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unduly hampered as to the means of making proof. In support of a motion he is limited to ex parte affidavits of voluntary witnesses unless the court in its discretion permits a wider latitude. In a separate suit he may bring unwilling witnesses into court by subpoena, and he may take their depositions. The remedy is ampler and more efficacious, and the case is one which demands the amplest and most efficacious remedy. My conclusion is that the plaintiffs had the right to maintain this suit, notwithstanding they knew of the frauds alleged in ample time to have moved upon that ground.

But it is objected that they did move, and that their right to have the judgment vacated is res judicata. It does not, however, appear from this complaint that they moved upon the ground of the fraud here alleged, and the report of our decision on the appeal from the order denying the motion shows that it was made upon the ground of want of authority in their attorney to stipulate. The allegations of this complaint do not show that the order denying the motion to vacate is a bar to this action. In Black on Judgments it is said (section 321): "In an action to set aside a judgment on the ground of fraud, neither the judgment thus sought to be vacated nor an order refusing to set aside a default and permit an answer in that case can be set up as a bar to the action." From which it would seem to follow that in such a case as this the correct practice would be to move promptly under section 473 of the Code of Civil Procedure, and, if defeated in that proceeding, to commence a separate action for relief upon the ground of the plaintiff's fraud-a practice to be commended as convenient and expeditious in case the motion should be granted, and as affording the injured party all the advantage of a regular trial of the issue of fraud if the more summary proceeding proved ineffectual. This is the course which plaintiffs have taken, and, if the practice is admissible, they cannot be charged with lack of diligence. They moved promptly for relief in the foreclosure suit. and before that motion was finally decided they commenced this action.

There has been no laches. The period of limitation for actions for relief on the ground of fraud is three years from the discovery of the fraud. This action was commenced less than two years after its commission. The cases cited by respondent in which the complaint has been held bad for failure to show how and when the fraud was discovered, and why it was not sooner discovered, were all cases in which the action was commenced more than the full period of limitation after the commission of the fraud. In such cases the doctrine of laches applies, but in a case like this the right to maintain the action is governed by the statute of limitations. Nor does the right to maintain the action depend upon the

readiness and ability of the plaintiffs to pay the amount that may be found due on an accounting. They are entitled to a correct determination of the amount of their indebtedness and to have the mortgaged premises sold only under a proper decree. What has been said in the cases of rescission cited by the respondent as to the necessity of averring readiness and ability to restore what has been received under the contract has no application to such cases as this.

It follows from what has been said that the judgment of the superior court must be reversed, but in view of the further proceedings involved in this conclusion it is proper to add that if, upon a trial of the issues, it shall be found that the attorney who represented these plaintiffs in the foreclosure suit had authority from them and acted in good faith in stipulating for judgment according to the prayer of the complaint, and that no fraud was practiced by the defendant corporation in procuring the entry of the decree, the plaintiff will have no right to demand that the sale and other subsequent proceedings be vacated; for, if the decree was not in accordance with the prayer of the complaint, the defendants therein had a remedy by appeal, and that remedy was exclusive, and if it was in accordance with the prayer of the complaint they cannot now object to a sale made in the mode authorized by their formal consent. In other words, our conclusion is that, if there was in fact no fraud in the procurement of the judgment, the plaintiffs have no right of action.

The judgment appealed from is reversed, and the cause remanded, with instructions to the superior court to overrule the demurrer with leave to the defendants to answer.

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MCFARLAND, J. (dissenting). I dissent, and adhere to the opinion delivered in department affirming the judgment. I think that the case clearly comes within the rule that equity cannot be invoked where there is a remedy at law. Appellants had an ample remedy for their alleged grievance by motion under section 473, Code Civ. Proc. They availed themselves of that remedy and were defeated; and they are now seeking to try all over again the matter there litigated. If their statements are true, they were the victims of the "surprise" which is made one of the grounds for relief in section 473; and it makes no difference that the surprise was the result of alleged fraud. Moreover, if the decision on the motion were no bar to the present action because of fraud involved, then in my opinion there is no sufficient averment in the complaint of facts constituting fraud. The mere averment that plaintiffs "procured" defendant's attorney to make the stipulation, etc., is insufficient.

The procurement may have been by proper and justifiable means.

Note. The following is the opinion in department referred to in the dissenting opin

ion:

MCFARLAND, J. A general demurrer to the complaint was sustained, and, plaintiffs not offering to amend within the time allowed, judgment was entered for defendants. Plaintiff's appeal from the judgment.

