No. 9,373.

HELM V. CHAPMAN.

In Bank. Filed January 5, 1885.

MECHANIC'S LIEN-WORK ON MINE-EXTENT OF LIEN.-Under section 1,185 of the code of civil procedure one who performs labor in any pit, shaft or gallery of a mine is entitled to a lien on the whole mining claim.

APPEAL from a judgment of the superior court for Nevada county, entered in favor of the plaintiff. The opinion states the facts.

A. C. Niles, for the appellant.

Johnson & Mason, for the respondent.

THE COURT. Section 1,185 of the code of civil procedure treats of the "building, improvement, or structure," as separate and distinct from the land upon which it is erected or constructed.

We think without doing violence to the received meaning of language a mine or pit sunk within a mining claim may be called a structure. Section 1,183 does not, it is true, provide for a lien upon mines, but upon "mining claims." The lien, if it exists at all, extends to the whole claim. Strictly speaking, of course, a "mining claim" cannot be constructed, altered or repaired. The intention of the law-makers seems to have been to give a lien upon the whole claim, for labor performed on, and for materials furnished for and used in any structure, or on, or in the alteration, or repair of any structure, on or in the mining claim. We deem it our duty to give effect to the legislative purpose by holding that one who performs labor in any pit, shaft or gallery of a mine is entitled to a lien on the whole mining claim.

Judgment and order affirmed.

No. 9.837.

LEVY V. SUPERIOR COURT OF YOLO COUNTY.

Department One. Filed January 6, 1885.

APPEAL FROM JUSTICES' COURT JURISDICTION OVER-UNDERTAKING ON APPEAL.-An undertaking such as is required by the statute, is a prerequisite to the acquisition of jurisdiction by the superior court of an appeal from the justices' court. The sufficiency or insufciency of the undertaking is a matter which can always be inquired into in a proper proeding to test the question of jurisdiction.

THE SAME ERRONEOUS DISMISSAL OF APPEAL-REVIEW OF. --Where the superior court Troneously dismisses such appeal for a supposed insufficiency in the undertaking, but such undertaking is in fact sufficient, the appellant's remedy is by certiorari to annul the order of dismissal, before proceeding by mandamus to compel the superior court to hear the appeal.

APPLICATION for a writ of mandate to the superior court of Yolo county. The opinion states the facts.

J. C. Ball, for the petitioner.

G. P. Harding and J. W. Goin, for the respondent.

MCKINSTRY, J. The undertaking on appeal was sufficient to give jurisdiction to the superior court.

We suppose, on motion, the superior court will vacate the order dismissing the appeal.

If, however, it is necessary again to resort to this court for relief, we suggest to petitioner that his application should be for a writ of review to annul the order dismissing the appeal.

An undertaking, such as is required by the statute, is a prerequisite to the acquisition of jurisdiction by the superior court. That court can neither give to itself jurisdiction by holding an insufficient undertaking sufficient, nor divest itself of jurisdiction by holding a sufficient bond insufficient. The sufficiency or insufficiency of the undertaking is a matter which can always be inquired into in a proper proceeding to test the question of jurisdiction. The jurisdiction of the appellate court depends upon the undertaking, which is a portion of the record. The case is not like those in which jurisdiction depends upon the existence of facts aliunde. In such cases the finding of the court, upon the evidence bearing upon the issue, that the fact does or does not exist, is conclusive.

But mandamus is not petitioner's remedy. A mandate that the superior court proceed to a hearing of the appeal on the merits or to a retrial of the issues, would not annul, but simply ignore the order dismissing the appeal. The order must first be annulled by a direct proceeding-that is by certiorari. Such is the remedy when a court has entered a judgment or made an order in excess of its jurisdiction.

Writ denied and proceeding dismissed.

SHARPSTEIN, J. and THORNTON, J., concurred.

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WEST COAST REPORTER.

WHOLE No. 56.

JANUARY 22, 1885.

VOL. V. No. 4.

CIRCUIT COURT, DISTRICT OF OREGON.

DURHAM V. FIRE AND MARINE INSURANCE COMPANY.
December 31, 1884.

SUIT TO REFORM A CONTRACT.-In a suit to reform a written instrument it must be shown
that the mistake is mutual; and therefore it must appear from the allegations of the bill
what the agreement of the parties was and wherein the writing fails to embody it.

CASE IN JUDGMENT.-A bill brought to reform a policy of insurance stated that the several owners of a certain warehouse applied to the defendant for insurance against fire on their interests in said property, with loss, if any, payable to one of them; and that " thereupon" the defendant issued its policy on the interest of that one alone, instead of all: Held, on demurrer to the bill for want of equity, that it did not appear that the defendant ever agreed to insure the interest of but the one of the owners, and therefore it was not shown that the mistake was mutual.

SUIT to reform a policy of insurance. The opinion states the tacts.

George H. Williams, for the plaintiff, and the latter in propria per

sona.

Paul R. Deady, for the defendant.

DEADY, J. This suit is brought to reform a policy of insurance issued by the defendant on July 31, 1883, whereby it undertook to indemnify Theo. Liebe against loss by fire, for the period of one year from the date thereof, of his interest, not exceeding four thousand dollars in value, in a two-story frame building, then in course of construction, and to be occupied as a grain warehouse, and known as the "Dayton Mills warehouse," in Dayton, Oregon, for the premium of one hundred dollars in hand paid.

