public which the law contemplates. By consulting the memorandum of contract it would be impossible to say whether the building is to be a diminutive cottage, or a large public caravansary, or whether the contract price is at all in proportion to the character of the building to be erected. In Willamette Steam Mills Lumbering & Manuf'g Co. v. Los Angeles College Co., 94 Cal. 235, 29 Pac. 629, it was held that a memorandum of contract describing the building as "three stories high" is void; likewise a "two-story building, 51 by 25." Butterworth v. Levy, 38 Pac. —. See, also, Dunlop v. Kennedy, 102 Cal. 443, 36 Pac. 765.

We think the lower court's position unsound as to the estoppel. The necessary facts to constitute an estoppel do not arise in this case. Plaintiff has a cause of action which he is entitled to litigate, and this bond, given to the owner to secure him from loss against the default or negligence of the contractor, in no way bars him from coming into court with his cause of action. The bond is simply to indemnify the owner against damage, and until his damage has been alleged and proven in some appropriate action it can avail him nothing. If he has not been damaged, he has no right of action upon the bond; and, if no right of action upon it, it is valueless to him, even for the purpose of an estoppel. The case appears to have been considered as though the presentation of the bond in open court at the trial ipso facto estopped plaintiff from taking any other step in the prosecution of his action, and this, too, regardless of the amount of the bond, as compared either to the amount of plaintiff's claim or the amount of defendants' damage. If defendants' damage is nothing, or trifling in amount, plaintiff should not be deprived of all remedy; or, if plaintiff's indemnifying bond is trifling in amount, as compared to his claim of lien, the doors of the courts should not be shut against him. In other words, the principle of estoppel is not involved, but it is rather a question of a cross complaint or set-off. The defendants, in answer to plaintiff's action to foreclose his lien, may set out the bond, prove their damage, and establish plaintiff's liability thereon, and the rights of both parties be thus fully and equitably adjudged. Such was the course pursued in Blyth v. Robinson (Cal.) 37 Pac. 904, and such is undoubtedly the proper course. For the foregoing reasons, the judgment is reversed and the cause remanded.

We concur: HARRISON, J.; VAN FLEET, J.

(105 Cal. 143)

ZELLER V. JORDAN et al. (No. 15,775.) (Supreme Court of California. Dec. 21, 1894.)

GIFT-WHAT CONSTITUTES.

1. The apprehension of death from some present disease or impending danger is essential to the validity of a gift causa mortis.

2. Delivery of a check, drawn on a fund in bank, under an agreement that the payee is not to use it until after the death of the maker, is not a sufficient delivery of the fund to constitute a gift inter vivos.

Department 2. Appeal from superior court, city and county of San Francisco; Jas. M. Troutt, Judge.

Action by H. J. Zeller against one Jordan and others. From a judgment for defendants, plaintiff appeals. Affirmed.

F. J. Castelhun, for appellant. Hepburn Wilkins, E. B. Martinelli, and W. S. Goodfellow, for respondents.

DE HAVEN, J. Action to recover from the defendant, the German Savings & Loan Society, the sum of $19,807.74, deposited with said defendant by Sophia Steineke, who afterwards became the wife of plaintiff, and is now deceased. The defendant Jordan is the executor of the last will of the said Sophia, and is made a party to this action by reason of the fact that he claims said deposit as a part of the estate of his said testator. The superior court rendered judgment in his favor, and the plaintiff appeals. The plaintiff alleges in his complaint that his deceased wife, in the month of January, 1886, "in consideration of the love and affection she had and bore unto plaintiff, and also for other good considerations her thereunto moving, made an assignment in writing" of her demand against the German Savings & Loan Society, arising out of the deposit before referred to, and that he "has ever since been, and still is, the lawful owner thereof, and of all accrued dividends thereon." The action was tried by the court without a jury, and the court found that the deceased never assigned to plaintiff, by way of gift or otherwise, her said demand against the German Savings & Loan Society; and the only question necessary to be considered on this appeal is whether this finding of the trial court is sustained by the evidence.

