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court says: "This certainly cannot mean that the plaintiff shall make an entry of dismissal in the clerk's register. All entries in that are made by the clerk, and none are ever made in it by either of the parties. The meaning of that clause doubtless is that, when a plaintiff dismisses an action, the clerk shall enter such dismissal in his register. * ** * We think that the dismissal by the plaintiff became operative as soon as filed and entered as aforesaid. If a judgment should have been entered by the clerk, it is one of those cases in which the law presumes that to have been done which should have been done." That case was decided in 1880, and we think the rule laid down in the above quotation is the correct one, as applied to a dismissal made by the plaintiff under the provisions of said section. In the case at bar the plaintiff paid all costs, and filed his dismissal of the suit; and, if the clerk negglected to make an entry in the said matter as required by law, it is one of the cases in which the law presumes that to have been done which should have been done. Section 4354, Rev. St., is identical with section 354 of the practice act adopted by the territorial legislature of 1881 (Sess. Laws 1881, p. 74), which act went into effect May 21, 1881. If that part of the section of the California practice act above quoted is correctly quoted in the case last cited, it has since been amended; for we find in 3 Deering's Code Civ. Proc. Cal. § 581, that said section was amended in 1885 in this, as well as other matters, to wit: The period after the word "register" and between the word "judgment" was changed to a semicolon, and the word "judgment" begun with a small letter, thus changing two independent sentences to a compound one. The su.preme court of California evidently concluded that said amendment made some change in the meaning of said sentences; for in Page v. Superior Court, 76 Cal. 372, 18 Pac. 385, it is held than an action which is directed to be dismissed by the plaintiff under the provisions of section 581, Code Civ. Proc., is not dismissed until the judgment of dismissal has been entered in the judgment book, and an entry of dismissal made in the register of actions; that a mere entry of dismissal in the register of actions is not sufficient. The court says, "The direction to enter a judgment in the judgment book is mandatory, because it imposes a public duty upon a ministerial officer; and,

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"But until the judgment is entered the action is not dismissed. The court in that case does not refer to McLeran v. McNamara, supra, wherein it held that the dismissal became operative as soon as filed and entered in the register of actions, and that, "if a judgment should have been entered by the clerk, it is one of those cases in which the law will presume that to have been done which should have been done." The case of Page v. Page, out of which arose the case of Page v. Superior Court, supra, was for a

divorce. The defendant answered, asking for alimony, which the court allowed, and also allowed counsel fees. Thereafter said order was set aside, and the motion for alimony set for hearing on a day certain. Before that day arrived, the plaintiff filed a dismissal with the clerk, and an entry thereof was made in the register of actions, but no judgment of dismissal was entered in the judgment book. We think in that case the court arrived at a right conclusion, but gave a wrong reason therefor. The defendant appeared, answered, and asked for alimony,— asked for affirmative relief; and for that reason the plaintiff could not dismiss said action. In Acock v. Halsey, 90 Cal. 215, 27 Pac. 193, it was held that the dismissal of the action by plaintiff did not take effect until the judgment of dismissal was entered in the judgment book, and the court cites Page v. Superior Court, supra. Acock v. Halsey was a replevin suit. The plaintiff gave an undertaking for the delivery of the property in question to him. The property was taken from the defendants and delivered to the plaintiff. The defendants thereupon gave a redelivery bond, and before the property was returned to them the plaintiff undertook to dismiss his suit. The decision of that case was right, but we think the reasons given for it were wrong. The process of the court had been used to take property from the possession of the defendants without giving them their day in court. In replevin suits, when property has been taken from defendants and delivered to plaintiff, and in divorce suits, when alimony or other relief has been asked for by defendants, voluntary dismissals by plaintiffs ought not to be allowed, and are not permitted by the provisions of said section 4354, Rev. St. Rochat v. Gee, 91 Cal. 355, 27 Pac. 670, was a copartnership settlement. The plaintiff asked for a receiver, an accounting, and dissolution. A receiver was appointed. He qualified, and took possession of the partnership property, and operated a lumber mill belonging to the firm. The defendant answered, admitting the partnership, but denying the allegations on which plaintiff relied for relief. Thereafter plaintiff filed a dismissal or abandonment of the action, which abandonment was entered in the register of actions. On those facts the court says, "But no judgment of dismissal was ever made or entered, nor was any order of the court made in relation to the matter of abandonment," and holds that the case was not dismissed, and cites as an authority Page v. Page, 77 Cal. 83, 19 Pac. 183. It would seem to us that, if a judgment of dismissal had been entered under the facts of that case, the court ought not to have permitted it to stand. It would have been a fraud upon the rights of the defendant, and we apprehend that the provisions of section 581, Code Civ. Proc. Cal., were not enacted to enable the plaintiff to perpetrate a fraud upon the defendant.

