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an order made July 1, 1907, authorizing the area of said tract 2, according to the testisaid plaintiff to take possession and use said mony of some of the witnesses and the sublands during the pendency of and until the sequent finding of the court, for every purfinal conclusion of the litigation, and to pro- pose of a wine cellar. It asked permission hibit all other proceedings under or in further- of the court to so amend its complaint as tc ance of the judgment; and incidentally to eliininate the element of damage on account annul all the proceedings subsequent to the of the deprival of the site for a wine cellar. verdict of the jury." The proceedings of the Defendants objected to the proposed abantrial are set out in extenso in the pleadings donment or to any amendment to the combefore us. It is not claimed that the court plaint, and their ojection was sustained. acted in excess of its jurisdiction until after The judge of the court, however, remarked: the verdict of the jury was rendered. The “At the conclusion of the case, if the plaintiff said verdict, in response to the only issues sees fit to abandon the piece now under dissubmitted to said jury, was as follows: "We, cussion, the court will consider that proposithe jury in the above entitled cause, find for tion, and, if the plaintiff asks the court to inthe defendants as our verdict, in this case, struct the jury to eliminate from their esand answer the questions submitted as fol- timate of damages and values that caused by lows: (1) What was the value per acre on

this piece, the court will consider that propothe 13th day of November, 1906, of the first sition.

I will consider those propoor smaller tract or parcel including the im- sitions at the conclusion of the case." There provements thereon sought to be condemned? is some controversy as to what took place Answer: 0.354 acres at $ 100 per acre- subsequently and before the verdict of the $141.60. (2) What was the value per acre on jury was rendered, but respondent avers that the 13th day of November, 1906, of the sec- when the evidence was closed plaintiff, ond or larger tract or parcel of land sought through its attorneys, stated to the court to be condemned? Answer: 2.723 acres at that it abandoned that proportion of the $500 per acre, $1,361.50. (3) What damages, proposed right of way described in the comif any, will accrue to the larger tract not plaint as tract No. 2 and constituting the sought to be condemned by reason of the de- so-called wine cellar site, and that the court prival of a site for a wine cellar? Answer: instructed the jury that the motion to amend $2,000. (4) What will be the damages, if the complaint and all proceedings under that any, accruing to the larger tract not sought to motion were for the court, and not for the be condemned by reason of its severance from jury, "and that during the course of the openthe portion sought to be condemned, and the ing argument of plaintiff's attorney to the construction of the improvement in the man- jury he was proceeding to state that this ner proposed by the plaintiff, accruing from portion of the land was not necessary for all sources other than the deprival of a site plaintiff's use, and for that reason plaintiff for a wine cellar? Answer: $300. (5) What had abandoned it, and that thereupon the will be the cost of a good and sufficient fence attorneys for defendants objected to this line along the line of the proposed railroad? of argument upon the ground that it was a swer: $1,025.00. (6) Total value of land matter for the action of the court alone. $1,503.10. Total damages, $2,300."

Whereupon the court sustained the objection, Neither party demanded that any other is- and instructed the jury to disregard the matsue be submitted to the jury, and it is claim- ter objected to, and that the question of the ed by respondent that no objection was made necessity of the taking of said land and of the by petitioners to the form of the issue. Peti- abandonment by plaintiff of one portion of ,

the land sought and described in the amendthe segregation of the damages to the por- ed complaint was wholly reserved for the tion not to be taken as provided in ques- court, and that the court would attend to tions 3 and 4. This conflict in the pleadings that matter, after the verdict of the jury as to the objection must be considered of no upon the issues of value of land taken and importance on an application for a writ of damages sustained was rendered. Some time prohibition. The peculiar method of present- after the jury was discharged the court filed ing the question of damages to the land not its findings." These covered the various alto be taken, though, has a bearing of some legations of the amended complaint as to the significance upon the determination of the incorporation of the plaintiff, and the locaquestion before us. It was claimed by the tion and general route of its railroad. They defendants in the condemnation proceeding contained, also, the verdict of the jury and a that, if the portion of tract No. 2 described in declaration that it is necessary that plaintiff the complaint and sought to be condemned shall acquire a right of way over tract No. should be taken, they would be deprived of a 1 as described in the amended complaint, and site for a wine cellar of great value for that that it is not necessary for said purpose that purpose on account of its peculiar location. plaintiff should acquire a certain portion of During the trial, after the plaintiff becamy the second tract described in paragraph 6 apprised of this contention of the defendants, of the amended complaint. It is also found it sought to abandon any claim to a portion that at the trial in open court plaintiff abanof said tract and to withdraw it from con- doned, waived, and relinquished any right to demnation, and thereby leaving a sufficient acquire or condemu said portion of lot No.