In appellants' points and authorities it is merely asserted that the complaint does state facts sufficient to constitute a cause of action, and in support of the assertion a general reference is made to 11 paragraphs of the complaint, which are designated by numbers. There is nothing more in the points that can be designated as argument, and no authorities are cited except section €94, Code Civ. Proc. The complaint, with exhibits attached, occupies 70 pages of the transcript. The gist of the complaint, when seen through the mass of the matter set forth, seems to be this: That in May, 1892, appellants executed to the defendant, the Security Loan & Trust Company, a mortgage on certain described lots of land to secure certain promissory notes made by appellants to said company; that on October 22, 1898, said company commenced an action to foreclose said mortgage, and that appellants employed an attorney, W. D. Peck, to defend the action; that the attorney filed a demurrer to the complaint, which was afterwards, by his consent, overruled; that on February 21, 1899, the said attorney made and filed a stipulation on the part of the appellants that appellants would make no further defense to the action; that their default be entered, and that judgment might be rendered for plaintiff in said action as prayed for in his complaint; that on said 21st day of February, 1899, a judgment of foreclosure was rendered and entered; that the defendant herein, Thomas F. Keefe, was appointed a commissioner to sell the mortgaged premises; that on the 22d day of January, 1899, said Keefe did sell said premises to the respondent herein, the said Security Company, and gave it certificates of sale, and on January 22, 1900, executed to respondent deeds for the land so sold. The main purpose of the action is to have the said judgment of foreclosure set aside, and the said sale of the mortgaged premises vacated.

It is averred that appellants' attorney in the foreclosure case was not authorized to make the stipulation above noticed, and that he did so by the procurement of the plaintiff in said action, etc. But it is also averred that within the time allowed by section 473, Code Civ. Proc., appellants moved the court in which the foreclosure judgment had been entered to set aside the default and vacate that judgment, that the court made an order denying said motion,

and that appellants had appealed from that order. It appears from the records of this court that the appeal from the said order was afterwards heard and the order affirmed, although that fact is not important here, and perhaps cannot be considered. Security L. & T. Co. v. Estudillo, 134 Cal. 166, 66 Pac. 257. At all events, the appellants by said motion to vacate the judgment had an ample remedy at law for their alleged grievance; and equity will not interfere where the remedy by law is ample.

It is averred that the commissioner sold the mortgaged premises in nine different parcels, whereas it should have been sold in different and more numerous parcels as demanded by appellants by written notice served on the commissioner, and that there fore the said sale was void. But, in the first place, there is no averment of facts showing that appellants were injured by the manner of sale; and, in the second place, it was decreed in the judgment that the sale should be made in nine named parcels, and the commissioner in making the sale followed the judgment, and, such being the case, the only remedy for the alleged grievance was an appeal from the judgment. In Ontario Land, etc., Co. v. Bedford, 90 Cal. 181, 27 Pac. 39, and Marston v. White, 91 Cal. 327, 27 Pac. 588, it is said that the provision of section 694, Code Civ. Proc.-that upon the sale under execution of land consisting of several well-known lots or parcels the parcels must be separately sold, and according to the direction of the judgment debtor if he be present at the sale-applies to a sale under a judgment of foreclosure only when the judgment is silent as to the method of sale; and while what is said in those cases may not be a direct adjudication on the subject still the rule must undoubtedly be as there stated. That part of the judgment in the foreclosure suit which directs how the mortgaged premises shall be sold is certainly not void; and, if it was erroneous, the only remedy was by appeal from the judgment.

The foregoing are the main points in the case, and we see nothing else necessary to be specially noticed. The complaint doesnot state facts sufficient to constitute a cause of action and the demurrer was properly sustained.

The judgment appealed from is affirmed.. We concur: HENSHAW, J.; LORIGAN, J.

(149 Cal. 569) FORSYTHE v. LOS ANGELES RY. CO. et al. (L. A. 1,733.) (Supreme Court of California. Aug. 17, 1906. Rehearing Denied Sept. 13, 1906.)

1. CARRIERS-INJURY TO PASSENGERS-NEGLI.

GENCE.

Where a passenger on a street car, free from contributory negligence, was injured in a collision between the car and a wagon of a third person, the negligence of the third person,

was no defense where the street railway company's negligence, in whole or in part, caused the injury, it owing to the passenger the highest

care.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, § 1211.]

