the prior claims for which the warrant in dispute was issued, as the facts in relation thereto were matters of record. Under these circumstances the maxim, "Qui prior est tempore potior est jure," controls. This is so even though the equities between all the holders are equal. 2 Pom. Eq. Jur. §§ 693, 695; Board of Education of Salt Lake City v. Salt Lake Pressed-Brick Co., 13 Utah, 211, 44 Pac. 709; Price v. The Elmbank (D. C.) 72 Fed. 610; In re Gillespie (D. C.) 15 Fed. 734; In re Mahaska Coal Co. (Iowa) 64 N. W. 405; Shirk v. Pulaski Co., 4 Dill. 209, Fed. Cas. No. 12,794.

The appellant further contends that, even if the respondent is entitled to recover the reasonable value of the goods, he cannot recover in this action, because the complaint fails to allege that a claim duly itemized and verified had been presented to the county court or board of county commissioners, and by them rejected, before suit was instituted. This point, as appears, was made for the first time in the appellate court, and therefore cannot avail the appellant; there being no statute in this state which expressly prohibits the bringing of an action on any claim before it has been so presented and acted upon. Such an objection simply goes in abatement of the action, and, to have effect, must be urged by proper plea or in some appropriate manner in the trial court, or the objection will be regarded as waived. In Jaquish v. Town of Ithaca, 36 Wis. 108, where a similar question was raised, Mr. Justice Lyon, speaking for the court, said: "Without deciding whether the claim should have been presented for audit to the town board before an action upon it can be maintained, it is sufficient for the purposes of the case to say that this objection, which is made for the first time in this court, comes too late to be available to the defendant. Conceding the objection, if taken at the proper time, to be a valid one, it only goes in abatement of the action, and should have been made on the trial, either by motion for a nonsuit or in some other appropriate manner." Gould, Pl. c. 5, p. 284; Brown v. Railroad Co., 12 N. Y. 486. We are of the opinion that in the second count of the complaint the allegations, in the absence of any special plea attacking their sufficiency, cannot be successfully assailed after judgment.

Nor do we think the appellant's objection to the allowance of interest from February, 1895, is well taken. The trial court found that the members of the county court "commenced an investigation, with the result that as early as February 15, 1895," they "became convinced" that the contracts were fraudulent and void, and determined to contest the payment of the warrants issued thereunder, and "also elected to retain the furniture"; and we cannot say that there is no proof to support such finding, and therefore cannot disturb it. Nor, under these circumstances,

can we interfere with the allowance of interest from that date.

Other questions have been presented, but, from the view we have taken of the case, further discussion is not deemed important. We find no reversible error in the record. The judgment is affirmed, with costs.

MINER and BASKIN, JJ., concur.

METROPOLITAN NAT. BANK v. REPUBLICAN VAL. BANK.

(Court of Appeals of Kansas, Northern Department, C. D. July 18, 1899.)

WRIT OF ERROR-DISMISSAL-WANT OF
PARTIES.

Where a receiver of a bank was discharged after a demurrer was sustained to petition to have a preferred claim declared a trust fund in his hands, a petition in error to reverse the order sustaining the demurrer, to which the general creditors of the bank are not parties, will be dismissed.

Error from district court, Cloud county.

Petition by the Metropolitan National Bank against the Republican Valley Bank, F. H. Butler, receiver. From an order sustaining a demurrer to the petition, plaintiff brings error. Dismissed.

C. W. Vandermark, for plaintiff in error. Pulsifer & Alexander, for defendant in error.

PER CURIAM. This is a proceeding brought by the Metropolitan National Bank, by petition in error and transcript of the record, for the purpose of reversing an order of the court sustaining a demurrer to its petition. The record shows that the Metropolitan National Bank filed its motion or petition for a preferred claim in the sum of $688.72, in a case then pending in the district court of Cloud county, entitled "The State of Kansas ex rel., etc., versus the Republican Valley Bank, Defendant," and asking that the same be declared a trust fund in the hands of the receiver, and that he be directed to pay the same, with interest. The receiver filed his demurrer thereto on the grounds (1) that it did not show facts to justify the relief or order prayed for; (2) that on its face it showed the claim for preference was barred by the statute of limitations,—which demurrer was sustained. The Metropolitan National Bank excepted to the order of the court, and prose cute this proceeding to reverse the same. The receiver, on the same day, made a report of his proceedings, showing that he had in his hands for distribution to the general creditors $817.75, whose claims aggregated $27,067.27. He also asked for his final discharge as such receiver. The court made an order for the disposition of the funds and for the discharge of the receiver.

There is an attempt made by the plaintiff in error to show that the receiver was by order of court, continued for certain purposes,

but of this fact there is no competent evidence. F. H. Butler, the receiver, was discharged from his trust by order of court, on January 31, 1898, and the only parties in interest since are the general creditors of the Republican Valley Bank, who are not made parties to this proceeding. It is apparent from the record that the only parties interested in the funds sought to be appropriated by the plaintiff in error are the creditors of the Republican Valley Bank. The proceeding must be dismissed, for the reason that these creditors are not made parties.

(131 Cal. 610)

HOLT v. HOLT et al. (L. A. 943.) (Supreme Court of California. Feb. 19, 1901.) PARTITION OF REAL PROPERTY-INTERLOCUTORY DECREE-FINAL ORDER-APPEAL AND ERROR.

