19 and 20; that there was a stake there with marks on it, which he did not remember, and that he believed the stake was pulled up and lying by the corner; that he did not know whether the stake was a corner stake or not, and only judged from the marks; that he and defendant went over the land in search of the other corners, but he did not know that they found any stakes, except the one at the junction of sections 17, 18, 19, and 20; he thought they found a stake directly east,-a half-mile stake,—but as to that was not positive; that they did not measure, or follow the exterior boundary lines of the land; that he informed defendant what he supposed to be the boundaries and boundary lines, but that he was not a surveyor, and had never seen the land surveyed, and did not at that time know its exterior boundaries; that he could see two or three miles in every direction, and did not see any evidence of any settlement, except what his brother had put there. Another witness was called, and testified that he knew the land described in the complaint, and saw it surveyed; that he was with the surveyors, and saw them set the corner stake between sections 19 and 20 on the north; that about a month and a half before the trial he went on the land with J. W. Beaver for the purpose of showing it to him, and positively identifying it as the land which defendant made application to purchase; that he had lived on the land for five months in a house which defendant's husband had built; that he found a stake at the north-east corner of section 19, which had been pulled up, but was lying on the ground just where it was stuck to mark the true corner. This was substantially all the evidence introduced upon the question in hand, and in our opinion it was sufficient to justify the finding complained of. It is true, the Code requires any person desiring to purchase swamp and overflowed land to state in his affidavit "that he knows the land applied for, and the exterior bounds thereof, and knows, of his own knowledge, that there are no settlers thereon." Pol. Code, § 3443. And it is also true that in cases of this kind each party is an actor, and must allege and prove that he has strictly complied with the law. But it is not required that the purchaser of swamp land shall know "of his own knowledge" the land applied for, and the exterior bounds thereof. Ordinarily he does not, and, unless he is a skilled surveyor, must gain this information from others. Having gained it, however, he can and must then state, if such be the fact, that he knows of his own knowledge that there are no settlers on the land. The defendant was shown by her brother-in-law what he supposed to be the corners and boundary lines of the land in controversy. She relied and acted upon the information thus received, and there was no attempt to show that it was not correct. It is not pretended that she did not go upon the land which she desired to purchase, nor that she was incorrectly informed as to its bounds or limits, nor that there were any settlers on the land. The claim is only that J. W. Beaver did not at the time know the true lines and corners, and so, however correct her information may have been, her application must fail. If this be the correct view, then it must follow that, if defendant had employed a surveyor to show her the land, and he had made mistakes as to the corners and lines, and had incorrectly located its bounds, her application could be successfully assailed by any subsequent applicant. We do not think that such a result was intended by the law-makers, or should receive sanction from the courts. The point is also made that the defendant's application was insufficient because she did not state in her affidavit that she was entitled to purchase real estate in her own name. Defendant stated in her affidavit that "she is an unmarried woman, over the age of eighteen years, a citizen of the United States, and a resident of the state of California, of lawful age.' The Code (section 3444, Pol. Code) provides: "If the applicant is a female, such affidavit must also show that she is entitled to purchase real estate in her own name." It is urged that an unmarried woman, though she be more than 18 years of age, and a citizen and resident of the state, is not necessarily entitled to purchase real estate in her own name, because "she may be incompetent-an idiot or lunatic, for instance," and it is therefore necessary that she should state in her affidavit that she is entitled to purchase, etc. There is nothing in this point. The Code, as we have seen, says that the affidavit must show a female is entitled to purchase, not simply state that fact. The defendant's affidavit fully complied with the law in this respect, and was sufficient. She was presumed to be of sound mind, and was not called upon to negative in her affidavit the fact that she was an idiot or lunatic. The judgment and order should be affirmed. We concur: FOOTE, C.; HAYNE, C. BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed. GOLDTREE and others v. THOMPSON and others. (No. 11,749.) (Supreme Court of California. October 4, 1887.) WILL-ACTION TO CONSTRUE JURISDICTION OF SUPERIOR COURT. Siddall v. Harrison, ante, 130, followed. Commissioners' decision. Department 1. Appeal from superior court, San Luis Obispo county; D. S. GREGORY, Judge. Graves, Turner & Graves, for appellants. Wm. Shipsey, guardian ad litem, for minors. FOOTE, C. According to the views expressed by this court in Department 1, in the case of Siddall v. Harrison, ante, 130, filed October 7, 1887, the present action was not one of which the trial court had rightful jurisdiction. Therefore, in accordance with the reasons stated in the opinion in the cause supra, it would seem to follow that the judgment herein should be reversed, and the cause remanded, with directions to the court below to dismiss the action. I concur: BELCHER, C. C. BY THE COURT. For the reasons given in the foregoing opinion the judgment is reversed, and cause remanded, with directions to the court below to dismiss the action. (74 Cal. 109) In re LowENTHAL, on