394, 25 Pac. 488), or a fixed salary for the officer and a fixed salary for a certain number of deputies or clerks, all payable out of the county treasury, an increase of such separate allowance for expenses or for deputies, whether in the number of deputies or the amount paid to each, is not a violation of the constitutional provision that "the compensation of any county, city, town, or municipal officer shall not be increased after his election or during his term of office." Const. art. 11, § 9. which is approved by the court in bank in of a clerk or deputy at a fixed salary upon a deputy for each of whom the act provided vision was violative of the constitutional The petitioner in this application comes within the rule stated and is entitled to the salary claimed by him. It is therefore ordered that a writ of mandate issue in accordance with the prayer of the petition. SMITH v. HYER. (Civ. 636.) (Court of Appeal, Second District, California. Oct. 27, 1909. Rehearing Denied by Supreme Court Dec. 23, 1909.) -NONSUIT. The improper granting of a nonsuit is an error of law, and, prior to the amendment of Code Civ. Proc. § 647, by Laws 1909, p. 586, c. 355, could be reviewed by an appellate court time of the ruling, and was specified in the moonly where an exception was entered at the tion as ground for a new trial, or upon an appeal from the judgment based upon a bill of exceptions disclosing that such exception was taken at the time the order was made. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1589, 2302; Dec. Dig. §; 262, 501.*] 2. APPEAL AND ERROR (§ 856*)-REVIEW-ORDER GRANTING NEW TRIAL. new trial is general, it must be sustained, if Where an order granting a motion for a good, on any of the grounds upon which the motion was based. [Ed. Note.-For other cases, see Appeal and 856.*1 Error, Cent. Dig. §§ 3425-3426; Dec. Dig. § 3. APPEAL AND ERROR (§ 981*)-NEW TRIAL— GROUNDS-NEWLY DISCOVERED EVIDENCEDISCRETION OF COURT. the ground of newly discovered evidence is so The granting or refusing of a new trial on far within the discretion of a trial court that its decision will not be disturbed unless there is a clear abuse of discretion. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3874, 3875; Dec. Dig. § 981.**] 4. NEW TRIAL (§ 99*)-NEWLY DISCOVERED EVIDENCE-DISCRETION OF Court. The determination of the effect of cumulative newly discovered evidence is peculiarly within the province of the trial court; and, if in its opinion newly discovered evidence was such as, had it been considered in the first instance, would have changed the result, a new trial should have been granted. Dec. Dig. § 99.*] Appeal from Superior Court, Riverside Action by Earl B. Smith against W. E. Hyer. Judgment of dismissal, and from an or der granting a new trial defendant appeals. I volved in the nonsuit. The order granting Affirmed. the motion is general, and must be sustained, P. N. Myers, for appellant. Earl B. Smith, the motion was based. The granting or reif good, on any of the grounds upon which in pro. per. ALLEN, P. J. The action is one upon a promissory note executed by defendant to the assignor of plaintiff. The latter is shown by the record to be an attorney at law and appearing in the action in propria persona. The note was admitted in evidence, together with evidence tending to show that the assignment to plaintiff was one for collection purposes only. Upon the conclusion of the evidence offered on behalf of plaintiff a motion for a nonsuit was granted, the effect of which was to grant a judgment of dismissal as against plaintiff. The trial court, as appears from the reasons assigned for granting such motion, was of opinion that an action brought by an attorney upon a note so assigned could not be maintained. This upon the theory that the policy of the law forbids such a transaction, and courts should not grant relief where such facts are made to appear. The plaintiff did not except to the ruling of the court in granting this motion, but thereafter in due time interposed a motion for a new trial based upon newly discovered evidence material for the party making the application which he could not with reasonable diligence have discovered and produced at the trial, and supported such motion by an affidavit used upon the hearing. This affidavit was largely cumulative, but tended in a degree to establish the grounds of the motion, and was by the court held sufficient for the purposes intended. The court upon the hearing of the motion for a new trial granted the same, and from the order granting the new trial defendant appeals under the alternative method. fusing of a new trial on the ground of newly discovered evidence is so far within the discretion of the trial court that its determination will not be interfered with, unless there is a clear abuse of discretion. The determination of the effect of newly discovered evidence which is cumulative