be the true boundary line. It cannot be conceded that the Legislature cannot delegate the power to determine contrary to the fact. The power to decide necessarily includes the power to decide erroneously; but the fact, once decided, whether true or false, is nevertheless effective for its purpose.

The act provided that the surveyor, when employed, should "accurately run" the line of the fortieth parallel. It is contended that the effect of this language is that if he ran it inaccurately his survey would be void; that the words quoted were a limitation upon his power, such that he could make no legal survey unless it was absolutely correct. We deem the language quoted directory only. This is made sufficiently clear by section 10 above quoted. That section manifestly was made in view of the contingency that the survey might not be absolutely correct, and its purpose and effect was that, whether cor rect or not, the line surveyed and marked should thereupon be the true line. The construction contended for would leave the county lines always subject to change and uncertainty; for if the line must be absolutely accurate in order to be valid, if the true line of that parallel and not any particular surveyed line thereof is to be the true county line, it would be subject to relocation and change whenever new discoveries, more accurate instruments, or more careful surveys should demonstrate that the previously surveyed line was incorrectly located on the ground. If the true line of the parallel, and no other, was to be the lawful line, the surveying and marking of any line would accomplish nothing. It would, indeed, indicate the place where the particular surveyor ascertained and believed the position of the true line to be; but such location would be merely tentative, and subject always, whenever the location of the line was in issue, to dispute upon the claim that it was not the true line, and to prove which might show it to be false, and there would be no remedy, except by legislative act. The matter of establishing a county boundary is for the Legislature. If it has declared that the true line of the parallel is the line, the courts cannot declare any other line to be the boundary, in the absence of legislative authority to so declare. The court can declare and construe the law on the subject, but it cannot declare and establish the fact that the parallel is situated elsewhere than in its true location; and, if that location is to be the sole criterion, the court's decree must be as much subject to such inquiry and dispute as the survey of any surveyor. It is not to be supposed that the Legislature intended to reduce the proposed survey and location of such a mere idle ceremony.

It is said that under this theory of the law the surveyor might arbitrarily locate the line 10, 15, or even 50 miles from the true line. There is no charge that the surveyor fraudulently located the line. What the ef

fect would be if he did act fraudulently we need not decide. But, so far as mere inac curacy is concerned, it seems clear that it would not affect the question. In any event, the location of the county lines is a political question, to be settled by the legislative power of the state, and subject to change from time to time as the legislative power may direct. If the line as fixed in accordance with its directions is inaccurately located by the person whom it has directed to make the survey and place the marks, the correction of the error lies with the Legislature, and not with the courts, unless it has provided that the courts shall determine the true location, which it has not done. The finding of the court is that the common boundary line be tween Mendocino and Trinity counties was, and ever since the Fauntleroy survey has been, adequately marked by monuments, lines, and surveys lawfully made. Such being the fact, there was no necessity or authority for a resurvey by the surveyor general, under section 3969 of the Political Code, unless it appeared that the monuments of the Fauntleroy survey had been displaced or destroyed, so that this line was no longer adequately marked. In that event the surveyor general could be called upon to resurvey and mark the line under the provisions of the Political Code above cited; but, if he should be called upon to make such survey, it would be the Fauntleroy line which he must survey and mark, and not the actual position of the fortieth parallel of north latitude.

It is entirely immaterial whether there was, or was not, a dispute concerning the location of the line when the act of March 30, 1872, was passed and the survey made thereunder. The matter was within the power of the Legislature, regardless of the existence of any such controversy. The surveyor was to locate the line; but, if by error he did not truly locate it, nevertheless the line he marked was to be the dividing line, and his act was made binding upon the respective counties and all citizens and inhabitants of the state, the Legislature alone having power to correct or change it. The rules regarding surveys of disputed boundary lines between coterminous owners of land have no application to this case. The sections of the Political Code, declaring that the fortieth parallel of north latitude should be the common boundary, did not, when they took effect on May 1st, work any change or in any way affect the act of March 30, 1872. The same parallel. had been previously fixed by law as the boundary, and the act is to be construed merely as a re-enactment and codification of the previous law on the subject, and not as a new enactment, and therefore it does not operate as a repeal by implication of the act of March 30, 1872, declaring that the Fauntleroy line, when fixed, should be the true line. Swem v. Monroe, 148 Cal. 741, 83 Pac. 1074. The survey of Fauntleroy had fixed, for all legal purposes, the position of the county line,