tioners, however, aver that they objected to th

2, and admitted and declared, and the evidence adduced by plaintiff established the fact, that said piece of land is not required, and that the sum of $300 comprises the entire damages to the portion of the land not taken and that the residue of the land adjacent to a certain spur track of the Southern Pacific Railroad Company is available for a site for a wine cellar for the deprival of which site the jury assessed the damage at $2,000. Then follow the specific findings of damage in accordance with the verdict of the jury, except that the $2,000 for the said site is eliminated, and the value of the land found necessary to be taken is substituted for that of the whole tract at the price per acre found by the jury. Judgment was entered accordingly. Afterwards the defendants gave notice of a motion to set aside the judgment as provided in section 603, Code Civ. Proc. The court sustained an objection of the plaintiff to the hearing of said motion on the ground that proper notice was not given as required by section 6639, Code Civ. Proc. The court afterwards made and entered its final judgment of condemnation authorizing the plaintiff to take possession of the land after reciting that the money due the defendants had been deposited in court as provided in section 1253, Code Civ. Proc. Petitioners maintain that the court exceeded its jurisdiction in finding that a portion of the land described in the complaint was not required and in its modification of the verdict of the jury accordingly, in its refusal to hear the motion to set aside said judgment, and also in rendering its final decree of condemnation.

Respondent insists that a case for prohibition is not presented for three reasons: (1) Petitioners have a plain, speedy, and adequate remedy at law under the authority of many cases, among which are the following: Murphy v. Superior Court, 81 Cal. 591, 24 Pac. 310; Mines D'Or, etc., Soc. v. Superior Court, 91 Cal. 101, 27 Pac. 532; White v. Superior Court, 110 Cal. 58, 42 Pac. 471; Valentine v. Police Court, 141 Cal. 616, 75 Pac. 336; McAdoo v. Sayre, 145 Cal. 351, 78 Pac. 874; Carr v. Superior Court, 147 Cal. 227, 81 Pac. 515. (2) The acts challenged have already been consummated and the writ of prohibition is a preventive, and not à corrective, remedy. Valentine v. Superior Court, supra, and cases therein cited. 13) It does not appear that the court was without jurisdiction or acted in excess of its jurisdiction in any of the matters of which complaint is made by petitioners.

We pass by a consideration of the first two grounds above stated, as we feel satisfied that the record as presented would not justify us in holding that the court either has exceeded or is about to exceed its jurisdiction in the premises. We are not left in any uncertainty as to the nature and scope of the writ of prohibition. In section 1102, Code Civ. Proc., it is defined as follows: "The writ of prohibition is the counterpart

of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person, whether exercising functions judicial or ministerial when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person.” The significance and scope of this legislative declaration hare been considered many times by the higher courts. Among the cases the following will be found of interest: Raine v. Lawlor, 1 Cal. App. Dec. 332, 82 Pac. 688; Kinard v. Police Court, 1 Cal. App. Dec. 082, 83 Pac. 175; Maurer v. Mitchell, 53 Cal. 289; Talbot v. Pirkey, 139 Cal. 326, 73 Pac. 358. In the Maurer Case, supra, it is said: “At the common law the writ of prohibition was issued to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction.