Barnes v. Barnes, 95 Cal. 171, 30 Pac. 298, 16 L. R. A. 660, is a divorce case, in which defendant did not appear before plaintiff had filed his dismissal. The clerk failed to enter judgment, and the court held that the paper filed by the plaintiff amounted to an order for dismissal, and that until judgment was entered the court retained jurisdiction, and that defendant might answer. With one further reference to California authorities upon this subject, we will close. In the case of Kaufman v. Superior Court (Cal.) 46 Pac. 904, the court says: "If plaintiff was at that time entitled to dismiss his action, the failure of the clerk to perform his ministerial duties by entering the dismissal, to be entered in his judgment book, should not and cannot be allowed to affect the substantial rights of the parties. In other words, if plaintiff at that time had the right to dismiss his action, and had taken all the proper steps to that end, that right could not be impaired or lost by the refusal of the clerk to perform a plain duty, or by the subsequent filing of a cross complaint by one of the defendants, or by both of these circumstances."

It is thus shown that the California decisions are not uniform, and some of them are most unsatisfactory to us. We, however,

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think that the rule as announced in McLeran v. McNamara and Kaufman v. Superior Court, supra, is the correct one, and that in a proper case, where plaintiff pays all costs and orders a dismissal, the dismissal cannot be defeated by the refusal or neglect of the clerk to enter a dismissal in the register of actions, or to enter judgment of dismissal. There is no question but that the plaintiff, by his attorney, intended to, and did, dismiss said action. He paid the costs, and the clerk made an entry in the register of actions to the effect that at the request of the plaintiff said action was dismissed, and that he paid all costs. The attorney for plaintiff did not make that entry, nor would it have been proper for him to do so, as it is the duty of the clerk to keep the register of actions, and to make all entries therein. written form of judgment of dismissal, reciting that the answers of defendants did not contain a counterclaim or seek affirmative relief, and that on the motion of R. L. Edmiston, one of the attorneys, said action was dismissed, which writing was signed by said Edmiston, and that in connection with the entry of such dismissal in the proper place in the register of actions, was a substantial compliance with the provisions of said statute applicable to this case. The clerk could not defeat the plaintiff from dismissing said action by neglecting to enter a formal judgment of dismissal, if such a judgment is required by the provisions of said section to be entered. It is not the clerk who dismisses the action like the one at bar. He can neither dismiss, nor prevent a dismissal. The provisions of said section under consideration absolutely authorize the plaintiff to dis

miss his action.. Neither the clerk nor the court can prevent him from so doing, provided he brings himself within the provisions of said statute. Said section does not, in terms, require a written dismissal to be filed. It requires payment of all costs, and an entry of dismissal in the register of actions, both of which were done in this case. At section 106 of Black on Judgments it is said: "The rendition of a judgment is the judicial act of the court. The entry of a judgment is the ministerial act of spreading on the record a statement of the final conclusions. The omission to enter does not destroy, nor does its vitality remain in abeyance until it is put upon the record. * There are certain purposes, however, for which a judgment is required to be duly entered before it can be available, or be attended by its usual incidents. Thus, as above remarked, this is a prerequisite to the right to appeal." The author is there discussing judgments rendered by a court. In the case at bar the plaintiff had the right to dismiss his action without permission of the court, and without its judgment. Had he wished a judgment by way of nonsuit, he must have applied to the court for it. Said section 4354 provides for dismissals by the plaintiff himself, and judgments of nonsuit, which judgments of nonsuit are rendered by the court. We think the last sentence of said section, to wit, "Judgment may thereupon be entered accordingly," applies to judgments of nonsuit, and not to dismissals by plaintiffs.

