"that said interlineation was made in such a manner as to cause the same to be readily overlooked, and by reason thereof he had not before ascertained that such notice was contained in the document": and that he immediately on said January 10 prepared and served upon the plaintiff's attorney a notice of the intention of the defendant to move for a new trial; that said attorney admitted service thereof, but expressly reserved in said admission an objection thereto on the ground that it was not served within ten days after the service of the notice of decision.

Upon the hearing the court denied the motion, and the present appeal is from this order. "The rule has been so often declared as not to need the citation of authorities that the action of the superior court upon an application to set aside a default, or grant relief therefrom, rests so largely within its discretion that it will not be disturbed on appeal unless it shall be made clearly to appear that there was an abuse of this discretion." (Ingrim v. Aperson, 137 Cal. 340; see also Winchester v. Black and cases therein cited, 134 Cal. 125.)

1. The point relied upon by the appellant is that it was misled by the fact that the notice of decision was interlined in writing upon the printed endorsement upon the memorandum of costs, and that for this reason he did not ascertain until January 10 that such notice was upon the document. The original document, upon which this endorsement was made, as well as the interlineation therein, was before the court at the hearing of the motion; and considering that the very fact that the notice of the decision was interlined in writing upon a printed document would naturally attract the attention of the attorney to its contents, it may be assumed in support of the order denying the motion that the court was satisfied from an inspection thereof that the interlineation was not made in such a manner as to be readily overlooked, but was of such a character as to attract attention, and that there was no reasonable ground for the failure of the attorney to observe the notice of decision written thereon.

2. The notice of the decision of the cause was given December 26. 1902, and the ten days within which the notice of intention to move for a new trial should have been given expired January 5, 1903. The default occurred when that time was allowed to elapse without giving such notice. Section 473, Code Civil Procedure, limits the time within which application may be made for relief from such default to six months from the time of the default. The application herein was not made until December 9, 1903, and at that time the court had no jurisdiction to grant the relief (Brackett v. Banegas, 99 Cal. 623; see also Latin v. Gillette, 95 Cal. 317).

The order is affirmed.

We concur:

HALL, J.

COOPER, J.

HARRISON, P. J.

Civil No. 277. Third Appellate District. November 24, 1906. CHARLES E. STEWART, Plaintiff and Respondent, v. TASSEY STEWART, Defendant and Appellant.

ACTION ON PROMISSORY NOTE-STATUTE OF LIMITATIONS-FINDINGS. In this action on a promissory note it is held that the finding that the action is not barred by the statute of limitations is sufficient and that the findings support the judgment.

Appeal from the Superior Court of Fresno County-H. Z. Austin, Judge.

For Appellant-M. E. Sanborn and E. D. Edwards.
For Respondent-Wiley J. Tinnin and M. K. Harris.

This is an action upon the following promissory note, to wit: "$400. Yuba City, Cal., June 1st, 1874. "Ninety days after date I promise to pay to J. C. & J. T. Smith or bearer for value reced four hundred dollars in Gold Coin of the U. S. Bearing one & half per cent. a month interest until paid. "TASSEY STEWART.

"(Endorsed):

"J. C. & J. T. Smith."

Defendant plead the statute of limitations. Judgment was for plaintiff for $400.00 principal of the note and $2280.00 interest. The appeal is from the judgment and comes here upon the judgment roll. The only question in the case is the statute of limitations and the construction of section 351 of the Code of Civil Procedure, which reads as follows: "If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited, after his return to the state, and if, after the cause of action accrues, he departs from the state, the time of his absence is not part of the time limited for the com mencement of the action."