The bill alleges that on the day the policy was issued and prior thereto, William Burnell, Theo. H. Liebe, E. S. Larsen, Elizbeth. Crane and A. A. Crane were the owners of a certain parcel of real property on which was situated a gristmill and the warehouse in question; that on said day said Burnell, "on behalf of himself and co-owners, composing said Dayton Flouring Mills Company, applied to the agent of the defendant at Portland for insurance "on a warehouse, then in process of construction by said company on their said lands," with loss, if any, payable to said Liebe; that thereupon "in consideration of the payment by the said insured" of the premium, the defendant by its agent issued the policy in

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question and "thereby undertook to insure the said Dayton Flouring Mills Company against loss or damage by fire, to the amount of four thousand dollars upon the said warehouse;" that "by some oversight, misapprehension or mistake" on the part of the agent of the defendant said policy was issued in the name of said Liebe, who in fact only owned one-fourth interest therein, instead of that of the Dayton Flouring Mills Company; and that the agent of the defendantwell knew the parties who composed the said Dayton Flouring Mills Company and well knew the said company and parties, instead of Liebe, owned said property.'

It also appears from the bill that on November 27, 1883, the persons composing the said company conveyed said property to the plaintiff, and on December 3, 1883, with the consent of the defendant, "sold, assigned and conveyed" to the plaintiff their interest in the said land and warehouse and the said policy of insurance;" and that on January 17, 1884, said warehouse was totally destroyed by fire.

The insurance company declined to pay any more on the policy than the value of Liebe's interest in the property, claiming that by its terms they only agreed to indemnify the assured for the loss or injury to such interest therein, to wit: one-fourth of the same.

The defendant demurs to the bill for want of equity, because (1) it does not appear that the alleged mistake was mutual; and (2) either the plaintiff took the assignment without knowledge of the alleged mistake, and therefore has all he bargained for or expected -a policy on Liebe's interest in the property, whatever that may be, and there is no mistake as to the plaintiff, or he took the same with knowledge of the mistake and is guilty of laches in not sooner making it known and seeking a correction thereof.

Delay in bringing a suit or making a claim to have a written instrument reformed on the ground that it does not embody the contract of the parties, is not a technical bar to such suit, but is only a circumstance, tending to show, with more or less force, according to the nature of the transaction and the situation of the parties, that the plaintiff took the policy with knowledge of its contents and ought to be bound by them. But when it clearly appears from the bill, that the plaintiff has been guilty of laches, a demurrer thereto for that cause will be sustained.

This suit was brought on September 1, 1884-more than nine months after the policy was assigned to the plaintiff, and more than seven months after the loss occurred.

And no claim appears to have been made before this, by either the assignee or his assignors, that the instrument did not contain the contract of the parties. No excuse is offered for this delay, and when this fact is considered in the light of the presumption that the plaintiff's assignor's took the policy with knowledge of its contents, probably it does appear that the parties have been guilty of laches in making and asserting the claim that the policy is erroneous.

But the fact may be otherwise, and I think it best to overrule the demurrer on this point, and reserve the question of laches until the final hearing.

On the first alternative of the latter proposition, there has been no argument. It is not denied that the assignment of the policythe subject-matter-to the plaintiff, carried with it the right to maintain any suit necessary or proper to establish or enforce the apparent obligation of the defendant. And I am not prepared to say that such an assignment did not also carry with it the right to maintain a suit to reform the contract, even if the assignee was then unaware of the alleged mistake, and took the assignment without any special reference thereto. This matter is also reserved until the final hearing.

But on the first point the demurrer must be sustained.

A party seeking to have an instrument reformed must show-as well by his pleading as in proof-in what the mistake consists, and that it is mutual. In other words, it must appear that the contract, as reduced to writing, does not contain what both parties intended it should And to this end, it must be shown in what they did agree. A mistake in a contract, resulting from the misunderstanding of the parties, is not a ground for reforming it, although it may be for rescinding it. When each party is laboring under a misapprehension as to the purpose or intent of the other, their minds do not meet, and there is no contract to reform: Hearne v. Marine Ins. Co., 20 Wall., 490; Brugger v. State Invest. Co., 5 Saw., 310; Wood on Ins.,

505.

The bill in this case does not allege that there was any express agreement between the parties on the subject of insuring this property. It is only stated that Burnell, for himself and co-owners, applied for insurance on the warehouse, with loss payable to Liebe. It is not even explicitly stated whose interest in the property Burnell applied for insurance on, or that he then disclosed the names of any of the owners except that of Liebe. But there is no sort of showing that the defendant accepted Burnell's application or agreed to insure the interest of anyone in the warehouse. The allegation goes no farther than this-that "thereupon" the defendant issued a policy on the interest of Liebe in the property. But as what the defendant did is the only circumstance tending to show that it agreed to do anything, there is nothing to show that it agreed to do more than it did do-issue a policy on Liebe's interest in the property.

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It is true that the bill alleges that the defendant, in issuing the policy, thereby undertook to insure the Dayton Flouring Mills Company against loss or damage by fire to the amount of four thousand dollars upon said warehouse," but that by some "misapprehension" of the defendant, said policy was issued in the name of Liebe instead of said company.

But a reference to the policy, which is made a part of the bill, shows that all the defendant undertook "thereby" to do, was to insure Liebe's interest in the property. What other interest, if any,