Other points are found in the record, but as the plaintiff dismissed his said action, and the court below thereby lost jurisdiction, it is not necessary for us to pass upon them. A peremptory writ of prohibition ought to issue, and it is so ordered.

HUSTON, C. J., and QUARLES, J., con

cur.

(126 Cal. 536) SUSSMAN v. COUNTY OF SAN LUIS OBISPO et al. (L. A. 533.)1

(Supreme Court of California. Nov. 6, 1899.)

OF

QUIETING TITLE-DEED-ADMISSIBILITY-DEDICATION BY CORPORATION-NECESSITY FORMAL ACT OF DEDICATION PASSED BY CORPORATION FACTS AND DECLARATIONS SHOWING DEDICATION-PREJUDICIAL FINDING.

1. In an action against a county to quiet plaintiff's title to a certain road and bridge thereon, a deed conveying to said county a strip of land leading up to plaintiff's line at a point in said bridge, so that the end of the bridge rests on the right of way so conveyed to the county, is not inadmissible on the ground that the grantor in said deed had agreed to see that plaintiff's predecessor got a deed for that part of the road, where there is no showing that such grantor ever carried out his agreement with plaintiff's predecessor, or that he was bound to carry it out, or that there was any legal impediment in the way of his conveying to the county.

2. As a dedication is a conclusion of fact to be drawn from the circumstances of each case, 1 Rehearing denied December 6, 1899.

a corporation as well as an individual may be bound by its acts so as to be estopped from disputing or denying the fact of dedication, and no formal act of dedication passed by its proper officers is necessary.

3. Where a corporation told purchasers of its lots in a certain town and others that it would construct a bridge and open a public highway, and then subsequently constructed the bridge and opened the road, the court is justified in finding that there was a dedication of such bridge and road.

4. Where, in an action against a county to quiet plaintiff's title to a certain road and bridge thereon, there is a correct finding that there was a dedication of said road and bridge, a further finding in favor of defendant on the plea of the statute of limitations is not prejudicial to plaintiff, as it may be rejected as surplusage, and still the judgment is supported by the finding of dedication.

Department 1. Appeal from superior court, San Luis Obispo county.

Action by Samuel Sussman against the county of San Luis Obispò and others to quiet title to a certain road and bridge resting thereon. From a judgment in favor of defendants, and an order denying a motion for new trial, plaintiff appeals. Affirmed.

G. W. Kemp and Graves & Graves, for appellant. F. A. Dorn, for respondents.

VAN DYKE, J. Plaintiff brings this action against the defendants to quiet his title to a certain wagon road and bridge resting thereon. Defendants county of San Luis Obispo and board of supervisors of said county in their answer deny the material allegations in the complaint, and set up as a defense the dedication by the plaintiff and his predecessors in interest of said road and bridge to the public as a public road, thoroughfare, and highway, and also plead the statute of limitations. The supervisors, as individuals, disclaim any interest in said property. Upon the issues thus raised the court found in favor of the defendant upon the question of dedication and the plea of the statute of limitations, and ordered judgment accordingly. This appeal is from the judgment and order denying plaintiff's motion for a new trial.

