out, or order it stricken out, and to make the statement truly present the case; that, petitioner having presented for settlement a statement on motion for new trial, and it being objected to merely because it contained the entire transcript of the reporter's notes, and the judge having refused leave to petitioner to amend it in the particular mentioned, or in any other particular in which it might be informal, deficient, or inaccurate, and having refused to settle the statement, mandamus will issue to him to take proper steps to have the statement amended, and, on its being amended, to settle it.

McFarland, J., dissenting.

In bank. Application by the city of Santa Ana for mandamus to J. W. Ballard, judge. Writ granted.

W. F. Heathman, for petitioner.

VAN DYKE, J. Mandamus to compel the respondent, a judge of the superior court of the county of Orange, to settle a statement on motion for a new trial. The application is made on notice for a peremptory writ. The petitioner is plaintiff in an action in said court of the county of Orange, brought by said city against D. Gildmacher et al. to condemn a right of way for sewer purposes in said city of Santa Ana. At the close of the testimony on the trial of the cause the court, upon request of the defendants, instructed the jury to bring in a verdict for defendants, on the ground that there was no evidence to show the necessity for taking the land sought to be condemned for the purpose mentioned, and the jury thereupon brought in a verdict as instructed. When the proposed statement on motion for a new trial came up for settlement, the defendants objected to the settlement of said statement on the ground that said statement contained a literal transcript of the reporter's notes taken at the trial; but it was not objected that it did not contain a fair and correct statement of the case, or that it was not presented in due time. Thereupon attorney for plaintiff and petitioner asked leave of the judge to amend his statement in the particular mentioned, or in any other particular in which said statement might be informal, deficient, or inaccurate, or in which it did not comply with any law or rule of practice; but the said judge declined to allow plaintiff and petitioner to so amend the statement by condensing from questions and answers to a narrative form, and refused to allow plaintiff and petitioner to amend its statement in any respect, or at all, and refused to settle said statement, and retains the same in his hands, unallowed, unsettled, and unsigned.

It is the duty of the judge to settle a bill of exceptions or statement, when properly presented; and, if it contains redundant or useless matter, it is his duty to strike it out, or order it to be stricken out, whether the parties assent thereto or not, and to make the statement truly represent the case. Code Civ. Proc. §§ 650, 659. The practice of embodying in the statement or bill of exceptions the reporter's notes of the trial in bulk is not justified by the law or good practice, and is reprehensible in the highest degree. The language of the Code is that the statement shall contain "so much of the evidence or other matter as is necessary to explain" the objections or points sought to be presented. And if attorneys, notwithstanding the frequent declarations of this court as to the proper practice, in order to save labor to themselves, or for other cause, continue to insert the reporter's notes, instead of condensing the same, the trial judge, in settling the statement, should apply the remedy by striking out, or causing to be stricken out, the redundant or useless matter. In Sansome v. Myers, 80 Cal. 486, 22 Pac. 213, it is said: "It was not the duty of the judge to prepare a statement, but it was his duty to see that one was properly prepared, and then to sign it. If the attorney for the petitioner had omitted anything material, the judge should have directed and required him to insert it, or, if the matter was incorrectly stated, he should have required him to correct it. If the petitioner had refused or neglected to so correct the proposed statement as directed, the judge, no doubt, would have been justified in refusing to settle the same; but not otherwise." In that case the judge refused to settle the statement in the first instance, and the court say: "This we think he had no right to do. To so hold would place it in the power of the trial judge to deprive a litigant of his right of appeal by simply refusing to perform a plain duty." In Leach v. Pearce, 93 Cal. 618, 29 Pac. 236, in a mandamus proceeding, the same as the present, it was said: "Of course, the exercise of respondent's discretion cannot be controlled or reviewed in this proceeding. He cannot be compelled to settle any particular bill, or to insert or exclude any particular facts; but if the petitioner is entitled to move for a new trial, and has taken the proper steps within time, or if she has tendered a bill of exceptions to be used on appeal from the order within the time allowed by law, respondent cannot refuse to settle and sign a bill containing a record of the proceedings. It is an act which the law requires him to perform, a duty resulting from his office." See, also, Winters v. Buck, 121 Cal. 279, 53 Pac. 799. In such case mandamus is the proper remedy. Code Civ. Proc. §§ 1085, 1086. In Kruse v. Chester, 66 Cal. 353, 5 Pac. 613, the court say: "The statement in question having been presented in due time, the law enjo'ned upon the referee the duty to

