he was proceeding under a writ of foreclosure which was process fair upon its face, and which he must execute, unless commanded to desist by the court, by injunction or otherwise. Therefore the question before this court was not before that court, and was neither considered nor decided therein. We have not the statute of South Dakota, and therefore cannot tell what effect the statute may have had in the decision of that case. The decision of the court below is reversed, and the judgment set aside.

SULLIVAN and HUSTON, JJ., concur.

On Rehearing. (Feb. 1, 1896.)

The

MORGAN, C. J. The principal contention of the respondent, in his brief, was that the affidavit and notice, under the statute, is not process; and therefore the opinion deals principally with this contention. The statement that "no objection is made to the form of the process" was intended to apply to the form, simply, and not to the description of the property therein, which followed the description in the mortgage. The description is sufficient, as between the parties to the mortgage. respondent in this case did not avail himself of the means pointed out by the statute to contest the validity or sufficiency of the description, either in the mortgage or affidavit; and therefore, having taken no legal means to contest the same, such sufficiency was not before the court. And the court does not hold that such description is sufficient. The respondent repeats his argument as to insufficiency of description, and again quotes McConnell v. Langdon, 2 Idaho, 892, 28 Pac. 403. The court explained its position with respect to this, fully, in the original opinion, and does not think it necessary to repeat what was then said. Howard v. Clark, 43 Mo. 344, cited by respondent, states that the statute of Missouri provides a mode of settling all questions of priority between attaching creditors, and where the officer neglects these provisions, and decides the questions himself, he does so at his own peril. The case is not in point, as the sheriff in that case levied both attachments upon the same property on the same day, and thereby put himself in the position where he must decide as to priority. That is not this case. The priority in this case was with the mortgagee, as his levy was made first. He was as much a creditor as the attaching creditor, and the sheriff was not obliged to resort to section 4110,-commence suit, advance costs, and employ counsel to determine a matter in which he had no interest. In this case the respondent was the party who wished to secure and enforce his lien upon a portion of the goods in this store, upon which it was claimed the mortgage was not a lien. It was for the respondent to make such claim good, by such legal means as the statute provided. The respondent had the means at his disposal to compel a deci

sion as to the validity of the mortgage, and also to compel the mortgagee to point out the goods upon which bis mortgage was a valid lien. Having neglected to employ the means so provided, he could not, by verbal request or order, compel or require the sheriff to do this for him. Trowbridge v. Cushman, 24 Pick. 310; Bank v. Mitchell, 58 Cal. 42,--are neither of them in point, as there the question was whether an execution against an individual could take priority over an execution against a firm, or two joint makers of a note, when levied upon the firm or joint property. Not so in this case. We are quite surprised at the statement in the petition for rehearing "that, by an agreement between the mortgagor and mortgagee which the law declares void, a confusion of goods had occurred." We find no agreement in the mortgage or elsewhere, on the part of the mortgagee, that new goods might be purchased with the money received on sales, and such goods mingled with the others. The reasoning, therefore, founded upon such false premises, and the authorities quoted in support thereof, must fail of reaching the case. There can be no question of the rignt of the plaintiff to attack the validity of the mortgage, under section 3396, Rev. St. Idaho. Rehearing is denied.

SULLIVAN and HUSTON, JJ., concur.

WHEELER v. DONNELL. (L. A. 91.) (Supreme Court of California. Feb. 8, 1896.) On petition for rehearing. Denied. For prior report, see 43 Pac. 1.

PER CURIAM. The petition for a rehearing is denied. We desire to say, however, that the right of appeal of a defendant charged by accusation under section 772 of the Penal Code is not here involved. Therefore, whether or not the legislature, under the latter clause of section 18, art. 4, of the constitution, may confer the right of appeal upon a defendant in such proceeding, and whether or not it has conferred such right, are to be considered as open questions.

(5 Cal. Unrep. 256) (L. A. 63.)

JOHNSON v. THOMAS. (Supreme Court of California. Jan. 31, 1896.) NEGLIGENCE-FAST DRIVING-VIOLATION OF CITY ORDINANCE-CONTRIBUTORY NEGLIGENCEQUESTION FOR JURY.

1. Plaintiff was run over at a street crossing by a wagon driven at great speed by defendant's servant. Plaintiff saw the wagon when it was about a block away, but, thinking that it would not be turned towards the side street where he was standing, because of the high speed, paid no further attention. Held, that the question of contributory negligence was properly left to the jury.

2. In an action for injuries due to fast driving, a city ordinance prohibiting fast driving is admissible to show negligence.

Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge.

SEARLS, C. This is an action by Peter Johnson to recover damages for personal injuries received by plaintiff by being knocked down and run over by a horse and wagon driven by a servant of defendant, upon a public street in the city of Los Angeles, California. Plaintiff had a verdict and judgment for $500, from which judgment, and from an order denying his motion for a new trial, defendant appeals. Appellant makes three points for reversal: (1) That the court below erred in denying defendant's motion for a nonsuit. (2) That the court erred in admitting in evidence, on the part of plaintiff, section 4 of Ordinance 202 of the city of Los Angeles. (3) That the verdict of the jury is not sustained by the evidence.

The evidence on the part of the plaintiff, among other things, tends to show that Macy street, in the city of Los Angeles, runs east and west, is, say, 57 feet wide, and is crossed at right angles by Alameda street, which is 96 feet wide, with a sidewalk on the west side thereof 12 feet wide, and two railroad tracks running longitudinally through it, at or near the center thereof. Macy street, going east thereon, has, at the point in question, a down grade of, say, 74 feet in a distance of 175 feet. Plaintiff is a cabinet maker and carpenter, and has a shop on the west side of Alameda street 150 feet south of its intersection with Macy street. On the 15th day of January, 1894, plaintiff started to go from Kerchkoff & Cuzner's mill, on Macy street, to his shop, on Alameda street. He had his apron full of blocks, brackets, etc., which he held with his right hand, and in his left hand he carried some larger articles of like character. His course took him west along the south side of Macy street, to and across Alameda street, thence south, on the west side of the latter street, to his shop. When crossing Alameda street, the horse and heavy spring wagon of defendant, driven rapidly by Albert Jennings, the servant of defendant, came east down Macy street, turned south into Alameda street, and struck plaintiff, who was upon the crossing, and within 8 to 10 feet of the sidewalk, on the west side of Alameda street, knocking him down, and two wheels of the wagon passing over him, whereby he was seriously injured, etc. Plaintiff first saw the horse and wagon of defendant a block away (175 feet) coming down Macy street, when he was near the center of Alameda street, and, as he testified, coming down Macy street "at terrific speed." and supposed from the rapidity with which the horse was being driven he would

continue on straight down Macy street, and did not further observe the team or look for it until at or about the moment he was struck down. To the question asked plaintiff, on cross-examination, "Well, at the time when you saw him coming rapidly, didn't it excite your fear of danger at all?" He answered, "No, sir; it didn't. I supposed by the way he was coming that he was going on right down Macy street." Again, he said, in answer to what reason he had for thinking he would continue down Macy street, "He was going so fast. It is kind of a sharp turn there for a man down Macy; and, as I said, I paid no attention." There was other testimony tending to show that defendant's horse was driven down the grade at "about a four-minute gait," and that there were no obstructions to a clear view. There was also evidence tending to show that defendant's horse was restive and nervous; had been frightened by a passing freight train, and as a consequence was not fully under control of his driver when he came down Macy street, but that he was stopped within "ten or fifteen feet" after the accident. That the horse came down Macy street at a speed so great as to attract the attention and excite the interest, if not fears, of witnesses, is apparent from the testimony. Allen J. Cobb says: "I saw a wagon coming very rapidly down Macy street. I watched it to see which way it was going, as it was coming so fast I thought I might have to dodge." Plaintiff introduced in evidence section 4 of Ordinance No. 202, of the city of Los Angeles, which is as follows: "It shall be unlawful for any person to immoderately ride or drive any horse upon any public street of the city of Los Angeles, or to permit any horse or horses attached to any vehicle to gallop, run or race upon any public street of said city." Upon the showing made by plaintiff, the motion for a nonsuit was properly denied. Treated as a question of contributory. negligence on the part of plaintiff, which proximately led to the result, the evidence falls short of a case in which the court is authorized, as matter of law, to say the plaintiff was inhibited from a recovery. As a general proposition, cases of negligence (to which those of contributory negligence form no exception) present a mixed question of law and fact, in which it devolves upon the court to say, as matter of law, what is or amounts to negligence, and upon the jury to determine, as matter of fact, whether or not, in the particular case, the facts in proof warrant the imputation of negligence. Where, however, the facts are undisputed, and the inference of negligence is irresistible, and not open to doubt, debate, or rational difference of opinion, the question becomes one of law, to be passed upon by the court. Dufour v. Railroad Co., 67 Cal. 319, 7 Pac. 769; Long v. Railroad Co., 96 Cal. 269, 31 Pac. 170; Jamison v. Railroad Co., 55 Cal. 593; Van Praag v. Gale, 107 Cal. 438, 40 Pac. 555;

