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their verdict and put it in proper form. That was not done; and the court, in accepting the verdict in its defective form and pronouncing judgment upon it, assumed as a fact what the verdict did not express, and, in doing so, invaded the province of the jury; for the jury alone could find the value of the property. A verdict, to serve as a basis for a judgment, must be complete and certain; otherwise both the verdict and judgment entered thereon are erroneous and reversible. Dougherty v. Haggin, 56 Cal. 522; Kelly v. McKibben, 54 Cal. 192.

The order appealed from is also irregular, because it was made and entered before the statement on motion for a new trial, to which amendments had been proposed, was settled and certified by the court. The transcript shows that nearly five months after the entry of the order, the court, finding that it had erroneously or inadvertently denied the motion for a new trial before the settlement of the statement upon which the motion was to be made, vacated and set aside the order, settled and certified the statement, and denied the motion for a new trial. This order purports to have been made on the twelfth of November, 1881. But the defendant had appealed from the order on the thirtieth of June, 1881, and when the order of the twelfth of November was made and entered, the case was pending in this court.

There is no doubt that the court in which an irregular order is made. and entered, may, where the irregularity is apparent, on suggestion, motion, or ex mere motu, set it aside at any time before an appeal is taken from it. Such an order, however, is valid until set aside or reversed on appeal; and where an appeal has been taken from it, the jurisdiction of the court a quo is suspended, so that, pending the appeal, the court below cannot vacate and set aside the order appealed from. Bryan v. Berry, 8 Cal. 135. Whence it results that the order appealed from denying defendant's motion for a new trial; and the judgment entered in the case, must be reversed. Judgment and order reversed, and cause remanded for further proceedings.

We concur: Ross, J.; McKINSTRY, J.

(68 Cal. 19)

PETERSEN v. LAURETZEN. (No. 8,597.)

Filed November 19, 1885.

WAYS-AGREEMENT FOR RIGHT OF WAY—TRESPASS, PAROL EVIDENCE OF.

Where a plaintiff and defendant held land in common, and the latter had used the right of way in dispute for some time, when an agreement was entered into for the partition of the land, the defendant agreeing to accept a certain portion of the land as his share, provided the right of way claimed went with it, and the plaintiff promised that it should, and that he would procure deeds in which the right would be reserved, and the defendant relied upon plaintiff's promise in the matter, but by the fraudulent conduct of the plaintiff, the partition deeds omitted to reserve such right of way to defendant, and an action was brought to recover for defendant's trespass in tearing down a fence erected by plaintiff over such way, to which action defendant answered by setting up the above agreement and plaintiff's fraudulent conduct, it was held that parol evidence thereof was admissible, and the exclusion thereof error.

Department 2. Appeal from superior court, county of San Luis Obispo.

D. S. Gregory and F. Adams, for appellant.
McD). R. Venuble, for respondent.

MORRISON, C. J. This is an action for damages based upon an alleged trespass committed by defendant on plaintiff's lands by tearing down and destroying a fence erected thereon by plaintiff. The tearing down of the fence is admitted, but it is claimed that it was erected by plaintiff across a road which the defendant traveled, and had a right to travel, leading over the plaintiff's land to those of defendant. The answer sets up that in May, 1876, plaintiff and defendant entered into an agreement to purchase the land in question of one Bayer, and thereupon the plaintiff entered into possession of the entire tract, and that while in possession, and holding the same for their joint benefit, plaintiff and defendant entered into an agreement to partition the tract in certain proportions stated in the answer, and thereupon the plaintiff undertook and agreed to procure deeds partitioning and conveying the land in severalty accordingly, and also granting to defendant the right of way claimed by him. That defendant trusted in the honesty and good faith of plaintiff in the matter, and on the first day of February, 1877, plaintiff procured the deeds of partition, which were executed in accordance with the agreement, except as to the right of way, which it is charged plaintiff fraudulently caused to be omitted from defendant's deed to said land. Other allegations of bad faith and fraud in connection with the alleged right of way are charged in the answer against plaintiff, all of which are found by the court to be untrue, the court having excluded the defendant's evidence. On the trial, judgment passed for plaintiff, and the court awarded five dollars damages.