settle it, and the writ of mandate will issue to compel the discharge of the duty." In Tibbets v. Banking Co., 97 Cal. 258, 32 Pac. 174, it is said the petitioner presented for settlement "quite a lengthy statement on motion for a new trial to the judge of the superior court, and that he refused to sign it, or any other bill of exceptions. In such case the judge can be compelled by mandamus to settle the bill or statement." From the facts stated in the petition in this case, which are not controverted, the petitioner should have been allowed to amend his statement as proposed, so as to avoid the objection raised, and then have said statement settled and allowed. A peremptory writ will therefore issue, directing the respondent to take such steps as in his judgment may be requisite for the purpose of striking out and omitting from the proposed statement all redundant and useless matter, and, upon the statement being amended and corrected, to settle and allow the same.

We concur: BEATTY, C. J.; HARRISON, J.; TEMPLE, J.; HENSHAW, J.

In my opin

MCFARLAND, J. I dissent. ion, the respondent was not obliged to take any action whatever upon the document handed to him, and which is called a "proposed statement." It was not such a document as the law recognizes as the draft of a statement. The judge, in the exercise of his discretion, might have allowed appellant to amend by turning it into something presentable, or he might himself have taken up the task of preparing a statement, but he did not abuse his discretion by refusing to do either.

In an action to quiet certain water rights the complaint demanded judgment that the adverse claims of all the defendants be determined, and the plaintiffs adjudged the owners of all the water except a certain surplus. The judgment awarded to some of the defendants advantages over others, from which two of them appealed, but no notice of appeal was served on certain defendants against whom judgment was rendered by default. Held, that the omitted defendants were adverse parties, and hence the appeal should be dismissed for failure to serve notice on them.

In bank. Appeal from superior court, Los Angeles county.

Action by William Bowering and others against Frank P. Adams and others. From

a judgment for plaintiffs the defendants Gerrard and Fulton appeal. Dismissed.

J. W. Swanwick, for appellants. Frank W. Burnett, for respondents.

TEMPLE, J. This action was commenced by 38 plaintiffs against 100 defendants to 1 Rehearing denied December 8, 1899.

quiet the right and title of plaintiffs to certain water to the extent of 70 inches, miners' measure. Many of the defendants defaulted, and, among them, the two appellants. In the decree the court determined that 73 of the parties to the action were the owners of all the water arising upon the land described, or which could be thereafter developed from the same, in the order and to the several amounts named in the decree. Of these parties 35 were plaintiffs and 38 were defendants, and the amount of water adjudged to belong to them is in the aggregate more than 120 inches. The judgment roll is not contained in the transcript, and we cannot tell whether, as to the defendants, the pleadings authorized a judgment in their favor. Plaintiffs, in their complaint, only asked that the defendants be enjoined from interfering with their claim to 70 inches flowing from the described tract, but admitted the right of the defendants to the surplus. Appellants contend that the decree is not sustained by the complaint in allowing a prior right to more than 70 inches of water, and in extending that priority to water which may hereafter be developed upon the described tract of land.

Motion is made by some of the respondents to dismiss the appeal on the ground that the notice of appeal was not served on all the adverse parties, to wit, upon 14 defendants named in the notice, who had been duly served with summons, and whose defaults had been entered, and against whom judgment had been rendered. The appellants admit the facts stated, except that they deny that the omitted parties are adverse parties, and that their interests will or can be injuriously affected by the appeal.

