abouts of the fire. She forgot the presence of the rail, tripped, fell, and was injured. This court said: "We quite agree with counsel for appellant that previous knowledge or familiarity with the dangerous place or obstruction on the highway was not per se conclusive evidence of contributory negligence in failing to avoid it. In this case, if plaintiff's house had been falling, rendering great haste in escaping from imminent danger necessary, the baste, excitement, and fear might reasonably be held sufficient to obliterate all memory or thought of the presence of the obstruction on the sidewalk. But that is not this case. No danger could have been apprehended by Mrs. Davis from the fire after she reached the sidewalk, but mere curiosity induced her to start to go down the street to see where the fire was. That she forgot the presence of the rail is not disputed in the evidence, but that the circumstances justified her forgetfulness and consequent want of care cannot be conceded."

In Van Praag v. Gale, 107 Cal. 438, 40 Pac. 555, plaintiff had recovered judgment for injuries occasioned by falling through an open and unguarded trapdoor in the sidewalk. This trapdoor was sometimes open and sometimes closed, and plaintiff was familiar with these facts. It was held merely that his knowledge that it was sometimes open did not bar his right of recovery because he inadvertently stepped into it, and Davis v. California Street Cable Co. is distinguished, this court saying: "There was a known and fixed object, namely, an iron or steel rail adjacent to a street lamp, over which plaintiff fell. In the present case the object of danger was only occasionally presented, and was not usually existent as a menace, and it was proper in such case to submit the question of plaintiff's negligence to a jury."

So, also, in Martin v. Cal. Central Ry. Co., 94 Cal. 326, 29 Pac. 645, it is said, discussing an instruction given to the jury: "In effect the instruction told the jury that, notwithstanding the deceased was engaged in a dangerous business requiring constant and watchful care upon his part to save himself from injury, still, if he did not always bear these things in mind, and act upon them, and by reason thereof was injured, he could recover. An injury received under such circumstances would be the direct result of contributory negligence upon the part of the party injured, and would defeat a recovery."

Giraudi v. Electric Improvement Co., 107 Cal. 120, 40 Pac. 108, 28 L. R. A. 596, 48 Am. St. Rep. 114, is not in conflict with these views. It is there declared that the general rule is that, if one is aware of a fact which should have put him on his guard, he cannot rebut the presumption of contributory negligence by showing that he momentarily forgot. The court then proceeds to note the exceptions to the application of this general rule, the exceptions being those cases where tem

porary forgetfulness is not negligence as matter of law, unless it shows a want of ordinary care, and the question then becomes a question for the jury.

In the case at bar there was no sudden emergency, no stress of peril, no haste in the performance of the work. The case does not belong to the exceptional class which we have been considering. It is the ordinary one of an employé heedlessly failing to take ordinary care and use ordinary precautions for his own safety. These facts were, as has been said, clearly established by the testimony introduced on behalf of plaintiff himself.

It follows, therefore, that the court erred in denying the motion for a nonsuit, and its order granting a new trial is therefore affirmed.

1. TAXATION SUCCESSION TAX-CONSTITUTIONAL PROVISION.

Under Const. art. 4, § 31, providing that the Legislature shall have no power to make any gift, or authorize the making of any gift of any public money or thing of value to any individual, where the right to a succession tax became vested in the state, the Legislature could not, either by repeal of the law under which the right vested or by any other means, grant or donote it to the successor in estate or to any other person.

