BISSELL, C. The errors contained in this record leave no basis upon which the judgment can be sustained. The service was made by publication, and the order therefor was entered upon the affidavit which is set forth in the statement. It is an established principle in all courts that the method of acquiring jurisdiction by publication is in derogation of the common law, and that the statutory requirements must be successively and accurately taken in order to confer upon the court jurisdiction over the defendant. This principle has been so often decided and so universally declared that it is wholly unnecessary to cite authorities in support of the proposition. The application of this rule precludes any successful defense of the order of publication which was entered by the county court.

To justify the making of the order, the plaintiff was bound, under section 44 of the code, to file an affidavit by which it should appear that a cause of action existed against the defendants. No such showing was made in this case, according to any reasonable construction of the section. The affidavit does not state that any cause of action exists in favor of the plaintiff, or against the defendants, nor is this fact otherwise made affirmatively to appear in it. It sets up that the action is brought to recover the sum of $1,120.97 upon two promissory notes, which are described as to the date of their execution, but it does not state either that the defendants were the makers of those two notes, or the guarantors thereof against whom a right of action existed in favor of the plaintiff, or that they were the payees and subsequent indorsers, or indorsers thereof and not payees, or that the plaintiffs were the owners and holders of the notes. The affidavit states no cause of action whatsoever against these two defendants, or either of them, upon the two notes as described. Under these circumstances, it is wholly impossible to uphold the jurisdiction of the court in the premises: Ricketson v. Richardson, 26 Cal. 149; Yolo Co. v. Knight, 70 Cal. 432; Slocum v. Slocum, 17 Wis. 150, 155; Towsley v. McDonald, 32 Barb. 604; Shields v. Miller, 9 Kan. 390; Atkins v. Atkins, 9 Neb. 191194.

It is exceedingly doubtful whether there is any such showing of non-residence as would entitle the plaintiff to proceed to obtain service by publication; but the insufficiency of the affidavit renders it unnecessary to put the decision upon this ground.

AM. ST. REP., VOL. XXIL-26

The failure to file a complaint prior to the rendition of judgment, or at all, is a fatal irregularity. According to the practice as it existed at that time, it was necessary that the complaint should be filed before the entry of judgment: Sess. Laws 1885, p. 132, sec. 9 of "An act to amend," etc.

Whether the failure to file the complaint prior to the entry of judgment would of itself have been fatal to the validity of the judgment, or whether upon application for the purpose prior to the appeal the court could have made an order permitting it to be done, it is not necessary to consider. No such application was made, nor was any complaint ever filed. On general principles, regardless of this statute, it must be held that a complaint, or some written statement of the cause of action, is absolutely indispensable to the maintenance of a judgment recovered in a court of record. As it was well put in Young v. Rosenbaum, 39 Cal. 654: "It would seem impossible to maintain in any forum a judgment unless it was based upon a complaint or a statement of the cause of action of the party in whose favor it was rendered."

These errors render it impossible to maintain the judgment. Since the cause must be reversed, it is needless to discuss the question whether it should be reversed because it was entered for more than the sum which the plaintiff was entitled to recover according to the action as he instituted it, or whether he should be permitted to remit the excess, and the judgment be upheld for the balance.

The judgment should be reversed, and the cause remanded for further proceedings.

RICHMOND, C., and REED, C., concurred.

Per CURIAM. For the reasons stated in the foregoing opinion, the judgment below is reversed.

PROCESS - PUBLICATION. — Service of summons by publication can be made only in the manner prescribed by statute: Byrnes v. Sampson, 74 Tex. 80; Cassidy v. Woodward, 77 Iowa, 355; Northcraft v. Oliver, 74 Tex. 163.

An order for publication of a summons must be based upon an affidavit showing a cause of action, and that defendant is a non-resident: Anderson v. Goff, 72 Cal. 65; 1 Am. St. Rep. 34; Frybarger v. McMillen, 15 Col. 349; Calvert v. Calvert, 15 Col. 390; Chase v. Kaynor, 78 Iowa, 449; Essig v. Lower, 120 Ind. 239; United States etc. Co. v. Martin, 43 Kan. 526; Feikert v. Wilson, 38 Minn. 341; Elting v. Gould, 96 Mo. 535; Britton v. Larson, 23 Neb. 806; Bryan v. University Pub. Co., 112 N. Y. 382; Pursel v. Deal, 16 Or. 295. JUDGMENTS COMPLAINT NECESSARY TO SUPPORT. While the complaint in an action commenced in a court of general jurisdiction need not

allege jurisdictional facts: Shewalter v. Bergman, 123 Ind. 155; yet it must set forth a cause of action by alleging facts sufficient to authorize the court to render a judgment: Kimmerle v. Houston etc. R'y Co., 76 Tex. 686; as a judginent cannot be based upon facts not pleaded: Paddock v. Lance, 94 Mo. 283; Mickley v. Tomlinson, 79 Iowa, 383; Jones v. Davenport, 45 N. J. Eq. 77; O'Leary v. Durant, 70 Tex. 409; First Nat. Bank v. Williams, 126 Ind. 423; Wagner v. Winter, 122 Ind. 57. It is not necessary, however, that a judgment should state upon which part of a verdict upon special issues it is based: Heflin v. Burns, 70 Tex. 347. In determining the effect of a judg ment, the antecedent record may be considered: McDonald v. Frost, 99 Mo. 44. There can be no judgment rendered on the pleadings where a single issue is made by the answer: Widmer v. Martin, 87 Cal. 88.