is peculiarly within the province of the trial court (Hubbell Oil Co. v. Morrison, 7 Cal. App. 459, 94 Pac. 589); and if, in the opinion of the trial court, the newly discovered evidence was such as, had it been considered in the first instance, would have changed the result, it was the duty of the court to grant a new trial. The action of the court in granting this new trial amounts to a declaration that such effect would have been given by the court to the newly discovered evidence had the same been actually produced upon the original hearing. We see no error in the record sufficient to warrant a reversal, and the order is therefore affirmed. We concur: SHAW, J.; TAGGART, J. HARDING v. HARKER. (Supreme Court of Idaho. Dec. 2, 1909.) 1. MORTGAGES (§ 587*)-FORECLOSURE-BINDING EFFECT. Under the provisions of section 4520, Rev. Codes, "No person holding a conveyance from or under the mortgagor of the property mortgaged, or having a lien thereon, which conveyance or lien does not appear of record in the proper office at the commencement of the action, need be made a party to such action; and the therein had, are as conclusive against the party judgment therein rendered, and the proceedings holding such unrecorded conveyance or lien as if he had been made a party to the action." [Ed. Note. For other cases, see Mortgages, Dec. Dig. § 587.*] 2. MORTGAGES (8 427*)-FORECLOSURE-PARTIES-PRESUMPTIONS. Under this statute, it is presumed that the mortgagor will represent the interests of the grantee of an unrecorded conveyance in a suit to foreclose a mortgage on the premises conveyed; and the same presumption would arise, where the grantee is made a party, that he would represent the interests of a person holding an unrecorded conveyance from such grantee. [Ed. Note. For other cases, see Mortgages, Dec. Dig. § 427.*] A motion to dismiss the appeal was, by stipulation, ordered submitted with the appeal upon the merits. Entertaining the views hereinafter expressed, we do not consider it necessary to discuss the matters involved in the motion to dismiss the appeal, which, even if sustained, would but have the effect to affirm the order, which result is attained by an affirmance upon the merits, which we think proper in the premises. It is settled law in this state that the improper granting of a nonsuit is an error of law, and, prior to the amendment of section 647, Code Civ. Proc., by Laws 1909, p. 586, c. 355, could be reviewed by an appellate court only where an Under this statute, where the court acexception was entered at the time of the rul- quires jurisdiction of the mortgagor in an acing, and the same was specified in the motion tion to foreclose a mortgage, the court also as grounds for a new trial, or upon an appeal unrecorded conveyances or contracts from the acquires jurisdiction of all persons who hold from the judgment based upon a bill of ex- mortgagor, so as to conclude such persons by ceptions disclosing that such exception was the judgment entered in the foreclosure protaken at the time the order was made. But ceeding; and in like manner, where the court acquires jurisdiction of a grantee of a mortthe motion for a new trial in this case was gagor, the court also acquires jurisdiction of all not entirely based upon the error of law in-persons who hold unrecorded conveyances or 3. MORTGAGES (§ 587*)-FORECLosure-Judg MENT-BINDING EFFECT. contracts with such grantec of the mortgagor, | that he never got it or placed it upon record. so as to conclude such persons by the judgIt is the contention of the appellant that ment of foreclosure. Job Harker was in possession of the prem [Ed. Note.-For other cases, see Mortgages, ises involved, under a claim of ownership, at Dec. Dig. § 587.*] 4. MORTGAGES (§ 544*)-SALE-POSSESSION BY PURCHASER-ASSISTANCE, WRIT OF. The writ of assistance is the appropriate remedy to place in possession the purchaser at a foreclosure sale, and may be issued against any and all persons concluded by such judgment. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1573; Dec. Dig. § 544.*] (Syllabus by the Court.) Appeal from District Court, Bingham County; J. M. Stevens, Judge. Application of P. W. Harding for writ of assistance in foreclosure proceedings against Job Harker. From an order granting the writ, defendant appeals. Affirmed. the time and prior to the commencement of the proceedings to foreclose the mortgage, and, not having been made a party to such proceedings, that the court was without jurisdiction to oust Harker from his possession of said premises by virtue of a writ of assistance. It will thus be observed that Job Harker was not a party to the foreclosure proceeding or the decree entered in said cause. He was, therefore, in no way bound or concluded by such decree unless by reason of the provision of Rev. Codes, § 4520, which makes such decree conclusive as to him, under the This section particular