such application is made, may and should inquire as to the right of the applicant to a franchise; and it has been held that, because the board on such an application has determined this right, an individual who is using the road cannot question it. Turnpike Road Co. v. Campbell, 44 Cal. 89. In Blood v. Woods, 95 Cal. 78, 30 Pac. Rep. 129, it was said that all toll roads are public roads, and to some extent under the control of the board of supervisors, and that the roads upon which they may be required to fix rates of toll are those laid out and built as toll roads under the provisions of the Code. This is not a proceeding for fixing rates, but an inquiry on behalf of the state as to the authority of the defendant, if there be one, to collect tolls. No such right has been shown. It seems to be claimed that, in the allegation quoted from the complaint, it is admitted that prior to six months immediately preceding the action the defendant had a franchise. But this is not so. It is a very cautious statement, but is entirely consistent with the proposition that defendant never had a franchise at any time. The pleader might have contented himself with merely stating the fact that the defendant was claiming and exercising a franchise, and averred that it was without right, or he might have averred the existence of a franchise at some time, and shown that it had terminated, or been forfeited. In the last case the facts showing that it had ended or had been forfeited should have been stated. The complaint here, though containing some unnecessary statements, is quite sufficient for a complaint of the first character, but is insufficient for a The complaint in the other class of cases. corporate character of the defendant is admitted in the pleadings; still the evidence shows, beyond doubt, that there is no defendant. It is nominis umbra, merely. I advise that the order be affirmed.

We concur: SEARLS, C.; VANCLIEF, C.

PER CURIAM. For the reasons given in the foregoing opinion, the order appealed from is affirmed.

(100 Cal. 11)

WARNER v. WARNER et al. (No. 19.080.) (Supreme Court of California. Oct. 10, 1893.) CHANGING PLACE OF TRIAL-ACTION FOR DIVORCE.

1. Civil Code, § 128, as amended by Act March 10. 891, providing that a divorce must not be granted unless plaintiff has been a resident of the county "in which the action is brought three months next preceding the commencement of the action." does not prevent a change of the place of trial of an action for divorce to the county in which defendant resides, since Code Civil Proc. § 395, provides that "in all other cases (excepting actions relating to real property, for the recovery of penalties, and those against municipal corporations and public officers, etc.) the action must be tried in the county in which the defendants,

or some of them, reside at the commencement of the action." De Haven. J., dissenting.

2. Code Civil Proc. § 396, provides that if the county in which the action is commenced is not the proper county for the trial thereof the action may, notwithstanding, be tried therein, unless defendant demands in writing that trial be had in the proper county. Held, that where the bill of exceptions recites that a "notice in due form" of the motion by defendant for a change in the place of trial was filed, and no objection was raised to the absence of a demand in writing, it will be presumed on appeal that the notice included a proper de mand. Beatty, C. J., dissenting.

In bank. Appeal from superior court, San Bernardino county; John L. Campbell, Judge. Action by Warner against Warner and another. From an order changing the place of trial, plaintiff appeals. Affirmed.

Rolfe & Freeman, for appellant. Wells, Monroe & Lee, for respondents.

The

PATERSON, J. This is an action for a divorce and a division of the community property. It is alleged that F. R. Warner, who is joined as a defendant with the husband of the plaintiff, received from the husband a fraudulent conveyance of certain real property, situated in San Bernardino county, with the intent to defraud the plaintiff of her community interest therein. prayer is for a divorce, a cancellation of the conveyance, and a division of the property fraudulently conveyed. The action was brought in the county of San Bernardino, the complaint alleging that the plaintiff had resided in the state for more than one year, and in the county of San Bernardino for more than three months, next preceding the commencement of the action. The court, on motion of the defendants, changed the place of trial from San Bernardino to Los Angeles county, upon the sole ground that the defendants were residents of the latter county. Appellant contends that under section 128 of the Civil Code an action for divorce must be brought in the county of the plaintiff's residence, and cannot be removed therefrom except on account of the convenience of witnesses, or where it is made to appear that an impartial trial cannot be had, or that the judge of the county is disqualified from acting. The section referred to, as originally incorporated into the Codes, provided that "a divorce must not be granted unless the plaintiff has been a resident of the state for six months next preceding the commencement of the action." As amended by the act of March 10, 1891, it now reads that "a divorce must not be granted unless the plaintiff has been a resident of the state for one year, and of the county in which the action is brought three months next preceding the commencement of the action." It is said it would lead to an absurdity to hold that a husband could compel his wife to bring an action in a county other than the one in which he lived, in the county where she resides,