*

*

Davis v. Button, 78 Cal. 248, 18 Pac. 133, and 20 Pac. 545; Holmes v. Railroad Co., 97 Cal. 161, 31 Pac. 834; Wardlaw v. Railway Co. (Cal.) 42 Pac 1075. As was said in Van Praag v. Gale, 107 Cal. 438, 40 Pac. 555, "it by no means follows that the facts are admitted because there is no conflict in the testimony. What the plaintiff did is established without dispute and beyond cavil; but whether from this conduct the deduction is inevitable that he did not exercise the precautions for his own safety which a reasonable man would have done under precisely the same circumstances is not so clear. That this is the ultimate fact to be determined must be conceded." When plaintiff saw the servant of defendant coming down the street, driving like "Jehu, the son of Nimshi," he reasoned that he would continue down Macy street, and not make the short turn at such a rate of speed onto Alameda street. This conclusion was very likely one warranted by observation in like cases, and the inference of negligence on the part of plaintiff in not further watching the team depended upon whether or not he was justified in this reasoning. It was certainly an inference upon which minds might well differ, and hence proper to be submitted to a jury, under proper instructions. There is nothing in the testimony to show that plaintiff could have reasonably escaped injury by any amount of care, after the horse and wagon turned upon Alameda street, and to hold that a foot passenger in crossing a side street must watch and plan to escape injury from vehicles upon a main street without some indication that the latter are about to leave such main street, and that a failure so to do is conclusive evidence of negligence, is to carry the doctrine of contributory negligence to a romantic and unwarranted length. The evidence of negligence on the part of defendant's servant was ample, and the motion for a nonsuit was properly denied.

2. The section of the city ordinance was properly admitted in evidence. "The violation of any statutory or valid municipal regulation, established for the purpose of protecting persons or property from injury, is of itself sufficient to prove such a breach of duty as will sustain a private action for negligence, if the other elements of actionable negligence concur. Thus, the violation of a statute or ordinance regulating the speed of vehicles, horses, or trains * * is such a breach of duty as may be made the foundation of an action by any person belonging to the class intended to be protected by such a regulation, provided he is specially injured thereby." Shear. & R. Neg. (4th Ed.) § 13. and cases there cited.

*

3. The evidence was sufficient to uphold the verdict. To discuss it at length can be productive of no good. Many of the incidents testified to by Jennings, the driver of the horse, were sharply contradicted, and in such a case the action of the jury thereon is

1. An appeal from an injunction ordering the removal of trade signs, and prohibiting the future use of the trade name thereon, stays proceedings as to the mandatory portion of the injunction, so that a failure to remove such signs could not. pending appeal, be punished as contempt.

2. Plaintiffs were ordered by the court to remove certain trade signs from their premises, and prohibited from using the trade name thereon, and, pending an appeal from the order, made no new use of the name, and removed it from their business stationery, but failed to remove the signs, claiming that they were the property of their lessor. Held, that the fact that they continued to do business on the premises was not a violation of nrohibitory portion of the injunction, which could be punished as contempt pending the appeal.

3. On certiorari tc review proceedings for contempt for violation of an injunction, the court is not limited to the record proper and the order of commitment in determining the power to make such order, but may look to evidence not in the record

In bank. Certiorari by Gustave Schwarz and another to review an order of the superior court of the city and county of San Francisco adjudging petitioners guilty of contempt. Order annulled.

Morrison, Stratton & Foerster, for petitioners. J. J. Scrivner, for respondent.

VAN FLEET, J. This is a proceeding to review by certiorari an order or judgment of department 7 of said superior court (Hon. A. A. Sanderson, J.) convicting petitioners of contempt for the alleged violation of an injunction. The facts pertinent to the inquiry are briefly these: The petitioners are the defendants in an action pending in said superior court, brought by Rudolf Hagen and Felix Eisele, wherein it is alleged that the latter are conducting a saloon and restaurant business at No. 8 O'Farrell street, in the city of San Francisco, under the name and designation of "Louvre"; that they are the owners of said designation as a trade name by right of purchase from their predecessors in interest, by whom it was appropriated for the purpose; that the defendants (these petitioners) have established a like business at No. 1 O'Farrell street, in said city, and have without right adopted the words "Louvre" and "Old Louvre" as a 1 usi