1. It appears from the evidence that the deceased wife of plaintiff was subject to epilepsy, and died in March, 1893. The immediate cause of her death is not shown. There was also evidence tending to prove that, between the years 1883 and 1886, she signed and delivered to the plaintiff an undated check drawn by her in his favor on the German Savings & Loan Society for the sum of $18,807.24, with interest, and to be charged to her account as a depositor with that bank. The pass book representing the deposits so drawn against was not delivered to plaintiff, and under the rules of the said defendant bank, which were printed in said pass book, deposits entered therein could only be withdrawn by an order accompanying the pass book. The plaintiff was the only witness examined in relation to the making of the check, and he testified that, at the time it was signed and delivered, his wife was not confined to her bed, and was well, and further said: "The check was given to me in consideration of love and affection. That was the reason

for getting it. That was the only consideration. It was the understanding between me and my wife, at the time this check was signed, that I would not use the check or present it until after her death, and nothing was to be done with it until after my wife died. I was not to touch anything in that book of that money until after my wife's death." The check was not presented to the defendant bank until some time after the death of plaintiff's wife. It is clear to us that, under this evidence, the finding of the court that there was no completed gift or assignment to plaintiff of the fund in controversy must be sustained. We do not find it necessary to pass upon the question whether a bank check uncollected in the lifetime of the drawer, and unaccompanied by a delivery of the pass book, which, under the depositor's contract, must be presented with the order for a withdrawal of the deposit, is effectual as a donatio causa mortis. There was here nothing in the nature of such a gift. "A gift in view of death is one which is made in contemplation of the fear or peril of death, and with intent that it shall take effect only in case of the death of the giver." Civ. Code, § 1149. "To constitute a donatio causa mortis, the gift must be made in contemplation of the near approach of death by the donor." Daniel v. Smith, 64 Cal. 349, 30 Pac. 575. In some cases it is said: "The rule of law, in such cases of gifts made in prospect of death, demands for their validity that the proof shall show the existence of a bodily disorder, or of an illness which imperils the donor's life, and which eventually terminates it." Williams v. Guile, 117 N. Y. 349, 22 N. E. 1071. But perhaps the law upon this point is more accurately stated in Ridden v. Thrall, 125 N. Y. 579, 26 N. E. 627, as follows: "The gift must be made under the apprehension of death from some present disease, or some other impending peril, and it becomes void by recovery from the disease or escape from the peril. It is also revocable at any time by the donor, and becomes void by the death of the donee in the lifetime of the donor." The evidence here entirely fails to show that the deceased delivered the check referred to under any belief of or apprehension of the peril of death from any existing disease, and for this reason its delivery cannot be sustained as a gift in view of death. "A gift mortis causa, made while the donor is in full health, or while suffering from a disease that in reasonable expectation will not produce death in the near future, is invalid. Thus, a deposit made in a bank while the donor was in full health or medium health, 'payable also to A. in case of the death of' the donor, was held to be an invalid gift." Thornt. Gifts, § 28.

2. And the evidence also fails to show a gift inter vivos. "A gift inter vivos, to be valid, must take effect at once, and there must be nothing to be done essential to the validity; and, if it is to take effect in the future, there is no gift, but only a promise to give. So a v.38r.no.10-41

gift to take effect at the death of the donor is void." Thornt. Gifts, § 76. In other words, to constitute such a gift, there must be an immediate transfer of the title, and the donor must relinquish all present right to or control over the thing given. The donor here retained her dominion over the fund against which the check was drawn, and the check was delivered to the plaintiff, under an agreement that he was not to use or present it until after the death of the wife, or, as stated by the plaintiff in his testimony, "I was not to touch anything in that book of that money until after my wife's death." Judgment and order affirmed.

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

(105 Cal. 109) MENZIES et al. v. WATSON et al. (No. 15,756.) (Supreme Court of California. Dec. 15, 1894.) ENTRY OF JUDGMENT-MOTION TO CORRECT DATE

-EVIDENCE.

1. On motion to correct the date of the entry of a judgment as made in the judgment book, movant's witness testified that, a few days after such date, he went to the clerk's office, to obtain a copy of the judgment; that being unable to find the judgment, he asked several of the clerks about it, without result; that he looked in vain through a judgment book into which judgments were being copied; and that he did not remember whether there was a judgment roll, or whether the judgment had been docketed. The deputy clerk testified that the date written in the judgment book as the date of the entry of the judgment was not necessarily the date of its actual entry. Held, that the evidence did not show that the date was incorrect.

2. The fact that the court erroneously excluded certain evidence cannot be considered on appeal in determining the sufficiency of the evidence.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; William T. Wallace, Judge.

Action by Stewart Menzies and others against Henry James Watson and others. There was a judgment for plaintiffs, and defendants moved to correct the date of the entry of the judgment. From an order denying the motion, defendants appeal. Affirmed.

Mastick, Belcher & Mastick, for appellants. Henry N. Clement, for respondents.

