Judgment and order denying a new trial reversed, and cause remanded for a new trial. [No. 5561.] [Filed April 20, 1878.] AMBROSE vs. MCDONALD. Appeal from Twelfth District Court, San Francisco ATTORNEY-AT-LAW.-RESTRICTED AUTHORITY.-The plaintiff employed Morgan as an Attorney to collect the money due him from defendant, and restricted him to the bringing of suit ;-hence, Held, that as Attorneyat-Law he had no authority to compromise the claim, or receive money thereon until after bringing suit. STATEMENT OF FACTS. Mark McDonald, defendant, as broker, bought 40 shares of stock for plaintiff Michael Ambrose, on September 28th, 1874, on which plaintiff paid $800, down, and defendant advanced the balance, $2,440. On October 9th, defendant sold the stock at plaintiff s request, for $3,115, of which the $2,440 advanced and interest and commissions, $32, should be retained by defendant, leaving balance of $643 and interest, for which plaintiff brings suit. Defendant claims that on October 6th, 1874-before the said sale of the stocks-he bought for plaintiff on his order, 50 shares of other stocks, and sold same on November 30th at a loss, and that on December 1st, 1874, he had a full settlement with plaintiff by one Morgan, his attorney, and paid him a balance of $311.63. Plaintiff denies authorizing such purchase of the 50 shares, and further, that Morgan's authority as his attorney, was restricted in writing to the bringing of suit only. This Morgan embezzled the money, $311.63, and fled the country. Defendant claims he did not know of the restriction on Morgan till this suit was brought. Judgment was for defendant giving him his costs. Plaintifs motion for new trial denied, and appeal taken on February 10th, 1877, from judgment of October 25th, 1875. Carr & Titus, attorneys for plaintiff and appellant. Bartlett & Pratt, attorneys for defendant and respondent. OPINION BY THE COURT. The Court finds that Morgan was employed by plaintiff as an attorney to collect the money due from defendant to him, and that plaintiff restricted his employment to the bringing of a suit against defendant to recover such money. There is no evidence nor finding of fact that Morgan was represented by the plaintiff as having any relation to him except as his "lawyer.' As attorney at law he had no authority, actual or ostensible, to compromise the claim or receive any money thereon until after suit was brought. (C. C. P. 283.) Judgment and order reversed and cause remanded for a new trial. [No. 5802.] [Filed April 20, 1878.] BAGGS vs. SMITH. Appeal from Twentieth District Court, San Benito County D. BELDEN, Judge. FINDINGS AMENDMENT OF.-The Findings must respond to the material issues made by the pleadings. The findings in this case, in not so responding to the issue joined on the counter claim, of moneys loaned, are insufficient to support the judgment. The Court below has no authority to amend its findings, while appeal from its judgment is pending. .STATEMENT OF FACTS. The plaintiffs, Isaac Baggs and E. C. Tully, attorneys-at-law, bring suit for $1,200, claimed to be due by defendant, Charles Smith, for professional services, between February 1st, 1874 and September 1st, 1875, in settlement of estate of Andrew G. Smith, deceased, of which the defendant was the only heir. Defendant brings cross-complaint that Baggs agreed to do certain services for $3 per day, and for a contingent fee of $100, for which he was paid $25, and the $100 in full; also a counter claim for $75, lent plaintiff and not paid. Case was tried without jury, by consent, and Court found for plaintiff $400, and costs $31.85. Entered June 4th, 1877. Defendant appeals from the judgment, June 28, 1877. Afterwards on August 6th, 1877, on motion of plaintiffs, the Court amends the findings, making the $75 as payment for services, and leaving the $400 still to stand over and above. Defendant also ap. pealed from this order on September 25th, 1877, and claims that pending the appeal the Court lost jurisdiction of the case, and could not so amend. Drake & Rix, attorney for plaintiffs.-James N. Breen, for respondents. A. Craig, attorney for defendant.-Wm. Leviston, for appellant. OPINION BY THE COURT. The findings filed June 4, 1877, are insufficient to support the judgment entered on that day, in that they did not respond to the issue joined upon the counter claim of the defendant for the alleged loan of moneys to the plaintiffs. It is the settled rule that the material issues made by the pleadings must be responded to by the findings. The order of August 6, 1877, amending the findings was also erroneous, if for no other, for the reason that the cause was then pending in this Court upon appeal from the judgment, and under such circumstances the Court below had no authority to make new or further findings in the cause. Judgment and order of August 6, 1877, reversed, and cause remanded for a new trial. [No. 5249.] [Filed April 22, 1878.] MCDONALD vs. HASELTINE. Appeal from Twelfth District Court, San Francisco County. DAINGERFIELD, Judge. NEGLIGENCE-DAMAGES-A common employer of several persons, to perform the same general duties, is not bound to respond in damages for the injury of one, by reason of the negligence of another, in the absence of evidence of his neglect to use ordinary care in the selection of such employee, as properly qualified for such duties. STATEMENT OF FACTS. The plaintiff, Edward McDonald, was hired as a 'longshoreman by defandant, Charles E. Hazeltine, a stevedore, to help load the ship "Western Shore," with wheat, alongside the North Point Dock. While so loading, a sack of wheat came down the chute and over, so as to knock down the plaintiff and break his leg, by compouud