ness designation for their saloon and restaurant, and have had said words placed upon the gaslight lamps in front of the entrance, and upon large glass signs over the entrances to their place of business, and elsewhere about the premises, etc.; and it is prayed that they may be forever enjoined and restrained from using the said words in connection with or in any manner in or about their said restaurant and saloon, and that defendants be required to remove said signs and other objects upon which said name appears, etc. Pending the trial of the action, the superior court, on July 19, 1895, made an order in said action whereby petitioners, the defendants therein, were "enjoined and restrained from using said word 'Louvre,' or the words 'Old Louvre,' upon any sign or signs, lamps, transparencies, either engraved or painted or otherwise arranged thereon, in connection with or in any manner in or about defendants' restaurant and saloon at No. 1 O'Farrell street, in the city and county of San Francisco, state of California, or any other words or devices printed, painted, or stamped or written on such signs or street lamps in such manner as to be a colorable imitation of the trade name of plaintiffs; and that defendants be required to remove their said lamps and transparencies upon which is now in any manner placed or appears the word 'Louvre,' or the words 'Old Louvre,' or any colorable imitation thereof; and that the said defendants, and each of them, be further enjoined and prohibited from using the said words, or either of them, in connection with the said business at No. 1 O'Farrell street, in said city and county of San Francisco." From this order, petitioners, on August 1, 1895, duly perfected an appeal to this court. Thereafter, the petitioners, having been cited to show cause why they should not be punished for contempt in failing to comply with said injunction order, appeared, and objected that said court had no jurisdiction to hear or proceed in the matter, by reason of the appeal from said order, the taking and perfecting of which appeal were duly called to the attention of the court; but, notwithstanding said objection and the said appeal, the superior court proceeded with said hearing. Thereupon petitioners introduced affidavits showing that the premises No. 1 O'Farrell street, where petitioners carry on their business, were at the time, and for several years prior thereto had been, held under a lease from the owner of the building by the Pabst Brewing Company, a corporation, which latter, previous to the occupation by petitioners, had at its own cost fitted up and furnished said premises in a complete manner for the purposes of a restaurant and saloon, and had caused said premises to be designated by the name "Old Louvre," by having said designation placed upon the several signs complained of; that two of said signs, one over each of the two

entrances to said premises, are of fancy stained glass of an expensive character and make, and another of said signs is painted upon the wall of the Phelan building, in which said premises are situated; that all of said signs were so placed by said corporation before petitioners occupied said premises, and are the personal property of said corporation; that in March, 1895, petitioners rented said premises, with the furniture and fixtures therein, from said Pabst Brewing Company, as subtenants, for the purpose of conducting a saloon and restaurant business therein, and have since been carrying on such business, and were so engaged when the injunction was served upon them; that, immediately after the service of said injunction, petitioners complied therewith, and have since continued to do so in all respects, excepting only that they have not removed or interfered with the said signs above adverted to, which, as aforesaid, do not belong to them; that upon their wine cards and bills of fare the words "Old Louvre" have been left off, and the word "Louvre" in no manner or connection appears thereon, but instead appears the designation "Schwarz & Beth's Restaurant and Family Resort"; and that neither said name of "Louvre" or that of "Old Louvre" has since existed or been used in connection with their said business upon any signs, street lamps, or transparencies, or otherwise, excepting only upon the said signs, belonging to said brewing company. At the conclusion of said hearing, on August 27, 1895, the court made an order finding that petitioners were continuing to "use the said word 'Louvre' and the said words 'Old Louvre' in connection with their said business," in violation of said injunction, and adjudged them guilty of contempt therefor, and it was ordered and adjudged that they be committed to the county jail "until they, and each of them, shall desist and refrain from carrying on or conducting their said business at said No. 1 O'Farrell street, under the trade name of 'Louvre' or 'Old Louvre,' or from in any manner using said names in connection with their said business, or from carrying on the business of restaurant and saloon at said No. 1 O'Farrell street, under the said name of 'Louvre' or 'Old Louvre,' in said city and county of San Francisco"; and it was adjudged that they be fined in the sum of $150, and that they pay the same with the costs of the proceedings to plaintiffs, and that plaintiffs have execution therefor.