TEMPLE, C. This is an appeal from an order made after judgment. It is a proceeding after judgment to correct an alleged mistake as to the date of the entry of the judgment. The record does not show how the alleged error affects any rights of the moving party, but it is stated in the briefs that the defendants, having taken an appeal from the judgment, were confronted in this court by a motion to dismiss the appeal, on the ground that it was taken more than one year after the judgment was entered. The

judgment purports to have been entered December 6, 1892. The appeal was taken December 8, 1893. The moving party does not pretend to know when the judgment was actually entered, but claims that it was not before December 10, 1892. The motion was based principally upon the affidavit of H. A. Massey, who was a clerk for Mastick, Belcher & Mastick, who were the attorneys for defendants. His affidavit is broad enough, perhaps, to entitle the defendants to the relief demanded; but the affiant was also called as a witness at the hearing of the motion, and his cross-examination shows that he did not know all the matters stated in his affidavit to be true. He was sent to the clerk's office "to obtain copies of the findings in said cases and of the judgments therein, if he should find that such judgments had been entered." He went there, as it otherwise appeared, on the 8th of December, 1892. He found the findings, but could not find the judgment. He inquired and was sent to the room where judgments are copied into the judgment book. He asked several clerks there about it, but they knew nothing of it. He was finally directed to a certain copyist, who was copying judgments into the judgment book, and together they looked through the book, and found that the judgment had not been copied there. He did not look through more than one judgment book to see whether the judgment had then been recorded. He did not remember whether there was a judgment roll, or whether the judgment was docketed. He did not remember whether the register showed that the judgment had been entered on the judgment roll filed. The judgment roll was apparently filed on the 5th, or, at least, that is what the register shows. On that day the judgment appears to have been docketed. All this is in direct violation of plain provisions of the statute. Code Civ. Proc. § 668, provides that judgments shall be entered in the judgment book. There is no other "entry" of judgments mentioned in the Code. After this entry, and not before, the judgment roll can be made up and filed. Id. § 670. After this, and not before, the judgment can be docketed, and a judgment lien created. Id. § 671. But the testimony of the deputy clerk and the copyist shows a state of things still more surprising. The deputy in charge of this part of the work in the clerk's office testified that the date of the record in the judgment book and the date of the filing of the judgment roll and of the docketing of the judgment are not necessarily the true dates, and were not intended to show such date. The deputy says: "In no case, however, does the date indorsed at the foot of the record of judgment in said judgment book necessarily indicate the date at which the clerical work of writing such judgment in said judgment book was done;

and in many cases judgments were actually written into said judgment book at a later date than that so indorsed thereupon." And it seems the register and the docket are kept with a like disregard of truth as to dates. In the whole range of the duties of the clerk there is none more important than the duty of keeping a true history of the time when this "clerical" work was actually done. Under our practice, it is the initial point of many rights. To willfully make a false certificate as to these matters is a violation of official duty. In this case it is quite possible, if the truth could be ascertained, that defendant has not lost his right of appeal. But, unfortunately for him, he has not been able to show it. The deputy and the copyist were unable to remember when the judgment was actually entered, although both confessed that, notwithstanding all the official entries which were designed to show when it was done, it may have been entered later. As the burden was upon the moving party, it must be held that he has not made out his case. Quite possibly, he is a loser through this vicious practice in the clerk's office. The explanation of the practice seems to be that the deputy knew that a deed was deemed to be recorded when filed for record. and he thought a judgment should be deemed entered when the attorney ordered it to be entered. But he is working under a very different statute, and one which plainly makes the date of the actual entry of the judgment the material matter. Even under that view it is difficult to see where he acquired his idea as to the filing of the judgment roll and the docketing of the judgment. The counsel for the appellants say that the learned judge below declined to consider other evidence, because he was of the opinion that the record evidence was of such a high nature that he could not go behind it. The record does not show this, and, even if it did, we could not consider the evidence as though this were a trial court. If the learned judge did take that view of the matter, however, I am not sure that he has not reason on his side. The matter of the date of the actual entry of the judgment is so important that perhaps public policy would require that the certificate shall be held conclusive, except, of course, when the clerk may be sued for damages for having made a false entry. Whether this be so or not is not essential here, and the matter is not decided. However we consider the evidence, we can but find that the moving party has failed to make a case. The order should be affirmed.

We concur: VANCLIEF, C.; SEARLS, C.

PER CURIAM. For the reasons given in the foregoing opinion, the order appealed from is affirmed.

