The finding upon this issue must, therefore, be against plaintiff, and it follows that, upon the case made before us, the diploma must be held insufficient under the requirements of the act.

It is suggested that the provision of the act authorizing the acceptance of only such a diploma as is issued by some legally chartered medical school, "the requirements of which medical school shall have been at the time of granting such diploma, in no particular less than those prescribed by the Association of American Medical Colleges for that year," is void, because the effect thereof is to delegate to this association a power which, it is claimed, can be exercised only by the Legislature itself. This court has recently decided to the contrary, in a case where a similar contention was made and fully considered. Ex parte Gerino, 143 Cal. 412, 417, 419, 77 Pac. 166, 66 L. R. A. 249. It is urged that what was said upon this point in that case was dictum. We do not so consider it; but, even if it were, we see no reason for receding from or modifying the views there expressed, and we adhere thereto.

It is further urged that the act should be construed as rendering an applicant entitled to a certificate upon his passing a satisfactory examination, even though he fails to produce the required diploma or license; in other words, that the act entitles him to a certificate either upon the production of a proper diploma or license, or upon passing a satisfactory examination. Clearly the act will bear no such construction. The language of the provision as to production of diploma or license is such as to necessarily make it applicable to every case, and no exception thereto is declared in any other part of the act. This provision is immediately followed by the provision as to examination, which declares: "In addition to the requirements above set forth, each applicant for a certificate must be personally examined as to his qualifications to practice medicine and surgery," etc. The next section (6) provides: "When any applicant has shown himself to be possessed of the qualifications herein required, and has successfully passed the said examination, a certificate must be issued," etc. In the face of such clear and unambiguous language, there can be no doubt as to the proper construction of the act in this regard. A diploma or license coming up to the requirements of the act is essential in every case to the right to a certificate, however well qualified the applicant may be in other respects.

We are forced to the conclusion that, notwithstanding the long experience of plaintiff as a practicing physician and surgeon, extending over a period of more than 10 years, and notwithstanding that he may have successfully passed the examination as to his qualifications to practice, it must be here held that he has failed to comply with the provisions of the act in the matter of pro91 P.-21

ducing a proper diploma or license, and, therefore, that he must fail in this proceeding.

The application for a writ of mandamus is denied.

We concur: SHAW, J.; SLOSS, J.; HENSHAW, J.; LORIGAN, J.; MCFARLAND, J.

(151 Cal. 558) (L. A. 2,005.) July 26, 1907.) 1. APPEAL-INSUFFICIENT UNDERTAKING. A notice of appeal from an order denying a new trial is not supported by an undertak ing reciting only the judgment, stating that it was rendered on the date when the motion for a new trial was overruled, the judgment having been rendered several months before, and reciting a desire to appeal therefrom, the surety only undertaking that appellant will pay such costs and damages as may be awarded against her on "said appeal."

LITTLE. THATCHER. (Supreme Court of California.

2. SAME-RIGHT TO CURE ERROR.

The recitals in an undertaking on appeal must identify the appeal it is intended to support, and, if they do not do so, the error is not curable under Code Civ. Proc. § 954, prohibiting the dismissal of an appeal for insufliciency of the undertaking, if a good one be filed before the hearing of the motion to dismiss.

In Bank. Appeal from Superior Court, Los Angeles County; N. P. Conrey, Judge.

Action by W. E. Little against Catherine M. Thatcher. From an order denying a new trial, defendant appeals, and plaintiff moves to dismiss the appeal. Appeal dismissed.

Hahn & Hahn and Gavin McNab, for appellant. James P. Clark, M. M. Meyers, Borden & Carhart, Chas. L. Batcheller, E. E. Mellette, J. R. Wilder, Lawler, Allen & Van Dyke, A. L. & J. E. Stephens, and John W. Shenk, for respondent.

BEATTY, C. J. This is a motion to dismiss an appeal based upon the grounds, first, that the transcript was not served on the respondents; second, that no sufficient transcript was filed; and, third, that the notice of appeal is not supported by an undertaking. As to the first ground, it is now admitted that the printed transcripts were duly served. As to the second, the objection is obviated by the filing of a supplemental transcript by leave of the court. The only question remaining relates to the $300 undertaking on ap peal. The judgment in the action was rendered and entered February 20, 1906. A motion for a new trial was denied October 12, 1906, after the time for appealing from the judgment had expired. On the 22d of October two of the defendants gave notice of an appeal from that order, and within the time allowed by law filed the following undertaking: "Whereas, in an action in the superior court of the county of Los Angeles, state of California, judgment was on the 12th day of October, 1906, rendered by the said court in favor of the defendants and against the plaintiffs for the sum of $1700 principal;