* * We are of the opinion that the writ mentioned in the Constitution is the writ of prohibition as known to the common law. Nor does the language of section 1102 of the Code of Civil Procedure require of us to hold that the oflice of the writ has been extended or that it should now issue in cases in which it could not have been resorted to prior to the statute.” The foregoing decision was rendered under the old Constitution and prior to the amendment of 1881 to said section 1102, adding the words: “Whether exercising functions judicial or ministerial.” The scope of said writ, however, has not been enlarged by said amendment. Camron V. Kenfield, 57 Cal. 350. The question Under this application, then, is whether the superior court had the legal power to hear and determine the matters in the manner disclosed by the record. Ex parte Bennett, 44 Cal. 84; Sherer v. Superior Court, 96 Cal. 653, 31 Pac. 565. It cannot be controverted that the court had jurisdiction of the subject-matter and of the parties. Section 123, Code Civ. Proc.; Bishop v. Superior Court, 87 Cal. 226, 25 Pac. 435; Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585. Again, the regularity of the proceedings of the court, if within its jurisdiction, cannot be reviewed on prohibition. Powelson v. Lockwood, 82 Cal. 613, 23 Pac. 143; Goddard v. Superior Court, 90 Cal. 367, 27 Pac. 298; Talbot v. Pirkey, supra.

All the allegations of the amended complaint were put in issue by the answer. Hence it was necessary to find upon every material averment. The necessity for the taking of the land or any portion of it was denied by the defendants. Petitioners made no demand that this issue should be submitted to the jury. In fact, petitioners are here contending that the only issue to be decided was as to the value of the land to be condemned and the damage to the residue, but we determine what the issues are by an inspection of the pleadings. As the privilege of submitting to the jury the other questions is deemed to have been waived, it became the

duty of the court to find upon them. Shep- not be a case for prohibition. Error might herd v. Jones, 71 Cal. 224, 16 Pac. 711 ; Mont- be predicated upon such action and a review gomery V. Sayre, 91 Cal. 210, 27 Pac. 618; be bad of it in the proper proceeding, but it Reclamation District v. Thisby, 131 Cal. JT4, would not show excess of jurisdiction be03 Pac. 918; San Francisco & S. J. V. R. cause the court has the legal power to make R. Co. v. Leviston, 134 Cal. 418, 66 Pac. 473. a wrong, as well as a right, decision upon Under the circumstances shown by the rec- the question whether it is necessary for the ord the court not only had the jurisdiction, guidance of the jury for the court to decide but it was its duty to determine the question the issue submitted to it or to announce its of fact—whether any, and, if so, what, por- conclusion before the jury retires. The mattion of the land was necessary for the pur- ter is one of expediency and orderly procepose of plaintiff. So. Pac. R. R. Co. v. Ray- dure rather than of jurisdiction. mond, 53 Cal. 223; City of Pasadena F. Petitioners argue that the effect of the acStimson, 91 Cal. 253, 27 Pac. 004; Spring tion of the court was to deny to defendValley W. W. v. Drinkhouse, 92 Cal. 328, 28 ants the benefit of a jury trial.

Even so, Pac. 681; City of Santa Ana v. Gildmacher, under the decisions of the Supreme Court, a 133 Cal. 399, 05 Pac. 883. At most, peti- question of jurisdiction would not be intioners might contend that the action of the volved nor would it constitute the occasion court was irregular in reserving the question for prohibition. Clark v. Superior Court, 55 of necessity until after the jury rendered its Cal. 199; Curtis v. Superior Court, 63 Cal. 436; verdict. The more orderly procedure would Ex parte Miller, 82 Cal. 451, 22 Pac. 1113; be for the court to have allowed the amend- Powelson v. Lockwood, supra; In re Fife, 110 ment proposed by plaintiff during the prog- Cal. 8, 42 Pac. 299. But petitioners are entireress of the trial, or to have found upon the ly mistaken in their construction of the action question of necessity before the issue of com- of the court below, and they seem to mispensation was submitted to the jury. But, apprehend the rule that must govern us in if the jury have sufficient information as this proceeding in our examination of the to the proposed action of the court to enable record. We cannot impeach the verity of the it to act intelligently upon the issue of com- recitals in the findings and judgment of the pensation and without prejudice to the sub- trial court, at least, unless it appears that stantial rights of the defendant, the reserva- there was no evidence to support them. But tion by the court of the decision of the ques- the verified answer of respondent discloses tion of necessity until after the verdict is such support in the evidence. It is true that rendered is not even erroneous, much less in the pleadings of petitioners, verified by their excess of jurisdiction. Of course, no one attorney, makes emphatic denial of these would contend for the absurd proposition representations, but that furnishes no justithat the jury could determine the total value fication here for annulling the judgment or of the land to be taken without knowing its pursuing the inquiry any further. The funcarea, but there is no insuperable objection tion of prohibition is not to determine the to a course that would leave to the jury the sufficiency of the evidence to support the determination of the value per acre of a findings. As said in Wreden v. Superior tract and to the court the number of acres Court of Stanislaus County, 55 Cal. 504 : necessary to be taken.