2. TAXATION SUCCESSION TAX- REPEAL — STATUTORY CONSTRUCTION.

The act of 1893, providing for a succession tax and its amendments (St. 1893, p. 195, c. 168, § 8; St. 1895, p. 35, c. 28, § 6), provided that the executor should deduct from all money legacies or money of the intestate in his hands the amount of the succession tax due thereon, and pay the tax to the county treasurer. Act March 20, 1905, which took effect July 1, 1905, and which purports in section 27 (Acts 1905, p. 350, c. 314) to repeal the act of 1893 and all amendments thereto, is practically a revision and re-enactment of the latter act and its amendments; certain changes being made regarding the persons on whom the tax is imposed, the exemptions therefrom, and the rate of the tax. Pol. Code, § 325, provides that, when a part of a statute is amended, it is not to be considered as having been repealed and re-enacted as amended, but the unaltered portions are to be considered as having continuously been the law. Held that, since it would be presumed that the Legislature of 1905 was aware of its want of power under decisions of the Supreme Court to release taxes accrued and uncollected, the re-enactment of the provisions of the former law respecting the payment and collection of succession taxes was to be considered as having been done with knowledge of the existence of such uncollected taxes and with the intent to continue in force the mode and means for the collection thereof, and that under the provisions of the act as re-enacted, in connection with St. 1905, 83, c. 85, § 1, amending Code Civ. Proc. 1669, so as to provide that, before any decree of distribution of an estate is made, the court must be satisfied that any inheritance tax due and payable has been fully paid, the court was authorized to direct the executor of

an estate to deduct from the legacies due thereunder the amount of the succession tax.

In Bank. Appeal from Superior Court, San Diego County; E. S. Torrance, Judge.

In the matter of the estate of Elizabeth Hewlett Martin, deceased. From an order directing the executor of the estate to pay a succession tax on certain legacies, John Q. Hewlings and others appeal. Affirmed.

S. F. Lieb and James H. Campbell, Dist. Atty., for appellants. U. S. Webb, Atty. Gen., and Cassius Carter, Dist. Atty., for respondent.

SHAW, J. Elizabeth Hewlett Martin, a resident of this state, died in the county of Santa Clara on January 2, 1905, leaving a valuable estate. By the terms of her will, which was duly probated, she bequeathed to each of the appellants, a sum of money great. er than $500, amounting in the aggregate to $38,415.21. None of the appellants was related to the deceased in a degree nearer than that of brother, and hence the legacy came within the terms of the act of 1903 (St. 1903, p. 268, c. 228), amending section 1 of the act imposing a tax on inheritance devises and legacies. Section 27 of an act approved March 20, 1905 (St. 1905, p. 350, c. 314), which took effect July 1, 1905, purports to repeal unconditionally the act of 1893 providing for a succession tax and all the subsequent amendments thereto, including that of 1903 above mentioned. In due course of administration of the estate, a decree of distribution thereof was rendered by the superior court of Santa Clara county on February 2, 1906, declaring that the appellants, respectively, were the owners of and entitled to receive the legacies bequeathed to them as aforesaid, subject to whatever inheritance tax might be due thereon. Subsequently, on March 2, 1906, upon due notice, the court made an order directing the executor of the estate to deduct from each of said legacies a sum equal to 5 per cent. thereof, as and for a succession tax thereon, and to pay said sums so deducted to the county treasurer. This appeal is taken from that order.

The appellants ask us to overrule the decisions of this court in Estate of Stanford, 126 Cal. 112, 54 Pac. 259, 58 Pac. 462, 45 L. R. A. 788, and Trippet v. State, 149 Cal. 521, 86 Pac. 1084, S L. R. A. (N. S.) 1210, and declare that the repeal of the collateral inheritance tax law of 1893, and its amendments, by the act of 1905, operated to deprive the state of the right to collect or receive all succession taxes accrued under the former law which had not been paid, or ordered to be paid, to the state, at the time the repeal took effect on July 1, 1905. The briefs filed for the appellants in Trippet v. State, supra, are referred to by counsel and made to constitute the argument on behalf of the appellants in this case. No additional points are presented. Even if we were disposed to doubt the

soundness of those decisions, and were to concede that vested rights would not be affected by overruling them, we would hesitate to overrule decisions so well and thoroughly considered as those mentioned. But, after again considering the arguments presented, we are satisfied that the conclusion reached in those cases is correct.

