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the entire expenses of the whole improve | ment, at least three-fourths of which expense was for cementing ditches below his land, in which saving he has no interest, and from which he neither receives nor claims any benefit. This demand does not come within the principle invoked by the plaintiff. The principle is founded upon natural justice and equity-the proposition that he who claims a share in a benefit produced by the act of another, should pay a like share of the expense by which the benefit was secured. It would not justify a charge for a proportion of the whole expense of a work in a case where only a small part of the work was of use to the party charged, and where he neither received nor claimed the benefit accruing from the remainder. The same equitable principle which would impose the charge in a proper case, so far as the work was beneficial, would deny the validity of a charge as to that part of the work which was for the exclusive benefit of others. There was no evidence by which to correctly apportion the amount of the charge to the benefit actually claimed and received by the defendant. The estimates above made were based on the assumption that both the saving and the expense were uniform throughout the course of the ditch. Upon this point there was no evidence and the court makes no finding. The case was not tried upon the theory that there might be a partial recovery of the amount claimed, but upon the proposition that, as the defendant was a part owner in the whole, he was, consequently, chargeable with his proportion of the whole expense if he claimed and received the benefit of any part of the work, and regardless of the fact that a large part of the expense was for work which he did not use and was made to save water in which he did not share and the previous loss of which did not injure him. Hence, the proof was not directed to the proposition of a charge to the defendant limited to his proportion of the expense of that specific part of the work which was shown to be of benefit to him. Conceding, therefore, that the facts and law would justify some recovery by the plaintiff, it would be necessary for it, in order to maintain its case, to produce evidence from which the court could ascertain the amount for which the defendant would be liable. Having failed to do this, the court was justified in giving judgment for the defendant.

In view of the specific facts found, showing that the defendant neither has nor claims any beneficial use whatever of the part of the ditch or its branches situated below his land, the general preliminary statement that he is the owner of the stated interest as tenant in common in the "ditch and its branches, known as the 'Arroyo Ditch,'" cannot be taken according to its full meaning. He may have some sort of a title to that part of the ditch, but if so it is not derived from the prescriptive use by which the

right to the ditch and water was originally acquired, and its origin must be ascribed to the inaccurate phraseology of a subsequent judgment between the interested parties, introduced in evidence, whereby the undivided interest of each party in the Arroyo ditch was determined, or perhaps to a misapprehension of the legal effect of that judgment. At all events, the specific facts found and amply supported by the uncontradicted evidence, conclusively show that if the defendant has any title to the ditches and water below his land, it can be nothing more than a barren legal title, without any beneficial use or right whatever, a title which, of itself, would raise no implied promise to pay for improvement made thereto without his consent. It is further asserted that the defendant is liable under the provisions of the act of 1889 relating to tenancies in common in waters. St. 1889, p. 202, c. 168. In substance that act provides that where two or more persons construct a common ditch and use the same for the irrigation of their lands, each shall be liable to the other for the reasonable expense of maintaining and repairing the same in proportion to his share in the use of the water, and that if either neglects, after demand in writing, to pay his proportion of such expenses, he shall be liable therefor in an action by the party who has paid the sum with 2 per cent. interest from the time such demand was made. To this claim what we have heretofore said is a sufficient answer. Conceding, for the purposes of argument only, that the fluming and cementing done could, under the circumstances, be classed as "maintaining and repairing," the plaintiff has no case; for it asks contribution to the cost of work done chiefly on a part of the ditch of which defendant has no beneficial use, and by which he is not benefited, and the evidence furnishes no means of ascertaining separately the cost for which, if any, the defendant might be held liable under that statute.

It is claimed that some of the other findings are conflicting with each other, and that others are contrary to the evidence. We do not think it necessary to discuss these points at length. We have examined the findings and have read the evidence with some care, and we are satisfied that the findings can be easily reconciled with each other and that there is sufficient evidence to support all the material facts in issue. The judgment and order are affirmed. We concur: ANGELLOTTI, J.; SLOSS, J.

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plaintiff's failure to appear on the trial except on proof of the service of five days' notice of trial required by Code Civ. Proc. § 594.

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Dismissal and Nonsuit, §§ 150-152.] 2. APPEAL-PREJUDICE-PRESUMPTIONS.

Where, on direct appeal from a judgment of dismissal, it affirmatively appears that the dismissal was made without any showing to the court of notice to plaintiffs of the time of trial or waiver of such notice, prejudice would be presumed, and the judgment of dismissal reversed.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4038, 4045, 4046.]