and, whereas, the said defendants are dissatisfied with the said judgment and desirous of appealing therefrom to the District Court of Appeals of California: Now, therefore, in consideration of the premises, and of such appeal, the National Surety Company of New York, a corporation having its principal place of business in the city of New York, state of New York, and having complied with all the requirements of the laws of the state of California respecting such corporations, does hereby undertake in the sum of three hundred dollars ($300) and promises on the part of the appellant that said appellant will pay all damages and costs which may be awarded against them on said appeal, or on a dismissal thereof not exceeding the aforesaid sum of three hundred dollars $300.00, to which amount it acknowledges itself

bound."

The undertaking, it will be observed, recites only the judgment, and states that it was rendered on the date when the motion for a new trial was overruled. It recites the desire of the said defendants to appeal therefrom, and the surety only undertakes that the appellants will pay such costs and damages as may be awarded against them on "said appeal." Clearly it is insufficient in terms to support the appeal from the order; but, since an undertaking in proper form, approved by one of the justices of this court, was filed before the hearing of the motion to dismiss, the question to be decided is whether the undertaking originally filed was merely insufficient within the meaning of section 95-1 of the Code of Civil Procedure, and the fault curable by the approval and filing of a new one, or whether with respect to the appeal from the order it was in effect no undertaking at all. In a number of cases heretofore decided this court has held that the recitals in an undertaking on appeal must identify the appeal which it is intended to support, and that if they fail to do so the error is incurable. See Estate of Heydenfeldt, 119 Cal. 347, 51 Pac. 543, and cases there cited. See, also, Pac. Pav. Co. v. Bolton, 89 Cal. 154, 26 Pac. 650, Schurtz v. Romer, 81 Cal. 244, 22 Pac. 657, and cases cited under this case in the notes to California Decisions. I have never yielded a willing assent to this strict construction of the statute, but the rule is settled, and there does not seem to be any ground upon which this case can be distinguished from those in which the undertaking has been held to be fatally defective. The fact that when the undertaking was executed the time for appealing from the judgment had expired and that the only appeal by which the judgment might be set aside was an appeal from the order, the fact that the date of the judgment as recited shows that the surety confused the judgment and the order, and all the extraneous facts in the case amount to nothing in the face of the doctrine upon which the rule is founded: the doctrine, that is to say, that the recitals in the

1. APPEAL - DISMISSAL-NEW TRIAL-—Effect ON JUDGMENT.

Where an appeal from a judgment is dismissed, the judgment is vacated by a subsequent order granting a new trial on appeal from an order denying the same.

2. SAME-SPECIFICATION OF ERRORS-FORM. ed 255 specifications of errors of law occurring Appellant's motion for a new trial containat the trial as to which appellant's brief coutained only a reference to pages "685–703” of the transcript, making such pages and each and all of the specifications of errors of law therein set forth a part of its specifications, designating each of the errors as grounds for reversal of the order denying a new trial. The transcript merely contained bare specifications of alleged errors, and there was neither in the transcript nor brief any reference to the page or folio of the transcript where any ruling complained of was shown nor any argument in support of the alleged errors appeared. Held, that such specifications were fatally defective.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3093.]

Department 1. 1. Appeal from Superior Court, Santa Barbara County; J. W. Taggart, Judge.

Action by John S. Bell against George Staacke and others. From a judgment in favor of defendants and from an order denying plaintiff's motion for a new trial, he appealed. Appeal from judgment dismissed. Order affirmed.

See 83 Pac. 245.

Richards & Currier and J. L. Crittenden, for appellant. T. Z. Blakeman, for respondents.

ANGELLOTTI, J. Plaintiff brought this action against defendant Staacke, and the representatives of the estate of Thomas Bell, deceased, to obtain a decree declaring that a tract of land in Santa Barbara county containing 10.000 acres, the title to which stands of record in the name of said Staacke, is held by him in trust for plaintiff, and requiring a conveyance thereof to him by Staacke. The defendants, by answer and cross-complaint, alleged that, while the title to the land was held by Staacke in trust for plaintiff, it was also held by him as security for certain advances made by Thomas Bell in his lifetime, at the instance and for the benefit of plaintiff, and asked that the claim of the estate against the land be enforced by a sale thereof. Upon a former trial the trial court, while finding that plaintiff was indebted to the estate of Thomas Bell in the sum of $52,120.15 for money advanced and

