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way road-master and a laborer on a culvert: Lawlor v. Androscoggin R. R. Co., 62 Me. 463; 16 Am. Rep. 492. A mill-hand and other employees bound to keep fire apparatus in order: Jones v. Granite Mills, 126 Mass. 84; 30 Am. Rep. 661. The master of a lighter and the crew: Johnson v. Boston Tow-boat Co., 135 Mass. 209. Mechanics in a repair shop: Murphy v. Boston and Albany R. R. Co., 88 N. Y. 146; 42 Am. Rep. 240. Road-master and section-hand: Brown v. Winona and St. Peter R. R. Co., 27 Minn. 162; 38 Am. Rep. 285. A foreman having no power to discharge employees and an employee: Peterson v. Whitebreast Coal and Mining Co., 50 Iowa, 673; 32 Am. Rep. 143; Keystone Bridge Co. v. Newberry, 96 Pa. St. 246; 42 Am. Rep. 543. Engineer and brakeman: Nashville etc. v. Wheless, 10 Lea, 741; 43 Am. Rep. 317. Brakeman and car-inspector: Smith v. Flint etc. R'y Co., 46 Mich. 258; 41 Am. Rep. 161. Conductor and telegraph operator and fireman: Slater v. Jewett, 85 N. Y. 61; 39 Am. Rep. 67. Train-dispatcher and brakeman: Robertson v. Terre Haute etc. R. R. Co., 78 Ind. 77; 41 Am. Rep. 552. Master and mate of a vessel: Matthews v. Case, 61 Wis. 491; 50 Am. Rep. 51. A baggage-master on a train and a switch-tender: Roberts v. Chicago etc. R'y Co., 33 Minn. 218. Conductor and employee on a construction train and another employee: Cassidy v. Maine Cent. R. R. Co., 76 Me. 488. Brakeman and conductor acting as engineer: Rodman v. Michigan Cent. R. R. Co., 55 Mich. 57. Track-repairers and hand-car crew: O'Brien v. Boston and Albany R. R. Co., 13 Mass. 387; 52 Am. Rep. 279. Engineer and coupler of a freight train: Boatwright v. Railroad Co., 25 S. C. 128. Watchman and repairer under car on track: Luebke v. Chicago, M., & S. P. R'y Co., 63 Wis. 91; 53 Am. Rep. 266. Railroad yard-master and a car-repairer: Kirk v. Atlanta etc. R. R. Co., 94 N. C. 625. Saw-mill engineer and contractor's servant working on wheel: Ewan v. Lippincott, 47 N. J. L. 192; 54 Am. Rep. 148. Engine-wiper employed in round-house and trainmen: Ewald v. Chicago & N. W. R'y Co., Wis. Sup. Ct., Jan. 1888. Foreman at railroad round-house and employee under him: Gonsior v. Minneapolis & St. L. R'y Co., 36 Minn. 385. A member of a repairing gang and an engine-driver: Bohback v. Railroad Co., 43 Mo. 187. A master-mechanic and locomotiveengineer: Hard v. Railroad Co., 32 Vt. 473. Brakeman of one train and the engineer of another: Wright v. Railroad Co., 25 N. Y. 562. Watchman at a street-crossing and a switch-tender: Sammon v. Railroad Co., 62 Ià. 251. An employee crossing the track on his way to work and the enginedriver who backs the engine upon him: Keyes v. Railway Co., 3 Atl. Rep. 15 (Penn.). Car-repairer and a brakeman: Railway Co. v. Foster, 11 Am. & Eng. R. R. Cas. 180. Mechanic in repair shop and a brakeman: Wonder v. Railway Co., 32 Md. 419. Section-hand and engine-driver: Clifford v. Railway Co., 6 N. E. Rep. 751 (Mass.); Foster v. Railway Co., 14 Minn. 360; Collins v. Railway Co., 30 Id. 31; Boldt v. Railroad Co., 58 N. Y. 432; Blake v. Railroad Co., 70 Me. 60; 35 Am. Rep. 297. Trackman and baggage-man: Moseley v. Chamberlain, 18 Wis. 700. Section-man and brakeman: Cooper v. Railway Co., 23 Id. 668. Shoveler on track and conductor: Naylor v. Railway Co., 53 Id. 661; Howland v. Railway Co., 54 Id. 226; Heine v. Railway Co., 58 Id. 525. Brakemen and trainmen: Whitwam v. Railway Co., 58 Id. 408. Track-walker and fireman: Schultz v. Railway Co., 67 Id. 616; 58 Am. Rep. 881.

