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Department 1. Appeal from Superior Court, Los Angeles County; M. T. Allen, Judge.

Action by Beauchamp H. Smith against Pelton Water Wheel Company. From an order denying defendant's motion for a change of venue, it appeals. Affirmed.

Rehearing denied in bank; Beatty, C. J., and Lorigan, J., dissenting.

Rigby & Rigby and G. C. De Garmo, for appellant. J. F. Conroy, for respondent.

SHAW, J. Appeal from an order denying a motion for change of venue. After the taking of the appeal, Wm. T. McArthur was substituted as plaintiff. The order appealed from was made on March 4, 1904. The action was begun in July, 1903. On August 4, 1903, the defendant appeared and filed a demurrer to the complaint, accompanied by a demand and notice of motion for a change of place of trial and two affidavits of Edward L. Brayton, vice president of the defendant. The ground of the motion, as stated, was that the county of Los Angeles was not the proper county for the trial of the cause, inasmuch as the plaintiff was a corporation organized under the laws of this state, and its place of business and residence was the city and county of San Francisco. This motion was denied without prejudice on November 9, 1903. On November 16, 1903, the defendant filed a second notice of motion for the change of venue, based on the prior demand and affidavits, and also on the affidavit of David Donzel, secretary of the corporation, additional thereto. The grounds of this motion were the same as before, with the addition that the contracts sued on were neither made in the county of Los Angeles, nor to be performed there, and that the obligation did not arise, nor the breach thereof occur, in that county. This motion was duly presented on briefs on November 20, 1903, and was denied by the court on December 23, 1903. On January 15, 1904, the demurrer to the complaint was submitted to the court for decision, and on January 25, 1904, the court made an order overruling the demurrer and allowing the defendant 10 days within which to answer. This time to answer was afterward extended by the court on the defendant's application. Before the time to answer, as extended, had expired, the defendant filed a notice of motion for leave to renew the former motion for change of venue. This notice stated that the motion was to be based on the affidavits before filed, on two other affidavits by the same parties, and upon the former demand and the papers on file in the case. The ground of the motion for leave to renew was that the former motion had never been heard upon the merits. The notice also stated that the motion for change of venue would be made upon certain grounds set forth at length therein, which were in substance the same as set forth

in the notice of November 16, 1903. The new affidavits of Brayton and Donzel stated no additional facts in support of the motion for leave to renew, nor did they contain any new matter relating to the grounds of the application for a change of venue. They merely stated with greater detail the facts set forth in the former affidavits. The record shows that the motion to change the venue had been previously heard upon the merits. The motion for leave came on for hearing on March 4, 1904, and it was granted, whereupon the motion for change of venue was again presented and forthwith denied.

It was the duty of the court, upon the last presentation of the application for change of venue, to consider and decide it upon the conditions as they existed at that time, and not upon the conditions existing at the time of the original demand. The demand was filed in August, 1903. Two attempts were afterwards made to present the motion upon the merits. No reasons were apparent why it could not have been done as well at either of those times as upon the latter hearing, and at the second hearing the same facts were shown as upon the last hearing. There is nothing to show that all the facts bearing upon the application were not as well known to the vice president and secretary of the corporation defendant at the time of the demand as they were on March 4, 1904. In the meantime the motion had been twice denied, the demurrer to the complaint had been overruled, time had been allowed the defendant to answer the complaint, and, at its request, this time had been extended. Under these circumstances, it was a matter resting in the sound discretion of the court whether to grant the motion or refuse it, conceding, as we do for the purposes of this case, that the court could again entertain such a motion after it had been once decided. In Cook v. Pendergast, 61 Cal. 79, the court says: "It has always been held that such motions, being dilatory, must be prosecuted with diligence." And further: "If he [the defendant] relies on the fact that the action is brought in the wrong county, he ought to move for, or at least demand, a transfer on his first appearance in the cause." Page 80. "The rule is uniform that an application for a change of venue on this ground should be made at the earliest opportunity." 4 Encyc. of Pl. & Pr. 421; Pearkes V. Freer, 9 Cal. 642; Jones v. Frost, 28 Cal. 246. And if it is made afterwards the applicant must "explain any seeming lack of diligence on his part." 4 Encyc. of Pl. & Pr. 422. If we concede, therefore, that the court might have granted the motion at the time it was last presented, it must be also conceded that the court had the power, in its discretion, to refuse it because of the lack of diligence displayed by the defendant in prosecuting it. If the defendant, as it claims, had the right to a change of venue to San Francisco at the

time the demand was made, and if this right was shown by the affidavits produced upon the last hearing, we must presume, in view of the decision of the lower court, that it was of the opinion that the right had been lost by laches, and that it denied the motion upon that ground.