“Any error committed in the decision of a In reference to the procedure in similar motion can be saved by a bill of exceptions matters, in the case of City of Los Angeles and be disposed of by appeal or any other v. Pomeroy, supra, the court, speaking method of review known to the law; but juthrough the learned chief justice, said: "All dicial acts which are the subject of review other issues were tried by the court, and by these ordinary and adequate remedies it was of no importance in what order they are not the subject of prohibition.” We are were decided, except in so far as a determi- | nevertheless asked to issue the writ, alnation of one point was necessary as a basis though we must accept as true the facts for the determination of another. Undoubt- found by the court that the jury was fully edly it was necessary that the jury should informed that the plaintiff had abandoned be correctly instructed as to the quantity any claim to a certain portion of tract No. and extent of the estate and interest of the 2, and that the court would pass upon the defendants in the land in order that they question of the amount of said tract that might correctly estimate its value, and, since was necessary to be taken ; that in view of

that point was to be decided by the this contingency the issue of compensation court, it was necessary that the jury should was submitted to the jury as embodied in be informed before retiring what the con- propositions 3 and 4; that the residue of clusion of the court was, but that conclusion said tract 2 was amply sufficient for a wine ('ould be stated as well before as after the cellar as desired by the defendants; that filing of formal findings of fact and conclu- there was substantial evidence to support sions of law." But if the court, deening it the ruling of the court that the motion of unnecessary to announce its conclusion be- defendants to vacate the judgment was not fore the jury rendered a verdict on the ques. made as required by the statute; and that tion of value, should fail to do so, it would upon a sufficient showing the court deter

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mined that notice of the final judgment of menced to recover $7,500, “besides interest condemnation was properly given. This we at the rate of 10 per cent. per annum from cannot do.

the 19th day of March, A. D. 1904, on the Many cases are cited by petitioners relat- sum of $1,000, and interest at the rate of 7 ing to the different phases of the subject per cent. per annum from the 30th day of before us. We have examined them and we December, 1904, on the sum of $3,500, and find nothing in any of them necessary to the costs of suit." These are in accordance with decision militating against the views we have the terms of the notes as pleaded in the comherein expresed.

plaint. The order to show cause is discharged, and The ground of the motion to dissolve is the peremptory writ is denied.

that the writ of attachment was issued for

a greater amount than that stated in the We concur: CHIPMAN, P. J.; HART, J. affidavit. Plaintiff objected to the hearing

of the motion to dissolve on the ground that

proper notice of the motion had not been (6 Cal. App. 272)

given. In support of this objection, an affiFINCH T. MCVEAN et al. (Civ. 233.) davit showing that plaintiff was a nonresi(Court of Appeal, Second District, California,

dent was presented. It is claimed that the Aug. 23, 1907.)

court was not held in the same county "with 1. ATTACHMENT — DISSOLUTION – Motions

both parties," and therefore the plaintiff was NOTICE.

entitled to 10 days under the provisions of Code Civ. Proc. $ 1005, provides that notice of a motion must be given if the court be held

section 1005, Code Civ. Proc., as that section in the same county with both parties five days stood prior to its amendment in 1907. This before the hearing, otherwise ten daysSec. objection was properly overruled. Section tion 1015 provides that, where a party has an

1015, Code Civ. Proc., provides that service attorney, the service of papers must be on the attorney. A nonresident plaintiff procured an of notices of this character shall be upon the attachment, and defendant moved for a dissolu- / attorney instead of the party, and it would tion thereof. Held, that plaintiff was not en

be idle for the law to measure the time of titled to ten days' notice of the hearing of the motion; service of the notice on the attorney notice by the residence of the litigant when being sufficient.

the service is to be made upon his attorney. 2. SAME - PROCEEDINGS TO PROCU'RE - AFFI

After the appearance of the party by attorDAVITS-AVERYENTS AS TO INDEBTEDNESS.