The contention on the trial was about the so-called right of way claimed by the defendant over the plaintiff's land; and if no such right was established or attempted to be proved on the trial, the determination of the court below was correct. It is shown in the evidence that the way by the road fenced by plaintiff had been used for some time by defendant, and was necessary for the purpose of access to his portion of the land. And it further appears that it was a part of the agreement under which the land was partitioned that the defendant should be reserved the right of way claimed by him over the land of the plaintiff by the deed of partition. The plaintiff undertook to procure the deed of partition to himself and the defendant, promising that the right of way should be provided for in those deeds, but by what is declared to be his fraud, the right of way was omitted. All of this matter the defendant attempted on the trial to prove by parol, but the court excluded the evidence, holding that the

matter was provable only by a written instrument. In this we think the court erred. The parties held the land in common; this defendant had used the right of way in question for some time before they made a contract or agreement 1or the partition of the land; the defendant agreed to accept a certain portion of the land as his share, provided the right of way claimed went with it; the plaintiff promised that it should, and that he would procure deeds in which that right should be reserved; that the defendant relied upon the promise of the plaintiff in the matter; and that by the fraudulent conduct of plaintiff, the partition deeds omitted it. We think that under the foregoing facts the evidence offered was admissible, and that the court erred in excluding it. 1 Greenl. Ev. $$ 284, 296.

Judgment and order reversed.

We concur: MYRICK, J.; THORNTON, J.

(69 Cal. 1)
SCRIVNER and others v. Dietz and others. (No. 8,385.)

Filed November 19, 1885.
1. ATTACHMENT_EFFECT OF IRREGULARITY IN AFFIDAVITS.

· The facts that an affidavit for attachment is irregular, in that it failed to contain a statement that the payment of the contract sued on was not secured by any mortgage or lien on real or personal property, or that if so se cured the security had become valueless, without the act of plaintiff or the person to whom the security had been given, will not render the attachment void, so that it can be collaterally attacked by a stranger, but renders it void

able merely at the instance of the attachment debtor. 2. LIENS-PRIORITY OF, HOW LOST.

Priority of lien gives a prior claim, which entitles the lienor to a prior satisfaction out of the subject the lien binds, unless the lien be intrinsically defective, or be displaced by some act of the party holding it, which shall postpone him, in a court of law or equity, to a claimant under a subsequent lien. Therefore, in an action for foreclosure of a prior mortgage, subsequent attaching creditors may prove the existence of their attachment liens, and show that in consequence of plaintiff's acts their lien is superior to that of his mortgage. Department 1. Appeal from superior court, county of Alameda. C. A. & C. Tuttle, for appellants. Winans, Belknap & Godoy, for respondents.

MCKEE, J. This is an action against C. M. Grant, mortgagor, and other defendants, alleged claimants of subsequent liens upon the mortgage property, for the recovery of judgment against the mortgagor, and the foreclosure of a real-estate mortgage given by him on the twenty-second of December, 1875, to the London & San Francisco Bank, Limited, to secure payment of an indebtedness of $5,000 and interest, and such other sums, with interest, as the said bank might advance to the said Grant after the date of the mortgage. Of the defendants, Grant made default, and the defendants Dietz, McAfee, and Spiers, in their answer, averred that they had acquired an interest in the mortgaged property by a writ of attachment issued in

v.8P,no.10— 39

an action commenced on the twenty-second of January, 1876, by Mc. Afee and Spiers against the said Grant, in which they afterwards recovered judgment against him, upon which an execution was issued, under and by which the attached property was sold at sheriff's sale to them, and they, in due course of time, received a sheriff's deed for the same, and they claim that the interest thus acquired is not subject to the mortgage lien of the plaintiff, but is superior thereto, because (1) whatever advances were made by the bank to said Grant, were made after notice to the bank of the acquisition by the defendants of their interest and right in the mortgaged property under said attachment; (2) because the cause of action upon advances wbich were made was barred by the statute of limitations at the commencement of the action; and (3) because the mortgage itself was merged in a deed of the property which the mortgagor executed and delivered to the bank.