The argument of the appellants is that the decision in Trippet v. State is based wholly on the authority and reasoning of the opinion in Estate of Stanford, and that the conclusion in the Stanford Case was founded solely upon the proposition that the effect of the law of 1893 and its amendments was to provide for the succession to property upon the death of the owner, and not to establish a tax. And this proposition, it is claimed, is false for two reasons: First, because the language of the statutes does not permit that construction, and, secondly, because, if it did, the title of the act would not include the subject and the act would be void. It is further argued that the law does not in fact provide for a tax, that the right of the state thereto does not vest until payment, or until a judicial order has been made for the payment, and that a repeal of the law before either event, as in the present case, extinguishes the inchoate right of the state to the unpaid tax. The opinion in Estate of Stanford does not have the effect claimed. It does not hold that the law in question provides that the state shall succeed as an heir in certain classes of cases to 5 per cent. of the property of the decedent. Some of its phraseology may perhaps be consistent with such an idea, if taken separately from the context, but the real meaning and effect of the decision is that the law establishes a succession tax, in certain cases, and that the right of the state to such tax vests immediately upon the death of the ancestor or testator, and hence, that the repeal of the law does not affect the right of the state to the tax. The law, in effect, created a lien in favor of the state on the property for the amount of the tax thereon. This right to the tax in question here, and the lien therefor, vested in and became the property of the state upon the death of Elizabeth Hewlett Martin in January, 1905. Under the limitations prescribed by section 31, art. 4, Const., it is not within the power of the Legislature, either by the repeal of the law in virtue of which the right vested, or by any other means, to grant or donate it to the successor in estate or to any other person. The law of 1893 and its amendments provided that the executor or administrator of the particular estate should deduct from all money legacies, or money of the intestate, in his hands for distribution, the amount of the succession tax due thereon, and that he should in other cases collect from the distributee the amount of the tax due on the share distributed, before delivery thereof to the party entitled, and should pay the said tax to the county treasurer for use of the

state. Section 6, p. 35, c. 28, St. 1895; section 8, p. 195, c. 168, St. 1893. If this law is still in force, no order of court was required to give the executor authority to deduct from the money legacies distributed to the appellants the succession tax thereon and to pay the same to the county treasurer. In that event the order would be harmless, even if unnecessary. It is claimed that the express repeal, by the act of 1905, of the previous law for succession taxes, if not effective to deprive the state of the right to the tax here involved, is at least valid so far as it repeals the provisions of sections 6 and 8 aforesaid, providing for its retention and payment by the executor, and hence that the executor had no authority to pay the tax for the legatees, and that the court had no power to make the order giving him such authority.

We do not think that these provisions were repealed. The act of 1905, containing the repealing clause above mentioned, is practically a revision of the act of 1893 and its amendments, providing for succession taxes. Certain changes are made in the new law in regard to the persons on whom such tax is imposed, the exemptions therefrom, and in the rate of tax to be imposed upon the different persons. These changes are found, for the most part, in sections 1, 2, 3, and 4 of the new law, which cover the subjects embraced in section 1 of the old law. The other portions of the old law are substantially re-enacted in the act of 1905, with a few alterations and additions which do not affect the question. The aforesaid section 6 of the former law is, word for word, the same as section 9 of the new act, and section 8 of the former law is identical with section 11 of the new act, with the exception of a few words of trifling import. We must presume that the Legislature of 1905 was aware of its want of power, under the decision of this court in Estate of Stanford, supra, to releașe, surrender, or discharge the taxes previously accrued and remaining uncollected. The re-enactment of the provisions of the former law respecting the payment and collection of succession taxes is to be considered as having been done with knowledge of the existence of these uncollected taxes and with the intent to continue in force the mode and means for the collection thereof. These re-enactments come within the scope and effect of section 325 of the Political Code, declaring that, when a part of a statute is amended, it is "not to be considered as having been repealed and re-enacted in the amended form; but the portions which are not altered are to be considered as having been the law from the time when they were enacted." The rule particularly applicable to this case is thus stated in Sutherland on Statutory Construction (2d Ed.) § 238: "Where there is an express repeal of an existing statute, and a re-enactment of it at the same time, or a repeal and a re-enactment of a portion of it, the re-enactment neutralizes the