BLYTHE V. DENVER AND RIO GRANDE R'Y Co.

[15 COLORADO, 333.]

CARRIERS-ACT OF GOD-PROXIMATE CAUSE - NEGLIGENCE. A gale of wind of such violence as to make it impossible for a person to stand or walk at the time an express-car is derailed by it, and thrown into such position that the express packages therein are piled in one corner at the top of the car, after which it is so quickly consumed by fire set by a stove or lamp therein that the express-messenger only escapes with difficulty, is such act of God and proximate cause of the loss of an express pack. age contained in the car as will excuse the railroad company from lia. bility for the loss, or for negligence in failing to protect and secure the goods in the burning car.

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CARRIERS - PROXIMATE AND RESULTING CAUSE. When the immediate resulting cause of loss by a carrier is fire caused by the overturning of a car by a violent wind, an instruction that "where one is pursuing a lawful vocation in a lawful manner, and something occurs which no human skill or precaution could foresee or prevent, and as a consequence the accident takes place, this is called 'inevitable accident,' or the 'act of God,"" is not prejudicial, although not technically correct. ACTION against a common carrier for the loss of an express package. Judgment for defendant, and plaintiffs appealed. Lucius P. Marsh, for the plaintiffs in error.

Wolcott and Vaile, for the defendant in error.

REED, C. It is conceded that the wrecking of a portion of the train, such portion consisting of one engine and four cars, one being the express-car in which the goods were being carried, was by "the act of God," and inevitable. It is also conceded in argument that having a coal fire burning in a stove, and a lighted lamp in the compartment, as testified to, was not negligence on the part of the carrier. Counsel for plaintiffs in error, in reply, say: "In the brief of defendant

in error, counsel have assumed for us a claim which we have not made, and they then proceed to demolish such assumed claim. They assume for us that we claim there was negligence in carrying in the car a stove with fire in it. .... There was negligence, we may call it by that name,—but such negligence was in not making the requisite efforts to save the goods after the peril had been incurred. We make no claim that there was negligence in carrying a stove in the car." By these concessions, two important questions are eliminated, and the issues are narrowed, the only questions remaining being: 1. Was "the act of God" the proximate and direct cause of the loss sustained, so as to exonerate the carrier from liability? or was it the remote cause, and the fire, against which the carrier is supposed to be an insurer, the proximate and direct cause? 2. After the wrecking and overturning of the train by "the act of God," was the carrier guilty of negligence in failing to protect and secure the goods in the burning car?

Such
Both

Great ability and research have been expended in attempting to arrive at and determine upon some general definition of the terms "proximate" and "remote " causes, and establish a rule and a line of demarkation between the two. efforts appear to have been but partially successful. have received various definitions, though differently worded, amounting to practically the same thing. But in almost every instance where they have been attempted to be applied, their applicability seems to have been determined by the peculiar circumstances of the case under consideration. Webster defines "proximate cause," "that which immediately precedes and produces the effect, as distinguished from the remote, mediate, or predisposing cause." Anderson's Law Dictionary: "The nearest, the immediate, the direct cause; the efficient cause; the cause that sets another or other causes in operation, or dominant cause." But with these definitions in view, when two causes unite to produce the loss, the question still remains, Which was the proximate cause?

In Louisiana Mut. Ins. Co. v. Tweed, 7 Wall. 52, the late lamented Mr. Justice Miller said: "We have had cited to us a general review of the doctrine of proximate and remote causes as it has arisen and been decided in the courts in a great variety of cases. It would be an unprofitable labor to enter into an examination of these cases. If we could deduce from them the best possible expression of the rule, it would

remain after all to decide each case largely upon the special facts belonging to it, and often upon the very nicest discriminations."

In Howard Fire Ins. Co. v. Norwich etc. Trans. Co., 12 Wall. 199, in delivering the opinion of the court, Mr. Justice Strong said: "And certainly that cause which set the other in motion, and gave to it its efficiency to do harm at the time of the disaster, must rank as predominant."

In Milwaukee etc. R'y Co. v. Kellogg, 94 U. S. 475, it is said: "The inquiry must therefore always be, whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury."

In Etna Ins. Co. v. Boon, 95 U. S. 130, it is said: "The proximate cause is the efficient cause; the one that necessarily sets the other causes in operation. The causes that are merely incidental, or instruments of a superior or controlling agency, are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster."

Leaving out of consideration, as we must, by concession of counsel, all question of negligence in regard to the burning fire in the stove, a lighted kerosene lamp, and regarding each of them as securely protected against damage as prudence would require, and applying the rules above laid down, it becomes apparent that the overturning and wrecking of the car by the violence of the wind was the proximate, direct, and efficient cause of the loss, and the fire following, if not instantaneously, immediately after, without negligence or any wrongful act of the carrier intervening to produce it, must be regarded as resulting and incidental.

It is ably contended in argument, and many supposed authorities in support of the position are cited, that the negligence of the carrier in failing to use proper exertion to save the contents of the car, after it was overturned, rendered the defendant liable for the loss. If by proper diligence and attention the goods could have been rescued, a failure to secure them would have fixed the liability of the carrier. There can be no doubt of the correctness of this conclusion.

The questions what was the proximate cause of the loss and of negligence were questions of fact to be determined by the jury from the evidence, under proper instructions from the court. There was not much conflict of testimony. In Mil