2. SAME.

In an action for the death of a rassenger on a street car in a collision between the car and a wagon of a third person, the evidence showed that the motorman saw the wagon approaching the track but did not check the speed of the car till he was so close to the wagon that a collision was inevitable. Held that, though it might have been the duty of the driver of the wagon to have stopped until the car had passed, the motorman did not exercise the highest care toward the passenger because he failed to stop the car, though knowing that a collision would

ensue.

[Ed. Note.--For cases in point, see vol. 9, Cent. Dig. Carriers, § 1211.]

3. APPEAL-PARTY AGGrieved.

In an action for the death of a passenger on a street car, in a collision between the car and a wagon of a third person, brought against the railway company and the third person, judgment was rendered against the company and in favor of the third person. Held, that the company was not a party aggrieved by the refusal to render judgment against the third person; there being no right of contribution between the codefendants.

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Code Civ. Proc. § 709, providing that where property liable to an execution against several persons is sold thereon, a more than a due proportion of the judgment is satisfied out of the proceeds of the property of one of them, he may compel contribution from the others, etc.. does not change the rule that there is no right of contribution between joint tort-feasors, but merely gives to a judgment debtor entitled to contribution the summary remedy of using the judgment itself to enforce contribution in the manner prescribed.

[Ed. Note. For cases in point, see vol. 11, Cent. Dig. Contribution, §§ 6-9.]

5. APPEAL-MOTION FOR NEW TRIAL-REVIEW OF EVIDENCE.

Where, in an action for negligence, plaintiff does not move for a new trial, the court, on appeal, cannot consider the question of the sufficiency of the evidence to show negligence. 6. TRIAL--FINDINGS GENERAL AND SPECIAL

FINDINGS CONSISTENCY.

In an action for the death of a passenger on a street car, in a collision between the car and a wagon of a third person, brought against the street railway company and the third person, the court found that the death of the passenger was not caused by the negligence of the third person, but solely by the negligence of the company. The court farther found that the driver of the wagon saw the car approaching when it was about 125 feet distant from the point of the accident and did not stop his team until too late. Held that, as the car was operated on a street, it could not be said that the driver of the wagon did not exercise reasonable judgment in determining that he could pass the crossing before the car would reach him, and a judgment in favor of the third person was authorized.

7. SAME.

The finding of the ultimate fact prevails in support of the judgment, notwithstanding a finding of probative fact which tends to show that the ultimate fact is against the evidence.

Department 2. Appeal from Superior Court, Los Angeles County; N. P. Conrey, Judge.

Action by Sarah C. Forsythe, administratrix of J. W. Forsythe, deceased, against the Los Angeles Railway Company and another. There was a judgment for plaintiff against defendant Los Angeles Railway Company and in favor of defendant Los Angeles Hay Storage Company, and plaintiff and defendant Los Angeles Railway Company appeal. Affirmed.

E.

Valentine & Newby and Bicknell, Gibson, Trask, Dunn & Crutcher, for appellant. W. Freeman, A. D. Laughlin, and Henry J. Stevens, for respondents.

MCFARLAND, J. On the 16th day of March, 1903, J. W. Forsythe, since deceased, was a passenger on a street car of the defendant the Los Angeles Railway Company, which was running southerly on Main street in the city of Los Angeles. He was seated in the front part of the car on the easterly side, and in a seat provided by the railroad company for passengers. As the car was crossing Seventh street there was a collision between the car and a large, heavily load. ed wagon of the other defendant, the Los Angeles Hay Storage Company, and driven by one of its employés; and by this collision the said Forsythe received injuries from which he afterwards died. This action was brought by his administratrix, who is also his widow, against both of said defendants to recover damages for his death, the plaintiff alleging that the death was caused by the negligence of both the said defendants. (For brevity, the said first-named defendant will be hereafter called the "Railway Company," and the other defendant the "Storage Company.") The case was tried without a jury, and the court found that the injuries were caused by the negligence of the said Railway Company, and that the other defendant, the Storage Company, was not guilty of any negligence in the premises. It found the amount of the damage to be $4,000, to which finding no exception is taken, and it rendered judgment for plaintiff against the Railroad Company for the aforesaid amount of money, but rendered judgment for costs against plaintiff in favor of the Storage Company. The defendant the Railroad Company, made a motion for a new trial, which having been denied, it appeals from the order denying said motion, and also from the judgment. The plaintiff, being dissatisfied because judgment was not given her also against the Storage Company, moved the court, under sections 663 and 663% of the Code of Civil Procedure, to amend the conclusions of law so as to show that plaintiff was entitled to judgment against both defendants, and, this motion having been denied, the plaintiff appeals from the order denying it, and also from that part of the judgment which is in favor of the said Storage Company and against plaintiff, and which adjudged that the plaintiff take nothing against said defendant, and that the latter recover its costs

against plaintiff.