The court found that from June 1, 1874, the date of the note, the defendant was in and remained in California, continuing to the the 26th day of April, 1878. The note was then long past due, and the statute of limitations would have run against it in four months and five days. That at the last date defendant removed to the state of Oregon and has ever since resided in that state. Plaintiff and defendant are brothers. On several occasions since April 26, 1878, the defendant visited California and on this the court found as follows: "Defendant came to California on the 13th day of December, 1887, and remained until the 3rd day of February, 1888; defendant came to California December 20, 1891, and re mained until January 28, 1892; came to said state on the 28th of November, 1895, and remained until January 2, 1896; came to said state January 1, 1897, and remained until January 21, 1897; came to said state December 8, 1900, and remained until December 29, 1900; came to said state January 21, 1901, and remained until January 28, 1901; came to said state February 21, 1901, and re mained until February 27, 1901; came to said state June 24, 1904, and remained until July 12, 1904; that the foregoing are all the visits that said defendant ever made to California after his first

departure therefrom in 1878. Said visits were not surreptitious or secret, and were all, except visit of February, 1901, made to the home of defendant's mother (who was also plaintiff's mother), about three miles from Yuba City, and during all of the time, up to the day of Dec., 1890, plaintiff resided in Colusa County, about 35 miles from Yuba City, and from said last-named date, up to the present time, plaintiff resided in Fresno County, some two hundred miles from Yuba City, and there was no communication by rail, or water, or telegraph between Yuba City and the place of plaintiff's residence in Colusa County while plaintiff resided in Colusa County. None of said visits of defendant to the state of California were known to plaintiff at the time such visits occurred, and plaintiff only learned of such visits after they had been concluded, and it is not true that all or any of said visits might have been known to plaintiff with the exercise of ordinary diligence on plaintiff's part. Said note sued on herein was made near Yuba City, in Sutter County, California, and there were, during all of said time, friends, acquaintances and relatives of plaintiff and defendant residing there." The right of action accrued on September 1, 1874. The complaint was filed August 2, 1905.

The fifth finding is as follows: "Said cause of action is not barred by the provisions of Section 337 of the Code of Civil Procedure."

We think the findings support the judgment.
Judgment affirmed.

BUCKLES, J.

CONCURRING OPINION.

I concur in the judgment. The complaint was filed August 2, 1905. If all the times defendant was in California, after he became a resident of Oregon, are to be aggregated and counted in his favor and added to the time he was in the state after the action accrued, the complaint was not filed within the statutory period. If these visits were not such as to set the statute in motion the action was commenced in time. It has been held, and rightly I think, that the return must not be secret or clandestine or with an intent to defraud the creditor by setting the statute in motion and then departing. (See Palmer v. Shaw, 16 Cal. 93, 98.) The findings show that the visits of defendant were not of this character. It has also been held that though not secret or clandestine the return does not set the statute in motion unless the creditor had knowledge of the fact or means of knowledge or knowledge of facts such as would put a reasonable man upon inquiry. As was said in Fowler v. Hunt, 10 Johns. 463 (N. Y.), cited in Palmer v. Shaw, supra, the return "must be so public, and under such circumstances as to give the creditor an opportunity, by the use of ordinary diligence and due means, of arresting the debtor." But the court found upon evidence which we must assume to have been sufficient, as the appeal is from the judgment on the judgment roll alone, that plaintiff had no knowledge of de fendant's return to California at any of the times mentioned until after defendant had ended his visits and had returned to his home in Oregon. The court also found that "it is not true that all or any of said visits might have been known to plaintiff with the exercise of ordinary diligence on plaintiff's part."

CALIFORNIA APPELLATE DECISIONS.

397

Appellant contends that under the second clause of section 351, Code Civil Procedure, the logical deduction is "that all the times he (the debtor) is not absent from the state the Statute is running; since such times are not excepted from the Statute by express terms they cannot be by implication." The note fell due September 1. 1874, and the whole time thence to August 2, 1905, less the aggre gated absences, was four years, two months and nine days, as claimed in appellant's brief. Without passing upon appellant's contention it is sufficient answer that the court, presumably on sufficient evidence, excluded the time of defendant's visits in its computation of the time the statute was running. Appellant reaches his conclusion only by assuming that the statute was running during defendant's visits to this state. But this assumption is not warranted by the findings from which the inference is deducible that the statute was not set in motion and was not running during these visits. CHIPMAN, P. J.