In the complaint it is alleged that in 1887 the San José Ranch Company acquired title to certain lands, and each of plaintiffs purchased from said company a specific portion thereof, and also certain water rights, which are specifically described in the complaint, and which have become and are appurtenant to the respective tracts of land owned by plaintiffs in severalty. It was also averred that, in addition to the water rights conveyed to plaintiffs, the company undertook to convey to other parties a right to water from sources undefined, such other parties being the defendants, who assert some right to the water adverse to plaintiffs; "that the claims of said defendants are without any right whatever except as to any surplus water there may be derived from said source over and above the amount belonging to the plaintiffs, as above set forth." Among other things, they demand that "all adverse claims of said defendants, or either of them, may be determined by a decree of this court, and that by said decree it be declared and adjudged that said plaintiffs are the owners of the right to use all the water flowing from the source above described, except the surplus, if any, over and above an amount equal to a con

stant flow of seventy inches under four-inch pressure, miners' measurement," etc. The effect of the decree has been partly stated.

The record, which does not contain the judgment roll, does not show that cross complaints were interposed by any of the defendants, but, for aught we can know, such may have been the case. The judgment awards to 35 defendants advantages over the other defendants, and adds to the 70 inches of water which may be taken before any surplus can exist about as much more. The appellants. so far as the judgment discloses, are in the same position under the decree as the defendants not served with the notice, but the decree adjudges, in effect, that none of the defendants, except those named in the decree as possessing prior rights, can appropriate to their special use water from the described tract, save as sharers in the surplus. By the terms of the decree no defendants can acquire independent rights to the water, and diminish the surplus. Should they appropriate to their individual use any of the water disposed of by the decree, it would necessarily lessen the surplus to be divided among the defendants, and, of course, the share which would go to each defendant who was not served with the notice of appeal. It must be borne in mind, also, that if the appellants succeed in causing the decree to be modified, it can be modified only as to appellants. The appeal is taken from portions of the decree only, -formally from five different portions. The first four are, however, aimed at the same adjudication, to wit, giving to the favored parties the right to the undeveloped water, to the exclusion of the appellants. In the fifth they appeal from those portions of the decree which affect the right of the appellants to the developed waters in said tract of land.

It is obvious that, if appellants are entirely successful in their appeal, they will be at liberty to claim, and in fact to appropriate to their special use, to the exclusion of all other parties, the entire amount of water which is disposed of by the decree, and thus prevent the possibility of there being any surplus water to be divided among the defendants who, by the decree, are not given prior rights, and who were not served with the notice of appeal. It is also obvious that, to whatever extent they so succeed in modifying the decree, the effect will be to place them in a position to claim some portion of the water already developed, or to be hereafter developed, to the prejudice of the defendants not served. Indeed, it is difficult to see how they can be benefited by any modification of the judgment, except to the injury of such defendants. It is true, the decree does not settle the rights of the defendants not named in the schedule attached to the decree, as between themselves. Possibly the appellants may be entitled to all the surplus water as against the defendants not served, but the complaint puts all upon the same level, and, although it

is not an adjudication of their rights with reference to each other, it must be so regarded on this motion. The appeal is dismissed.

We concur: MCFARLAND, J.; HARRISON, J.; VAN DYKE, J.

(126 Cal. 582)

WALTER v. MERCED ACADEMY ASS'N et al. (Sac. 559.) (Supreme Court of California. Nov. 8, 1899.) CORPORATIONS-STOCKHOLDERS' LIABILITY —

ENFORCEMENT-PARTIES-LIMI-
TATION-DECREE.

1. It is not necessary, for one to subscribe to a subscription agreement, to become the owner of shares and the holder of original certificates of the first issue of a corporation's stock.

2. One who is the owner of stock of a corporation by receiving and paying for it cannot defeat liability to creditors of the corporation by showing a variance between the subscription agreement and the articles of incorporation as to the purposes of the incorporation.

3. Stockholders, after holding stock for six years, cannot, for the first time, to an action against them by creditors of the corporation, urge a variance between the subscription agreement and the articles of incorporation, as relieving them from liability.

4. The statute of limitations cannot be considered, not being pleaded in the answer, and the complaint not showing on its face that the claim is barred.

5. Actions by creditors of a corporation will lie against stockholders, remedy not being limited to sale of the stock.

6. Stockholders having paid 33% per cent. of the par value of their stock cannot, in an action against them by creditors of the corporation to enforce liability to the extent of their unpaid subscriptions, be treated as holding their stock as a mere gratuity.