facts of this case. provides: "No person holding a conveyance from or under the mortgagor of the property B. J. Briggs, for appellant. E. M. Holden mortgaged, or having a lien thereon, which and Harry Holden, for respondent. STEWART, J. On March 22, 1900, Thos. A. Harris and Blanche B. Harris, his wife, executed and delivered to the American Mortgage Company, of Scotland, a mortgage upon the real property involved in this action. On February 12, 1906, proceedings were commenced to foreclose said mortgage, and service was made upon Joseph Squibb, Rickie Squibb, Kate Johnson, Marion Louise Johnson, Catherine Lucile Johnson, and Fred L. Huston, administrator of the estate of D. O. Johnson, deceased. A decree of foreclosure was entered in said suit, the property sold under such decree to Clency St. Clair, and, after the expiration of the period of redemption, a sheriff's deed was made to St. Clair for said property. Thereafter, on July 2, 1907, St. Clair conveyed said property to P. W. Harding, the petitioner in this case. On February 27, 1909, P. W. Harding made application to the district court in and for Bingham county for a writ of assistance, putting said Harding into possession of said premises, and ousting Job Harker who was then in possession of said premises. This appeal is from the order of the district court granting the writ of assistance as prayed for in the petition of P. W. Harding. Upon the hearing of the application for the writ of assistance, oral evidence was tendered upon behalf of the defendant, from which it appears that the defendant went into possession of the premises in February, 1905, and that he has been in possession ever since; that he went into possession under a contract to purchase said premises made with one C. O. Janson, who had a contract with Joseph Squibb; that the contract has never been recorded. Harker further testified that he had a conversation with Squibb after he made the contract with Janson, and Squibb said it was all right; that he was informed that the deed was ready and was shown the deed, but conveyance or lien does not appear of record in the proper office at the commencement of the action, need be made a party to such action; and the judgment therein rendered, and the proceedings therein had, are as conclusive against the party holding such unrecorded conveyance or lien as if he had been made a party to the action." It appears that Harker claims an interest in the land in controversy by reason of a contract for the purchase of the same, made with one C. O. Janson under some contract or arrangement with Joseph Squibb. It was admitted by counsel for both parties, upon the oral argument, that Joseph Squibb was the grantee of Harris, the mortgagor. If Joseph Squibb was the grantee of the mortgagor and had held an unrecorded conveyance of said property, under the provisions of the statute above quoted, it would not have been necessary to make Squibb a party defendant, and he would have been concluded by the judgment as effectually as though he had been made a party defendant. It appears, however, that Squibb was a grantee of the mortgagor, and was made a party defendant, and Harker was a grantee or held a contract of conveyance from Squibb, who was made a party defendant. Harker then stood in the same relation to Squibb that Squibb would have borne to Harris had Squibb's conveyance been unrecorded, in which case the judgment would have been conclusive as to Squibb; and there can be no reason why it should not be conclusive as to Harker, the grantee of Squibb. The very reason why the statute makes conclusive a judgment as to one holding an unrecorded conveyance from the mortgagor applies, also, where a person holds an unrecorded conveyance from the grantee of the mortgagor. Under this statute, it is presumed that the mortgagor would represent the interests of the grantee, and the same presumption would arise where the grantee is made a party that A ratification cannot take place without full knowledge of all the material facts; and, where a person assumes to act as agent in making a contract, and the person with whom such contract is made proceeds to a performance of the same under protest from the principal, and during such performance is advised and notified by the principal that such person is thority to employ him, and that he does not not in his employ, and that no one had audesire or need his services, the mere fact that after the cessation of such labor the principal pays to such person an amount which he deems such service is worth will not alone amount to a ratification of the contract made by the person assuming to act as such agent, and will not support an action based upon such contract, upon the ground that the contract was ratified. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 637; Dec. Dig. § 169.