and section 10 of the act in effect declared that this line was for that purpose, in contemplation of law, the fortieth parallel of north latitude.

The judgment is affirmed.

We concur: SLOSS, J.; MCFARLAND, J.; ANGELLOTTI, J.; LORIGAN, J.; HENSHAW, J.

(151 Cal. 313)

BECKER et al. v. SUPERIOR COURT OF THE STATE OF CALIFORNIA et al. (S. F. 4,644.)

(Supreme Court of California. May 21, 1907.) 1. COURTS-PROCEDURE-PROPRIETY OF OVERBULING PRIOR DECISIONS.

Where no property rights could have grown up on the faith of a former decision announcing an erroneous doctrine, there is no impropriety in establishing the correct rule of law.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, § 311.]

2. EQUITY-JURISDICTION-RETENTION_of JuRISDICTION ACQUIRED-DENIAL OF EQUITABLE RELIEF-FORECLOSURE OF LIEN-PERSONAL JUDGMENT.

In an action to recover a money judgment, and to establish a mechanic's lien, though the lien fails and the amount claimed is not in itself sufficient to confer jurisdiction, in the absence of fraud the court may render a personal judg❘ ment for the amount due, since legal and equitable remedies may be pursued and granted in the same action, and the court having jurisdic tion of the cause as originally presented has jurisdiction to grant the proper relief.

In Bank. Certiorari by A. Becker and another against the superior court of Santa Clara county, Cal., and Hon. A. L. Rhodes, judge thereof, to review a judgment. Writ dismissed.

Will M. Beggs, for petitioners. Jackson Hatch, for defendants.

SLOSS, J. A writ of certiorari was issued to review a judgment of the superior court of the county of Santa Clara. It appears that the Glenwood Lumber Company, a corporation, on the 10th day of November, 1904, filed in said superior court of Santa Clara county a complaint against Frances L. Mason, A. Becker, and James H. Tooze, as defendants, to recover $81.23 claimed to be due from Becker and Tooze for lumber furnished to and used by them in the construction of a building which, as contractors, they erected for Frances J. Mason, as owner, and to foreclose a mechanic's lien of said Glenwood Lumber Company upon said building. The complaint was in proper form, and its allegations, if proven, would have entitled the plaintiff to the relief claimed. The defendants answered, denying some of the allegations of the complaint. At the conclusion of the trial a nonsuit was granted as to defendant Mason upon the ground that the claim of lien filed by the plaintiff did not truly state the terms of the contract between said plaintiff and Becker and Tooze, in that

90 P.-44

the time of payment for the lumber was not correctly stated. The court, however, filed findings of fact, in which it found that the claim of the lien truly and correctly stated plaintiff's demands against Becker and Tooze in all other respects, and that Becker and Tooze were indebted to plaintiff for materials furnished in the sum of $81.23. Upon these findings judgment went in favor of plaintiff against said defendants for such sum, together with interest and costs.

It is this judgment that the petitioners herein, defendants in the former suit, seek to annul. Certain preliminary objections are made by the respondent to the consideration of the writ. These are based upon the failure to serve the petition upon the real party in interest and upon the delay in seeking this relief. The conclusion we have reached upon the merits makes it unnecessary to consider these preliminary points.

