Prior to and at the time of becoming the owner of the property, defendant had full notice of the existence of the alleged nuisance.

Section 3483 of the Civil Code provides that "every successive owner of property who neglects to abate a continuing nuisance upon or in the use of such property, created by a former owner, is liable therefor in the same manner as the one who first created it."

Addison, in his work on torts, states the rule as applicable to the facts of this case thus:

"If a nuisance be created on the premises, and a man purchase the premises with the nuisance upon them, though there be a demise for a term at the time of the purchase so that the purchaser has no opportunity of removing the nuisance, yet by purchasing the reversion with the existing nuisance he makes himself liable for the continuance of the nuisance."

The doctrine thus enunciated is taken from the opinion of Littledale, J., in Rex v. Pedly, 1 Ad. & E. 827, and the learned judge proceeds to say: "But if, after the reversion is purchased, the nuisance be created by the occupier, the reversioner incurs no liability; yet, in such a case, if there were only a tenancy from year to year, or any short period, and the landlord desired to renew the tenancy after the tenant had erected the nuisance, that would make the landlord liable. He is not to let the land with the nuisance upon it."

This limitation of the liability of the landlord, in cases where he has no right of entry to abate a nuisance created by the tenant after the demise, comports with justice. On the other hand, the landlord who demises premises with a nuisance existing thereon is a consenting party thereto.

In the present case, the former owner of the premises created the nuisance, and demised the same with such nuisance upon them to Dr. Gates.

Thereafter defendant, with full knowledge of the nuisance and of the tenancy, purchased the reversion, and received the rent from the tenant, who attorned to it, and during this state of things plaintiff sustained the damage for which he had verdict and judgment.

He who, with full knowledge of the existence of a nuisance upon real estate, for which the owner would be liable, purchases the reversionary interest in such real estate, and receives the rents thereof from the tenant in possession,

thereby voluntarily assumes the responsibilty of such nuisance, and becomes liable for the damages sustained in consequence thereof, subsequent to his purchase.

The instructions of the court below were in consonance with this theory, and the judgment and order appealed from should be affirmed

BELCHER, C. C., and FooTE, C., concurred.

The COURT. For the reasons given in the foregoing opinion. the judgment and order are affirmed.

Hearing in bank denied

NUISANCE. — Liability of lessor of premises is considered in note to City of Lowell v. Spaulding, 50 Am. Dec. 776-783; see also Kalis v. Shattuck, 58 Am. Rep. 568.

PURCHASER OF PROPERTY, WHEN ANSWERABLE FOR CONTINUANCE OF PREEXISTING NUISANCE: Crommelin v. Cox, 68 Am. Dec. 121; Pillsbury v. Moore, 69 Id. 91; Johnson v. Lewis, 33 Id. 405, and note; Pierson v. Glean, 25 Id. 497; see also note to Plumer v. Harper, 14 Id. 338–341.

LIABILITY OF ERECTOR OF NUISANCE, CONTINUANCE OF, AFTER HE CONVEYS PROPERTY ON WHICH IT IS LOCATED: Plumer v. Harper, 14 Am. Dec. 333, and note.

DORE V. DOUGHERTY.

[72 California, 232.]

JUDGMENT BASED ON ALIAS SUMMONS issued without any return of the original, and which imperfectly states the nature of the cause of action and fails to notify the defendant to appear and answer at the office of the justice, is not void.

JUDGMENT IS NOT SUBJECT TO LEVY AND Sale under EXECUTION. JUDGMENT DEBTOR MAY BE GARNISHED by delivering to him a copy of the

writ of execution, with a notice in writing stating that all his right, title, and interest in such judgment, and all moneys, goods, credits, and effects due or owing by him to the judgment creditor are levied upon. APPEAL WILL NOT BE DISMISSED because statement on motion for a new trial was not served on certain parties to the action not interested in the appeal.

ACTION to determine who is entitled to receive certain moneys, being the amount of a judgment and costs. One of the defendants, Miller, had attempted to obtain title to the judgment under proceedings taken by him under a judgment in his favor against George Dougherty, the judgment creditor. Miller's judgment was objected to because rendered by default in a justice's court, and based upon the service of an

alias summons, which was defective in the matters pointed out in the first subdivision of the syllabus. The other facts are stated in the opinion.

J. M. and Charles E. Nougues, for the appellant.

J. C. Bates, for the respondent.

By Court, TEMPLE, J. August 3, 1880, George Dougherty, one of the defendants, recovered judgment against the present plaintiff for $2,186, and costs. On the same day Dougherty assigned the judgment to his son, John Dougherty. September 3d, Dore appealed to the supreme court from the judgment. The judgment was affirmed here February 16, 1883: Dougherty v. Dore, 63 Cal. 170. September 4, 1880, while the appeal was pending, defendant Miller caused a levy to be made on the judgment by virtue of an execution from the justice's court of San Francisco, upon a judgment against George Dougherty in favor of Miller. The attempted levy was by the sheriff, who delivered to and left with Maurice Dore a copy of the writ, with a notice in writing that such property, to wit,-" all the right, title, and interest in and to a certain judgment obtained in the superior court, department 5, of the city and county of San Francisco, in which George Dougherty is plaintiff, and Maurice Dore defendant, judgment having been rendered on the ninth day of August, 1880, against said Maurice Dore for the sum of $2,186, and costs"; also notifying Dore that he levied upon all moneys, goods, credits, effects, debts due or owing, or in his possession, or under his control; and requesting him not to pay or transfer the same to any one save said officer. September 27, 1880, the sheriff proceeded to sell all the right, title, and interest of George Dougherty in the judgment to the defendant Miller for the sum of twenty dollars, which was credited upon the execution and judgment in favor of Miller against said Dougherty. This action was brought by Dore under section 386, Code of Civil Procedure, to have the court determine who was entitled to receive the money, the amount of the judgment and costs, $2,850, being deposited in court. The court awarded the money to John Dougherty, the assignee of George Dougherty, and Miller appeals from the judgment, or a portion of it.