Under Code Civ. Proc. $ 540, providing that ney, only such writs and process as affect the the writ of attachment must require the sheriff | party as distinguished from the litigation are to attach so much of defendant's property "as required to be served upon the party personmay be sufficient to satisfy the demand, the

ally. Section 1015, Code Civ. Proc. Section amount of which must be stated in conformity with the complaint," the basis for a writ of at- 510, Code Civ. Proc., provides that the writ tachment is the affidavit therefor, which must of attachment directed to the sheriff must specifically state the amount of the indebtedness. require him to attach so much of the defendand, where a complaint in an action on notes set out the notes, and demanded judgment for

ant's property was may be sufficient to satisfy the principal with interest according to their the plaintiff's demand, the amount of which terms, and the affidavit for attachment stated must be stated in conformity with the comthe amount of the indebtedness to be the princi: plaint," etc. “The basis for the writ is the pal of the notes "besides interest," and the writ

affidavit, and the clerk must look to that of attachment recited the amount claimed in the complaint, the writ was issued for an amount alone for the purpose of determining the in excess of the amount imported by the affi.

amount for which the sheriff is to levy under davit, and was properly dissolved on motion.

the writ, as well as the amount for which an Appeal from Superior Court, Kern County ; undertaking is given." Baldwin v. Napa J. W. Mahon, Judge.

Wine Co., 137 Cal. 619, 70 Pac. 732. The apAction by John A. Finch against A. J. MC

parent inconsistency between this construcVean and another. From an order dissolving tion of the law and the provisions of section an attachment, plaintiff appeals. Affirmed.

510, Code Civ. Proc., above quoted, is conW. W. Kaye, for appellant. Fred E. Bor- ceded by the Supreme Court in the opinion in ton, for respondents.

the case of De Leonis v. Etchepare, 120 Cal.

407, 52 Pac. 718, and the language of the secTAGGART, J. Appeal from an order dis- tion reconciled by a construction there given to solving an attachment.

it. The word "conform" as used in the secThe action was on two promissory notes tion is held not to be the equivalent of "idenof $1,000 and $3,500, bearing interest, respec

tical," but rather to mean "in correspondence tively, at the rates of 10 and 7 per cent. per in character and in harmony or congruity.” annuin. Both are set out in extenso in the Page 115 of 120 Cal., and page 721 of 52 Pac. complaint, and the prayer of the complaint This construction is approved in Baldwin v. is for $7,500, "with interest thereon accord- Vapa, supra, and considered in declaring the ing to the terms of said promissory notes, rule to be that the clerk must look to the and costs of suit.” In the affidavit for the affidavit alone. In the case at bar, the attachment the indebtedness is stated to be amount of the plaintiff's demand is stated "in the sum of seven thousand five hundred in the writ in strict conformity with the aldollars, besides interest.” The writ of at- legations of the complaint. In this statement tachment recites that the action was com- the rates of interest and the dates from which it is to be computed are set out spe- ness not covered by the affidavit can be incifically, while neither rates nor time appear cluded in that for which the writ issues. in the affidavit. There is nothing in the atti- There is nothing in O'Conor v. Roark, 108 davit by which the amount of interest due Cal. 173, 41 Pac. 405, in conflict with the can be determined, and the only indebtedness view here taken. In the statement of the the amount of which is expressly set forth Contract in the affidavit for an attachment in therein is the principal sum of $7,500. On that case there appeared the date of maturity the other hand, the sheriff is required by the of the obligation upon which the attachment writ to attach enough of defendant's prop- rested, and the amount stated would be preerty to satisfy a demand of $7,500, principal, sumed to draw the legal rate of seven per and, as ascertained by computation, about cent. from that date. The demand set forth $475 interest. While the same particularity in the writ was well within that averment of of statement is not required in an affidavit the affidavit, and stated the amount demandfor attachment that is required in a plead- ed in the complaint. Conceding, for the sake ing, this rule does not extend to the matter of argument, that in the affidavit in the case of the indebtedness. The amount of the in- at bar the words "with interest” imply the debtedness to the plaintiff is the principal egal rate, and that we may look to the comand all important element in the affidavit.