(105 Cal. 102)

HYDE V. BOYLE et al. (No. 15,504.) (Supreme Court of California. Dec. 15, 1894.) WRIT OF RESTITUTION-REVERSAL OF ORDER-EFFECT-EJECTMENT-FORM OF RELIEF-TAXA

TION OF COSTS-REVIEW ON APPEAL.

1. On reversal of an order for a writ of restitution on a judgment for the recovery of land, one previously evicted under the writ is entitled to the removal from possession of all who entered under the writ, and of all who subsequently entered under them.

2. The decision of the trial court on conflicting evidence will not be disturbed.

3. In an ordinary action of ejectment, the fact that plaintiff's title is derived through a purchase under mortgage foreclosure does not entitle him to the relief proper in case he had sought a writ of assistance under the decree of foreclosure.

4. An order denying a motion to retax costs will not be reviewed where no copy of the order or of the cost bill is in the transcript, and it is not shown that the transcript is not correct.

Department 1. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge.

Action by William Ford against Robert Boyle, Benjamin S. Green, and others to recover possession of land. Henry C. Hyde, as assignee in bankruptcy for Ford, was substituted as plaintiff, and recovered judg ment against defendant Green. A writ of restitution was issued on the judgment, under which certain tenants of R. S. Thornton were evicted. Thornton thereupon moved to set aside the order allowing the writ to issue, and to set aside an order adjudging such tenants guilty of contempt for violating it. An order denying the motions was reversed on appeal (93 Cal. 1, 29 Pac. 247), and Thornton thereafter applied for a writ of restitution, which was granted. From an order denying a motion to recall the writ and vacate the order for its issuance, and from an order denying a motion to retax costs, plaintiff and C. P. Robinson (as assignee of plaintiff's interest) and others appeal. Affirmed.

T. M. Osmont, for appellants. Edward F. Fitzpatrick, B. B. Newman, and Fox, Kellogg & Gray, for respondents.

HARRISON, J. This action was commenced August 12, 1873, by William Ford against Robert Boyle, Benjamin S. Green, and five others, for the possession of certain land in San Mateo county. The defendants other than Green answered the complaint, and upon a trial of the action a judgment of nonsuit was entered in their favor August 12, 1881. August 22, 1881, the plaintiff caused a judgment to be entered in his favor against the defendant Green, whose default for want of an answer had been entered October 10, 1873. Prior to the entry of these judgments, Ford had been adjudged a bankrupt, and Henry C. Hyde, who had been appointed his assignee in bankruptcy, was substituted as plaintiff in the action. Green

died in 1882, and on the 20th of November, 1888, an ex parte order of the superior court was made upon an application on behalf of the plaintiff for the issuance of a writ of restitution upon the judgment against Green. The writ was issued, and on the next day was placed in the hands of the sheriff, who on the 23d of November, 1888, returned the same with his indorsement thereon that he had executed it according to its terms. Certain tenants of the respondent Thornton were evicted under the writ, and afterwards reentered upon the lands; and on the 11th of March, 1889, the superior court made an order adjudging them guilty of contempt, and directing that an alias writ of restitution issue. April 23, 1889, the respondent Thornton moved the said court to set aside its order of November 20, 1888, ordering a writ of restitution; also its order of March 11, 1889, adjudging his tenants guilty of contempt. and directing the issuance of an alias writ. This motion was denied May 24, 1889, and from this order Thornton appealed. Upon that appeal the order was reversed, and the superior court was directed to vacate and set aside the orders referred to in his motion. Hyde v. Boyle, 93 Cal. 1, 29 Pac. 247. After the remittitur had been filed in the court below, that court made an order March 1, 1892, vacating and annulling its previous orders of November 20, 1888, and March 11, 1889, in accordance with the directions of this court, and also all orders and proceedings based thereon, and, upon the application of Thornton, made an order March 25, 1892, for the issuance of a writ of restitution, directing and commanding the sheriff to remove all persons in possession of the land and premises described in said writ under the order made and entered on November 20, 1888, and to place Thornton in the quiet and peaceable possession thereof. Under this order a writ of possession was issued, and placed in the hands of the sheriff for execution March 26, 1892; and on April 8, 1892, the appellants herein moved the court for an order recalling the writ and vacating the order for its issuance, and directing that a writ of restitution upon the judgment in the action be issued in their favor, as the successors in interest of the plaintiff therein. This motion was denied, and from the order denying the same the present appeal has been taken.

The lands involved in this proceeding have been in litigation for upwards of 20 years, during which time many actions and proceedings have been instituted between the respective claimants thereto, from which appeals have in some cases been taken, so that the history of the litigation is not entirely unfamiliar to the court.