3. TRIAL-NOTICE.

Trial of a will contest was fixed for November 14, 1904, at which time a motion for continuance was granted on payment of costs, and an order made continuing the case for trial to February 7, 1905. On January 13. 1905, defendants gave notice of an application to be made on January 23d, for an order for additional security for costs, which order was granted on January 24th, and stayed all proceedings until the undertaking was filed, and directed the filing thereof within 10 days. No order was thereafter made resetting the case for trial, and no notice was given as to the time of trial, which was moved by defendants on February 7th. Held, that the order for additional security for costs vacated the order setting the case for trial on February 7th, so far as to require that the matter be again set for trial, or the giving of a new notice of trial. 4. COSTS-SECURITY-TIME TO FILE.

Where, after a will contest had been set for trial, contestants were ordered to give additional security for costs, a provision of the order requiring such security to be furnished within 10 days was ineffectual for any purpose, contestants being entitled by Code Civ. Proc. $ 1036, 1037, to 30 days, after the making of the order within which to comply therewith.

5. TRIAL-NOTICE.

Where contestants in a will contest were directed to give additional security for costs, and all proceedings including the trial were stayed contestants complied with the order, which they were entitled to do within 30 days, the giving of the undertaking by their coplaintiff before the expiration of such time, and on the day the case had been previously set for trial, did not justify a trial and dismissal of the proceedings on that day for contestant s failure to appear, without a further notice or trial.

6. APPEAL-JUDGMENT-RECORD-AFFIDAVITS. An affidavit of one of defendant's attorneys, used on the hearing of a motion to set aside a judgment of dismissal, constitutes no part of the record on appeal from the judgment, and cannot be considered thereon, though properly authenticated.

[Ed. Note. For cases in point, see vol. 3. Cent. Dig. Appeal and Error, §§ 2394–2396, 2408.]

7. DISMISSAL AND NONSUIT SUBSEQUENT ACTS.

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Where a will contest was erroneously tried and dismissed in contestant's absence and without proper notice of trial being given contestants, it was immaterial that after submission of the I motion to dismiss, and prior to the actual dismissal, the judge asked one of contestant's attorneys whether he had notice of the motion to dismiss, and desired to take any steps thereander prior to the ruling, and that the attorney replied that he would not do anything in the Inatter at present.

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In order to make a record of a showing by affidavits sufficient to establish error in the decision of a motion on which affidavits were or could have been used, the affidavits used and the evidence taken on the hearing, must be authenticated by being incorporated in a bill of exceptions.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig, Appeal and Error, § 2416.]

In Bank. Appeal from Superior Court, Merced County; E. N. Rector, Judge.

Contest of the will of Thomas Claiborn Dean, deceased. From an order or judgment of dismissal, and from an order refusing to vacate such order and grant a new trial, contestants prosecute separate appeals. Reversed.

James T. Boyd, A. N. Salisbury, E. D. McCabe, B. F. Fowler, and J. W. Knox, for appellants. F. W. Henderson, for respondent.

ANGELLOTTI, J. These are two separate appeals on one transcript; the first taken April 11, 1905, from an order or judgment of dismissal (made February 11, 1905) of certain proceedings instituted for the revocation of the probate of a document purporting to be the last will of deceased, and the second, taken June 6, 1905, from an order refusing to vacate said order or judgment and grant a new trial (made May 29, 1905). The dismissal was granted on motion of the defendants upon the ground that the plaintiffs failed to appear on the trial. The ap pellants are all of the 23 contestants, except one, Nathan Morrison, who, at the time the matter was called for trial, was represented by separate attorney, appeared at the time set for the trial, and there practically abandoned his contest. Originally there were two groups of contestants, one of 21, including Morrison, represented by one set of attorneys, and the other of two, represented by another set of attorneys. Whether or not the lower court erred in giving judgment of dismissal must be determined solely in the light of the facts shown by such papers in the transcript as may properly be held to constitute a part of the judgment roll and the settled bill of exceptions. Certain affidavits contained in the transcript, purporting to have been subsequently filed and used on the motion to set aside the judgment and grant a new trial, which affidavits are not contained in any bill of exceptions, cannot, of course, be considered in the determination of such question.