plaint to ascertain the date of maturity, Bank v. Boyd, S6 Cal. 388, 25 Pac. 20. The there yet remains the variance and excess amount stated therein determines how much

over the amount stated in the affidavit causof defendant's property the sheriff is to seize, ed by one of the notes bearing interest at and this, in turn, limits the amount for which the rate of 10 per cent. per annum. an undertaking may be demanded by the The writ, therefore, issued for an amount sheriff to prevent or release the attachment.

in excess of that stated in the affidavit, and Baldwin v. Napa, supra; section 540, Code in excess of any amount that might be imCiv. Proc. Under the construction given to ported into the affidavit by any of the theothe statute by the case last cited, we do not ries suggested. The ruling of the superior think the interest can be treated as a mere court was proper, and should be sustained. incident to the principal. Nor can an attach

Order appealed from affirmed. ment be sustained which requires the taking of more of a defendant's property than is We concur: ALLEN, P. J.; SHAW, J. requisite to secure the indebtedness stated in the affidavit. An attachment proceeding is not a part of

(6 Cal. App. 261) every civil action brought to recover on a

SCHAMBLIN V. MEANS et al. (Civ. 349.) contract for the direct payment of money. It is a provisional remedy to be used by the

(Court of Appeal, Second District, California. creditor at his election to make the property

Aug. 20, 1907.) of the debtor available for the execution of 1. STATUTES-AMENDMENTS-REPEALED STAT

UTES. any judgment that may be obtained in the

An attempt to amend sections of the Code action. It is initiated by an affidavit (in case

after their repeal at the same session of the of residents) setting forth the amount of the Legislature is ineffectual. indebtedness due to plaintiff from defendant 2. TAXATION-SALES FOR DELINQUENT TAXES over and above all legal setoffs or counter


Where the law did not require a certificate claims, upon a contract, for the direct pay

of sale for taxes, the provision that the recitals ment of money, payable in this state, which in the certificate should be embodied in the tax has not been secured by mortgage, pledge, or

deed was inoperative, and a compliance there

with was unnecessary. lien, or, if secured, the security has become

3. SANE_VALIDATING TAX DEEDS-STATUTES. valueless. In stating a cause of action in a The act of 1903, legalizing tax certificates complaint, it is not necessary to state under and deeds to the state for nonpayment of taxes, oath the amount due, nor to allege that the

is applicable to a tax deed executed June 28, amount of indebtedness stated is over and

1901, and showing in its recitals that the tax

sale was made on June 27, 1896. above all legal set-offs or counterclaims, or

4. SAME. that the indebtedness has not been secured, Land was sold to the state for nonpayinent but only indebtedness so qualified under oath of taxes on June 27, 1896. The deed to the (an authorize the issuance of an attachment. state was made June 28, 1901, and the deed

from the state to a purchaser was dated JapuThe clerk, before issuing the writ, must see

ary 14, 1902. Il eld, that the act of 1903, valithat the affidavit complies with the provi- dating tax certificates and deeds, operated to sions of the statute and that the indebtedness make good the tax deed as of the date it was

made, and cured defective proceedings prior therein stated, and so qualified, is support

thereto. ed by the statement in the complaint of an attachable cause of action for the direct pay- Appeal from Superior Court, Kern County ; ment of money, in an amount equal to or J. W. Mahon, Judge. greater than the amount stated in the affi- Action by Gus Schamblin against T. A. davit. Upon receiving the proper undertak- Means and others. From a judgment for deing. he must then issue the writ for the fendants and from an order denying a motion amount stated in the affidavit. No indebted- for a new trial, plaintiff appeals. Affirmed.

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