Habeas Corpus. (No. 20,362.) (Supreme Court of California. November 8, 1887.) CONTEMPT OBSTRUCTING EXECUTION OF WRIT-JURISDICTION OF COURT TO PUNISH. Petitioner was tried before the superior court for contempt against that court in obstructing and taking from a police officer, by means of legal process, certain personal property taken by such officer under a search-warrant issued by the presiding judge of the superior court, and fined and committed to the county jail. Held, on habeas corpus, that the superior court had jurisdiction of the subject-matter and person of petitioner, and had authority to render such judgment, and that the petitioner would be remanded. In bank. Habeas corpus. Superior court of the city and county of San Francisco; J. V. COFFEY, Judge. E. B. Stonehill, Dist. Atty., and Matt. I. Sullivan, for respondent. J. F. Dunn, for petitioner. BY THE COURT. The petitioner was fined and committed to the county jail for a term of five days for a contempt of the process of the superior court, department 9, in and for the city and county of San Francisco. The alleged contempt of petitioner consisted in obstructing and taking from a police officer, by means of legal process, certain personal property taken by such officer under a search-warrant, issued by J. V. COFFEY, presiding judge of said superior court, for the purpose of securing certain documents and papers averred to have been used as a means of committing a felony. Petitioner had a hearing before the superior court, and upon the testimony, pro and con, was found guilty and sentenced as herein before stated. We have examined the record with some care, and are of opinion the superior court had jurisdiction of the subject-matter, and of the person of the petitioner, and that the judgment rendered was such as, upon the showing made, the court was authorized to make. The increasing volume of business brought before this court under the original jurisdiction conferred upon it, and the time necessarily consumed thereby, to the exclusion of other and equally important business, prompts us to brevity of opinion in cases where, like the present, our jurisdiction is not appellate. These are some of the considerations which restrain us in the present case from arguing in extenso from the premises up to the conclusions we have reached. The petitioner is remanded to the custody of the sheriff. THORNTON and TEMPLE, JJ., expressing no opinion. (74 Cal. 49) EUREKA & T. R. Co. v. MCGRATH and others. (No. 11,679.) 1. APPEAL-FROM ORDER REFUSING TO ANNUL JUDGMENT. A judgment against the defendants condemning a right of way for plaintiff's road through defendants' land was recovered by plaintiff, and defendants' damages were assessed at $600. Afterwards plaintiff moved the court that "the judgment entered in said action be set aside and annulled." After a hearing on the motion, the court made and entered the following order, "that the motion of plaintiff to annul the judgment in this action be denied and dismissed." Held that, as plaintiff could have appealed from the judgment, he could not appeal from the order. 2. RAILROAD COMPANIES-CONDEMNATION PROCEEDINGS-SUBSEQUENT CHANGE OF LINEANNULLING JUDGMENT. Plaintiff recovered a judgment condemning a right of way through defendant's land, but afterwards determined to change its line, and filed a petition and made a motion to have the judgment rendered set aside and annulled. The court entered an order denying plaintiff's petition and motion. Held that, although the motion was based upon new matter occurring subsequently to the judgment, there was no statutory provision for such a motion, or for the proceedings which plaintiff sought to institute. In bank. Appeal from superior court. Humboldt county; JOHN J. DE HAVEN, Judge. S. M. Buck and J. A. McQuaid, for appellant. Horace L. Smith, for respondents. MCFARLAND, J. The plaintiff, a railroad corporation, on the seventeenth day of February, 1885, filed its complaint in the court below, asking a judgment condemning a right of way for its road through and over a lot of land belonging to defendants in the city of Eureka. Defendants answered, denying all the averments of the complaint, (except ownership of the lot,) and claiming $1,600 damages in case of condemnation. The case was tried with a jury, and all the facts necessary to support a judgment for plaintiff were found in its favor, and defendants' damages were duly assessed at $600, Judgment upon the verdict was duly entered on August 29, 1885. The judgment, after reciting the proceedings in the case, decrees that plaintiff is en titled to use and enjoy the strip of land described in the complaint as the right of way for the construction of its railroad, upon paying to defendants, or depositing in court for them, the full amount of compensation or damages assessed by the jury. Plaintiff then duly moved for a new trial, which was denied, and thereafter, on October 1, 1885, it appealed to this court "from so much of the judgment as directed the payment to defendants of the damages assessed by the jury." It gave a bond to stay execution during the pending of the appeal, in form as provided in section 942, Code Civil Proc. On the eleventh of January, 1886, the appeal was dismissed by this court because the transcript was not filed in time. After the appeal had been dismissed, viz., on January 30, 1886, plaintiff filed a petition in the court below in which it was stated that "since the trial of said action, plaintiff has determined to change its line where it passes through defendants' land, as described in the complaint herein, and substitute a line further north, which will not require of defendants' land more than a narrow strip from the north-east corner of said lot, not exceeding 10 feet in width, if any." It also served defendants with notice that upon said petition, and upon other matters and proceedings, it would, on the fourth day of February, 1886, move the court "that the judgment entered in said action on the twenty-ninth day of August, 1885, be set aside and annulled." After a hearing of this motion-at