The petitioner contends that, since the amount of the plaintiff's claim in the action of the Glenwood Lumber Company v. Mason et al. was less than $300, the jurisdiction of the superior court to entertain the action depended entirely upon the fact that the foreclosure of a lien was sought, thus making the action one of equitable cognizance; that, when the plaintiffs failed to establish their right to the foreclosure, the equitable character of the action was lost, and it became a simple action at law for the recovery of money, and, the amount sought to be recovered being less than $300, the superior court was without jurisdiction. This contention finds support in a decision of a department of this court in Miller v. Carlisle, 127 Cal. 327, 59 Pac. 785. Five plaintiffs had there united to enforce alleged liens for labor done by them upon certain mining ground. The court made findings declaring that "the liens of plaintiffs do not attach to said land," and that there was due to the plaintiffs from the defendants personally the several sums demanded, each of which was less than $300. Judgment against said defendants for such sums was accordingly entered in favor of the plaintiffs. The defendant Carlisle appealed from an order denying his motion for a new trial. This order was reversed upon the ground taken by the petitioner here; the court holding that, where "the lien fails and the court can administer no equitable relief whatever, it must logically follow that the residue of the action -a dispute concerning money less than three hundred dollars in amount-can no longer engage the attention of the court." If this case correctly states the law, the judgment rendered by the superior court of Santa Clara county in favor of the Glenwood Lumber Company against Becker and Tooze was beyond the jurisdiction of that court and void; but we think that the rule declared in Miller v. Carlisle was based upon an insufficient consideration of the true basis of the juris

diction of the superior court. As we are not confronted by a situation in which property rights can have grown up on the faith of the decision, there can be no impropriety in now correcting the error, if error was committed. And there is the more justification for reconsidering the doctine declared in Miller v. Carlisle, since it appears from the opinion in that case that the department in reaching its conclusion was not aided by any argument or presentation of authorities on behalf of the respondents who were relying upon the judgment there declared to be void. See page 329 of 127 Cal., page 785 of 59 Pac. Thère can be no doubt that upon the filing of the complaint, setting forth a cause of action for the foreclosure of a mechanic's lien, the superior court was invested with jurisdiction of the cause a suit for such foreclosure being a suit in equity. Curnow v. Blue Gravel Co., 68 Cal. 262, 9 Pac. 149; Brock v. Bruce, 5 Cal. 279. And the court, having jurisdiction to hear and determine the cause so presented, had jurisdiction to grant the relief demanded in whole, or to refuse it in whole, or to grant it in part or refuse it in part. Whatever action it took, whether rightly or erroneously, was in the exercise of the jurisdiction conferred upon it. It has frequently been held that, when a court of equity once obtains jurisdiction of a case, it will decide the whole case as between the parties, and not leave any part of it for future litigation. Watson v. Sutro, 86 Cal. 528, 24 Pac. 172, 25 Pac. 64; Whitehead v. Sweet, 126 Cal. 67, 76, 58 Pac. 376. The test of the jurisdiction of a court is ordinarily to be found in the nature of the case made by the complaint and the relief sought. The fact that the plaintiff does not succeed in establishing all that he claims does not oust the court of its jurisdiction to give judgment for so much as is established.

It is unquestioned that in an ordinary ac tion at law where the jurisdiction of the superior court depends upon the amount of the "demand," the court may, where more than $300 is demanded in the complaint, render judgment for less. Dashiell v. Slingerland, 60 Cal. 653; Greenbaum v. Martinez, 86 Cal. 459, 25 Pac. 12; Rodley v. Curry, 120 Cal. 541, 52 Pac. 999. The same result was reached under the former Constitution, giving the district courts jurisdiction in cases "where the amount in dispute exceeds two hundred dollars." Jackson v. Whartenby, 5 Cal. 94. And in other states it is the general rule that the jurisdiction, under similar constitutional or statutory provisions, is to be determined by the amount claimed by the plaintiff without regard to the amount found due. 9 Cyc. 775, and cases cited. Again, the superior court has, under the Constitution, jurisdiction in "all criminal cases amounting to felony." Yet a defendant may be convicted in the superior court of a lesser offense, if he was charged with felony which included the lesser offense. Ex parte Dona