and afterwards, on his own motion, have the cause removed to the county of his residence; but in making this new provision the legislature was looking out for the interests of the public, as well as the interests of the parties. Prior to the passage of this amendment, reproach had been brought upon the administration of our divorce laws by the frequency of proceedings commenced by complainants in counties where neither of the parties resided, the purpose being generally to avoid notoriety in the community where the plaintiff was known, and in some instances to obtain a decree by collusion, or to vex the defendant, or make it impossible or inconvenient for him or her to present a defense. It was the purpose of the amendment to correct this abuse. The state has an interest in the result of such cases. The public welfare demands that the bonds of matrimony should not be lightly set aside, and there is less probability of successful collusion or unfair advantage where the parties have both resided and are known, than there is in a county where neither has resided, and which the plaintiff may select for the purpose solely of procuring a divorce. It is true, before the amendment, a defendant had the right to have the cause transferred to his or her place of residence for trial, and to this extent the defendant's rights were protected; but the amendment tends to discourage the practice referred to, saves the defendant in a great many instances from the necessity and expense of moving for a change of the place of trial, and renders it less probable that the parties will allege or admit grounds of divorce which their friends and neighbors know to be false. Thus are the interests of not only the defendant, but of the public, in a measure protected.

Section 128 must be read in connection with sections 395 and 397, Code Civil Proc. The former is a limitation as to the place for the commencement of actions of divorce; the latter provide for the place of trial. The absurdity suggested is no greater than that which may arise under section 5, art. 6, of the constitution. That section provides that "all actions for the recovery of the possession of, quieting title to, or for the enforcement of liens upon, real estate, shall be commenced in the county in which the real estate, or any part thereof, affected by such action or actions is situated." The plaintiff may be morally certain that the action would have to be tried in another county, either because of the convenience of the witnesses or disqualification of the judge, and yet the action must be commenced in the county where the real estate is situated. It has been held here that there is no inconsistency between this section and the provisions of the Code relating to the place of trial. Hancock v. Burton, 61 Cal. 70. We do not look to the Civil Code for

methods of procedure. The legislature has, for the reasons suggested, provided that no divorce shall be granted unless the plaintiff has resided in the county where the action is commenced for three months, but we look to the Code of Civil Procedure to determine all questions relating to the place of trial.

Fur

The inconvenience and injustice suggested by appellant is more fancied than real. The cases in which the plaintiff will be put to inconvenience must necessarily be rare. thermore, when the question of inconvenience is considered, it will be found not entirely one-sided. A party desiring to secure a divorce may under the construction claimed by appellant, by establishing a residence in a distant county, put the defendant to the trouble and expense of having the case tried away from the place of his residence, unless he can show inconvenience of witnesses or disqualification of the judge. But all such speculation has nothing to do with the matter. It is the duty of the court to give effect to the law as it finds it, and not be led away from the rules of construction by considerations of inconvenience. It is sufficient for us to know that effect can be given to both provisions by the construction which we give them, while the construction contended for would in effect nullify the provisions of section 395, Code Civil Proc., so far as actions for divorce are concerned.

The

It is further contended by the appellants that the action, being one in part to set aside a fraudulent sale and conveyance of land, necessarily involves the determination of a right or interest in real property, and therefore comes within the provision of section 392, Code Civil Proc. That section provides that an action "for the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest," must be tried in the county in which the subject of the action is situated, subject to the power of the court to change the place of trial. object of the action, however, was not simply to procure the cancellation of the deed and reconveyance of the property. Another and probably much greater object was to secure a dissolution of the bonds of matrimony, and, so far as this last matter was the subject of the action, the proper county for the trial thereof was the county of the defendant's residence. It has been held here that, if real and personal actions are joined in the same complaint, the case falls within section 395, Code Civil Proc., and must be tried in the county of the defendant's residence. Smith v. Smith, 88 Cal. 572, 26 Pac. Rep. 356; Ah Fong v. Sternes, 79 Cal. 33, 21 Pac. Rep. 381; Le Breton v. Superior Court, 66 Cal. 30, 4 Pac. Rep. 777. The defendant F. R. Warner might perhaps have insisted upon the action being retained in the county of San Bernardino for trial, but, if any such right existed, he waived it by joining the other defendant in the application for a

transfer to Los Angeles county. O'Neil v. O'Neil, 54 Cal. 187. In the bill of exceptions, facts are cited sufficient upon which to base an order changing the place of trial. The order is affirmed.