WHO ARE NOT FELLOW-SERVANTS. — The agent of a railroad company to bire men and a foreman hired by him: Laning v. New York Cent. R. R. Co., 49 N. Y. 521; 10 Am. Rep. 417. A deck-hand on steamboat A and the crew of steamboat B, the owners being partners: Connolly v. Davidson, 15 Minn.

519; 2 Am. Rep. 154. A laborer in a railroad carpenter-shop and a locomo-

tive-engineer: Ryan v. Chicago etc. R. R. Co., 60 Ill. 171; 14 Am. Rep. 32.

A railway train-dispatcher and a fireman: Flike v. Boston etc. R. R. Co., 53

N. Y. 549; 13 Am. Rep. 545. A carpenter having charge of repairs and a

laborer in a brewery: Malone v. Hathaway, 64 N. Y. 5; 21 Am. Rep. 573. A

superintendent with power to hire and discharge and an employee: Brothers

v. Cartter, 52 Mo. 373; 14 Am. Rep. 424; Corcoran v. Holbrook, 59 N. Y. 517;

17 Am. Rep. 369; Mullan v. Philadelphia Steamship Co., 78 Pa. St. 25; 21

Am. Rep. 2; Ford v. Fitchburg R. R. Co., 110 Mass. 240; 14 Am. Rep. 598;

Gunter v. Graniteville Mfg. Co., 18 S. C. 362; 44 Am. Rep. 573; Mitchell v.

Robinson, 80 Ind. 281; 41 Am. Rep. 812; Tyson v. N. & S. Ala. R. R. Co., 61

Ala. 554; 32 Am. Rep. 8; Dowling v. Allen, 84 Mo. 13; 41 Am. Rep. 298;

Wilson v. Willimantic Linen Co., 50 Conn. 433; 47 Am. Rep. 653; Ryan v.

Bagaley, 50 Mich. 179; 45 Am. Rep. 35. The conductor, engineer of a rail-

way train, and a brakeman: Cowles v. Richmond and Danville R. R. Co., 84

N. C. 309; 37 Am. Rep. 620. A superintendent of repairs and an engineer:

Fuller v. Jewett, 80 N. Y. 46; 36 Am. Rep. 575. Road-master and bridge-

builder and fireman: Davis v. Central Vt. R. R. Co., 55 Vt. 84; 45 Am. Rep.

590. A train-dispatcher and an engineer: Booth v. Boston etc. R. R. Co., 73

N. Y. 38; 29 Am. Rep. 97; Danigan v. New York etc. R. R. Co., 52 Conn.

285; 52 Am. Rep. 590. A track-repairer and a fireman: Chicago etc. R. R.

Co. v. Moranda, 93 Ill. 302; 34 Am. Rep. 168. One who was engineer, super-

intendent, and conductor of a gravel train and a train-hand: Dobbin v. Rich-

mond and Danville R. R. Co., 81 N. C. 446; 31 Am. Rep. 512. Master

mechanic, engineer, and fireman, and track-man: Ohio etc. R'y Co. v. Collam,

72 Ind. 261; 38 Am. Rep. 134. Foreman and car-repairer: Luebke v. Chicago

etc. R'y Co., 59 Wis. 127; 48 Am. Rep. 483. A section-foreman and a brake-

man: Lewis v. St. Louis etc. R. R. Co., 59 Mo. 495; 21 Am. Rep. 385. A

superintendent and foreman and a conductor: Patterson v. Pittsburgh etc.

R. R. Co., 76 Pa. St. 389; 18 Am. Rep. 412. A conductor and a section-

foreman and a brakeman: Moon's Adm'r v. Richmond etc. R. R. Co., 78 Va.