The Eureka Improvement Company, prede- | cessor of plaintiff, then the owner of the Eureka rancho, in December, 1888, had said rancho surveyed, and a map thereof made and filed. A portion of said rancho, as surveyed, was laid out into lots and blocks, and called the "Town of Vasa." This map, so filed by said company, is called the "original map," and was introduced in evidence by plaintiff. Said map, or the portion thereof showing the town of Vasa, was lithographed on a large scale, with the streets of said town, including the road and bridge in controversy, delineated thereon as an open thoroughfare connecting the Templeton and Vasa road on the easterly side of the Salinas river with the Templeton and Santa Margarita road on the westerly side of said river, and leading to and past the railroad depot. This map was recorded in the office of the county recorder of

San Luis Obispo county at the request of Briggs, Ferguson & Co., the agents of said Eureka Improvement Company, on the 4th day of November, 1889. The Eureka Improvement Company and Briggs, Ferguson & Co., its agents, in September, 1888, brought a great number of people to the town of Vasa by excursions for the purpose of selling lands and town lots. Lands were then sold to buyers by the Eureka Improvement Company, and representations were made publicly to said buyers and to prospective purchasers that the proposed bridge and road across the Salinas river connecting the Eureka Improvement Company's lands with the road across the river would be of a public character, and for the benefit of the public. Among the parties that made such representations were several directors and officers of said company, and in November, 1889, another excursion was run by said companies for the purpose of bringing buyers of property to the town of Vasa and the Rancho Eureka, at which time an auction sale of lots was had, there being present of the Eureka Company the president, secretary, and treasurer, and the president of Briggs, Ferguson & Co. At this time representations were made by said officers to the people gathered at said auction that said bridge and road were built for the benefit of the public. It is true that some of the officers of said company on the trial denied that any statements of the kind were made, but, there having been a conflict in the evidence upon this point, it is to be presumed that credit was given to the statements of the witnesses on behalf of defendant by the trial court, and under the well-established rule the findings will not be disturbed. There is further evidence going to show the intention and offer to dedicate on the part of the Eureka Improvement Company by said company placing signs at each end of the road stating that said road was open to the Eureka rancho and town of Vasa. The testimony quite clearly shows that the bridge and road in question were thrown open to public travel and used as a public highway by the public with the knowledge and acquiescence of the plaintiff's predecessors in interest, and continued to be so used for more than five years without objection on the part of the owner. In September, 1894, James T. Murphy conveyed by deed to the county of San Luis Obispo a strip of land on the west side of the river for a public highway, said strip leading up to the plaintiff's line at a point in the bridge. The west end of the bridge rests on this land or right of way so conveyed by Murphy to the defendant county. The plaintiff objected to the admission of this deed in evidence, on the ground, as claimed, that Murphy had agreed to see that the Eureka Improvement Company got a deed for that part of the road, but there is no showing that Murphy ever carried out his agreement with said company, or that he was bound to carry it out, or that there was any legal impediment in the way of his

conveying to the county.

fore did not err in admitting the deed.

The court there- ifested. People v. County of Marin, 103 Cal 223, 37 Pac. 203; Elliott, Roads & S. 92; Abbott v. Water Co., 87 Cal. 328, 25 Pac. 693; Helm v. McClure, 107 Cal. 199, 40 Pac. 437.

On the petition of parties along the line of road in question, the supervisors formally accepted the road as a public highway and thoroughfare in 1895. The contention on the part of the appellant that the Eureka Improvement Company could only be bound by a formal act of dedication passed by its board of directors and entered on its minutes is untenable. Dedication is a conclusion of fact to be drawn from the circumstances of each case, and a corporation, as well as an individual, may be bound by its acts so as to estop it from disputing or denying the fact of dedication. In Smith v. City of San Luis Obispo, 95 Cal. 470, 30 Pac. 593, it is said: "We think the use of the street by the public for a reasonable length of time, where the intention of the owner to dedicate is clearly shown, is sufficient, without any specific action of the municipal authorities either by resolution or by repair or improvements. A common-law dedication operates against the dedicator by estoppel, and this estoppel may be invoked by or on behalf of the public at large." In People v. Railroad Co., 98 Cal. 670, 33 Pac. 729, the court say: "Upon the issue whether the road that it constructed was intended to be a private or public road evidence that at the time it purchased the land declarations were made on its behalf that it intended to construct a public highway would be relevant and pertinent. If such an agreement had been made, there would be an inference that its subsequent act in constructing the road was in pursuance thereof, and would corroborate the testimony of those who declared that at the time of its construction it was intended for a public highway." In this case it was shown that the Eureka Company, by itself and agents, held out to the purchasers of lots in the town of Vasa and others that it would construct a bridge and open a public highway across the same, leading to said town. The bridge was subsequently constructed, and the road opened. These facts, in connection with said declarations, would justify the court in finding that the dedication was made. Common-law dedications are, for convenience of description, frequently divided by law writers into two classes, express dedications and implied dedications. The substantial difference between the two consists in the mode of proof. In the former case the intention to appropriate the land to public use is manifested by some outward act of the owner, while in the latter it is shown by such acts and conduct, not directly manifesting the intention, but from which the law will imply the intent. If the donor's acts are such as indicate an intention to appropriate the land to public use, then, upon acceptance by the public, the dedication becomes complete. The authorities show that dedications have been established in every conceivable way in which the intention of the parties could have been man