The order appealed from is affirmed.

We concur: ANGELLOTTI, J.; SLOSS, J.

(151 Cal. 394)

SMITH V. PELTON WATER WHEEL CO. (L. A. 1,695.)

(Supreme Court of California. June 19, 1907. Rehearing Denied July 19, 1907.)

1. JUDGMENT-DEFAULT-VACATION.

Code Civ. Proc. § 473, authorizes the vacation of a judgment taken against a party through his mistake, inadvertence, surprise, or inexcusable neglect, provided the application is made within a reasonable time, in no case exceeding six months after such judgment, order, or proceeding is taken. Held, that the six months' limitation is merely a limitation on the power of the court to grant any relief, regardless of the merits of the application, and does not prevent the court, in the exercise of discretion, from refusing such an application made within less than six months because not made within a reasonable time.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, § 265.]

2. SAME-NEGLIGENCE.

Where a default judgment for failure to answer was rendered against defendant, who was represented by local and nonresident attorneys, after the time to answer had been several times extended, defendant's application to set aside such judgment, not made until more than four months after its attorneys had notice of the entry thereof, was properly denied; the only excuse being that one of the nonresident attorneys who had charge of the matter had been ill during a portion of the time, and that the resident attorney erroneously believed that an appeal taken from the denial of an application for a change of venue operated to stay further proceedings.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 269, 281, 288.]

3. APPEAL-DISCRETION-REVIEW.

The exercise of a trial court's discretion on an application to set aside a default judgment will not be interfered with on appeal, unless it plainly appears that such discretion has been abused.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, 3823.]

Department 1. Appeal from Superior Court, Los Angeles County; M. T. Allen, Judge.

Action by Beauchamp H. Smith against the Pelton Water Wheel Company. From a judgment in favor of plaintiff, and from an order denying defendant's motion to vacate the same, defendant appeals. Affirmed.

Rehearing denied in bank; Beatty, C. J., and Lorigan, J., dissenting.

Rigby & Rigby and G. C. De Garmo, for appellant. J. F. Conroy, for respondent.

ANGELLOTTI, J. These are appeals by defendant from a judgment given against

it for $5,642.95, and from an order denying Its motion to vacate and set aside such judgment. The judgment was given upon the failure of defendant to answer after its demurrer to the complaint had been overruled; its default for not answering having been duly entered. After the taking of the appeals, Wm. T. McArthur was substituted as plaintiff.

It is admitted that no error or irregularity is shown by the judgment roll. The only contention made on these appeals is that the lower court erred in denying the motion to vacate and set aside the default and judgment. The motion to vacate was based on the ground that the default and judgment were taken against defendant through mistake, inadvertence, surprise, and excusable neglect. The action was commenced in the superior court of Los Angeles county on July 28, 1903. On August 14, 1903, a demurrer to the complaint was filed by a San Francisco law firm retained by defendant. This law firm continued in charge of the case for defendant throughout the proceedings in the lower court, but employed a Los Angeles attorney as associate counsel. The demurrer was overruled January 25, 1904, with leave to defendant to answer within 10 days. The Los Angeles attorney was regularly notified of this action of the court on February 5, 1904, and informed by opposing counsel that the plaintiff was urging a speedy trial, and that the answer must be filed in due time, or a default would be entered. Orders extending the time to answer were obtained from the court; the last expiring about March 12, 1904. In the meantime, on March 9, 1904, defendant perfected an appeal from an order theretofore made in the action refusing to grant its motion for a change of place of trial from Los Angeles county to the city and county of San Francisco. No answer was filed, and on March 16, 1904, the default of defendant and judgment for plaintiff in accord with the prayer of the complaint were regularly entered. It is undisputed that both the Los Angeles and San Francisco attorneys had actual knowledge of the entry of judgment during March, 1904. No intimation of any intention to move to vacate the default and judgment was given until July 16, 1904, four months after their entry. On that day notice of such a motion to be made on July 22, 1904, accompanied by copies of certain affidavits and a proposed answer and crosscomplaint, was served on plaintiff's attorney. The only reason advanced for the failure to answer was that the Los Angeles attorney mistakenly believed that defendant's appeal from the order refusing to change the place of trial operated as a stay of all proceedings pending the appeal, and therefore did not cause an answer to be filed. Counter affidavits were filed, and in one of these affidavits it was alleged that subse quent to the entry of the judgment some of plaintiff's witnesses had disappeared, and