It is conceded that the injunction, in so far as it requires petitioners to remove the signs bearing the name in controversy, is mandatory in character; and it is further conceded that, as to the mandatory features thereof, it is stayed and suspended in its effect by the appeal taken by petitioners from the order granting the same. The appeal, however, has no such effect upon that part of the injunction which is merely prohibitory, but

that remains in force and unimpaired, notwithstanding the appeal; and the question therefore arises: What was the particular in which the petitioners failed to conform to the requirements of the injunction, and for which they were found guilty of contempt? Was it in failing to observe the prohibitory features of the writ, or in not doing the affirmative thing required thereby,-that is, the removal of said signs? If the latter, then the court had no power to punish petitioners for their failure, since, that part of the writ. being in suspension, the court could not proceed to enforce it pending the appeal. Code Civ. Proc. § 949; Dewey v. Superior Court, 81 Cal. 64, 22 Pac. 333; Stewart v. Superior Court, 100 Cal. 543, 35 Pac. 156, 563. While the recitals of the judgment of contempt are general in terms, that the petitioners "have continued to and do now use" the prohibited name "in connection with their said business," it is quite manifest, we think, from the record, that the failure to remove the obnoxious signs was the fact upon which that finding is based, and that it was this fact which in the mind of the court constituted the failure of petitioners to comply with the injunction, and rendered them guilty of contempt. This is very apparent, not alone from the facts above recited, and which were wholly uncontradicted, but also by reference to the charge in the affidavit upon which the contempt proceedings were predicated. In substance, this affidavit is to the effect that, notwithstanding petitioners have been restrained from using the word "Louvre" or the words "Old Louvre" upon their signs, transparencies, etc., and are required to remove the same, they still continue, in violation of the injunction, to employ said designation. It is not charged specifically that the name is so being used in any other manner than upon said signs, and the affidavit can therefore be construed only as a charge that the name is being so used thereon, and not otherwise. The judgment follows the general language of the affidavit in this respect, and should receive no broader construction than the latter will bear. Contempt being a criminal proceeding, and the party being entitled to know with what he is charged, it will not be presumed that he was held guilty of some act not specifically alleged in the affidavit or fairly covered thereby. The offense being criminal in its nature, both the charge and the finding and judgment of the court thereon are to be strictly construed in favor of the accused. Batchelder v. Moore, 42 Cal. 412; Maxwell v. Rives, 11 Nev. 221; Phillips v. Welch, 12 Nev. 158 (Opinion of Beatty, J., 187).

The objection that we are not at liberty to go beyond the recitals or findings in the judgment itself, in reviewing the action of the court below, is no well taken. While the writ of review is not a writ of error, and is not a means by which, as upon appeal, the mere manner of conducting the proceedings,

the rulings of the court upon questions of evidence, and other matters within the jurisdiction, involving the merits, however erroneous they may be, can be reviewed, it is, nevertheless, a means by which the power of the court in the premises can be inquired into; and for this purpose the review extends, not only to the whole of the record of the court below, but even to the evidence itself, where necessary to determine the jurisdictional fact. People v. Board of Delegates of San Francisco Fire Department, 14 Cal. 479; Lowe v. Alexander, 15 Cal. 301; Blair v. Hamilton, 32 Cal. 49; Bodine v. Goodwin, 5 N. Y. 568. In Blair v. Hamilton, supra, in reviewing by certiorari the order of the court below, it is said: "In many cases jurisdictional facts may not appear of record, either by failure of the inferior court or officer to follow the requirements of the law and make them of record, or because the law itself does not require it to be done. In such cases this court and all other courts having jurisdiction to review and correct the proceedings of inferior courts would be powerless unless it can compel the inferior tribunal to certify to this court not only what is technically denominated the 'record,' but such facts, or the evidence of them, as may be necessary to determine whatever questions as to the jurisdiction of the inferior tribunal may be involved; and the grossest abuses of power, to the great reproach of the law, might be perpetrated with impunity and without the possibility of a remedy."

But, while it is conceded that the removal of the signs cannot be compelled pending the appeal, it is contended that petitioners, in continuing business with the signs in place, were thereby using the said trade name in connection with their business, in contravention of the prohibitory features of the injunction, and that this constituted a contempt of the order of the court; that such use could have been avoided by either quitting their business or removing it to other premises, and, failing to do this, the petitioners were properly punished. But assuming that this would constitute such use as would, under the facts of this case, render it obnoxious to the injunction in any sense, to hold under such circumstances that petitioners could be punished therefor pending the appeal would simply be enabling that to be accomplished indirectly which could not be done directly, and to deprive petitioners entirely of the benefit of the stay afforded by their appeal. "The stay of proceedings pending an appeal has the legitimate effect of keeping them in the condition in which they were when the stay of proceedings was granted. It operates so as to prevent any future change in the condition of the parties." Mining Co. v. Fremont, 7 Cal. 130. To require petitioners to abandon their business or the premises would be working a very material, if not an irreparable, change in the condition of the parties, notwithstanding the