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We think the evidence on the question of dedication is sufficient to justify the finding of the trial court. The appellant contends, however, that there are inconsistent findings, in this: That the court finds dedication, and also finds in favor of the defendant on the plea of the statute of limitations, whereas dedication rests upon intention and consent of the owner, and the answer pleading the statute of limitations alleges that the road has been used and occupied for over five years by the public adversely to the plaintiff and to all others. Prescription or adverse possession, however, was based in theory upon an assumed grant beyond legal memory, and which had been lost, and this law of limitation was to furnish the defendant with a defense in lieu of said original grant, which it was supposed he could not produce. However, this finding, if the other be correct, cannot prejudice the plaintiff, and, if rejected as unnecessary or surplusage, still the judgment in favor of the defendant would be supported by the finding of dedication. We see no errors in the transcript which would justify a reversal. Judgment and order denying a new trial affirmed.

I concur: HARRISON, J.

BEATTY, C. J. I concur in the judgment. In my opinion, there is no inconsistency between the findings of dedication and of a prescriptive right in the public, and I think the evidence fully sustains the latter finding.

(126 Cal. 546)

CONDEE v. GYGER et al. (L. A. 471.) (Supreme Court of California. Nov. 6, 1899.)

NEW TRIAL-GROUND-APPEAL-CONFLICTING EVIDENCE-DUTY OF TRIAL COURT.

1. Where an order granting a new trial is silent as to the ground on which it was made, and the record shows the existence of a valid ground, the supreme court will, on appeal, presume that the order was made on that ground.

2. Where, after making a finding of facts in favor of plaintiff on conflicting evidence, the court made an order for a new trial, it will be presumed that the judge changed his mind as to the effect of the evidence, and the order granting a new trial will be affirmed.

Department 2. Appeal from superior court, Riverside county.

Action by A. J. Condee, as assignee, against C. E. Gyger and others. There was a finding in favor of plaintiff, and defendants moved for a new trial. From an order granting the motion, plaintiff appealed. Affirmed.

Caldwell & Duncan, for appellant. John T. Crowe and John G. North, for respondents.

PER CURIAM. This is an appeal by plaintiff from an order granting defendants' motion for a new trial. The motion was upon the

grounds of newly-discovered evidence and the other statutory grounds. At the hearing the court made the following minute order: "The motion heretofore made for a new trial of this cause is this day granted by the court.” Appellant contends that as the court assigns no reason for its order, and as the court must have given careful consideration to all the facts at the trial, the motion presumably was granted alone on the affidavits showing newly-discovered evidence. No such presumption can be indulged. It must rather be presumed that the court reconsidered and passed upon the sufficiency of all the evidence in the case in granting the motion, for it was its duty to do so; and in this appeal, the court having granted a new trial, "the presumption is against the findings, and not in their favor." Hass v. Association, 118 Cal. 6, 49 Pac. 1056. Where the order granting the new trial is silent as to the ground on which it was made, and the record shows the existence of a valid ground, this court will presume that the order was made upon that ground. Curtiss v. Starr, 85 Cal. 376, 24 Pac. 806. It is the duty of the judge of the trial court to grant the new trial whenever he is not satisfied with the verdict, if tried by a jury, or with the findings, if tried by the court (Id.); and he is not bound by the rule as to conflicting evidence, as is this court (Id., and cases cited; Bjorman v. Redwood Co., 92 Cal. 500, 28 Pac. 591).