7. Right of creditors of a corporation to recover against stockholders to the extent of their unpaid subscriptions is not limited by other debts of the corporation.

8. Action may be maintained by creditors of a corporation against part of the stockholders only to enforce their liability to extent of their unpaid subscriptions.

9. Making and signing by the judge of the decision and decree in a county other than that of the trial is immaterial, they not being in force till filed by the clerk in the county of the trial.

Department 2. Appeal from superior court, Merced county.

Action by Doreth Walter against the Merced Academy Association, a corporation, and others, stockholders therein. Judgment for plaintiff. Defendant stockholders appeal. Affirmed.

J. W. Knox and T. C. Law, for appellants. James F. Peck, for respondent.

PER CURIAM. Heretofore the plaintiff had recovered judgment against the defendant corporation in a foreclosure suit, and, after sale of the premises involved, a deficiency judgment was duly docketed against said corporation for $5,587.25. Plaintiff prosecuted this action against the appellants to ascertain the amount due from each of them on said deficiency judgment as owners and holders of the stock of the said defendant corporation, and to obtain judgment and ex

ecution for the amount of her claim against each of them, not to exceed the amount that should be found due on their several subscriptions to the said stock of said corporation. The case was tried without a jury, and from a judgment for plaintiff and an order denying a new trial the defendant stockholders above named appeal.

*

*

It appears from the pleadings and evidence that the Merced Academy Association was incorporated in 1890, with a capital stock of $25,000, divided into 250 shares of the par value of $100 each. Its purposes, as stated in its articles of incorporation, were "to buy or acquire the Merced Academy property, situated in the city of Merced, together with the academy building and furniture and improvements connected therewith; and to own, use, improve, mortgage, lease, sell, and deal with said property, and to borrow money thereon, and to carry on a school or boarding house, or to lease the same for said purpose or any other purpose." All the appellants were named in the articles as stockholders, and Applegate, Lyons, Simonson, Law, and Landrum were mentioned as directors for the first year, and to the articles these five persons mentioned subscribed their names, and duly acknowledged the execution of the same. Some time prior to incorporation the appellants had signed a subscription agreement in which the objects of the proposed corporation were stated as follows: "To acquire the Merced Academy property by purchase or otherwise, and conduct thereon a school, or to use the said property for such other purpose or purposes as the stockholders of said corporation may determine." Soon after incorporation, certificates of stock were issued, and each of the appellants, excepting those who signed the articles, received one of these certificates representing a stated number of shares, and signed a receipt therefor, which receipt, after describing the certificate delivered, contained the following language: "Received the above certificate subject to the articles of incorporation and by-laws of the company." The appellants retained these certificates in their possession from 1890, when they received them, down to the time of the trial of this action, in 1897, holding themselves in readiness, as it is admitted, to share in the dividends of the concern, should any accrue. Appellants seek to avoid liability as stockholders, and contend that they are not stockholders in fact for the reason of variance in the purposes of incorporation as set forth in the subscription agreement and as declared in the articles of incorporation; and to sustain this position they cite Marysville Electric Light & Power Co. v. Johnson, 109 Cal. 193, 41 Pac. 1016, and many other cases. In none of these cases was the action against the defendant as an owner of shares or as an owner of stock in the corporation, but most of them are similar to the Marysville Electric Light Case, supra, and are based solely on the orig

inal subscription agreement, the defendants refusing to accept or pay for the stock of the corporation. In the case at bar, however, the complaint sets out, and the evidence shows, that appellants were at all the times mentioned in the complaint, and still are, the owners of shares in the corporation. To become the owners of shares and the holders of original certificates of the first issue, it was not necessary that appellants should have subscribed to any subscription agreement at all. "It would be a mockery of justice to permit such an objection to prevail." Sanger v. Upton, 91 U. S. 56. 23 L. Ed. 220. "Merely accepting and holding a certificate of stock is sufficient to constitute one a shareholder." Cook, Stock, Stockh. & Corp. Law,