Plaintiff did not make any motion for a new trial.

1. Appeals of the Railway Company. This appellant saved a few exceptions to rulings as to the advisability of evidence, but we do not think it necessary to notice these exceptions in detail, because they relate to trivial matters which could have had no effect upon the decision of the case. The main contention is that the evidence is not sufficient to support the finding that the collision was caused by any negligence of appellant, but this contention is not maintainable. No doubt the appellant makes a strong showing that the other defendant, the Storage Company, was guilty of negligence which contributed to the accident, and, in an action brought by the Storage Company to recover damages from the Railway Company for injury done to its team by the collision, the Railroad Company would perhaps have a good defense in the contributory negligence of the plaintiff in such an action. But the deceased was not guilty of any contributory negligence, and, if the negligence of the Railway Company was a cause of the damage, it has no defense to this present action in the fact that the negligence of the Storage Company also contributed to that damage. This appellant must show that it was not guilty of any negligence which, in whole or in part, caused the injury; and we do not think that it makes such showing. It must be remembered that the deceased was a passen-, ger on appellant's car, and that it owed him the very highest care. Immediately before the accident the driver of the hay wagon going westerly along Seventh street was about 40 feet distant from the point of the accident when he was seen by the motorman of the car of the appellant, which was coming at the rate of about eight miles an hour southerly on Main street towards the place where the driver would cross Main street if he kept on his course. The motorman was about 125 feet from the point of the accident when he saw the driver of the wagon thus closely approaching the crossing. Neither the driver nor the motorman made any effort to avoid the collision until it was too late to accomplish that result. The court found, and the evidence supports the finding, "that said motorman, seeing said hay wagon, did not check the speed of said car until it reached Seventh street, when he threw off the current; that neither the said driver nor the said motorman made any attempt to stop his respective vehicle until the same was so close to the said point of accident that a collision was inevitable"; that the motorman did not apply his air brakes until he was nearly at the center of Seventh street, when he did apply the brakes and "stopped the car within 15 or 20 feet," and that "when the said motorman applied the air brakes both the said car and the said hay wagon were within a few feet of the point of collision." Appellant contends that it was the duty

of the driver of the wagon to stop until the car had passed, and that therefore the motorman was not negligent in continuing at the usual speed; and there is a good deal of argument on the question whether or not the car had a right of way over the crossing superior to that of the wagon. These questions would be significant in an action brought by one of the two defendants against the other for damage to the plaintiff in such an action caused by the collision. But in the case at bar the railroad company should have exercised the highest care towards the deceased; and it certainly cannot be truly said that the motorman did exercise the highest degree of care to protect his passengers, when, seeing the team closely approaching the crossing, with no evidence of the driver's intention to stop, and, knowing that if he continued on his course a collision would be inevitable. he made no reasonable effort to avoid such collision. Whatever chances he might have taken as to liability for damages to the team and driver, he had no right to expose his passengers to the danger of a collision which seemed likely to occur and which he might have easily prevented.

Ap

This appellant further contends that even if the judgment against it could be considered as right, still the court erred in not also rendering judgment against the other defendant, the Storage Company, because, as is claimed, the evidence showed that the said other defendant was also guilty of negligence which contributed to the injury. But the appellant is not a party aggrieved by the refusal of the court to give judgment against the Storage Company, even if such refusal could be considered erroneous as against plaintiff. It is beyond doubt the well-established general rule that there is no right of contribution between joint tort-feasors. pellant contends that this rule has been changed by section 709 of the Code of Civil Procedure; but we do not think so. That section does not pretend to deal with the matter of the right of contribution between tortfeasors. Its plain intent is to simply provide that, when there is a judgment against two or more defendants who are entitled to contributions from each other and one pays the whole or more than his proportion thereof, "the person so paying or contributing is entitled to the benefit of the judgment to enforce contribution or repayment, if within ten days after his payment he files with the clerk," etc. It simply gives to a judgment debtor entitled to contribution the summary remedy of using the judgment itself to enforce the contribution, and relieves him of the necessity of pursuing some more tedious and inadequate proceeding for enforcing said contribution. It is only an amendment to the law of procedure; and the general rule is that an amendment to or provision in the law of procedure does not change the substantive law, unless the language used necessarily leads to that result. And it certainly

cannot be said that the Legislature while enacting section 709 as a part of the law of procedure necessarily intended to change, or did change, the fundamental principle that there is no right of contribution between joint tort-feasors. Moreover, the section in terms relates only to cases where judgments had been rendered, and therefore it does not apply to the case at bar.