We concur: MCFARLAND, J.; FITZGERALD, J.

(4 Cal. Unrep. 300)

CHAPIN et al. v. BROWN. (No. 18,147.)2 (Supreme Court of California. Oct. 14, 1893.) PARTNERSHIP-ACCOUNTING-NOVATION.

A lumber firm agreed with two of its members to sell them sawed lumber at a certain price. The two members formed a new firm, and one of them sold his interest in the contract to the other, and the latter sold interThe old firm ests therein to two strangers.

ment.

HARRISON, J., (concurring.) I think the order appealed from should be affirmed. In my opinion the amendment of 1891 to section 128, Civil Code, was intended to prescribe a residence of three months in some particular county as a jurisdictional condition to be shown by the plaintiff before he should be entitled to a divorce, just as the previous requisite, which is also retained, of six months' residence in the state, is a jurisdictional condition to entertaining his application for a divorce. The right to a divorce is particularly a matter of statutory creation, and the legislature has the same right to prescribe the conditions in procedure upon which a suit shall be instituted in its courts as it has to limit the causes for which the divorce may be granted. This construction of the section is consistent with the provisions of the Code of Civil Procedure for changing the place of trial of the action after it has been brought, and gives full force to the several provisions of both Codes.

No objection was made in the court below to the absence of a demand in writing for a change of the place of trial, and, as the bill of exceptions states that a "notice in due form" of the motion therefor was filed by the defendant, it can be assumed here that the notice included a proper demand.

BEATTY, C. J. I dissent. There was no demand in writing for a change of the place of trial ever filed by the defendants, or either of them, and such demand has more than once been held by this court to be essential to the validity of an order changing the place of trial. Code Civil Proc. § 396;1 Estrada v. Orena, 54 Cal. 407; Byrne v. Byrne, 57 Cal. 348. Unless these decisions are to be reversed, the order appealed from should be reversed. As to the point discussed in the opinion of the court, I concur in the main in the views expressed by Justice PATERSON, but for the reason above stated I must dissent from the judgment of affirmance.

1 The section provides: "If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein, unless the defendant, at the time he appears and answers or demurs, files an affidavit of merits, and demands, in writing, that the trial be had in the proper county."

der the agreement, and to receive payment therefrom, without regard to its personnel, the bills being in all instances made out in the There was name of the purchasing concern.

no evidence of any agreement to release the original contractors. Held, that there was no novation, and the lumber firm could sue one of the purchasing members for an accounting without joining his new associates in the purchasing contract.

VANCLIEF, C. On August 15, 1887, the plaintiffs and the defendant were copartners doing business in the firm name of Sugar Pine Mill & Lumber Company. Their business was that of manufacturing and selling lumber. They owned 160 acres of timber land, upon or near which they had built a sawmill. On August 15, 1887, a written contract between the copartnership and two of its individual members, namely, Chapin and ́ the defendant Brown, was executed, by which the copartnership agreed to sell to Chapin and Brown, and the latter agreed to purchase, all the lumber to be sawed from the timber then standing or fallen on the said 160 acres of land, "or that may be sawed in the mill of the said parties of the first part [the copartnership] from other claims before finishing sawing the timber from the above-described claim, [the 106 acres,]" at the price of $9 per thousand feet, to be delivered in the mill yard. The parties of the first part further agreed that after the year 1887 they would deliver, as aforesaid, "an annual amount of one million feet or more, at the option of the said second parties." The agreement contains other stipulations not relevant to the issues in this case. On the same day (August 15, 1887) another agreement was executed between the copartnership and two others of its members, namely, T. E. Peckinpagh and Charles Peckinpagh, by which the latter agreed to cut, haul, and saw into lumber all the timber on said 160 acres of land, and to stack the lumber in said mill yard, for which they were to be paid $6 per thousand feet. As to the amount of lumber to be sawed, they Reversed in banc. See 35 Pac. 1051, 101 Cal. 500.