An

52; Upton v. Tribilcock, 91 U. S. 45, 23 L. Ed. 203. It becomes unnecessary to determine whether there was a material variance between the subscription agreement and the articles as to the purposes of the corporation, because we may admit that there was such variance, and that appellants never signed any subscription paper for stock in the corporation which was in fact incorporated; and yet they are owners of such stock by virtue of receiving and paying for the same. other answer to appellants' objections is that it would have been perfectly proper for appellants to have informed themselves as to the contents of the articles of incorporation when they received their stock, and they will certainly not be heard after six years to urge for the first time an objection of the character made here in a suit by one who, no doubt, credited the corporation on the faith of the appellants being, as the books showed them to be, stockholders of the corporation. Thomp. Liab. Stockh. §§ 150, 151, 125. It seems to be admitted, or at least not denied, that the five appellants who subscribed the articles of incorporation are to be treated as stockholders in the amounts set out in such articles. No statute of limitations being pleaded in the answer, and the complaint not showing on its face that the claim of plaintiff is barred by any statute, it is therefore not necessary to further notice any objection based on the statute of limitations.

On the evidence presented, the court properly found that $33% per share, and no more, had been paid, and that $66% per share had not been paid, and was due and unpaid. It was also alleged in the complaint, and not denied in the answer, that "upon the shares owned by each of said defendants the sum of thirty-three and one-third dollars per share, and no more," had been paid. Hence appellants' contention that their stock was fully paid for is not supported by the record.

Many of the minor points made by appellants are disposed of by the position we assume in holding the liability of appellants to arise out of the fact of their being stockholders and owners as shown by the record on appeal, and it will be unnecessary to notice such points in detail.

Appellants are mistaken in supposing that the stockholders are not liable for debts of the corporation until all the stock is subscribed. When one-fourth of the capital stock is subscribed, their liability begins. Civ. Code, § 331.

The contention that an action will not lie against the stockholders personally, and that the remedy is by sale of the stock, is disposed of in Baines v. Babcock, 95 Cal. 582, 27 Pac. 674, and 30 Pac. 776.

The amount of plaintiff's recovery is expressly limited by the judgment to the amount found to be due from the stockholders.

As we have already seen, the record shows that appellants had paid 33% per cent. of the par value of their stock. They cannot, therefore, be treated as holding their stock as a mere gratuity.

Plaintiff's right to recover does not depend upon, nor is it limited in any way by, the other debts of the corporation, and an accounting was entirely unnecessary. Neither was it necessary that all the stockholders should be made parties defendant. Hatch v. Dana, 101 U. S. 205, 25 L. Ed. 885; Baines v. Babcock, supra.

The testimony of Simonson shows that the directors had no meeting, and that no assessment was levied to pay plaintiff's claim. This action is not barred by the provisions of section 726, Code Civ. Proc. Baines v. Babcock, supra; Blumberg v. Birch, 99 Cal. 416, 34 Pac. 102.

The findings cover the material issues. The decision, therefore, is not against law. There was no irregularity in the trial judge making and signing the decision and decree in Stanislaus county. Until the decision and decree were filed by the clerk in Merced county, they were not in force. Comstock Quicksilver Min. Co. v. Superior Court of Santa Cruz Co., 57 Cal. 625.

There was no material error in the rulings of the court on objections to the introduction of evidence. The judgment and order are affirmed.

(126 Cal. 636)

GREENAWALT v. MUELLER. (L. A. 578.) (Supreme Court of California. Nov. 10, 1899.) FRAUDULENT CONVEYANCE-TRANSFER TO

WIFE-CONSIDERATION.

Civ. Code, § 3442, provides that a transfer of property voluntarily by a party while insolvent or in contemplation of insolvency shall be fraudulent as to existing creditors. A wife bought with her own means a lot, and, as a part of the consideration, assumed an incumbrance thereon. Before the conveyance was executed, her husband agreed that, if the deed made him a co-grantee with his wife, he would pay the incumbrance. The deed was so made, but he failed to pay the incumbrance, and the wife paid it. Four days before he filed a petition in insolvency he executed a deed of the premises to his wife Held that, when the wife paid the incumbrance, it created an implied obligation on her husband's part to pay her the amount thereof, and his deed