repeal so far as the old law is continued in force. It operates without interruption where the re-enactment takes effect at the same time." Speaking of a similar case, the Supreme Court of the United States in Bear Lake I. Co. v. Garland, 164 U. S. 11, 17 Sup. Ct. 7, 41 L. Ed. 327, say: "Although there is a formal repeal of the old by the new statute, still there never has been a moment of time since the passage of the act of 1888 when these similar provisions have not been in force. Notwithstanding, therefore, this formal repeal, it is, as we think, entirely correct to say that the new act should be construed as a continuation of the old with the modification contained in the new act." The following authorities are of similar effect: Endlich on Interpretation, § 490; Pratt v. Swan, 16 Utah, 483, 52 Pac. 1094; Howlett v. Cheetham, 17 Wash. 626, 50 Pac. 522; Pacific M. S. Co. v. Joliffe, 2 Wall. (U. S.) 456, 17 L. Ed. 805; Wright v. Oakley, 5 Metc. (Mass.) 406; Sabin v. Connor, 21 Fed. Cas. 125; United Hebrew Ass'n v. Benshimol, 130 Mass. 327; Anding v. Levy, 57 Miss. 59, 34 Am. Rep. 435; Middleton v. New Jersey, etc., Co., 26 N. J. Eq. 274; State v. Bemis, 45 Neb. 733, 64 N. W. 350. The effect of the act of 1905 was to establish a different rate of taxation and make it applicable to different persons with respect to all succession taxes accruing thereafter, but otherwise the provisions of the previous act incorporated into the new act, relating to the payment and collection of succession taxes, remained in force and applied to taxes previously assessed, the same as if there had been no express repealing clause in the new act. The same session of the Legislature amended section 1669, Code Civ. Proc., so as to provide that, before any decree of distribution of an estate is made, the court must be satisfied that "any inheritance tax which is due and payable has been fully paid." St. 1905, p. 83, c. 85. This amendment took effect May 6, 1905, and remained in force, notwithstanding the repeal of the inheritance tax law of 1893. Under its provisions, in connection with the provisions of the former act re-enacted in the revisory act, there can be no doubt that the court had authority to make the order appealed from. The order is affirmed.

We concur: ANGELLOTTI, J.; SLOSS, J.; HENSHAW, J.; LORIGAN, J.

In re BOWEN'S ESTATE. (S. F. 4,669.) (Supreme Court of California. March 13, 1908. Rehearing Denied April 10, 1908.)

In Bank. Appeal from Superior Court, City and County of San Francisco; J. V. Coffey, Judge.

In the matter of the estate of E. J. Bowen, deceased. From an order imposing and di

recting the payment of certain collateral inheritance taxes by the administrator with the will annexed, the residuary legatees appeal. Affirmed.

Maft Clarken, for appellants. C. L. Dam, U. S. Webb, Atty. Gen., and Sidney M. Van Wyck, Jr., for respondents.

PER CURIAM. This is an appeal by the residuary legatees from an order made on partial distribution in the above estate imposing and directing the payment of certain collateral inheritance taxes by the administrator with the will annexed of the estate of said deceased.

The same points are made by appellants here for a reversal as were urged by the appellants in the matter of the estate of Elizabeth Hewlett Martin, Deceased, San Francisco, No. 4,596 (this day decided) 94 Pac. 1053. In this latter case it was held that the points urged were untenable, and on the authority of that decision the order appealed from here is affirmed.

(Court of Appeal, Third District, California. Feb. 15, 1908.)

COURTS-APPELLATE COURTS OF CALIFORNIASUPREME COURT-JURISDICTION-APPEALS IN PARTICULAR CASES.