745; 49 Am. Rep. 401. Conductor of a construction train and a laborer:

Chicago etc. R'y Co. v. Swanson, 16 Neb. 254; 49 Am. Rep. 718. A car-in-

spector and a car-coupler: Tierney v. Minneapolis etc. R. R. Co., 33 Minn. 11;

53 Am. Rep. 35. Locomotive-engineer and track-repairer: Calvo v. Char-

lotte etc. R. R. Co., 23 S. C. 526; 55 Am. Rep. 28. Laborer for contractor in

building a railroad and locomotive-engineer in employ and under control of

the railroad company: Louisville etc. R. R. Co. v. Conroy, 63 Miss. 562; 56 Am.

Rep. 525. A railway section-foreman and locomotive-engineer: St. Louis etc.

R'y Co. v. Weaver, 35 Kan. 412; 57 Am. Rep. 176. Locomotive-engineer and

conductor and telegraph operator: Madden's Adm'r v. Chesapeake and Ohio

R'y Co., 28 W. Va. 610; 57 Am. Rep. 695. Stevedore's foreman and his

laborers: Brown v. Sennett, 68 Cal. 225; 58 Am. Rep. 8. Locomotive boiler-

repairers and engineer and fireman: Pennsylvania etc. Canal & R. R. Co. v.

Mason, 109 Pa. St. 296; 58 Am. Rep. 722. Conductor of material train and

laborer: Coleman v. Wilmington etc. R. R. Co., 25 S. C. 446; 60 Am. Rep. 516.

Train-dispatcher and train-men: Lewis v. Siefert, Penn. Sup. Ct., Oct. 3, 1887;

37 Alb. L. J. 162; Smith v. Wabash etc. R'y Co., 92 Mo. 359.

[IN BANK.]

ANDERSON V. GOFF.

[72 CALIFORNIA, 65.]

MISTAKE IN NOTICE OF APPEAL, whereby the judgment appealed from is described as entered on the day when the judgment was rendered, instead of the day on which it was entered, does not entitle the respondent to a dismissal of the appeal.

JUDGMENT AGAINST INSOLVENT ENTERED AFTER GRANTING OF DISCHARGE is conclusive against him, if regularly obtained. AFFIDAVIT FOR SERVICE OF SUMMONS is sufficient when it shows a cause of action against the defendant, and that he is a resident at a place in another state, which place and state are named in such affidavit. In such circumstances it is not necessary to show an attempt to find the defendant in the county or state where the action is pending; nor is it necessary to show that an attachment has issued against his property. AFTER ATTACHMENT OF PROPERTY, NO ORDER OF SALE is necessary to authorize the sale thereof, the lien of the attachment continues after taking a simple money judgment, without embodying therein any directions for the sale of the attached property.

PERSONAL JUDGMENT AGAINST NON-RESIDENT whose property has been attached within the state is valid, and sufficient to sustain a sale of such property made under such judgment, though the service of summons was by publication.

ORDER FOR PUBLICATION OF SUMMONS directing a deposit of a copy of the summons in the post-office, but omitting the word "forthwith" in such direction, is not void because of such omission, and will sustain a service, where such deposit was in fact made on the same day the order was signed.

FORTHWITH, WHEN APPLIED TO PERFORMANCE OF ACT, signifies as soon as, by reasonable exertion, it may be performed. It also sometimes means within a reasonable time, or with all reasonable dispatch; and when a defendant is directed to plead forthwith, he must plead within twentyfour hours.

CONTINUANCE OF PUBLICATION OF SUMMONS beyond the time required by the order of the court does not extend the time in which defendant is required to answer.

ATTORNEY OF PLAINTIFF MAY DEPOSIT COPY OF SUMMONS and complaint in post-office, and his affidavit that he did so is competent evidence. RETURN ON ATTACHMENT IS SUFFICIENT as against a collateral attack, when

it states that the officer "duly levied upon all the right, title, and interest of the defendant in and to the following real property, to wit" (describing the land in controversy).