*] (Syllabus by the Court.) Appeal from District Court, Washington County; Ed. L. Bryan, Judge. Action by John Findlay against Christian Hildenbrand. Judgment for plaintiff, and defendant appeals. Reversed. he would represent the interests of a person | 2. PRINCIPAL AND AGENT (§ 169*)-CONTRACT holding an unrecorded conveyance from such BY AGENT-REPUDIATION BY PRINCIPALRATIFICATION. grantee. When the foreclosure proceeding was commenced the mortgagee had no notice that Squibb had parted with title or contracted to sell the property. There was nothing upon the record showing that Harker had or claimed any interest in the property covered by the mortgage. An examination of the record disclosed that the mortgagor had passed title to Squibb, but further than that there was nothing to indicate that any one holding under Squibb claimed any title or interest in the property in controversy. Under this statute the court, having acquired jurisdiction of Squibb, acquired jurisdiction also of all persons who held unrecorded conveyances or contracts from Squibb, in so far as to conclude such persons by the foreclosure proceedings; and while it is true that Harker was not formally named in the foreclosure suit, yet under this statute he is concluded by the judgment, under the facts of this case. In the case of Hibernia Savings & Loan Society v. Cochran, 141 Cal. 653, 75 Pac. 315, in discussing this question, the court said: "The person who purchases prior to the action, subject to the mortgage, and who fails to record his deed prior to the commencement of the action, and of whose interest the mortga- STEWART, J. The respondent brought gee has no notice at the time he commences this action to recover the sum of $122, balhis action, never can become a necessary par- ance claimed to be due for labor performed ty, in the sense that it is necessary to bring on the Mayflower mining claim and for the him in, in order that a foreclosure decree foreclosure of a lien. In the complaint the effectual against him may be rendered. The plaintiff alleged that the defendant was, at situation as to him in this regard is deter- all times mentioned in the complaint, the mined by the condition of affairs at the time owner of such mining claim; that on Janof the institution of the action. For all pur-uary 9, 1907, he entered into a contract with poses of obtaining jurisdiction the mortgagor the appellant, by which he was employed to fully represents him." If, then, Harker was perform such labor, and that the appellant concluded by the judgment of foreclosure, agreed to pay him for such labor the sum of the writ of assistance is the appropriate rem- $4 per day, to be paid in cash from time to edy to place in possession the purchaser at time as needed during the progress of the the foreclosure sale under such judgment. work, and that the balance remaining due Hibernia Savings, etc., Society v. Lewis, 117 upon completion of said work was to be paid Cal, 577, 47 Pac. 602, 49 Pac. 714; 4 Cyc. 290, at such time; that under said contract be291; 2 Ency. Pl. & Pr. 795; Burton v. Lies, tween January 9, 1907, and May 11, 1907, he 21 Cal. 88; Kirsch v. Kirsch, 113 Cal. 56, 45 performed 84 days of labor, and has fully Pac. 164. performed his part of said contract, the last Judgment affirmed. Costs awarded to re- of said labor being performed on May 10, spondent. Lot L. Feltham, for appellant. W. B. Davidson, for respondent. 1907; that the total amount of said labor amounted to $336; and that there remains SULLIVAN, C. J., and AILSHIE, J., con- due thereon the sum of $122. Then follow the allegations with reference to the filing of the lien and the payment of the sum of $5 for the preparing of such lien and $1.45 for recording the same. The defendant in his answer denies the making of the contract alleged in the complaint, and denies that the plaintiff was employed by the defendant to perform any labor on the Mayflower mine, or any other mine, or in any capacity whatever, denies that he ever agreed to pay the plaintiff, for any work or services, the sum of $4 per day, or any other sum, and denies that the plaintiff performed any labor for the de fendant between January 9, and May 11, 1907, at his request or at all. The defendant admits that he paid plaintiff the sum of $214, and denies that the same was due plaintiff, or that plaintiff was entitled to the same, or that the plaintiff had earned the same; denies that the plaintiff was entitled to a lien. Upon these issues the court found that the defendant was the owner of the property described in the complaint at the time stated therein; that the plaintiff performed work thereon as a miner between January 9, 1907, and May 10, 1907, to the number of 812 days, and that the defendant agreed to pay for such labor the sum of $4 per day, aggregating the sum of $326; that there was a balance due the plaintiff for such labor in the sum of $112 and interest amounting to $6.80. The court then finds the preparation and