apparent reason for holding that this case falls within the exception to the general rule forbidding interference by prohibition unless urgent necessity demands such course.

The writ is denied.

We concur:

CHIPMAN, P. J.
BUCKLES, J.

MCLAUGHLIN, J.

Civil No. 215. Second Appellate District. July 3, 1906. A. S. KOYER, Plaintiff and Respondent, v. CHARLES E. BENEDICT et al., Defendants, and GERTRUDE STULL, Defendant and Appellant.

FORECLOSURE OF MORTGAGE-APPEALS-SERVICE OF NOTICE OF—AdVERSE PARTIES.-In an action to foreclose a mortgage, the mortgagors, who, if the judgment should be reversed and the contention of the appellant that the mortgage is null and void be sustained on a new trial of the case, might be left personally liable on the note, with nothing to be derived from a foreclosure sale to satisfy any part of their liability, are interested and adverse parties upon whom notice of appeal must be served.

ID.-ID.-ID.-MODE OF SERVICE.-Where the residence of the parties upon whom service is to be made is known and the party making the service and those upon whom it is made reside or have their offices in the same place, service by mail cannot be made, but should be made by leaving the notice or other paper at his residence, between the hours of eight in the morning and six in the evening, with some person of suitable age and discretion.

Appeal from the Superior Court of Los Angeles County-D. K. Trask, Judge.

For Appellant--Charles S. McKelvey, and Gertrude Stul in propria persona.

For Respondent-Will A. Harris, Harris & Harris.

This is an action upon a promissory note and to foreclose a mortgage given to secure said note. The mortgage and note were executed by Charles E. Benedict and his wife, Martha S. Benedict, to the plaintiff. Summons was duly served upon some thirteen defendants, and the defendants so served seem to have defaulted. except the defendant Gertrude Stull, who answered the complaint; and judgment having gone against her, she appeals from said judgment.

The plaintiff moves to dismiss the appeal upon the ground that no proper service of the notice of appeal was made upon the Benedicts. The Benedicts are interested in the result of the appeal herein, for the reason that if the judgment should be reversed, and the contention of the appellant that the mortgage is null and void be sustained on a new trial of the case, the Benedicts might be left personally liable on the note, with nothing to be derived from a foreclosure sale to satisfy any part of that liability. They were, therefore, adverse parties, and it was necessary that the Benedicts should have been duly served with the notice of appeal. Pending the hearing of the motion to dismiss the appeal, appellant

obtained leave of this court to file affidavits showing said service. These affidavits were subsequently filed and show that service of the notice was attempted to be made by mailing the same in Los Angeles, addressed to the Benedicts in Los Angeles, "at the corner of 20th and Barnard Park, .. their said place of residence." It appears from this that the residence of the Benedicts was known to the parties making the service; therefore, the service could not be made by mail, but should have been made "by leaving the notice or other paper at his residence, between the hours of eight in the morning and six in the evening, with some person of suitable age and discretion." (Code Civ. Proc., sec. 1011, subsec. 2.)

The affidavits fail to show that the parties "reside or have their offices in different places", so as to bring the case under section 1012 of the Code of Civil Procedure. On the contrary, the affidavits

show that both parties reside in Los Angeles.

The affidavit of W. J. Ford, as we understand it, relates to a former attempted appeal which was not perfected and is not before

us.

The appeal is dismissed.

We concur:

SMITH, J.

ALLEN, J.

GRAY, P. J.

Civil No. 238. Second Appellate District. July 6, 1906. ENOCH PEPPER, Plaintiff and Respondent. v. F. NEIMAN, etc., Defendant and Appellant.

STREET LAW-NOTICES-HOW TO BE POSTED.-Section 3 of the street improvement act (stats. 1891, p. 198) requires notices to be posted not more than one hundred feet longitudinally along the line of the improvement; the entire street is the line referred to, and notices posted on either side are notices posted on the line, and if such notices are not more than one hundred feet apart, measuring the distance along the center of the improvement, the section is complied with, it matters not upon which side of such center line the notices are actually posted, and the diagonal measurements are not to be considered.

Appeal from the Superior Court of Los Angeles County-N. P. Conrey, Judge.

For Appellant-Bicknell, Gibson, Trask, Dunn & Crutcher and S. M. Haskins.

For Respondent-Enoch Pepper, in propria persona; H. S. Rollins.

BY THE COURT.

This is a suit to quiet plaintiff's title to three lots in the city of Los Angeles fronting on Flower street. The defendant in his answer claims a lien upon each lot-upon two for the sum of $75.29 each, and upon the other for the sum of $80.61-under a street assessment for the cost of the improvement of a portion of Flower street. The answer sets up seriatim all the proceedings required by the street improvement act; and in a cross-complaint repeating these allegations, the defendant seeks to foreclose his liens.

It is stipulated and found by the court that all the proceedings for the improvement of the street and assessment of the lots were regular, except the posting of the notices of the contemplated work or improvement on the grouna; as to which it is stipulated and found: That the length of the portion of the street improved is 4583 feet, and the width of the street between curb lines 56 feet; that the number of notices posted was 52 in all; and, that they were posted alternately on the east and west sides of the street. It appears, therefore, from the stipulation and findings that the distance between the notices, measured diagonally across the street, is something over a hundred feet, though less if measured longitudinally with the street; and on this ground the court held the assessment to be void.