loaned him by Thomas Bell, also found that the land was held by Staacke in trust solely for plaintiff, and not as security for any indebtedness due from him to the estate. It therefore gave personal judgment only in favor of the estate against plaintiff for the said amount, and directed a conveyance of the land by Staacke to plaintiff. The defendants appealed from the judgment and from an order denying their motion for a new trial. The appeal from the judgment was dismissed on the ground that the same had been prematurely taken. Bell v. Staacke, 137 Cal. 307, 70 Pac. 171. On the appeal from the order denying the motion for a new trial, which was subsequently heard, it was decided by this court that the evidence was insufficient to sustain the conclusion of the trial court that the land was not held as security for the payment of the indebtedness due Thomas Bell from plaintiff; it being declared after a careful view of the evidence contained in the record that such evidence showed without substantial conflict that the land was conveyed to Staacke to be held by him as security for the payment by plaintiff to Thomas Bell of all sums of money theretofore advanced or thereafter to be advanced to plaintiff by said Thomas Bell. The order denying defendants' motion for a new trial was reversed, except as to the issues relative to the amount of indebtedness due the estate from plaintiff, and the cause remanded for a new trial except as to the issues last referred to. Bell v. Staacke, 141 Cal. 186, 74 Pac. 774. Upon the new trial, which was had on the same pleadings, without change or amendment of any kind therein, the court found in favor of defendants upon the issues tendered by the answer and cross-complaint, and determined that Staacke holds the land in trust, first, as security for the payment of the sums due the estate, amounting with interest accrued on the $52,120.15 indebtedness to $95,101.07; and, second, in trust for the use and benefit of plaintiff. Judgment was given for the sale of the land for the payment of the indebtedness, together with costs and accruing interest. Plaintiff appealed from such judgment and from an order denying his motion for a new trial, but the appeal from the judgment has heretofore been dismissed.

It is contended that the evidence on the retrial was insufficient to sustain any of the material findings in favor of defendant. An examination of the 466 pages of the printed transcript containing the evidence given on the retrial shows that the evidence before the court was practically the same as that given on the former trial. Most of the testimony given consisted, by stipulation, of transcriptions of the reporter's notes taken at the former trial, and the additional evidence introduced did not materially affect the situation. The evidence was amply sufficient to support all the material allegations.

The brief of counsel for plaintiff contains a statement of facts which they claim were admitted by the pleadings, and which, they further claim, are in some respects contrary to the findings. This matter was available to plaintiff on the former appeal in support of the decision on the facts there under review; there having been no change in the pleadings. We have examined the record in the light of this statement of counsel, and find no admission in the pleadings contrary to any finding of fact, unless the pleadings show an admission that on or about March 6, 1889, the plaintiff and Thomas Bell by consent rescinded the agreement relating to the holding by said Thomas Bell, as security for plaintiff's indebtedness, of the Grover notes and mortgages, which agreement is described in the former opinion. 141 Cal. 197. The allegation to this effect was made in one of plaintiff's amendments to plaintiff's amended and supplemental complaint, and it is claimed that the allegation was not denied. It was apparently treated at the trial as denied, and evidence was received thereon, the trial court finding against the allegation. This matter is, however, of no importance on this appeal. It may be assumed that the rescission of this agreement as to the Grover notes and mortgages was made as alleged, and there is still ample evidence to support the material findings of the court as to the terms and conditions upon which the land in dispute was placed in the name of Staacke. If the court had found in accord with such allegation of rescission, instead of against it, such finding would have been simply a finding as to a specific fact not necessarily inconsistent with the findings as to the agreement and understanding upon which the land was placed in the name of Staacke. What we have said on this point sufficiently disposes also of the claim that, by reason of said alleged admission, the decision is against law, and the claim that, for the same reason, the findings do not support the judgment. It should be observed, however, that questions as to the sufficiency of the findings to support the judgment cannot be considered on an appeal from an order granting or denying a motion for a new trial.

A claim that the superior court had no jurisdiction to retry this case, notwithstanding that it was remanded by this court for a new trial, is based on the fact that the appeal from the former judgment in favor of plaintiff was dismissed. This, it is said, constituted an affirmance of the judgment. preventing the subsequent giving of any other judgment. But a judgment, even although expressly affirmed on appeal, is vacated by an order granting a new trial. See Swett v. Grey, 141 Cal. 83, 88, 74 Pac. 551.

