could not be a de facto holder of the nonexistent office; that he was not a deputy superintendent of streets, because the utmost that he could have claimed was that he acted under the resolution approving his appointment, and all he did claim was that he was assistant superintendent of streets; that the superintendent of streets did not and could not delegate to Boswell the performance of the functions imposed by the Vrooman Act on the superintendent of streets; and, that the contractor in dealing with the public official was charged with notice of the extent and limitations of his authority.

The learned judge of the trial court showed himself to be one of those to whom Mr. Justice Oliver Wendell Holmes referred in his classic on the Common Law (page 36) when he said, "the law is administered by able and experienced men who know too much to sacrifice common sense to a syllogism." He properly decided that under the facts the property owner should pay for the work which had been done.

The supreme court of the United States exercised the same common sense in a case in which it denied the jurisdiction of the circuit court to try a Cherokee Indian for the murder of a white man. The Cherokee Nation claimed jurisdiction over the defendants upon the theory that the murdered man was an Indian by adoption by reason of his having married a Cherokee woman. At the time the marriage license was issued one Triplett was the clerk and R. M. Dennenberg, his deputy. Both the clerk and his deputy were absent, and the name of the deputy was signed to the license by his son. Substantially the same contentions were made in that case as here concerning the validity of the document in question. In holding the marriage license to be valid, the supreme court said: "It is true that the younger Dennenberg, who signed the marriage license, was neither clerk nor deputy, but he was an officer de facto, if not de jure. He was permitted by the clerk and the deputy to sign their names; he was the only person in charge of the office; he transacted the business of the office, and his acts in their behalf and in the discharge of the duties of the office were recognized by them and also by the Cherokee Nation as valid. Under those circumstances his acts must be taken as official acts, and the license which

he issued as of full legal force. As to third parties, at least he was an officer de facto; and if an officer de facto, the same validity and the same presumptions attached to his actions as to those of an officer de jure." (Nofire v. United States, 164 U. S. 657, [41 L. Ed. 588, 17 Sup. Ct. Rep. 212, see, also, Rose's U. S. Notes].) The fact that Boswell was a minor does not militate against the rule declared in the Nofire case. (Wimberly v. Boland, 72 Miss. 241, [16 South. 905]; People v. Dean, 3 Wend. (N. Y.) 438; Hooper v. Goodwin, 48 Me. 79, 80.)

In the Nofire case the deputy's name was signed by his son without the addition of the son's name. In this case the name of the superintendent of streets was signed with the addition of the name of the assistant. No reason appears to exist for holding either the contract or any extension of time invalid because Boswell signed his name, when, under the rule in the Nofire case, they would have been held valid if he had failed to sign his name.

While there is some difference in the facts of the two cases, the reasoning of the court in Oakland v. Donovan, 19 Cal. App. 488, [126 Pac. 388], in holding valid a contract signed by an acting superintendent of streets, applies to this case. When one is in charge of the physical office of a public official and is performing the duties of the office he is, as to third persons dealing with him in good faith, the de facto officer.

[2] The Vrooman Act provides for appeals, and section 11 (Stats. 1885, p. 157) expressly provides that no assessment shall be held invalid except upon appeal to the city council for any error, informality, or any defect in any of the proceedings prior to the assessment, where jurisdiction to order the work to be done has been established by publication of the resolution of intention. In the present case there is no record of any appeal having been made by the property owner to the council. As has been stated, the work was done satisfactorily and at the prices fixed by the council in its acceptance of the bid of the respondent, and under such circumstances it cannot be held that there was any error in the trial of the case which resulted in a miscarriage of justice. (Const., art. VI, sec. 4.) The case appears to be within the rules of Chase v. Trout, 146 Cal. 350, [80

Pac. 81], and Farley v. Reindollar, 174 Cal. 707, [165 Pac. 19].

The judgment is affirmed.

Langdon, P. J., and Haven, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 13, 1919, and the following opinion then rendered thereon:

THE COURT.-The application for hearing in this court after decision by the district court of appeal of the first appellate district, division two, is denied.

In denying such hearing we are not to be understood as assenting to any view that if there was no valid contract for the doing of the work the judgment could nevertheless be affirmed for the reason that there was no appeal by the property owner to the council. We say this for the reason that the opinion may possibly be open to some such construction.

All the Justices concurred, except Olney, J., who did not participate.

[Civ. No. 2879. First Appellate District, Division Two.-August 15, 1919.]

AMY BATES et al., Respondents, v. RANSOME-CRUMMEY CO. (a Corporation), et al., Appellants.