The resolution of intention in the present case is entitled: "An Ordinance of the Mayor and Council of the City of Los Angeles, declaring their intention to improve a portion of Flower street, and determining that bonds shall be issued to represent the cost thereof." In the first section it is provided: "That it is the intention of the City Council of the City of Los Angeles to order the following work to be done, to wit:

"1st. That a cement curb be constructed along each line of the roadway of said Flower street from the southerly curb line of Sixth street to the northerly curb line of Pico street (excepting along

such portions of the line of said roadway upon which a cement or granite curb has already been constructed to the official line and grade), etc. 2nd. That a cement sidewalk six feet in width be constructed along each side of said Flower street, etc. 3rd. That a cement gutter be constructed along each side of said Flower street," etc.

It is contended by the appellant that the work described in the ordinance of intention is the improvement of Flower street between the points specified, and by the respondent that there were two distinct lines of work provided for, one along each boundary of the roadway. Assuming the latter to be the case, it would follow that the distances between the notices along the line of each improvement would be much in excess of a hundred feet. But we do not think that the ordinance can be so construed. As expressed in the title, the intention was to improve a part of Flower street, and in the first section of the ordinance "the line of said roadway" is referred to. We are of the opinion, therefore, that the case is the same in this respect as was the case in Dowling v. Hibernia Sav. & L. Society, 143 Cal. 425, where the roadway was included in the improvement proposed.

The fact remains, however, that the distance between the notices, measured diagonally across the road, was over a hundred feet; and the question thus arises, whether this was a sufficient compliance with section 3 of the street improvement act, which provides that the notices shall be "posted along the line of said contemplated work or improvement at not more than one hundred feet in distance apart" (Stats. 1891, p. 196). The question is not without difficulty; but, on the whole, we are of the opinion that the section requires notices not more than one hundred feet longitudinally along the line of the improvement; that the entire street is the line referred to; that notices posted on either side are notices posted on the line, and if such notices are not more than one hundred feet apart, measuring the distance along the center of the improvement, the section is complied with, it matters not upon which side of such center line the notices are actually posted; and that the diagonal measurements are not to be considered.

It is ordered that the judgment be reversed.

Civil No. 247. Second Appellate District. July 5, 1906. ALICE C. McGEHEE, Plaintiff and Respondent, v. A. F. SCHIFFMAN, trading and doing business under the name and style of the "Schiffman Method Dental Company", Defendant and Appellant.

ACTION FOR DAMAGES-PERSONAL INJURIES—NEGLIGENCE.—Negligence is the ultimate fact to be pleaded, and it forms part of the act from which an injury arises. It is the absence of care in the performance of an act and is not merely the result of such absence.

ID.—ID.—ID.—PLEADING-ALLEGATION OF NEGLIGENCE-SUFFICIENCY OF. It is sufficient to allege negligence in general terms specifying, however, the particular act which is alleged to have been negligently done. Where a complaint, in an action for damages, alleges, "and (the defendant) did then and there extract seven of said teeth and

remove all of the same from her mouth excepting one of said teeth, which by said defendant's carelessness, negligence and unskillfulness was permitted and allowed by him to drop and pass into plaintiff's right lung, without any fault or negligence on her part," this is a sufficient allegation of negligence.

ID.-ID.-ID.-SUFFICIENCY OF EVIDENCE. In this action for damages for negligence it is held that evidence is sufficient to support the findings.

Appeal from the Superior Court of Los Angeles County-D. K. Trask, Judge.

For Appellant-A. B. McCutchen.

For Respondent-E. Edgar Galbreth.

Action to recover damages on account of injuries sustained through negligence. Judgment for plaintiff; new trial denied, and defendant appeals from such judgment on the roll, and from an order denying a new trial.

The first contention of appellant is that the complaint,—which alleges that "the defendant did then and there extract seven of said teeth and remove all of the same from her mouth excepting one of said teeth, which by said defendant's carelessness, negligence and unskillfulness was permitted and allowed by him to drop and pass into plaintiff's right lung, without any fault or negligence on her part,"- -was insufficient in that the negligence averred was not the proximate cause, for the reason that it is manifest that plaintiff, having control over her own muscles and breathing apparatus, the tooth by any negligence or omission of defendant could only have been allowed to escape into the mouth, and that it should reach the lung comprehendeu action on plaintiff's part which would be the proximate cause of the injury; that if there was an unbroken sequence of events through which the injury was chargeable to defendant those continuous events should have been pleaded; that the complaint was uncertain in that it cannot be ascertained "how or in what manner any carelessness on the part of the defendant occasioned the injury, nor how the defendant by any act or omission of his could permit or allow the plaintiff's tooth to drop or pass into her right lung." It is sufficient to allege the negligence in general terms, specifying, however, the particular act which is alleged to have been negligently done. "Negligence is the ultimate fact to be pleaded, and it forms part of the act from which an injury arises. It is the absence of care in the performance of an act, and is not merely the result of such absence, but the absence itself." (Stephenson v. Southern Pac. Co., 102 Cal. 148.) When we consider that the demurrer admits that through want of care defendant allowed the tooth to drop into the lung, whereby the injury followed, it removes from consideration the possibility of any intervening facts or circumstances being the proximate cause of the injury. "It is sufficient to say it was negligently done, without stating the particular omission which rendered the act negligent. But it must appear from the facts averred that the negligence caused or contributed to the injury." (Smith v. Buttner, 90 Cal. 100.) In the complaint under consideration it is averred that he dropped the tooth into the lung, the