agreed to be governed by the above-mentioned contract with Chapin and Brown. For the purpose of performing this contract they were to have the use of said mill, but were to keep it in repair. This contract also contains matters not material to this case. Chapin and Brown assumed to constitute a distinct copartnership under the firm name of North Fork Lumber Company, and transacted the business under their contract with the Sugar Pine Mill & Lumber Company in that name; but at some time prior to January 1, 1888, Chapin assigned his interest in their contract with the Sugar Pine Mill & Lumber Company to Brown, who agreed with him to perform all its obligations, and withdrew from the North Fork Lumber Company. Brown continued the business under the contract in the name of North Fork Lumber Company until January, 1888, when he assigned an interest in the contract to John Bartram, and on May 1, 1888, assigned another interest to B. F. Ellis. After these assignments, Brown, Bartram, and Ellis constituted the North Fork Lumber Company, and conducted the business with the Sugar Pine Mill & Lumber Company under the lumber contract in that name. In the fall of 1888, T. E. and Charles Peckinpagh assigned their contract with the Sugar Pine Mill & Lumber Company of August 15, 1887, (above set out,) to the North Fork Lumber Company. By the performance of this contract on the part of the Peckinpaghs, the North Fork Lumber Company became entitled to receive from the Sugar Pine Mill & Lumber Company $6 per thousand feet for manufacturing the lumber which they were to purchase from the latter com pany at the price of $9 per thousand. From and after this assignment by the Peckinpaghs, Charles Peckinpagh was employed by the North Fork Lumber Company, at a salary, to do the sawing, and he continued in that position during the years 1890 and 1891.

The object of this action is to dissolve the Sugar Pine Mill & Lumber Company, to compel an accounting between its members, and especially between the copartnership and the defendant, who, it is alleged, owes the concern balance of $3,090 for lumber delivered to the North Fork Lumber Company during the year 1890, under the contract first above mentioned, called the "purchasing contract." The court found him to be individually responsible on that contract, and that he was indebted on that account to the other nmbers of the company as follows: To Carles Peckinpagh, $427.45; to T. E. Peckinpagh, $471.85; to J. E. Chapin, $483.80,-amounting to $1,383.18; and consequently that he was indebted to the copartnership (of which he was an equal member) in the sum of $1.844.14. The judgment was in accordance with this finding. The defendant appeals from the judgment and

from an order denying his motion for a new trial.

1. The appellant contends that there was a novation of the purchasing contract by which the assignees of portions thereof were substituted for the original contractors (Brown and Chapin) by consent of the Sugar Pine Mill & Lumber Company, and therefore that appellant is not individually liable, as found by the court. It is not claimed, however, that there was any evidence of such novation, or consent thereto, by the Sugar Pine Mill & Lumber Company, other than the facts that the lumber was delivered to and paid for (so far as payments were made) by the North Fork Lumber Company, as constituted at the times of such delivery and payments. Brown never assigned all his interest in the purchasing contract, but remained a member of the North Fork Lumber Company during all its transactions with the Sugar Pine Mill & Lumber Company. Nor is there any evidence that the latter company ever agreed or consented to discharge him or Chapin from their obligation on that contract, to accept Bartram or Ellis in their stead for any part of such obligation. No objection on the grouad of misjoinder or nonjoinder of parties to the action was made by demurrer or answer, or otherwise, in the court below, nor is any point made here on this ground. All the parties to the purchasing contract, and alb the members of the Sugar Pine Mill & Lumber Company were before the court, and, as there as no novation of that contract, neither Bartram nor Ellis was a necessary party to the accounting. The state of accounts between the members of the North Fork Lumber Company is immaterial for any purpose of this action.

2. The only other point requiring consideration arises on the following additional facts: During the year 1890, while Charles Peckinpagh was doing the sawing for the North Fork Lumber Company, as aforesaid, he and a Mrs. Bearden sold and delivered to the North Fork Lumber Company a lot of logs cut from other lands than the 160 acres belonging to the Sugar Pine Mill & Lumber Company, and to which the latter company held no title. These logs were sawed by Charles Peckinpagh during 1890, while employed by the North Fork Lumber Company, as aforesaid, and produced 683,923 feet of lumber, which was piled in the mill yard, and thence removed by the North Fork Lumber Company. The evidence tends to prove that these logs were sawed with the knowledge and consent of the plaintiffs, and with an understanding between plaintiff's and the North Fork Lumber Company that the latter was to pay the Sugar Pine Mill & Lumber Company, for the use of their mill in sawing those logs, 50 cents per thousand feet; and it appears that a large portion of the lumber sawed from those logs must have