There are 285 specifications of errors in law occurring at the trial made in the statement on motion for a new trial. As to these,

all that is said in their brief by counsel for plaintiff is that they "hereby specially and respectfully refer to pages 685 to 703 of the transcript as to the specification of errors in law occurring at the trial and excepted to by the plaintiff, and hereby make said pages of the transcript, and each and all of the specifications of errors of law therein set forth a part of this point and of these points and authorities as if set forth at length herein, and we hereby point out and designate each of said errors so specified as one of the grounds upon which appellants claim the right to a reversal of said order denying a new trial." The portions of the transcript thus referred to contain simply the bare specifications of alleged errors. There is neither in transcript nor brief any reference to the page or folio of the 723page transcript where any ruling complained of is shown, or any argument in support of the claim that the trial court erred to plaintiff's prejudice in any of these rulings. der such circumstances we are justified in disregarding such claim altogether. See People v. Wo, 120 Cal. 294, 297, 52 Pac. 833; Whyte v. Rosencrantz, 123 Cal. 634, 642, 56 Pac. 436, 69 Am. St. Rep. 90; People v. Gibson, 106 Cal. 458, 475, 39 Pac. 864; People v. Daniels, 105 Cal. 262, 264, 38 Pac. 720; Wheelock v. Godfrey, 100 Cal. 578, 589, 35 Pac. 317; Neylan v. Green, 82 Cal. 128, 23 Pac. 42; West v. Crawford, 80 Cal. 19, 33, 21 Pac. 1123. It is proper to say, however, that in our examination of the evidence contained in the record we have discovered no erroneous ruling on the part of the trial court.

Un

1. ABATEMENT AND REVIVAL OTHER ACTION PENDING.

Evidence that a prior suit to quiet title to the same lot against the same parties had been brought by plaintiff's predecessor in interest, and was pending as to defendants S. when the present action for the same relief was brought against them and others, was sufficient to entitle them to the abatement of the present action.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, §§ 73, 76.] 2. PROCESS-PUBLICATION SUMMONS-AFFI

DAVIT.

An affidavit for publication of a summons against nonresidents recited that they had been sought for to obtain service, but after diligent search and inquiry could not be found within the state. It then proceeded to show the kind of search and inquiry that had been made; that the affiant had made inquiry of all persons from whom he could expect to obtain information as to the residence of the defendants, together with the names of the persons of whom he made inquiries, and why he expected them to

Where a judgment in a suit to quiet title determined that a party to the action was the ment was admissible in evidence in behalf of a owner of the property in controversy, such judgparty claiming under the judgment and subsequently asserting a claim to the property affected by it, as a link in his chain of title as against persons not parties nor privies claiming an interest in the property.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, § 1233.]

Department 2. Appeal from Superior Court, Los Angeles County; P. Conrey, Judge.

Action by William Chapman against O. A. Moore and others. From a judgment in favor of defendants, and from an order denying plaintiff's motion for a new trial, he appeals. Affirmed as to defendants Strohm and reversed as to defendant Moore.

Charles Lantz, for appellant. William Chambers, for respondents.

LORIGAN, J. This action was originally commenced by M. M. Davis as plaintiff, and subsequent to its commencement the present plaintiff, William Chapman, was substituted in the superior court for said Davis as plaintiff. The action was brought to quiet title to lot 4 in block C of the Sunset tract, in the city of Los Angeles; the plaintiff making the usual allegations of ownership of the property, and the defendants asserting claims thereto adverse to him. The defendant O. A. Moore, in her answer, denied the alleged ownership of plaintiff, and asserted ownership of the lot to be in herself. The defendants Strohm, in a separate answer, also denied the ownership of plaintiff, and asserted that

the defendant Susan Strohm was the owner of the property. These latter defendants also pleaded in abatement of the present action the pendency of a prior action brought against them by M. M. Davis to quiet title to this same lot. Upon the trial the court found in favor of the defendants Strohm on their plea of abatement, found also that plaintiff was not the owner of the property, and entered judgment that the action abate as to the Strohms, and in favor of O. A. Moore for her costs. Plaintiff appeals from the judgment and an order denying a motion made by him for a new trial. On the trial of the cause the only evidence presented upon the issue of ownership of the property was that offered by the plaintiff. No evidence was offered by the defendants at all save by the Strohms in support of their plea in abatement.

As grounds for a reversal it is insisted by

appellant that the court erred in sustaining the plea of abatement interposed by the Strohms, that it erred also in rejecting certain evidence offered by plaintiff, and that the finding of the court that plaintiff was not the owner of the property in dispute was not justified by the evidence.