[1] APPEAL-TAKING AFTER EXPIRATION OF TIME-DISMISSAL.-An appeal taken from a judgment after the time limited by the statute to appeal cannot be considered, but must be dismissed. [2] ID. AMENDMENT OF CODE - NOTICE OF ENTRY OF JUDGMENT RIGHTS DEPENDENT UPON.-Under the provisions of the Code of Civil Procedure relating to appeals, as amended in 1915, the time of serving notice of motion for a new trial and to propose a bill of exceptions is made dependent upon the service of notice of the entry of the judgment, while the time to appeal begins to run from the time of entry of judgment.

[3] ID. ELECTION BY AGGRIEVED PARTY-MOTIONS AFTER JUDGMENT— EXTENSION OF TIME TO APPEAL.-Under such amended sections the party aggrieved by a judgment is given the election of appealing directly within sixty days from the entry of the judgment, or, if he desires to move either for a new trial or to vacate the judgment in the trial court, he may do so. If he does so within the sixty days allowed for an appeal, the time within which he may appeal is extended automatically until thirty days after the determination of the new trial proceedings, but no such extension of time is made in the statute because of the pendency of proceedings to vacate the judgment on the ground that the conclusions of law are not supported by the findings.

[4] ID.-TIME TO MOVE FOR NEW TRIAL.-The losing party is not required to move for a new trial until he receives notice of the entry of judgment unless he waives such notice; but he is not required to wait until he receives the notice of entry, but may give notice of his intention to move for a new trial at any time after judgment. Of his own motion, therefore, he may extend the time within which to appeal by serving notice of motion for a new trial at any time within the sixty-day limitation for appeal, even though he has not received notice of the entry of judgment. [5] ID.-EXPIRATION OF APPEAL PERIOD PRIVILEGE OF APPEALING TERMINATED.-If, at the expiration of the sixty-day period within which an appeal might have been taken, no notice of intention to move for a new trial has been given, the time to appeal from the judgment elapses, and the privilege of appealing from the judgment or of having a new trial order reviewed on appeal terminates. [6] ID.-NOTICE OF ENTRY OF JUDGMENT NOT REQUIRED.-There is no statutory requirement by which the prevailing party in a suit is required to give notice of the entry of the judgment.

[7] ID. LIMITATION OF TIME TO APPEAL-CONSTITUTIONAL LAW-PROVINCE OF LEGISLATURE.-Section 939 of the Code of Civil Procedure, as thus construed to limit the right of appeal to the sixty-day period if new trial proceedings are not instituted within that period, is not unconstitutional as in violation of section 1 of article XIV of the constitution of the United States. The matters of motions for new trial and appeal are entirely within the control of the legislature. It might altogether abolish the right to move for a new trial, as it has abolished the privilege of appealing from an order made upon a motion for a new trial. [8] ID.-FAILURE TO APPEAL WITHIN TIME-FINALITY OF JUDGMENTRES ADJUDICATA JURISDICTION.-When the party aggrieved fails within sixty days after the entry of judgment either to appeal or to commence proceedings for a new trial, the judgment becomes final for all purposes at the expiration of the sixty-day period.

The matters determined are res adjudicata; and an appeal from such a judgment is not within the provisions of the statute, and vests no jurisdiction in the appellate court.

APPEAL from a judgment of the Superior Court of Santa Clara County. W. A. Beasly, Judge. Appeal dismissed.

The facts are stated in the opinion of the court.

R. M. F. Soto for Appellants.

Ralph C. McComish for Respondents.

BRITTAIN, J.-Amy Bates and ten other property owners sued the Ransome-Crummey Co., a corporation, and Louis Lightston, treasurer of the city of San Jose, to quiet title to their respective properties and for an injunction restraining the defendants from interfering with the plaintiffs' properties or asserting any interest therein or lien thereon. Louis Lightston, as treasurer, filed a disclaimer. The Ransome-Crummey Co. answered, and by way of crosscomplaint sought to establish the lien of a street assessment and the validity of bonds issued to represent the assessments on the respective parcels of land of the plaintiffs. After answer to the cross-complaint, the case was tried, findings responsive to the issues of fact were signed, and as a conclusion of law therefrom the court determined the plaintiff's were entitled to a judgment and decree quieting their titles. The appeal by the defendants is from the judgment entered pursuant to the decision.

At the outset the court is met with the claim on the part of the respondents that the appeal was not taken in time. If this claim is well founded in law this court has no jurisdiction of the appeal and cannot consider any error claimed to have been made by the trial court. The jurisdiction of the trial court to render its judgment is not questioned.

[1] It has always been held that an appeal from a judgment taken after the time limited by the statute to appeal cannot be considered and must be dismissed. (Gray v. Palmer, 28 Cal. 416; Contra Costa v. Soto, 138 Cal. 57, [70 Pac. 1019].) A motion for a new trial is a proceeding distinct from that of an appeal. Under a former statute,