hue, 65 Cal. 474, 4 Pac. 449. We see no rea son why the same rule should not apply where the jurisdiction of the superior court attaches by reason of the case being one in equity. The nature of the action as an equitable one is fixed by the allegations of the complaint. The fact that the plaintiff fails to establish all of his claims does not change the nature of the action. In the opinion in Miller v. Carlisle the court cites several cases in which it was held that in a suit to foreclose a mortgage made to secure a promissory note, where the proof at the trial showed that the mortgage was invalid, the court sitting in equity had no power to render judgment for the sum due on the note, and should dismiss the bill without prejudice. Dowell v. Mitchell, 105 U. S. 430, 26 L. Ed. 1142; Cramer v. Cohn, 119 U. S. 355, 7 Sup. Ct. 277, 30 L. Ed. 439; Rose v. West, 50 Ga. 474; Gamage v. Harris, 79 Me. 531, 11 Atl. 422. But these cases all arose in jurisdictions where equitable and legal remedies were not administered in the same tribunal, and in such jurisdictions legal and equitable claims cannot be blended together in one suit. Scott v. Armstrong, 146 U. S. 512, 13 Sup. Ct. 148, 36 L. Ed. 1059.

In this state, on the contrary, legal and equitable remedies may be pursued and granted in the same tribunal, and in a single action (White v. Lyons, 42 Cal. 279), and the fact that the equitable relief is not obtained furnishes no reason in itself for the refusal of legal relief in the same action. As was pointed out in Miller v. Carlisle, "it is nothing uncommon to render judgment for money due to the lien claimant from a defendant personally liable to him, although the lien itself fails of enforcement." Kennedy-Shaw Lumber Co. v. Priet, 113 Cal. 291, 45 Pac. 336; Lacore v. Leonard, 45 Cal. 394. If the views hereinbefore expressed be correct, the fact that the amount claimed is less than $300 does not affect the power of the court to grant this relief. The jurisdiction in all such cases rests, not upon the amount claimed, but upon the fact that the suit is one to foreclose a mechanic's lien, and is therefore a suit in equity within the meaning of the Constitution.

It may be remarked that we are not dealing with the question whether jurisdiction can be fraudulently conferred upon the superior court by the assertion in bad faith of an unfounded claim. We have no doubt that an action at law in which the actual demand amounts to less than $300 cannot be brought and retained within the jurisdiction of the superior court by adding a fictitious claim for a larger sum, or by making a fictltious showing as a basis for a purported prayer for equitable relief. But no such question is presented here. There is nothing to indicate that the Glenwood Lumber Company was not seeking, in good faith, to foreclose a lien claimed by it. It follows that the lower court must be held to have acted within

its jurisdiction in rendering the judgment complained of.

The writ is dismissed.

We concur: HENSHAW, J.; BEATTY, C. J.; SHAW, J.; ANGELLOTTI, J.; McFARLAND, J.; LORIGAN, J.

(151 Cal. 352)

GRAY V. LAWLOR. (S. F. 3,916.) (Supreme Court of California. May 23, 1907.) 1. JUDGMENT-VACATING JUDGMENT BY DEFAULT-SERVICE BY PUBLICATION-EXCUSES FOR DEFAULT.

Code Civ. Proc. § 473, provides that, when the summons has not been personally served on defendant, the court may allow him at any time within one year after the rendition of judgment to answer to the merits. Held, that a defendant served by publication need not present any excuse for his failure to appear, except the fact that he was not personally served with the summons; but, if there is any neglect on his part which would make it inequitable to grant him the relief, proof of that fact must come from the plaintiff.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, § 253.]