fracture, and other injuries, so he was confined six weeks, and not able to walk for three months-caused large expense for medicine, etc., $100; doctor's fees, $200; loss of time, at $125 a month, $1,100: and personal damages, $10,000, for which he brought suit. Defendant denies any negligence on his part, alleging that plaintiff and his co-employees could and did arrange the chute, etc., as they wished-without any interference on his part. Was tried by jury, and a verdict for plaintiff for $700 and costs, $140.25, and judgment entered January 19th, 1876. Motion for new trial denied, and appeal taken by defendant May 29th, 1876, from the judgment and order, defendant claiming that plaintiff had been guilty of contributory negligence, if any blame could attach. McAllister & Bergin, attorneys for plaintiff and respondent. OPINION BY THE COURT. Chase was a person employed by defendant in the same general business as plaintiff. The common employer was not bound to respond in dam ages for any injury occurring to plaintiff by reason of the negligence of Chase, in the absence of evidence that he had neglected to use ordinary care in the selection of Chase, as a person properly qualified to discharge the duties imposed upon him, (Civil Code, 1970; McLean vs. Blue Point M. Co., 51 Cal., 255; Collier vs. Steinhard, Id, 116. Judgment and order reversed and cause remanded for a new trial. [No. 5606.] [Filed April 22, 1878.] CHRISTIE vs. CHRISTIE. Appeal from Ninth District Court, Siskiyou County, DIVORCE-INSUFFICIENT GROUNDS.--The complaint alleges three grounds for a divorce,-which are denied by the answer. Cause being tried, with no evidence being offered by the defendant, and all the issues found for the plaiutiff,--Held, that the evidence as recorded, fails to establish either ground for a divorce. STATEMENT OF FACTS. This is an action for divorce-brought by the plaintiff, Eleanor A. Christie, against defendant, John Christie, on the three grounds of desertion, cruelty and neglect. The marriage took place in Idaho City, October 23d, 1864,-desertion charged in 1872, and on August 5th, 1876, defendant took the three children from plaintiff, away to Oregon. Has not provided for her support for over three years, and is worth over $2,000 of community property. Prays for a divorce, and custody of the three children, and allowance for support, etc. Defendant denies desertion, or cruelty and neglect, and shows the furnishing of money for her and the children from time to time. Cause tried February 7th, 1877. Defend. ant moved for non-suit--overruled-case was submitted after testimony on part of plaintiff-without argument, and decree entered for plaintiff. Defendant appealed from the order, and from the final decision on March 13th, 1878. E. Steele, attorney for plaintiff and respondent. C. Edgerton and J. L. Murphy, for defendant and appellant. OPINION BY THE COURT. The complaint for a divorce proceeds upon three grounds: First, wilful desertion; second, extreme cruelty; third, wiful neglect. The allegations of the complaint are denied by the answer. The cause was tried before the Court. No evidence was offered by the defendant. The Court below found all the issues for the plaintiff. We have carefully examined the evidence sent up in the record, and we think that it utterly fails to establish either of the grounds set forth in the complaint as grounds of divorce. The appeal from the order overruling the motion for a nonsuit is dismissed, the judgment is reversed, and the cause remanded. [No. 5687.] [Filed April 22, 1878.] LIVINGSTON vs. MORGAN. Appeal from the 15th District Court-Contra Costa CountyDWINELLE, Judge. TRESPASS JURISDICTION.-The possession of the land by the plaintiff being a fact when the trespass was committed, an averment by him of the ownership of the fences adds nothing to the complaint or cause of action. (See Pollock vs. Cummins, 38 Cal. 683.) Held, that the Justice had jurisdiction of the case before its transfer to the District Court. The judgment for "gold coin" cannot be supported in this case. STATEMENT OF FACTS. This action first brought in the Justice's Court for Second Township, Contra Costa County, before John Slitz, Esq., J. P.,-to recover certain fence, alleged to have been broken into and taken by defendant, Wm. Morgan, away from upon the land of which plaintiff, Jno. H. Livingston was in possession and occupancy on May 1st, 1875, of which fence he claimed to be the owner-leaving his crops of wheat and barley exposed to ruin by stock, obliging him to guard same for two months, etc.; and he claims damages $299.99, and costs. ---Defendant demurred that Court had no jurisdiction,--and for answer, denies everything, and alleges that it involves title to real estate; and plaintiff, not the only occupant of the land-two others also on it,-—and should have been joined in the action.-Demands that proceedings be suspended, and cause certified to District Court.-Cause was so transferred by order, May 8th, 1876-to 15th District-filed June 22nd, 1876-for April term. The demurrer overruled, and trial held April 18th, 1877, jury being waived, -—and judgment for plaintiffs for $117.61, and costs, $103.10.-Defendant appeals, May 14th, 1877, and makes point of non-jurisdiction, and judgment should not be in "Gold Coin. "--Respondent claims that amount of damages claimed being less than $300, District Court has no jurisdiction, and appeal should have been from Justice's Court to County Court. Mills & Jones, attoneys for plaintiff and respondent. Eli R. Chase, for defendant and appellant. OPINION BY THE COURT. The only respect in which this case is claimed by appellant to differ from that of Pollock vs. Cummins, 38 Cal. R., 683, is |