filing of the lien, and the expenditure in the sum of $1.45 for filing the same, and that $50 is a reasonable attorney's fee. A decree was entered accordingly. A motion for a new trial was made and overruled, and this appeal is from the order overruling the motion for a new trial and from the judgment. While there are a number of specifications of error assigned in relation to the admission of evidence, yet they are all involved in the question whether the evidence supports the findings of the trial court. The appellant contends that the evidence does not support the findings of the trial court. It will be observed from the complaint that the plaintiff sought to recover upon a contract made between the plaintiff and the defendant. The main contention made by the appellant upon this appeal is that the evidence does not show that there was ever any contract made between the plaintiff and the defendant, or that the defendant in any way or manner employed the plaintiff to perform any work or labor upon the Mayflower mine. The plaintiff when upon the witness stand was asked, "State whether you had any agreement with Mr. Hildenbrand, or any other person represented as his agent, for work on this property." In answer to that he said he made an agreement with the party who was Mr. Hil. denbrand's agent, Oscar Olsen; that Olsen was assistant to Howard Dennison, who was superintendent of the Iron Springs Company, and that this occurred on the last days of 1906, or possible in 1907, in the new year; that Olsen asked him to go into the tunnel on the Mayflower group and work wherever he thought it to the most advantage; that $4 was agreed upon as the price to be paid for such work; that he commenced work on January 15, 1907, and quit on May 10, 1907. C. H. Dennison testified that in January, 1907, he was superintendent of the Iron Springs Mining Company; that Oscar Olsen was assistant during 1906 and 1907. "I notified Olsen to have some one do the assessment work on the Hildenbrand property. It was in December, 1906. I do not mean to my orders to Mr. Olsen to have some work done on the Hildenbrand property that I was acting in the capacity of the superintendent of the Iron Springs Mining Company. I do not mean to state here and have this court construe that when I ordered this work done that I did it on behalf of the Iron Springs Company. ** As a matter of fact the Iron Springs Mining Company never did have any interest in the Hildenbrand property. It never did authorize me as superintendent to have any work done on it as superintendent." This was all the evidence given at the trial with reference to the plaintiff's employment by the defendant at and prior to the time the plaintiff commenced labor on the Mayflower mine, to recover which this action was brought. Hildenbrand, the defendant, was a resident of Iowa, and had no personal conversation with the plaintiff with reference to this labor. It will thus be seen from this evidence that the plaintiff was not employed by the defendant to do this work or by any one who had any authority to employ the plaintiff. Neither Olsen nor Dennison, as it appears from this evidence, had any authority to put the plaintiff to work upon the Mayflower group of mines at the time plaintiff claims to have commenced labor thereon. On February 17, 1907, and a little more than a month after plaintiff testifies he commenced working on the Mayflower group of mines, he wrote a letter to the defendant. in which he states: "You will perhaps be a little surprised to get a letter from me, but as they have put me to work on your property, with instructions to try and find the ledge in place, and to do the work where I thought best. Now it seems to me that the best place to work would be to sink on that wall, and get the course of it, and then when the snow gets off, try and trace it down the hill a ways, perhaps down about where the trail goes along, then there would be a chance to get a good depth on it. What would be your idea, you are better acquainted with the surface than I am, just now I am working on a crosscut to the wall, when I get to it I calculate to sink, would like to hear from you soon. Yours truly, John Findlay." It will thus be seen that this letter does not disclose by whom the plaintiff was employed, but he anticipates that the defendant no doubt will be surprised because he is working upon the Mayflower group of mines, and there is no intimation that such labor is for the purpose of doing assessment work or holding the property, or that it is necessary to do such work, but the letter seems to be of a nature to indicate that some one had put the plaintiff to work for the sole purpose of finding the ledge, or that the work was of a prospecting character. On February 28th the defendant answers plaintiff's letter of February 17th, in which the defendant writes: "I received your letter and seen that you was going to |