entered into the estimate of the 1,030,000 feet alleged and found to have been delivered to defendant in 1890, under the contract set out in the complaint. The appellant contends that the lumber produced from those logs purchased by the North Fork Lumber Company never was the property of the Sugar Pine Mill & Lumber Company, and therefore could not have been sold or delivered as such, under the contract set out in the complaint, and that the Sugar Pine Mill & Lumber Company were entitled to charge only for the use of the mill in sawing those logs at the agreed price of 50 cents per thousand instead of $3 per thousand, which they were to receive for the lumber sawed from timber taken from the land of the Sugar Pine Mill & Lumber Company. Thus far, perhaps, appellant is right, but his assumption that in the accounting the court credited the Sugar Pine Mill & Lumber Company $3 per thousand for the lumber sawed from the logs purchased by the North Fork Lumber Company is not sustained by the record. Assuming that all the lumber sawed before January 1, 1890, had been paid for before the commencement of this action, as seems to be admitted, and that only the lumber sawed in 1890 and 1891 is involved, as appears by the findings of the court, and also assuming that only 50 cents per thousand was credited to the Sugar Pine Mill & Lumber Company on account of the 683,923 feet produced from the logs purchased by the North Fork Lumber Company, and $3 per thousand for all the lumber sawed from other timber during 1890 and 1891, viz. 735,121 feet, yet the judgment against the defendant would seem to be considerably less than it should have been. The 735,121 feet sawed from other timber than logs purchased by the North Fork Lumber Company, at $3 per thousand, would amount to $2,205. Deduct from this one-fourth thereof for defendant's share, and the remainder due the other three partners is $1,654, whereas only $1,383.18 was allowed them by the court. This result is justified by the fact that the accounting was not confined to the year 1890, during which the logs purchased by the North Fork Lumber Company were sawed, but included, without objection, the 389,044 feet of lumber produced from other timber during 1891. It may be that the defendant was properly credited with payments or set-offs not shown by the record, which accounts for this result. However this may be, it is enough for the disposition of this appeal that the records shows no error prejudicial to the appellant. I think the judgment and order should be affirmed.

We concur: HAYNES, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

(100 Cal. 67)

GRIBBLE et al. v. COLUMBUS BREWING CO. et al. (No. 18,091.)

(Supreme Court of California. Oct. 13, 1893.) CORPORATION MORTGAGE BY PRESIDENT AUTHORITY RATIFICATION -FORECLOSURE-ATTORNEY'S FEES-RIGHTS OF ASSIGNEE- - DENIAL ON INFORMATION AND BELIEF.

1. A corporation authorized its president to execute a mortgage to secure a loan, at a rate of interest and for a length of time specified. The mortgage executed by him was for a shorter period than authorized, and provided that the interest should be paid monthly, that a failure to pay interest when due rendered the principal due, and that the mortgagees should recover attorney's fees in case of foreclosure. These conditions were not authorized, but the company accepted the money and used it for the purposes intended, and paid the interest on the mortgage monthly for four months. Held that, in an action to foreclose the mortgage for default in interest, the corporation and its assignee were estopped from denying the authority of the president to execute it.

2. Where the answer, in such action, simply denies the "due execution" of the mortgage for want of authority, but does not deny the facts shown by the pleadings which constitute a ratification, plaintiffs are entitled to judgment without proof of authority.

3. In such case plaintiffs are entitled to recover the attorney's fees, also, provided for in such mortgage.

4. Such assignee, in the absence of fraud, is in no better position than such corporation. 5. A denial in answer by such assignee, on information and belief, that certain appliances connected with property described in the mortgage were attached to the realty and were fixtures, was insufficient, since he must be presumed to be in possession and to have knowledge as to such fact.

Commissioners' decision. Department 2. Appeal from superior court, Sacramento county; A. P. Catlin, Judge.

Action by H. Gribble and Seth Gainsley against the Columbus Brewing Company, and Lee Stanley, its assignee, to foreclose a mortgage. From a judgment entered on the pleadings in favor of plaintiffs, defendant Stanley appeals. Affirmed.

Holl & Dunn, Clinton L. White, and Add. C. Hinkson, for appellant. Armstrong & Plattauer, for respondents.

SEARLS, C. This is an action to foreclose a mortgage. A decree in favor of the plaintiffs was entered upon the pleadings, from which Lee Stanley, the assignee in insolvency of the Columbus Brewing Company, (a corporation,) defendant, appeals.

The admitted facts of the amended and supplemental complaint, coupled with certain affirmative allegations of the answer, show that the property described in the pleadings, and known as the "Columbus Brewery," with the machinery, trade fixtures, tools, etc., was formerly owned by Chris. Wahl and wife, who, on the 27th day of October, 1890, conveyed the same to the defendant the Columbus Brewing Company, subject to a debt of $16,000, secured by a mortgage upon the real property and a chattel mortgage upon the personalty, held by the Germania Building & Loan Association, and evidenced by a prom