2. SAME-TERMS ON GRANTING APPLICATION.

The provision in Code Civ. Proc. § 473, that the court may allow a defendant not personally served to answer on the merits at any time within one year after rendition of judg ment "on such terms as may be just" does not give the court power to refuse the relief when the statutory conditions are met, but merely confers the power, when it finds the defendant entitled to the relief, to consider whether he may not have been negligent in a degree not amounting to laches, and whether the plaintiff may not have incurred expenses on the faith of the judgment which the defendant should in justice refund.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, § 326.]

3. SAME MERITORIOUS DEFENSE.

A defendant served by publication, moving to vacate a judgment by default and to be allowed to answer to the merits, must show that he has a good defense to the action on the merits.

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 30, Judgment, sin point,

In Bank. Appeal from Superior Court, Santa Clara County; M. H. Hyland, Judge. Action by W. W. Gray against William M. Lawlor. From a judgment for plaintiff, and an order denying defendant's motion to vacate the judgment and allow him to answer to the merits, he appeals. Reversed.

Curtis Hillyer and H. F. Peart, for appellant. W. M. Beggs, for respondent.

SHAW, J. This is an appeal from the judgment, and from an order after judgment denying the defendant's motion to vacate the judgment and allow him to answer to the merits of the action.

The complaint states a good cause of action to quiet title to a tract of land, and the record shows due service of the summons by publication and a judgment regularly entered There is no merit in the appeal

from the judgment, and it need not be further considered.

The affidavit of the defendant, in support of his motion to be allowed to answer to the merits, stated that during the times mentioned in the complaint the defendant was the owner of the property, and that he had not been personally served with the summons and had no knowledge of the attempted service by publication until within two weeks next before the filing of the motion. No showing was made of mistake, surprise, inadvertence, or excusable neglect as preventing causes for his failure to appear before judgment. The motion was made about four months after the rendition of the judgment. The third clause of section 473 of

the Code of Civil Procedure declares that, "when from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in said action, to answer to the merits of the original action." The clause preceding this applies to all parties to the action, whether plaintiff or defendant, who have been personally served with summons, or who have appeared thereto, and, in order for such party to obtain the relief there provided, he must show that he failed to make his claim or defense through "his mistake, inadvertence, surprise, or excusable neglect." No such showing is required in the case of a defendant served by publication only. This difference in the requirements shows the different scope and purpose of the respective provisions, Under the latter clause the defendant need not present any excuse for his failure to appear, except the fact that he was not personally served with the summons. It is manifest that in the majority of cases it would be utterly futile to require any further showing, for he would be ignorant of the entire proceeding, so far as any actual notice is concerned. Accordingly it is said that "there is no presumption against him of lack of diligence in interposing his defense, as in a case where he was personally served." Frankoviz v. Ireland, 35 Minn. 278, 28 N. W. 508. This is the key to the different effect of the two clauses. In the case where he is personally served, if he fails to appear in due time through mistake, surprise, inadvertence, or excusable neglect, when, in fact, he had a good defense, he is required to set forth in his application for relief the circumstances which caused his lack of diligence. Where he has had no personal service, there is, with respect to his right to relief in such cases, no presumption of knowledge, or of inexcusable negligence, on his part, and he is only required to show the lack of personal service. If there was any neglect on his part to the injury of the opposite party, which

would make it inequitable to grant him the relief, proof of such neglect and of the circumstances causing injury must come from the plaintiff.