The action is by the assignee in insolvency of one J. W. Nance, upon a promissory note which the court found was executed by defendant for the sum of $5,000 to Los Angeles National Bank, on which Nance made the following indorsement: "I guaranty the payment of this note at maturity, and waive demand, presentment for payment, protest, and notice of protest." The note became due February 25, 1892, and the court found that on April 11, 1892, Nance paid the bank $5,150.27, the balance then due, principal and interest, and the bank surrendered the note to Nance, who was its owner when he became insolvent; that defendants deposited with the bank, at the execution of the note, certain 11 bonds of the Perris Irrigation District, of the par value of $500 each, as collateral security, which were delivered to Nance with the note, and that on March 30, 1893, he sold the bonds for the highest market value, to wit, for $4,125; that except $165 paid to the bank on account of interest, by the irrigation district, no payments were made on said note by defendants, and that there was due at the date of the judgment from defendants the sum of $1.899.37 upon said note, and the further sum of $189.93 as attorney's fees provided for therein. Judgment was accordingly entered for plaintiff. The defense to the action was that the note was signed by defendants at the instance of Nance, and upon an express agreement that they were to be held harmless from the obligation thereof. They denied that they either delivered the

note or the bonds to the bank, and alleged that they received no part of the borrowed money; that Nance obtained the money himself for the benefit of the said irrigation district, of which he was president and general manager, and that the bonds were part of a lot of bonds which he had purchased from the district or had agreed to purchase, and were his when pledged and when sold by him; also that when Nance paid the note and received back the bonds the note was canceled and marked "Paid" by the bank, and the transaction was at an end, and the note became functus officio. Defendants also pleaded the statute of limitations. The complaint was filed February 24, 1896, nearly four years after Nance paid the note, and nearly three years after he sold the bonds.

The evidence is conflicting upon the principal question of fact,-whether the note was in fact made at the instance of Nance, and to raise money for the irrigation district, and that he agreed himself to pay the note, and hold defendants harmless by reason of their having signed it. There is evidence tending to show this to be the fact, and, had the court found for defendants, we think the evidence would have justified such finding. In support of the order, we must presume that the court changed its opinion as to the effect of the evidence, and reached a conclusion, upon the hearing of the motion, favorable to defendants' contention. Upon this assumption the court was justified in granting the motion; indeed, it was its plain duty to do so. In this view of the matter, it becomes unnecessary to enter upon a discussion of the many interesting questions presented by counsel. They may not arise at the second trial, and some of them cannot arise should the defendants prevail. The order is affirmed, and the cause remanded.

(126 Cal. 576)

MCGUIRE et al. v. LYNCH. (Sac. 524.) (Supreme Court of California. Nov. 6, 1899.) COURTS-DEEDS-EFFECT-MORTGAGES

POS

SESSION BY MORTGAGEE-EJECTMENT-ADVERSE POSSESSION-LIMITATIONS-ESTATES -SETTLEMENT WIDOW'S AND CHILDREN'S RIGHTS.

1. A court may determine whether a deed is a mortgage, so far as such determination is material to the issues, though the grantor be not a party.

2. Where a mortgagee goes into possession under a permission to pay his debt from the rents, the possession is not adverse, and limitations do not run.

3. Code Civ. Proc. § 1469, required the court to assign, for the "use of the widow and minor children," the whole of a decedent's estate, if it was less than $1,500. Section 1468, in the same chapter, provides that, when property is set apart to the use of the family under provisions of the chapter, one-half shall belong to the surviving spouse, and the remainder in equal shares to the children. Held that, where property is assigned under section 1469, the children take an undivided one-half.

4. Where, in ejectment, defendant is found to be a mere trespasser, plaintiffs are entitled to possession of the entire property, though they own only an undivided one-half.

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