The superior court refused to allow Miller to introduce proof for the purpose of showing that the assignment to John Dougherty was fraudulent, on the ground that Miller had acquired

AM. ST. REP., VOL. I.-4

no title to the judgment against Dore, and had no such standing as would enable him to attack the assignment. This position is sought to be maintained on the ground, first, the judgment rendered in justice's court is void; but in this we do not agree with respondent's counsel. The summons was sufficient, at least as against a collateral attack, under the rule laid down in Keybers v. McComber, 67 Cal. 395. Whether the alias summons was regularly issued or not is not a jurisdictional question.

In the next place, it is claimed that the judgment was not subject to levy and sale under execution. We think this point well taken. It was expressly so held in McBride v. Fallon, 65 Cal. 301. Much may be said on both sides of this question, and it has been differently decided in different states. As it has been decided in the above case, we see no reason for reopening the discussion. It is claimed that the case of McBride v. Fallon, supra, only holds that the sale could not be made as it was attempted in that case, and that the mode of levy there was different from the mode pursued here. But that ruling is expressly placed upon the ground that the judgment is but the evidence of a debt, and the statute has made no provision for attaching or levying upon evidences of debt; but that it is the debt itself, and not the evidence of it, which may be levied upon by the writ of attachment, or on execution in like manner as upon writs of attachment. And to confirm this view, the court alludes to the case of Davis v. Mitchell, 34 Cal. 81, where it was held that a promissory note was the subject of levy and sale, when the sheriff could get possession of it, and could deliver it to the purchaser, and say they could not assent to the doctrine of that case. Of course it is not denied that a judgment is property, or that it can be the subject of assignment. The ruling is based entirely upon the statute. And it seems to us that it necessarily follows that the debt was by the proceeding duly levied upon. Service of the writ and notice constituted what is usually called the process of garnishment.

It is claimed that the garnishment is not sufficiently pleaded by defendant Miller. It is true, Miller claims to have bought the judgment; but in showing his title to the judgment he adopts by express reference the allegations in the complaint which show the garnishment, and adds the other facts which show the debt itself was duly levied upon. This put Miller in the attitude of a creditor, and gave him the right to attack

the assignment for fraud, and the ruling denying him that right was error. The other defendants were not interested in this appeal, and the motion to dismiss, on the ground that it does not appear that the statement was served on all the adverse parties, must be denied.

Judgment reversed, so far as the same affects defendant Miller, and a new trial ordered as to the claim of said defendant.

PATERSON and MCKINSTRY, JJ., concurred.

Hearing in bank denied.

DEFECTS IN SUMMONS, OR IN ITS SERVICE, must generally be urged by motion or proceeding for the vacation of the writ, or of its service. Otherwise, the irregularity is waived, and can aid the defendant in any attempt to collaterally avoid a judgment based upon such writ: Freeman on Judgments, sec. 126; Keybers v. McComber, 67 Cal. 395; Ballinger v. Tarbell, 85 Am. Dec. 527, and cases cited in note.

Judgment, whETHER SUBJECT TO LEVY AND SALE UNDER EXECUTION: Osborn v. Cloud, 92 Am. Dec. 413, and note 416.

JUDGMENT ENTERED BEFORE EXPIRATION OF TIME ALLOWED Defendant to answer was held void in Johnson v. Baker, 87 Am. Dec. 293; Ledford v. Weber, 7 Ill. App. 91.

SULLIVAN V. ROYER.

[72 CALIFORNIA, 248.]

JURY TRIAL.-Counsel have no right to read law books, nor to argue questions of law to the jury.

ABATEMENT OF NUISANCE is accomplished in equity by an injunction, adapted to the facts of the case.

PRAYER OF COMPLAINT for the abatement of a nuisance warrants a decree for an injunction against the continuance of such nuisance.

VERDICT OF JURY IN SUIT IN EQUITY is advisory merely.

NUISANCE. The issuing of soot from a smoke-stack may be enjoined, where

it constitutes a disagreeable nuisance in a populous city.

LICENSE TO MAINTAIN NUISANCE, if granted by a board of supervisors, will not be permitted to substantially impair the rights of property holders.

SUIT in equity to abate a nuisance, consisting of soot issuing from a smoke-stack on the premises of the defendant in the city of San Francisco. Decree for the plaintiff.

M. A. Wheaton, for the appellant.

Preston and Allen, and J. M. Allen, for the respondent.

By Court, FOOTE, C. This is an action in equity, instituted for the purpose of enjoining and abating certain nuisances,