The authorities are uniform to the same effect. With respect to this class of cases, Mr. Freeman says: "On complying with the conditions of the statute, the moving party secures an absolute right to have the judgment opened, which the court has no discretion to deny." 1 Freem. Judgts. (4th Ed.) § 105, p. 154. In Frankoviz v. Ireland, supra, it is further said that the defendant "is not required, at least in the first instance, to show that he had not actual notice of the action in season to interpose his defense within the ordinary time." The Minnesota statute is substantially the same as our own. Section 125, c. 66, Gen. St. 1878 (Gen. St. 1894, § 5267), provides for relief where there is personal service. Section 66 provides that, where there is no personal service of the summons, "on application and sufficient cause shown," the defendant "may be allowed to defend after judgment, and within one year after the rendition of such judgment, on such terms as may be just." In Washburn v. Sharpe, 15 Minn, 63 (Gil. 43), and Frankoviz v. Ireland, supra, there was some intimation, not necessary to the decisions, that the court had some discretion to refuse such applications. In Lord v. Hawkins, 39 Minn. 73, 38 N. W. 690, these cases were overruled on this point, and the court said: "It was assumed [in the above cases] that the application is addressed to the discretion of the court. Upon a more careful examination and comparison of the two sections, we are satisfied that herein lies the chief difference between them. The latter section (125) provides that the court may, in its discretion, grant the relief, the other, that the defendan, on application and good cause shown, before judgment, shall be allowed to defend, and may in like manner be allowed to defend after judgment. The section does notcertainly not in terms-leave it to the discretion of the court. A good defense to the action must certainly be considered 'good cause shown.' The construction we place on section 66 is that it provides to the defendant who comes within its terms, and who shows that he has a good defense, and who has not lost his right by laches, an opportu nity to defend as a matter of right, and not of discretion." This case was approved in Boeing v. McKinley, 44 Minn. 392, 46 N. W. 767, and in Bausman v. Tilley, 46 Minn. 66, 48 N. W. 459. The same doctrine has been declared in Savage v. Aiken, 14 Neb. 315, 15 N. W. 693; Albright v. Warkintin, 31 Kan. 442, 2 Pac. 614; Kinney v. O'Bannon, 6 Bush (Ky.) 692; McLean v. McLean, 84 N. C. 366; Satterlee v. Grubb, 38 Kan. 234, 16 Pac. 475; Brown v. Brown, 86 Tenn. 277, 6 S. W. 869, 7 S. W. 640; Snow v. Hawpe, 22

Tex. 168; Lyon v. Robbins, 46 Ill. 276. In all the states, except Minnesota, the stat utes differ from ours, in that they omit the phrase "on such terms as may be just." This does not change the effect of those statutes in the particular here under consideration. The effect of that qualifying phrase in our statute is not to give the court power or discretion to refuse the relief when the statutory conditions, expressed and implied, are met, but merely confers upon it the power, when it finds the defendant entitled to the relief, to consider whether or not the defendant may not have been negligent, in a degree not amounting to laches or creating an estoppel, and whether or not the plaintiff, or his successor, may not have innocently, on the faith of the judgment, incurred costs or expenses which the defendant in justice should refund, and to impose on the defendant such terms as may be necessary to do complete justice between the parties, or to fix the time for filing the answer and limit and define its character so that it shall be addressed to the merits. Ency. Plead. & Prac. pp. 290, 291. From the fact that the relief to be afforded is the privilege of answering "to the merits of the original action," the condition is implied that the defendant must have a sufficient answer to present; that is, he must have a good defense to the action on the merits. This being one of the conditions of the statute, the defendant must show that such defense exists. The defendant in this case has complied with this rule. He avers in his affidavit that he is now, and at all times mentioned and for more than 10 years last past has been, the owner of, and entitled to the possession of, the property described in the complaint. This, if true, is a complete defense to the cause of action sued on.

See 15

There do not appear to have been any circumstances which would constitute laches on the part of the defendant, or which would create an estoppel against him. It is not shown that he had any personal knowledge of the pendency of the action, nor that the plaintiff has suffered or will suffer any injury from the vacation of the judgment, other than that of being compelled to meet the defense that may be made. The defendant states that he had no knowledge of the attempt to serve the summons upon him until a few weeks before instituting proceedings on his motion for relief.

The order is reversed. The court below is directed to set aside the default and judg ment and allow the defendant to answer to the merits of the original action, on such terms as may be just. If no further proceedings are had in furtherance of the motion, the judgment will stand affirmed.

We concur: BEATTY, C. J.; HENSHAW, J.; ANGELLOTTI, J.; SLOSS, J.; LORI. GAN, J.