2. The appeals of the plaintiff.

On these appeals plaintiff contends that the court should have given her judgment against the Storage Comany as well as against the railroad company. As this appellant did not move for a new trial we cannot, on her appeal, consider the question of whether or not the evidence shows negligence on the part of the Storage Company; we can look only at the findings. Appellant contends that upon the findings judgment should have gone against the Storage Company. But the court found the ultimate fact that the collision and the injuries to the deceased "were not caused by the negligence of the defendant, Los Angeles Hay Storage Company, or by any of its agents, servants, or employés, but solely by the negligence of the agents," etc., of the railroad company. Appellant contends that this finding of the ultimate fact should be considered as overcome by certain findings of probative facts which are claimed to be inconsistent with the finding of the ultimate fact; but this contention cannot be maintained. The findings of the probative facts relied on are that the driver of the wagon saw the car approaching when it was about 125 feet distant from the point of the accident and did not stop his team, but did afterwards, when it was too late, attempt to stop, but "the wagon was loaded with three or four tons of hay and was of unwieldy bulk and weight, and was then so close to the track, and to the car of said defendant, the Los Angeles Railway Company, that before the wagon could be entirely stopped the end of its tongue struck said car and scraped along its side." In the first place, it does not clearly appear that these findings of the probative facts are inconsistent with the finding of the ultimate fact. The railroad operated by the railroad company was a street railroad, not a steam railroad running through the country at great speed and with heavy trains which cannot, like a street car, be stopped within a short distance; and, under the circumstances detailed by the findings, we could not well say that the driver of the wagon did not exercise reasonable judgment in determining that he could pass the crossing before the car would reach him, and in not trying to stop sooner that he did. But, in the second place, the general rule is that the finding of the ultimate fact prevails in support of the judgment notwithstanding a finding of a probative or evidentiary fact which tends to show that the ultimate fact was found against the evidence. And find

ings of probative facts will not invalidate the finding of an ultimate fact unless the latter is based on the former, and is entirely overcome thereby, and unless, also, it appears that these findings of probative facts dispose of all the facts involved in the pleadings, and that the facts found constitute all the facts in the case. Semple v. Cook, 50 Cal. 26; Smith v. Acker, 52 Cal. 219; Wood v. Pendola, 78 Cal. 287, 20 Pac. 678; Commercial Bank v. Redfield, 122 Cal. 407, 55 Pac. 160, and cases there cited. And such a condition is certainly not presented in the case at bar.

The judgment and order appealed from are affirmed.

We concur: LORIGAN, J.; HENSHAW, J.

(3 Cal. App. 668) MADERA RY. CO. v. RAYMOND GRANITE CO. et al.

(Court of Appeal, Third District, California. May 29, 1906. Rehearing Denied by Supreme Court July 26, 1906.)

1. EMINENT DOMAIN PROCEEDINGS-PUBLIC USE-BURDEN OF PROOF.

Under Code Civ. Proc. § 1238, providing that the right of eminent domain may be exercised in behalf of certain public uses, including railroads, and section 1241, declaring that before property can be taken it must appear that the use is authorized and the taking necessary therefor, in condemnation proceedings by a corporation organized under the general laws to operate a railroad, the burden is on the corporation to show a public use.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, § 530.] 2. SAME-WHAT CONSTITUTES PUBLIC USE.

The public use requisite to the exercise of the power of eminent domain need not be a use by the entire community, or any considerable portion of it; but it must be common.

[Ed. Note.--For cases in point, see vol. 18, Cent. Dig. Eminent Domain, § 54.] 3. SAME

RAILROADS.

Neither the length of the railroad, nor the fact that it is a spur, bears any necessary relation to the question of public use.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 59, 68.] 4. RAILROADS CONSTRUCTION-STATUTES

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-LENGTH OF ROAD.

Civ. Code, § 468, requiring every railroad after commencing construction to complete, each year, five miles of road, failing in which the right to extend the road beyond the point then completed is forfeited, does not limit the right to construct a road to one not less than five miles in length.

5. SAME-RIGHT OF WAY-RIGHTS IN HIGH

WAYS.

Under the express provisions of the statute, railroad corporations may construct their roads across or along highways.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 260-265.]

6. APPEAL-REVIEW-INVITED ERROR.

An appellant cannot complain of the admission of evidence introduced by him. [Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3597.]

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