Under Const. art. 6, § 4, providing that the Supreme Court shall have appellate jurisdiction in all cases at law in which the demand, exclusive of interest, amounts to $300, and in actions to prevent a nuisance, where an action was brought for damages in the amount of $2,070 for personal injuries, and defendant in his answer and cross-complaint sought an injunction to restrain plaintiff from committing a nuisance, after judgment for defendant, plaintiff's appeal should be taken in the first instance to the Supreme Court.

Appeal from Superior Court, Placer County; J. E. Prewett, Judge.

Action by Anna Randall against Clark V. Freed. From a judgment for defendant and an order refusing a new trial, plaintiff appeals. Appeal transferred to the Supreme Court.

Taber & Taber, for appellant. L. L. Chamberlain, for respondent.

BURNETT, J. The action was brought for damages in the amount of $2,070 for personal injuries. The defendant filed an answer and cross-complaint, in which he sought an injunction to restrain plaintiff from the commission of a nuisance. The judgment was in favor of defendant, from which, and the order denying her motion for a new trial, *plaintiff appealed directly to this court.

It is conceded by appellant, and it must be so held under article 6, section 4, of the Constitution, that the appeal should have

(Supreme Court of Montana. April 11, 1908.)

1. DIVORCE-DEFAULT JUDGMENT-OPENINGGROUNDS - EXCUSABLE NEGLECT OF COUNSEL-DISCRETION OF COURT.

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On motion to set aside a verdict of the jury and defendant's default in a divorce case, on the ground of excusable neglect of defendant's attorney, it appeared that the case was set as the third case for trial on a certain day, and the witnesses and counsel were present for both parties. The second case was being tried, and the divorce case was continued until 2 o'clock in the afternoon. Defendant's counsel stated to the court several times that he was informed by the attorneys in the case on trial that it would take at least all that day to try it, and that he desired to leave town that afternoon on important business, but would return in the morning. The judge stated that the case might be settled, and refused to further continue the divorce case, but the attorney finally informed the judge that he would take the chance and go, and in support of the motion his affidavit stated that the judge replied, "If you do, nothing serious will happen," and that he took the remark to mean that the case would not be called until the next day, even if the case on trial was sooner concluded, but the affidavit of the judge stated that his reply was that he supposed nothing serious would happen, meaning that he supposed nothing serious would happen in the light of the statement made by counsel in the case on trial. The defendant's attorney left, the case was reached, and went to trial at 3 o'clock that afternoon in the absence of defendant's attorney, after one hour's delay, and decree was rendered for plaintiff. On affidavit of disqualification being filed, the motion was transferred to another district, where it was sustained. Held, that the motion was addressed to the sound legal discretion of the trial court, and the ruling was not an abuse of discretion.

2. SAME NECESSITY OF AFFIDAVIT OF MERITS.

Where a cause was at issue and the defendant, her counsel and witnesses were present on the day set for trial, ready to proceed, and defendant's attorney, believing that the case would not be reached for trial that day, went to a neighboring town on business, but the case was reached and tried, on motion by defendant to set aside the verdict on the ground of excusable neglect of counsel, held, that the court had the information that defendant claimed to have a meritorious defense to the action, and no affidavit of merits was necessary.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, § 525.]

Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge.

Action by H. W. Jones against Nena Jones. From an order sustaining a motion to set aside the verdict and the default of defendant, plaintiff appeals. Affirmed.