plaintiff no longer knew where they could be found. The motion to vacate was denied on August 3, 1904, but, by leave of the court, it was renewed on August 12, 1904; additional affidavits being presented on behalf of both parties, and denied. The evidence before the lower court showed that the San Francisco law firm at all times retained control and management of the case for defend. ant, and prepared the various pleadings, notices of motions, and affidavits; the Los Angeles attorney acting under their direction. The only excuse given for the delay in instituting proceedings to vacate the default and judgment was that given by the senior member of the San Francisco firm, to the effect that for over two months after learning of the default and judgment he was suffering from ill health, and was not in regular attendance at his office, and could only attend to his business occasionally; that thereafter he was engaged to the utmost of his capacity in court work and other business that needed prompt attention; that his partner was not familiar with the facts, and was not in the habit of handling litigation of this character; and that ever since the entry of default and judgment he had been in frequent correspondence with his associate in Los Angeles, and from time to time had explained to him that the papers for the motion were in course of preparation, and why they were delayed.

Passing without consideration other points made in support of the order denying defendant's motion, we are satisfied that the order must be affirmed upon the ground that the delay in applying for relief was such, under all the circumstances, as to warrant the lower court in holding that the application was not made within a reasonable time. Section 473, Code Civ. Proc., authorizes the granting of relief to a party or his legal representatives, from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, "provided, that application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken." The six months' limitation there provided is simply a limitation upon the power of the court to grant any relief, regardless of any question either as to the merits of the application, or as to whether or not the application was made within what might be held to be a reasonable time under the circumstances. Under this statute, in addition to being made within the six months' period, the application must be made within "a reasonable time," and what is a reasonable time in any case depends upon the circumstances of that particular case. The question as to whether the application has been made within a reasonable time is one to be determined in the light of the circumstances of the case by the court to which the application is addressed. In the deter

mination of that question, a large discretion is necessarily confided to that court. It is well-settled law in this state that the appellate court will not interfere with the exercise of the discretion of the lower court on an application of this nature, unless it is plainly made to appear that such discretion has been abused, and this rule is applicable whether the motion for relief has been granted or denied. See O'Brien v. Leach, 139 Cal. 220, 72 Pac. 1004, 96 Am. St. Rep. 105; Moore v. Thompson, 138 Cal. 23, 70 Pac, 930; Winchester v. Black, 134 Cal. 125, 66 Pac. 197, and cases there cited.

The delay of nearly four months in the matter of making the application, after full knowledge of the facts, accompanied by the failure to give any intimation to the opposing party of an intention to so apply, certainly required some satisfactory explanation to warrant a conclusion that the application was made within a reasonable time. Was the explanation given satisfactory? The court below must here be presumed, in support of its order, to have concluded that it was not, and we are of the opinion that the court was amply warranted in so concluding. The evidence was also sufficient to support a conclusion upon the part of the lower court that relief could not be granted to defendant after this long delay without injuriously affecting plaintiff's rights. Under these circumstances, we cannot say that the court was not justified in concluding that the application had not been made within a reasonable time, and should be denied.

As to certain language used by this court in Wolff v. Canadian Pac. Ry., 89 Cal. 332, 337, 26 Pac. 825, in affirming an order vacating a default judgment, relied upon by defendant, it is sufficient to say that it is not applicable here, for the reason that the delay was not assented to by the plaintiff, and the court was warranted in concluding that the vacating of the judgment on an application so long delayed would be injurious to plaintiff's rights.

The judgment and order appealed from are affirmed.

We concur: SHAW, J.; SLOSS, J.

(151 Cal. 377) MONTECITO VALLEY WATER CO. v. CITY OF SANTA BARBARA et al. (L. A. 1,863.)

(Supreme Court of California. June 5, 1907.) 1. WATERS-MISAPPROPRIATION-DEGREE.

Where, in a suit to determine water rights, it was found that defendant B. was unlawfully depriving plaintiff of 21⁄2 inches perpetual flow of water, the court properly required him to deliver such amount to plaintiff out of the waters conveyed by defendant from his tunnel into plaintiff's pipe line, and refused to allow defendant to discharge such water into the bed of the stream from which the water was taken, where it would be lost by percolation and evaporation.

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2. SAME-RIPARIAN OWNERS-USE OF WATER. A riparian proprietor is not entitled to take water from a stream for use on land which was valueless for agricultural purposes.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, §§ 33-35.]

Department 2. Appeal from Superior Court, Santa Barbara County; J. W. Taggart, Judge.

Action by the Montecito Valley Water Company against the city of Santa Barbara and others. From a judgment for plaintiff, defendant James L. Barker appeals. Affirmed.