EJECTMENT. Both parties claim title under one Anderson. The plaintiff recovered judgment in the superior court. Defendant appealed. A motion was made to dismiss the appeal, on the ground that it designated the judgment appealed from as having been entered March 29, 1884, while the record shows the judgment to have been entered April 30, 1884. The other facts are stated in the opinion.

G. B. Montgomery, and Burchard and Scott, for the appellant.

Briggs and Hawkins, and McCroskey and Hudner, for the respondent.

By Court, SEARLS, C. The motion to dismiss the appeal herein is met by a certificate of the clerk of the superior court in and for the county of San Benito, in which county the action was brought and passed to judgment, showing that the statement on motion for new trial was properly settled and certified by the judge of the superior court; that the order overruling the motion for a new trial was entered and signed by the judge on May 31, 1884, and that the judgment in said cause was rendered on the twenty-ninth day of March, 1884, and entered on the thirtieth day of April, 1884, before the notice of appeal was filed.

The motion to dismiss the appeal should be denied.

The appeal is taken by plaintiff from a judgment in favor of defendant, and from an order denying a new trial. The action is ejectment to recover a lot of land containing one and one half (14) acres situate in what is known as College addition to the town of Hollister, San Benito County, and to recover damages for the withholding such land, and rents and profits. Plaintiff, at the several dates hereinafter mentioned, was and still is a married woman, the wife of J. G. Anderson.

On the tenth day of November, 1876, one W. C. Land, being the owner of and in possession of the premises described in the complaint, conveyed the same to plaintiff's husband, and took from the latter his promissory note for six hundred dollars, the purchase price thereof.

On the tenth day of November, 1878, Anderson gave Land a new note for three hundred dollars, the residue of the purchase price of the land having been previously paid.

On the 26th of April, 1880, according to the findings, Anderson, being insolvent, and unable to pay his debts, being indebted to various persons in sums aggregating over four thousand dollars, and among others to Land, on account of said note, in the sum of over three hundred dollars, in contemplation of insolvency, and for the purpose of hindering, delaying, and defrauding his said creditors, among whom was said Land, conveyed without consideration, and as a gift, the land in question to his wife, the plaintiff herein. Plaintiff never went into possession of the land, and knew of the in

solvency of her husband. The deed was recorded April 28, 1880.

On May 6, 1880, Anderson filed his petition and schedule in insolvency in Alameda County, to which he had removed, and such proceedings were had therein, that he was adjudged an insolvent debtor, and afterward, on the fourth day of August, 1880, was discharged from his debts. He removed soon thereafter to Colorado, where with plaintiff he still resides.

On February 16, 1881, Land brought suit against Anderson on his note, sued out a writ of attachment, and caused the same to be levied upon the interest of the defendant therein in and to the demanded premises. Service of summons was had upon Anderson by publication, etc., and upon his default for want of an answer judgment was taken in favor of plaintiff, upon which an execution issued, was levied upon the property attached, and, after notice, a sale was had, at which Land became the purchaser, and in due time, there having been no redemption, received a sheriff's deed of the premises.

Defendant holds the property by sundry mesne conveyances from Land, and has been in possession under his deed since August, 1882.

We may dismiss from consideration the proceedings of Anderson in insolvency, for the reason that if the judgment of Land was regularly obtained, the former is concluded thereby for want of a plea of his discharge in that action.

Several objections are made by appellant to the affidavit for publication of summons, among which are,-1. That it fails to state that any writ of attachment was issued or levied, or that the defendant therein had any property in this state; 2. That it failed to show any attempt at service in this state, or any return of an officer that defendant could not be found, etc.

Our Code of Civil Procedure, sections 412 and 413, provides that when the person on whom service is to be made resides out of the state, or has departed from the state, or cannot after due diligence be found within the state, or conceals himself to avoid the service of summons, etc., and the fact appears by affidavit to the satisfaction of the court, or a judge thereof, and it also appears by such affidavit, or by the verified complaint on file, that a cause of action exists against the defendant in respect to whom service is to be made, or that he is a necessary or proper party to the action,-an order of service by publication of summons may be made, etc.

The affidavit in this case showed that the plaintiff had a

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