T. P. Stewart and J. H. Duffy, for appellant. Rodgers & Rodgers and J. R. Boarman, for respondent.

SMITH, J. The parties to this action were husband and wife. The plaintiff began the action to obtain a divorce, alleging as grounds therefor extreme cruelty and willful desertion on the part of the defendant. The defendant answered, denying the allegations of the complaint touching the grounds for divorce relied upon by plaintiff, and as an affirmative defense alleged that the plaintiff was guilty of willful desertion and willful neglect of the defendant. The defendant prayed that a decree of divorce be entered in her favor and that she be allowed permanent alimony. The action was begun in Deer Lodge county, and was regularly set for trial by the court on January 14, 1907, at the hour of 9:30 o'clock a. m., at which hour the defendant, her attorney, and witnesses were present in court ready for trial. It appears that two other causes were set for trial on the same day; this cause being the third in order. The first of said causes was disposed of, and the second was being tried, when the attorney for the defendant herein requested the presiding judge to continue the trial of this case until the following morning, which the judge refused to do, stating at the time that the case on trial might be settled. The court did, however, continue the case until 2 o'clock in the afternoon, and excused the witnesses until that time. Shortly thereafter defendant's counsel again approached the presiding judge, and stated that the attorneys in the case on trial had informed him that it would take at least all day to try said cause, and that he, the attorney, desired to go to Butte that afternoon, but would return in time to take up the cause the next morning. The presiding judge informed the attorney at this time that the case on trial might be settled, and that it frequently happened that causes were settled even after the jury was impaneled, and it would be dangerous for him to leave. This last conversation was had at about 10:30 o'clock in the morning. About a half hour afterwards the attorney again approached the presiding judge, and made the statement that the attorneys in the case on trial thought it might take two days to try that case. As to the balance of the conversation, defendant's attorney and the presiding judge, both of whom filed affidavits in the cause, do not agree. The attorney says in his affidavit that he informed the judge that he had important business in Butte on that day, and thought that he, the attorney, would take a chance that the Jones Case would not be called for trial and go to Butte on the next train, which would leave at 11:30 a. m.; that the judge replied: "If you do, nothing serious will happen." The attorney alleges that he took that reply to mean that, in case said cause then on trial should be concluded during the day, this cause would not be called until the next morning. The presiding judge says that in answer to the remark of the attorney he stated that he supposed nothing serious

94 P.-67

would happen to him, the attorney. He also says that he did not state to the attorney that, if he went to Butte, nothing serious would happen, but only that he supposed nothing serious would happen in the light of the statement made to him, the attorney, by counsel in the case on trial that it would take at least a day to try the same. It turned out, however, that the cause on trial was disposed of about 2 o'clock in the afternoon, whereupon the witnesses for the plaintiff in this case being present in court, plaintiff's counsel requested that the cause be tried. The attorney for the defendant not being present, the court waited until 3 o'clock, at the expiration of which time a jury was called, the case was tried in the absence of the defendant and her counsel, a verdict was had in favor of the plaintiff, and a decree entered in accordance with the prayer in his complaint. On or about the 18th day of January, 1907, the defendant, through her counsel, filed a motion to set aside the verdict of the jury and the default of defendant, alleging as ground therefor excusable neglect on the part of her attorney. Several affidavits were filed in support of and in resistance to this motion, the substance of which has already been stated. Thereafter an affidavit of disqualification was filed against the presiding judge in Deer Lodge county, and the motion last mentioned was transferred to the Second judicial district court for hearing. On September 28, 1907, the last-mentioned court made an order setting aside the judgment, and from the order plaintiff has appealed to this court.

The motion to set aside the judgment was addressed to the sound legal discretion of the trial court. We have carefully examined the affidavits referred to, and we are not prepared to say that the court abused its discretion. In one view of the matter, it may be said that the attorney for the defendant, not having had the positive assurance of the judge that the case would not be called in his absence, was not justified in assuming that he could leave the county seat of Deer Lodge county without risk to his client's interests. Indeed, it appears that the attorney said he thought he would "take a chance." On the other hand, the attorney affirms that he construed the language of the judge to mean that he might go without incurring any risk; and we can see how the judge who made the final order might very well give counsel credit for making this statement in good faith. At any rate, this is not a case where we can say that the court abused that sound legal discretion which it was its duty to exercise in the premises, and the order must be affirmed.

It is suggested by counsel for the appellant that, before the court was justified in setting aside the judgment, an affidavit of merits should have been presented on the part of the defendant. This, however, is not a case where the reason for filing an affidavit of