W. S. Day, for appellant. George H. Gould and Canfield & Starbuck, for respondent.

HENSHAW, J. The facts, conditions, and circumstances of this case may be learned by a reference to Montecito Valley Water Co. v. City of Santa Barbara et al., 144 Cal. 578, 77 Pac. 1113, which was another appeal in the same litigation. This is an appeal by James L. Barker, who the court found was unlawfully depriving the respondent of 21⁄2 inches perpetual flow of water. The court required appellant to deliver this 22 inches to respondent "out of the waters conveyed by defendant from his said tunnel in his said flume or conduit into the box or appliance connected with the pipe line constructed or to be constructed by plaintiff," etc. Appellant's contention is that he should be allowed to discharge this water into the bed of the stream 1,300 feet above respondent's dam. The effect of this unquestionably would be that respondent would lose the water, because the intervening Eaton tunnel would draw down a portion of it, and, the bed of the stream having become dry, the rest would be wasted by percolation and evaporation. Appellant's contention then is, that, notwithstanding that he is a wrongdoer, he should be permitted to dispose of the waters, of which he has unlawfully deprived respondent, in such a manner as to do neither himself nor the respondent the slightest good. The judgment which the court rendered contained a wise provision for the conservation of these waters, and the direction for their disposition by appellant was not only clearly within the equitable powers of the court, but wholly just.

Appellant's claim to the waters as a riparian owner is not pressed with much seriousness, and this is natural, considering that there is no pleading as to his riparian need for use of these waters, either as to quantity or amount of land upon which they are to be employed. Riverside Water Co. v. Gage, 89 Cal. 410, 26 Pac. 889. Moreover, it is without dispute in the case, and so declared upon the appeal in the Montecito Valley Water Co. v. City of Santa Barbara et al., 144 Cal. 578, 77 Pac. 1113, that the lands upon which the waters are derived are valueless for agricultural purposes, and the waters are carried for use to cities, towns, and fertile lands beyond the watershed. A riparian proprietor's

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DEMURRER.

Overruling a demurrer based on the ground of ambiguity, uncertainty, or unintelligibility is not reversible error if the demurrant was not misled by the defects in the pleading, and the cause was fairly tried upon its merits.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §8 4098-4105.] 2. TIME-COMPUTATION-TAX SALE-PUBLICATION-NOTICE-SUFFICIENCY.

Under Pol. Code, § 3767, providing that a tax sale must not be less than 21 days from the first publication of notice thereof, and section 12, providing that the time in which an act is to be done is computed by excluding the first day and including the last, etc., sufficient notice of a tax sale held June 18th was given where it was first published May 28th.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Time, §§ 11, 19, 20; vol. 45, Taxation, § 1340.]

3. TAXATION TAX SALE-CERTIFICATE-SUFFICIENCY.

Under the express terms of Pol. Code, § 3776, the only amount required to be stated in a tax sale certificate is the amount of the assessment, and a certificate is not invalidated by failure to separately set forth the amount of the penalties, costs, and charges.

4. SAME DESCRIPTION OF LAND-SUFFICIENΟΥ.

The description of land in a tax sale certificate and deed was not insufficient for failing to state the base and meridian, where the county was named and there was but one tract which could have answered the description.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, § 1378.]

5. EVIDENCE-JUDICIAL NOTICE-SURVEYS. Judicial notice is taken of the system of surveys in a state.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 9-12.]

6. TAXATION CERTIFICATE OF SALE - ERROR Cured.

Error in a tax sale certificate fixing the date when the period of redemption would expire was cured by the express terms of St. 1903, p. 63, c. 59.

7. SAME-Tax Deed.

A tax deed conveying land "with appurte nances," etc., conveyed no more than was as sessed or included in the certificate of sale. [Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, § 1544.]

8. SAME STAMPING TAX BILLS-NECESSITY. A tax sale was not subject to attack for the nonobservance of Pol. Code, § 3680, providing that, whenever property sold for taxes remains unredeemed, upon each subsequent assessment the assessor must enter the fact of the sale, and the date thereof, and that upon all bills or statements "sold for taxes" and the date of sale must be written or stamped, since under the express terms of section 3787 a tax deed is con

clusive evidence of the regularity of the proceedings.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, § 1556.]

9. SAME-POWER OF LEGISLATURE.

While the Legislature may not make a tax certificate or deed conclusive as to any of the essentials of listing, valuation, and apportionment, or notice, it may make it conclusive as to matters or things which in the first instance the Legislature might not have required to be done, and which are in their nature nonessentials.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, § 1557.]