Most of the plaintiffs were nonresidents of the state of California. By the bill of exceptions settled for use on appeal from the judgment, the following facts appear: Prior to answers filed, a demand that plain. tiffs give security for the costs and charges

that might be awarded against them, as provided by section 1036 of the Code of Civil Procedure, was regularly served and filed, and plaintiffs subsequently regularly complied with this demand. Issues of fact having been joined, a demand for a trial by jury was regularly made by defendants, and November 14, 1904, was fixed for the trial of the contests. At the last-named time, a motion of plaintiffs for a continuance on the ground of absence of plaintiffs and witnesses was granted on payment of certain costs, and an order was made continuing the trial to February 7, 1905, at 10 o'clock a. m. On January 13, 1905, defendants gave notice of an application, to be made on January 23, 1905, for an order for an additional undertaking in the sum of $1,500, as security for costs, and for a stay of proceedings until the same should be given. This application having come regularly on for hearing, the court, on January 24, 1905, made an order: First, requiring plaintiffs to file such an additional undertaking in the sum of $300; second, staying all proceedings until such undertaking was filed; and, third, directing that said undertaking be filed within 10 days. The attorneys for plaintiffs notified the court that it would be necessary for them to have 30 days within which to file such undertaking, on account of the absence of their clients from the state, and claimed that they were entitled to such 30 days under the provisions of section 1037 of the Code of Civil Pro cedure. No order was made on January 24, 1905, or subsequent thereto, relative to the time of trial of said contest, and no notice was ever given to appellants at or subsequent to the proceedings of January 24, 1905, as to the time of trial. On February 6, 1905, one J. J. Griffin was regularly substituted as attorney for plaintiff Nathan Morrison, who had hitherto been represented by the attorneys for the group of 21 contestants, and who appears to have been a resident of California. On February 7, 1905, at 10 a. m., said plaintiff Morrison filed the necessary additional undertaking. This was filed without any notice to any of the other plaintiffs or their attorneys, and none of them knew anything about his intention to file the same or about the filing until after the submission of the motion to dismiss. At 10:10 a. m. on February 7, 1905, the proceeding was called for trial by the court. None of the plaintiffs or their attorneys were present, except Morrison and his attorney. When the matter was called, defendants answered "ready," as did plaintiff Morrison, who further stated that he had no evidence to offer. Defendants, having shown to the court that the additional undertaking had been filed that morning, moved that the proceeding be dismissed for failure on the part of the plaintiffs to appear at the time set for the trial of the cause. No proof whatever was made as to any notice given to appellants as to the filing of the undertaking by Morri

son, or as to any intention on the part of defendants to ask for the trial of the contest at that time. The court thereupon ordered the matter submitted, and, subsequently, on February 11, 1905, made its order granting the motion, whereupon the clerk of the court noted said order on his register of actions.

Other facts, such as that the trial of another case was actually in progress before the court on February 7th, at the time this case was called for trial, and that, although a jury had been demanded, no jury had been summoned or was in attendance, and that no witnesses were in attendance, also appear; but these facts would probably be material only on a subsequent motion to relieve from the judgment on the ground of surprise, inadvertence, and excusable neglect. The facts already stated are the only matters shown by the record that are material in determining as to the correctness of the action of the lower court in giving judgment of dismissal. Section 594 of the Code of Civil Procedure provides: "Either party may bring an issue to trial or to a hearing, and in the absence of the adverse party, unless the court, for good cause otherwise direct, may proceed with his case, and take a dismissal of the action, or a verdict or judgment as the case may require; provided, however, if the issue to be tried is an issue of fact, proof must first be made to the satisfaction of the court that the adverse party has had five days' notice of such trial." A court should not dismiss an action under subdivision 3 of section 581 of the Code of Civil Procedure, for failure of the plaintiff to appear on the trial, except upon proof made in compliance with the above quoted proviso of section 594 of the Code of Civil Procedure, designed to prevent the manifest injustice of dismissing a party's action, or trying it in his absence, because of his failure to appear at a time at which he could not be held to have had notice that the trial would be had, or that any proceeding would be taken against him. When upon direct appeal from the judgment of dismissal, it affirmatively appears that such a dismissal has been had against a party, without any showing having been made to the court of notice had by such party of the time of trial, and waiver of such notice on his part is not shown, it seems clear that the judgment of dismissal is erroneous, and should be reversed. In the absence of a showing to the contrary, such an error must be deemed prejudicial.

We are not here concerned with the question as to what would constitute a sufficient notice, or sufficient proof of such notice, to authorize a court to proceed to a disposition of a cause in the absence of a party. Here there was no notice whatever other than that afforded on November 14, 1904, by the order continuing the trial, on motion of plaintiffs, to February 7, 1905, at 10 o'clock a. m.