This was

As to the plea in abatement: the first issue tried by the court. In support of it the Strohms offered in evidence the record in the suit of M. M. Davis v. B. E. Ninde, Samuel Strohm, Susan Strohm, William Patterson et al., which showed that a suit to quiet title to the same lot involved in the action then on trial was commenced February 3, 1903 (the complaint in this action was filed August 27, 1904), and was then pending as to the said defendants Strohm. This was the only evidence offered, and at its conclusion a motion was made on behalf of said defendants Strohm, on such showing, to have this action as to them dismissed. which was granted. The showing was sufficient to sustain the plea and upon it the Strohms were entitled to have the subsequent action against them abated. Section 430, subd. 3. Code Civ. Proc.. and section 433, Code Civ. Proc. The Strohms by this order of the court having been dismissed from the case, the trial then proceeded between the plaintiff and the defendant Moore. To sustain his title against her, plaintiff offered in evidence, among other documents, a certificate of sale of said property made July 3, 1895, to the state of California for state and county taxes for the year 1894, a deed of said property, dated July 6, 1900, from the county tax collector to the state of California for said taxes, also a deed of said property from said tax collector to plaintiff dated September 21, 1901, made pursuant to an authorization of the State Controller to sell said land. The court refused, upon defendants' objection, to admit such instruments in evidence, and this ruling is assigned as error. In the briefs of respondent no grounds are suggested in support of the ruling and no specific objections are urged against the validity of these sereral tax-sale instruments. Counsel for respondent simply says: "The questions as to the validity of this state deed involved in this action are the same as those now before the Supreme Court in the case of Barrett (which should have been Baird) versus Munroe, Los Angeles No. 1623 ***.” The case of Baird v. Munroe, 89 Pac. 352, had not been decided by this court, when the briefs in this present appeal were filed, but it has been since, and the various grounds urged against the validity of a tax deed there involved, similar to the one in question here, were deemed untenable, and the validity of the deed sustained. It is unnecessary to refer here to the objections urged against the deed considered in that case, or to restate the grounds upon which the court sustained its validity, as they will fully appear from an examination of the decision rendered. Baird

v. Munroe, 89 Pac. 352. See, also, Carter v. Osborn, 89 Pac. 608. It follows, therefore, that the trial court erred in refusing to admit in evidence the tax deed offered by plaintiff.

The only other questions presented upon this appeal involve the validity of a certain judgment and its effect, if valid. It was stipulated on the trial that a certain deed dated and recorded in October, 1887, conveyed title in fee to the lot of land in controversy here to one Walter Patterson. Such admission being made, the plaintiff offered in evidence a judgment roll in a suit brought by M. M. Davis, the predecessor of plaintiff, versus B. E. Linde, Samuel Strohm, Susan Strohm, and Walter Patterson (the same action heretofore referred to as pleaded in bar by the Strohms), which showed that an action to quiet title to this same property was commenced by Davis against the defendants by complaint filed February 3, 1903; that an affidavit and order for publication of summons on one of the defendants-Walter Patterson -were subsequently made and filed and service of the summons made upon said Patterson by publication; that the default of Patterson was subsequently entered and thereafter on April 4, 1904, a decree was entered quieting the title of said Davis to said lot against the said defendant Patterson. No objection was offered to the admission of the judgment roll, and it was received in evidence. The plaintiff supplemented this offer by proof of a conveyance of the lot in controversy from M. M. Davis to himself, and rested his case.

It is insisted by appellant that this showing the admission of title in Patterson at a given date, the decree quieting title subsequently obtained against Patterson by plaintiff's predecessor Davis, and the conveyance of Davis to himself-sustained his claim of ownership to the property against the defendant Moore, and the finding of the court that he was not such owner was not justified by the evidence. This claim of appellant is in our judgment unquestionably true, unless, as insisted by respondent, the decree quieting title to the lot in question against Patterson in the case just referred to is void, or unless there is some merit in the position of respondent, that, even if valid, the decree was not available to plaintiff as a muniment of title against her.

Now, as to the validity of the decree: The order for service of summons upon the defendant Patterson by publication was based on an affidavit of the attorney for Davis purporting to make out a sufficient showing that defendant Patterson, at the time when the service of summons was sought to be made uopn him. could not, with due diligence, be found in the state of California. It is contended by respondent, and this is the only point made as to the sufficiency of the affidavit. that, while it shows that the affiant made inquiries to ascertain the whereabouts