At the trial of the issues framed by the complaint and answer, the execution and registration of the mortgage were admitted; and after the plaintiff had given evidence tending to prove that the sum of the original indebtedness of $5,000, and the future advances, which were made by the bank from the date of the mortgage until the thirty-first of January, 1879, amounted to $9,779, and were due and unpaid, the defendants, to maintain the issues on their part, first offered the affidavit and writ of attachment, together with the return thereon, issued in the action of McAfee and Spiers against the said C. M. Grant. But the plaintiff objected to the affidavit, and the attachment and the return thereon, “because the affidavit was defective for non-compliance with the Code, and a nullity; that it is void for irregularity, and conferred no authority upon the clerk to issue an attachment; that, as evidence, it was incompetent and irrelevant and inadmissible; that even if, stricti juris, it was only voidable and not void, it laid no foundation for the issuance of an attachment which could be operative against the rights of plaintiff or plaintiff's assignor under the mortgage,” etc.

The court sustained the objections, and defendants Dietz, McAfee, and Spiers excepted to the ruling.

The irregularity upon which these objections were made is this: The affidavit contained no statement that the payment of the contract sued upon was not secured by any mortgage or lien upon any real or personal property, or, if it was so secured, that the security had become valueless, without any act of the plaintiff, or the person to whom such security had been given.

Admittedly, this irregularity in the affidavit constituted good ground for a motion by the attachment debtor to dissolve the attachment; and if such a motion had been made by him to the court in which the action was pending, it would have been the duty of the court to have dissolved the attachment. Hawley v. Delmas, 4 Cal. 195; Wilke v. Cohn, 54 Cal. 212; Merced Bank v. Morton, 58 Cal. 360. But

neither the regularity of the affidavit, nor the validity of the attachment issued upon it, was questioned by the debtor. He therefore waived whatever irregularities existed in either, and as against him, at least, the attachment was valid and operative. So that its execution, if according to law, operated to create a provisional lien upon the property on which it was levied, in favor of the attaching creditors; and as this lien, upon the recovery of a judgment in the action, transit in rem judicatam, and is merged in the judgment, the attachment proceedings are not attackable collaterally for an infirmity in the affidavit. Porter v. Pico, 55 Cal. 165; Harvey v. Foster, 64 Cal. 296. Notwithstanding the infirmity, the attachment was not void; it was only voidable at the instance of the attachment defendant, and could not be assailed collaterally by a stranger. Harvey v. Foster, supra. The ruling of the court excluding the affidavit, attachment, and return thereon, was therefore erroneous.

But it is said that the ruling was prejudicial, because the attach ment, if legal, could not have defeated plaintiff's mortgage, which being prior in point of time, was superior in point of right to the sub sequent attachment lien, which was subordinate to it. Unquestion ably, a prior lien gives a prior claim, which is entitled to prior satis. faction out of the subject it binds, unless the lien be intrinsically de. fective, or be displaced by some act of the party holding it which shall postpone him, in a court of law or equity, to a subsequent lien claimant. Rankin v. Scott, 12 Wheat. 177. But the defendants were entitled to prove the existence of their attachment lien, and to show that in consequence of the acts of the plaintiff, set up in their answer, it was superior to the lien of the plaintiff's mortgage.

Judgment and order reversed, and cause remanded for a new trial.

We concur: McKinstry, J.; Ross, J.

(2 Cal. Unrep. 563)

PEOPLE v. JONES. (No. 20,095.)

Filed November 24, 1885. 1. VERDICT-EVIDENCE.

Verdict held sustained by the evidence. 2. NEW TRIAL-NEWLY-DISCOVERED EVIDENCE.

Where a motion is made for a new trial on the ground of newly-discovered evidence, if it was in the power of the person so moving to have produced the evidence on the first trial, the motion is properly denied. Commissioners' decision.

Department 2. Appeal from superior court, city and county of San Francisco.

John D. Whaley, for appellant.
The Attorney General, for respondent.

FOOTE, C. The defendant was convicted of the crime of emhezzlement, upon information under section 508 of the Penal Code, A

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