If it were not for the subsequent proceedings had in January, 1905, this order, made on motion of plaintiffs, would undoubtedly be held effectual to dispense with further notice of the time therein designated. But we are satisfied that it must be held that the subsequent order of January 24, 1905, made on the motion of defendant, practically vacated the order fixing February 7th for trial, so far as the same could be held to operate as notice to appellants that the trial would then be had, and left the matter either to be again set for trial when the undertaking required was given, or triable at the original date only upon new notice showing that a trial would then be had or insisted on by the defendants, who had procured the stay of the proceedings. Under the provisions of sections 1036 and 1037, plaintiffs had 30 days from the making of the order of January 24, 1905, within which to give the additional undertaking thereby required, and the direction in such order that such undertaking be given within 10 days was ineffectual for any purpose whatever. Under said sections, a failure on the part of plaintiffs to give the additional undertaking within 30 days would warrant the dismissal of the proceedings, and this was the only penalty prescribed by law for a failure to give security. By the order made, in accord with .the demand of defendants and in strict accord with the provisions of section 1036 of the Code of Civil Procedure, all proceedings including the trial, were directed to be stay. ed until plaintiffs should give such additional undertaking. Plaintiffs were thus notified by the express terms of the order of the court, that if compliance with said order for additional security was insisted on by defendants, which, in the absence of notice to the contrary, they had the right to assume would be the case, no trial could be had until they gave the additional undertaking, the giving of which might legally be deferred, and so far as appellants are concerned was deferred, until long after the time originally fixed for trial. Under such circumstances, it appears too clear for question that these appellants cannot be held to have had any notice that the trial would or could be had on February 7, 1905. having themselves given the required undertaking, having no notice that their seceding resident coplaintiff intended to pursue the most remarkable course of assuming the burden for them and giving such bond, in erder that the stay directed might be avoided and judgment given against them, and having no notice that defendants would waive the benefit of the order they had themselves obtained staying proceedings until given security for costs, they had the right to rely on the order of January 24, 1905; and, so relying, to assume that the trial I could not be had at the time originally appointed, and that no proceeding against them would be taken at that time in such matter,

Not

without notice. The mere giving of the undertaking by their co-plaintiff Morrison on | February 7th was no more effectual in this regard than would have been a waiver at such time by defendants of the benefit of the order requiring additional security. Appellants were entitled to notice of any change in existing conditions which would render a trial of the issues possible. In view of the order of January 24, 1905, the trial court, before dismissing the proceedings for failure of appellants to appear, should have required proof that appellants had notice that the additional security would be waived and a trial insisted on by defendants at the time originally set, or notice that their coplaintiff had given such an undertaking as would make a trial possible under the terms of that order. The record on appeal from the judgment of dismissal shows that no such proof was made to the court, and also fails to show that appellants had any such notice in fact.

We are not unmindful of the fact that in an affidavit of one of defendants' attorneys, said to have been used on the hearing of the motion to set aside the judgment of dismissal, it is stated that appellants did have notice that defendants would, if such undertaking were not filed by February 7th, at 10 o'clock a. m., waive the additional security, and insist upon a trial, but this affidavit, as already stated, constitutes no part of the record on appeal from the judgment, and it cannot be considered thereon, even if it were properly authenticated. The statement in the bill of exceptions to the effect that within a day or two after the submission of the motion to dismiss, and prior to the actual dismissal, the judge of the trial court asked one of the attorneys for one group of contestants whether he had notice of the motion to dismiss, and whether he desired to take any steps therein prior to the ruling of the court thereon, and that the attorney replied that contestants would not at the present time do anything in the matter, but would simply let it stand as it was, is entirely immaterial. Whether or not the dismissal should be granted depended upon the facts existing and the showing made at the time of the making and submission of the motion, and plaintiffs were not required by this subsequent notice from the judge to take any proceedings in order to save their legal rights. If the motion made and submitted without notice, and in their absence, was erroneously decided, they could then take such proceedings as the law afforded them for a review of such decision. The statement of the attorney to the judge was nothing more, in effect, than a statement that appellants would stand on their legal rights.