In their application to vacate the order restoring Thornton to the possession of the lands from which he had been evicted under the writ of restitution issued November 20, 1888, the appellants state as the grounds

therefor "that no persons are in possession of any of the lands in said writ described, who entered under the writ of restitution issued herein on the 21st day of November, 1888, and executed on the 23d of the same month; that R. S. Thornton has no right, title, or interest in or to said premises, nor any right to the possession; and that the execution of said writ issued on the 26th of March, 1892, would be an abuse of the process of the court." Upon the reversal of the orders for the writs of restitution, Thornton was entitled to be restored to all that he had lost by virtue of these orders, and to be placed in the same position as he was prior to the execution of the writ. This would require the removal of all persons who had been placed in possession of the land by virtue of the writ, as well as all others who had come in under them after that date. The sheriff returned that he executed the writ of restitution of November 21, 1888, "by placing C. P. Robinson, the assignee of the plaintiff therein, by his agent, Mr. T. M. Osmont, in the quiet and peaceable possession of the premises therein described.” Hannah Green, one of the appellants. states in her affidavit that the writ was executed as to her by her attorning to C. P. Robinson, and that she signed a memorandum knowledging the rights of Robinson to the possession of the premises; that Robinson had conveyed all his title to the premises to T. M. Osmont, and that for more than two years last past (that is, prior to April 6, 1892, the date of her affidavit) she had occupied the premises by the consent, leave, and license of said Osmont. The court was thus authorized to find that she had come into possession of the land under Robinson, who had been placed there by the sheriff by virtue of the writ, and that her possession was that of Robinson through Osmont. though she also claimed to have been in possession of the premises for a period antedating the commencement of the action in ejectment, yet, on the other hand, Thornton claimed that for a long time next prior to the execution of the writ her possession was as his tenant. If in fact she was in possession of the premises as a tenant of Thornton at the time the writ was executed, her eviction was the eviction of Thornton, and he was entitled to be restored to the possession.

ac

Al

The right of a plaintiff, in whose favor a judgment for the recovery of land has been rendered, to dispossess, under a writ of restitution, not only the defendants in the action, but all persons who have entered under them subsequent to its commencement, is not questioned on this appeal. But in the present case the main, and almost the only, question which the court below was called upon to determine, was whether Thornton had entered under Green after the commencement of the action in 1873, and whether the other occupants of the land were tenants of Thornton. Upon both of these propositions there

was a very sharp and decided conflict in the affidavits, and the action of the court in denying the motion of the appellants must be affirmed upon the ground that the decision of the trial court upon conflicting statements of fact will not be reviewed by this court. But even if the conflict in the affidavits had been less marked, and only such as to create an uncertainty in the mind of the judge, he was not required to grant the motion of the appellants, but would have been justified in requiring that their respective rights to the land should be presented to a jury, before which the witnesses might appear in person, and be subjected to a cross-examination upon their statements. There are many circumstances presented by the affidavits herein which would naturally suggest such a course. More than seven years had elapsed after the entry of the judgment before the application for the writ of restitution was made. Green, who was the only defendant against whom the judgment ran, died within less than two years after the judgment. Green had made a conveyance of the land to Thornton more than a year before the commencement of the action in ejectment, and Thornton had stated in his affidavit that Green had then put him in possession of the land, and had himself thereafter, and until his death, occupied it as his tenant; and, while the affidavit of Mrs. Green contradicted these statements, there were other matters presented in her affidavit and in the other affidavits on her behalf submitted to the court which tended to corroborate the statements of Thornton. Mrs. Green does not claim to have had any separate title to the property, or that during the lifetime of her husband she had any possession distinct from his, or that after his death she had any claim thereto other than by succession as his widow. We cannot say from an examination of the record that the appellants have shown a clear right to have the judgment executed as against the respondents, or that the respondents entered upon the land after the commencement of the action. The conflict between the affidavits on behalf of the respective parties was at least sufficient to create a doubt in the mind of the court.

The suggestion of the appellants, that because the plaintiff's title is derived through a purchase under the foreclosure of a mortgage, they are entitled to the same relief as if they had asked for a writ of assistance under the decree of foreclosure, cannot be maintained. This action is an ordinary action of ejectment, and the relief to be given is the same as that in any other action of ejectment, irrespective of the evidence by which the plaintiff established his right to the possession of the land.

The notice of appeal contains also an appeal from an order denying the plaintiff's motion to retax the costs, and refusing to strike out the items of cost embraced in the cost bill of the respondents; but the tran