I concur:

MCLAUGHLIN, J.

Civil No. 281.

Second Appellate District. November 27, 1906. TRACY N. STEBBINS, Plaintiff and Appellant, v. L. P. LARSON, Defendant and Respondent.

APPEALS-NONSUIT-WHEN APPEAL CANNOT BE ENTERTAINED.-NO appeal is permissible from either an order of nonsuit or from an order directing judgment on a nonsuit, nor can an appeal be entertained from a judgment of nonsuit where the transcript on appeal fails to set out or disclose a final judgment.

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

For Appellant--Geo. A. Corbin, A. M. Gates.

For Respondent--F. H. Thompson.

This action is brought to enforce specific performance of a contract. Upon the trial, at the conclusion of the plaintiff's evidence, the defendant moved for a nonsuit upon certain grounds stated in said motion. The motion seems to have been granted. The only recital in relation thereto that we find in the transcript on appeal is as follows:

46

"Minutes Superior Court. Dept. 2.
"November 2, 1905.

"ORDER GRANTING MOTION FOR NONSUIT.

'(Title of Cause.)

"Defendant's motion for non-suit is granted and judgment of nonsuit is ordered."

The notice of appeal is "from a judgment of non-suit therein made and entered in the said superior court on the second day of November, 1905, in favor of the defendant in said action and against said plaintiff, and from the whole thereof." We find nothing in the transcript indicating that any final judgment was ever entered in the case, except as above quoted. The order quoted above does not purport to be, and is not in fact, a final judgment in the case, and under

the law no appeal is permissible from either an order of nonsuit or from an order directing judgment on a nonsuit. (Kimple v. Conway, 69 Cal. 71.) Nor can we entertain an appeal from a judgment of nonsuit where the transcript fails to set out or disclose a final judgment. (Granger v. Richards, 126 Cal. 635. See also Estate of

Moore, 143 Cal. 493.)

Upon the authority of the foregoing cases the appeal is dismissed. GRAY, P. J.

We concur:

SMITH, J.

ALLEN, J.

Civil No. 286. Second Appellate District. November 26, 1906. S. P. ROWLAND, Plaintiff and Respondent, v. JOHN W. WATSON, Defendant and Appellant.

COMPULSORY PAYMENT OF MONEY-PREVENTION OF FINANCIAL LOSS -RIGHT OF RECOVERY.-A payment of money made to avoid financial loss and so made on notice and protest is regarded in law as a payment under compulsion, and where the sum so paid is illegally exacted it can be recovered back. It is held in this case that the complaint states a cause of action and supports the judgment.

ID.—ID.—ID.-PAYMENT TO THIRD PARTY IMMATERIAL.-The fact that the money, in such a case, is paid to a third party for defendant is immaterial.

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

For Appellant-H. S. Rollins.

For Respondent-W. C. Petchner.

This action is brought to recover the sum of $620.58 alleged to have been overpaid on a note and agreement set out in the complaint. The plaintiff had judgment as prayed, and the defendant appeals therefrom. The appellant contends that the complaint does not state a cause of action, and that the complaint is insufficient to sustain the judgment.

The complaint upon which the trial was had proceeds upon the theory that the defendant by his conduct compelled the overpayment on a certain promissory note of the sum of $620.58. The note, dated April 1, 1903, for the principal sum of $700, drawing interest at seven per cent per annum from maturity, is set out in full in the complaint. It is also alleged that on the same date plaintiff and defendant made and entered into an agreement in writing to the effect that, if the said plaintiff Rowland should desire an extension of time to pay the said note, the said defendant Watson would extend said time of payment for two months after August 1, 1903, the date of its maturity. It was further understood and agreed between the parties, as stated in the agreement, that if such time of payment should be extended the plaintiff should pay for said extension "an additional bonus of fifty dollars per month for each month or fractional part of a month which said note shall be extended" by the defendant, together with interest on the principal sum of said note and the said bonus of fifty dollars per