In view of our conclusion that the judgment of dismissal must be reversed, it is unnecessary to consider the appeal from the subsequent order refusing to vacate the judg

ment and grant a new trial. Of course, in view of the fact that no trial at all had been had of the issues of fact, and the proceeding had been dismissed without any trial for failure of appellants to appear, the case was not one for a motion for a new trial, and so far as the motion made was one for a new trial, it was undoubtedly properly denied. It is possible, however, that the motion made be properly considered as having been partially for relief under section 473 of the Code of Civil Procedure, on the ground of excusable neglect, surprise, etc. Whether it could be so considered, and whether the showing made on the hearing of the motion was such as to require the lower court to grant the relief sought, are, as already said, immaterial, in view of our conclusion upon the appeal from the judgment. In respect to that showing, it is, however, proper to note that affidavits printed in the transcript and claimed to have been used on the hearing, are not incorporated in any bill of exceptions, and some of them are not even indorsed by the judge as having been used on the hearing. It has several times been pointed out by this court that, in order to make a record of a showing by affidavits sufficient to establish error on the part of the lower court in the decision of a motion upon which affidavits were or could have been used, in the face of the presumption of correctness and regularity which attaches as to the action of lower courts upon such motions, the affidavits used and evidence taken on the hearing below must be authenticated by being incorporated in a bill of exceptions. The Indorsement of the judge on certain affidavits, to the effect that the same were used on the hearing is not sufficient, for it does not show or raise any presumption that such affidavits constituted all the affidavits used and evidence taken, and the presumption in favor of the order is that other af fidavits and evidence were received on the hearing, sufficient to support the order made. The only way by which this presumption can be overcome is by a bill of exceptions purporting to show all the material evidence received, whether by affidavit or otherwise. Rule 29 of this court (78 Pac. xii), in terms, requires that "in all cases of appeal to this court from the orders of the superior courts, the papers and evidence used on the hearing of the motion must be authenticated by including the same in a bill of exceptions, except where another mode of authentication is provided by law." There is no other mode provided by law for the authentication of affidavits used on the hearing of such a motion, as was here made. See Skinner v. Horn 144 Cal. 278, 77 Pac. 904; Cahill v. Baird, 138 Cal. 691, 72 Pac. 342; Melde v. Reynolds. 120 Cal. 234, 52 Pac. 491; Ramsbottom v. Fitzgerald, 128 Cal. 75, 60 Pac. 522. It devolved upon plaintiffs appealing from the order denying their motion, to have settled a bill of exceptions showing the evi87 P.-2

dence taken upon the hearing of such motion. The judgment or order of dismissal appealed from is reversed.

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

(149 Cal. 485)

In re DAVIS' ESTATE. (Sac. 1,475.) (Supreme Court of California. July 26, 1906.) 1. ADMINISTRATORS-APPOINTMENT-CONCURRING JURISDICTION-ATTACHMENT.

Where a nonresident died, leaving property in two or more counties, the public administrator of the county first filing a petition in the superior court for administration of the estate is entitled to appointment, precluding a court of another county from taking jurisdiction.

[Ed. Note. For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, §§ 24, 132-140, 177.]

2. SAME-APPOINTMENT-RIGHT TO CONTEST.

Where the superior court of a county appointing a public administrator as administrator of the estate of a nonresident had no power to appoint him because proceedings had been previously instituted for the appointment of another in another county, the administrator so illegally appointed was not a party in interest entitled to oppose the appointment of an administrator in the county in which jurisdiction had attached. [Ed. Note.-For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, § 95.]

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

Contest between the public administrator of Tulare county and the public administrator of Fresno county to determine which of the two was entitled to administer on the estate of Jane Davis, a nonresident deceased person. From a judgment in favor of the public administrator of Tulare county, the administrator of Fresno county appeals. Affirmed.

Everts & Ewing, M. F. McCormick, Truman & Oliver, and Bishop, Wheeler & Hoefler, for appellant. Carter P. Pomeroy, Hannah & Miller, Herman O. Miller, and Frank H. Short, for respondent.

SLOSS, J. As stated by the appellant in his brief, "this action is a contest, simply, between the public administrator of Tulare county and the public administrator of Fresno county as to which one has the better right, under the existing circumstances, to administer the estate." The decedent was a resident of the state of New York, and left estate in various counties of this state. The appellant, Chittenden, the public administrator of Fresno county, appeals from an order of the superior court of Tulare county appointing the respondent, Dungan, the public administrator of Tulare county, administrator of the estate. The appellant had theretofore been appointed as administrator of the same estate by the superior court of Fresno county, although his petition for appointment was filed several days later than Dungan's petition in Tulare county. The ap

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