10. SAME-CONSTITUTIONAL PROVISION.

Const. art. 5, § 14, providing that all grants and commissions shall be in the name and by the authority of the people, signed by the Governor, etc., does not apply to the sale of lands acquired by the state for delinquent taxes, and, since the state may dispose of such lands in any way not plainly violative of the Constitution, the Legislature may make the tax collector or any other person its agent and attorney in fact to pass legal title to the lands.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, 88 1504, 1506.]

Beatty, C. J., dissenting in part.

In Bank. Appeal from Superior Court, Tulare County; W. B. Wallace, Judge.

Action by the Bank of Lemoore against John J. Fulgham. Plaintiff appeals from a judgment for defendant and an order denying a motion for a new trial. Affirmed,

Chas. G. Lamberson, for appellant. O. E. Larkins, for respondent.

HENSHAW, J. When this case was in department it was decided without reference to the curative act found at chapter 59, p. 63, of the Statutes of 1903. This was so because the briefs made no mention of, and placed no reliance upon, the provisions of that act. In Baird v. Monroe (Cal. Sup.) 89 Pac. 352, this act and its effect are considered. It is held to be constitutional and to relieve tax certificates and deeds from the irregularities and informalities enumerated. Consideration of the case at bar must, therefore, be had in the light of this curative act.

Plaintiff's appeal is from a judgment in favor of defendant, and from an order denying its motion for a new trial. The action was tried for the purpose of quieting title to certain real property situated in Tulare county. Plaintiff claims title as the successor in interest of George H. Davis, who, it is conceded, was on the first Monday of March, 1896, the owner of the property. Defendant deraigns title under a sale to the state for delinquent taxes, and the subsequent deed to him from the tax collector, dated October 1, 1903. Various objections are made by the appellant to the validity of the proceedings, which were held by the trial court to have vested title in the defendant. But preliminarily plaintiff interposed a demurrer to defendant's answer, and urges that the demurrer should have been sustained. The demurrer was both general and special. The general demurrer was properly overruled.

The answer denied plaintiff's allegation of ownership, and thus raised a direct issue upon this matter. Defendant filed his supplemental answer, and there undertook to set forth in detail the nature of his title. While there may be some foundation for the criticism that the pleading in this regard is somewhat ambiguous or uncertain, there was no such ambiguity or uncertainty as to have prejudiced plaintiff in meeting the issues which the answer tendered. It is plain therefrom that defendant was relying upon the tax title and nothing else. Even an error in overruling a demurrer upon the ground of ambiguity, uncertainty, or unintelligibility is not reason for reversal, if it appears that the demurring party was not misled by the defects in the pleading, and that the cause was fairly tried upon its merits. Alexander v. Central L. & N. Co., 104 Cal. 532, 38 Pac. 410; Jager v. California Bridge Co., 104 Cal. 542, 38 Pac. 413; Stephenson v. Deuel, 125 Cal. 656, 58 Pac. 258.

Coming thus to the specific objections urged against the sufficiency of the tax deed, the published notice of sale declared that unless the taxes, with costs, etc., were paid, the property would be sold to the state on the 18th day of June, 1897, and the sale actually took place on that day. The first publication of this notice was made upon the 28th day of May, 1897. Section 3767 of the Political Code provides that the sale must not be less than 21 nor more than 28 days from the time of the first publication. It is insisted in this case that the sale was premature. But, as the sale did not take place until the twenty-first day, excluding the day of publication, it must, under section 12 of the Political Code, and the decisions of this court upon the matter, be held to have taken place in accordance with the requirements of the statute. Hannah v. Green, 143 Cal. 19, 76 Pac. 708; Misch v. Mayhew, 51 Cal. 514; Wilson v. His Creditors, 55 Cal. 476, Dean v. Grimes, 72 Cal. 442, 14 Pac. 178. The certificate of sale which was offered in evidence recited that the amount of the tax levied on the property was $19.20, and that the "penalties, costs, and charges which have since accrued thereon amount to the further sum of $It is urged that the amount for which the property was or should have been sold is thus not stated, but there were further recitals that the sale was made to the state, "for the amount of said taxes of every kind charged against said property, and penalties, costs and charges, to wit, the sum of $20.66." There was sufficient evidence in the certificate to show that the penalties, costs, and charges in view of the statutory provisions of the Political Code governing such charges, costs, and penalties were $1.46 the difference between the amount of the tax as stated, and the amount of the tax with added penalties, costs, and charges for which the property was sold. The only amount which is required to be stated is "the

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