which hearing plaintiff introduced a resolution of its board of directors declaring its determination to change its line of road as stated in said petition—the court, on March 5, 1886, made and entered on its minutes an order "that the petition and motion of plaintiff to annul the judgment herein be denied and dismissed." From this order denying the motion to annul the judgment the plaintiff now appeals; and respondent moves to dismiss the appeal, on the ground that the order appealed from is not an appealable order. In Tripp v. Railroad Co., 69 Cal. 631, 11 Pac. Rep. 219, the appeal was from an order refusing to set aside a former order dismissing the action as to certain defendants; and the court says: "As to the order of dismissal, when entered, it was a final judgment which was itself appealable. The appeal should have been prosecuted from such judgment. This court, as it is well settled, will not take the jurisdiction of an order refusing to set aside a judg ment or order itself appealable." And the court in its opinion refers to Henly v. Hastings, 3 Cal. 342; Holmes v. McCleary, 63 Cal. 497; and Railroad Co. v. Railroad Co., 65 Cal. 295, 4 Pac. Rep. 13,—all of which cases clearly sustain the rule. In the case at bar, therefore, as the judgment sought to be set aside by the motion was itself appealable, there is no appeal from the order denying the motion, and the appeal should be dismissed. Counsel for appellant contends that, as his motion was based upon new matter occurring subsequently to the judgment, therefore the rule above stated does not apply. But, as there is no statutory provision for the motion which he made, or for the proceeding which he sought to institute, how can he invoke for this particular new matter any new rule that does not apply to any other kind of new matter? Whether or not a railroad corporation, after having pushed a condemnation proceeding to the extreme of a money judgment in favor of the defendant therein, upon which an execution may issue, has the right, in any way, to avoid such judgment by a determination to change the line of its road; and if there be such right, what, if any, is the remedy,-these are questions which we are not called upon here to determine. Appeal dismissed. We concur: SEARLS, C. J.; PATERSON, J.; SHARPSTEIN, J.; TEMPLE, J.; MCKINSTRY, J. (73 Cal. 639) GROSS v. KELLEHER. (No. 12,338.) (Supreme Court of California. October 31, 1887.) FORCIBLE ENTRY AND DETAINER-APPEAL-STAY OF PROCEEDINGS-DISCRETION OF TRIAL COURT. Defendant appealed from a judgment in an action for unlawful detainer, and the court granted a stay of proceedings upon his filing a bond. The sureties failed to justify and the court set aside the order for a stay. Code Civil Proc. Cal. 1176, provides that an appeal by defendant shall not stay proceedings unless the trial court so directs. Defendant moved for leave to file a new undertaking for a stay. Held, that a stay of proceedings in an action of forcible entry and detainer, pending an appeal, was not a matter of right but of discretion with the trial court. In chambers. Proceedings on application to file undertaking on appeal from superior court of the city and county of San Francisco; T. H. REARDEN, Judge. Moses G. Cobb, for appellant. Joseph Mee, for respondent. SEARLS, C. J. This is a proceeding under an order on the plaintiff and respondent to show cause why the appellant should not be allowed to file a new undertaking on appeal, and why proceedings on the judgment should not be stayed upon filing a satisfactory undertaking. Respondent has appeared, and from the showing it appears that the action is for an unlawful detainer in which respondent recovered a judgment against his tenant, the appellant, for restitution of certain leased premises, and for certain rents, etc. The court below made an order for a stay of proceedings upon filing an undertaking in the sum of $2,000. The bond was filed. Respondent excepted to the sufficiency of the sureties, who, by a mistake as to the place at which they were to appear, failed to appear and justify. The court thereupon set aside the order staying proceedings, and execution issued. The appeal having been perfected, appellant applies to this court for leave to file an undertaking for a stay of execution. In ordinary cases for the recovery of real estate, if the judgment be for the delivery of possession thereof, the party against whom the judgment is rendered is entitled, on appeal, to a stay of proceedings of right upon filing an undertaking in such sum as the judge of the court may fix. In that class of cases this court has held that where a defective undertaking was filed in the court below, the defect could be cured here by filing a proper undertaking. Hill v. Finnigan, 54 Cal. 311, 493; Schacht v. Odell, 52 Cal. 449. In actions of forcible entry and unlawful detainer, however, a stay of proceedings pending an appeal is not a matter of right. Section 1176, Code Civil Proc., provides as follows: "An appeal taken by the defendant shall not stay proceedings upon the judgment unless the judge or justice before whom the same was rendered so directs." As this case now stands there is no order of the court or judge staying proceedings. For me to make the order here would be to override the discretion of the court below, which may have been for good reasons properly exercised. The order to show cause will, therefore, be discharged except so far as to permit appellant to file an undertaking, on appeal, in the sum of $300, to cover the costs of appeal. (74 Cal. 9) JAHANT v. CENTRAL PAC. R. Co. (No. 11,868.) (Supreme Court of California. October 31, 1887.) RAILROAD COMPANIES-STOCK KILLING-PLEADING AND PROOF. In an action against a railroad company for damages for killing stock, the complaint alleged that the defendant carelessly and negligently managed and ran its locomotive and cars, and killed the stock, which had casually, and without fault of the owner, strayed upon the track. Held, that the evidence of the carelessness of the company should be confined to the running and management of the loco |