1. Under Code Civ. Proc. § 963, providing that an appeal may be taken to the supreme court from an interlocutory judgment in an action for partition which determines the interests of the parties; and Id. § 956, declaring that on appeal from a judgment the court may review any intermediate decision which involves the merits or necessarily affects the judgment, except a decision from which an appeal might have been taken,-on an appeal from a final order in an action for partition, taken more than six months after the entry of an interlocutory decree therein, the court cannot consider the sufficiency of the complaint, or order overruling a demurrer thereto, since those matters were concluded by the interlocutory decree, and could have been considered on an appeal therefrom.

2. Where, on an appeal from a final order in an action for partition of real property, no objection is urged to the only matters determined by such order, the order should be affirmed.

Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; Lucien Shaw, Judge.

Action by William W. Holt against Frances M. Holt and others. From an order confirming the sale of the common property, and fixing the amount of the attorney's and referee's fees, the defendant Frances M. Holt appeals. Affirmed.

Hester & Ladd, for appellant. Chas. L. Batcheller and E. E. Bacon, for respondents.

GRAY, C. This is an action in partition in which the complaint alleges that the plaintiff, Holt, and the defendant Frances M. Holt, are tenants in common, each having an estate of inheritance to the extent of one undivided half of the whole of the fee in a certain described lot in the city of Los Angeles, and that defendant Frances Bacon has a mortgage lien on the said interest of Frances M. Holt to the extent of $500, besides interest. The action was commenced January 6, 1899, a general demurrer to the complaint was overruled, an answer filed, and a trial had, followed by an interlocutory decree of partition made on May 25, 1899, and filed on the 27th of the same month. This decree adjudicated and determined the rights and interests of the

several parties to the sult in the lot in question, found that a partition could not be had without great prejudice to the owners, and ordered that a sale be made by the referees named in the decree, and the proceeds thereof be applied by said referees (1) to the payment of the general costs, including cost of abstract and attorney's fees; (2) to payment of costs of references and sale therein; (3) that the residue be paid to the several parties to the suit, the specific part that each should receive being fully stated in the decree. The court in this decree specially reserved its finding and order as to the amount of attorney's fees to be allowed until the making of its final decree. Subsequently a sale was made under this decree to the respondent Frank Jackson, and thereafter an order confirming said sale was duly made by the court, and filed on the 6th day of January, 1900. In this order the attorney's fees were fixed at $100, and referee's fees at $30. This appeal is from the last-mentioned order, which is referred to in the notice of appeal as "the final judgment and decree therein entered in the said superior court on the 6th day of January, 1900." The notice of appeal was filed and the appeal taken on April 20, 1900, more than 60 days after the entry of the order appealed from, and more than 6 months after the entry of the said interlocutory decree.

The only reasons urged for a reversal on this appeal are: (1) The complaint does not state sufficient facts, and the demurrer to it should have been sustained; (2) the court failed to find, upon the issue tendered in appellant's answer, as to her right to a homestead upon the said property. These questions cannot be considered upon this appeal.

The objection urged against the complaint is that it fails to set forth specifically and particularly the origin, nature, and extent of the interests of the several parties in the property described in the complaint. The nature and extent of the several interests were set forth in the complaint, and if the complaint was not sufficiently specific in the respects stated, and the court had improperly overruled the demurrer, such action could be reviewed only on appeal from the interlocutory decree of partition; for that decree is a final judgment, certainly, as to all questions determined in it (Hammond v. Cailleaud, 111 Cal. 206, 43 Pac. 607); and whether the order here appealed from be treated as an order made after final judgment, or as itself a final judgment, it is plain that the decree of partition cannot be reviewed, because an appeal might have been taken from such decree (Code Civ. Proc. § 963), and any intermediate decision that might have been appealed from cannot be reviewed on this appeal (Id. § 956). For reasons apparent from the foregoing argument, we are also precluded from here reviewing or deciding anything as to the issue concerning the homestead.

This appeal cannot be treated as taken from the decree of partition, for the notice of appeal was filed after the time limited by stat

INSOLVENCY-DISCHARGE-JURISDICTION

GENERAL APPEARANCE.

Where a creditor has appeared generally in the insolvency proceedings, filed its claim, and voluntarily or in response to some notice appeared and opposed the application of the insolvent for her discharge, it should not be heard to object to the jurisdiction of the court on the ground that certain affidavits of publication of notices throughout the proceedings were insufficient to show that the court acquired jurisdiction.

Department 2. Appeal from superior court, Santa Clara county; M. H. Hyland, Judge. Application of Emily C. Yoell, an insolvent, for a discharge. From an order granting her discharge, a creditor appeals. Affirmed.

Jackson Hatch, for appellant. D. W. Burchard, for respondent.

HENSHAW, J. Emily C. Yoell petitioned for and obtained her discharge in insolvency. Written opposition to her discharge was filed by certain creditors who had proved their debts, upon the sole ground that the insolvent had concealed a part of her estate. At the hearing no testimony was offered in support of this ground of opposition, but the attorney for one of the contesting creditors opposed the discharge upon the ground of lack of jurisdiction in the court, for that certain affidavits proving publication of notices throughout the proceedings were insufficient to show that the court had acquired jurisdiction. But this particular creditor here appealing appeared in the insolvency proceedings, filed its claim in due and proper form, and later, either voluntarily or in response to some notice, again appeared and filed its written opposition to the granting of the insolvent's petition for discharge. In all this no objection was taken or suggested as to any deficiency in the notices. Having thus made its general appearance and become an actor in the insolvency proceedings, we think It may not now be heard to urge this ground In opposition. Pomeroy v. Gregory, 66 Cal. 63 P.-58.

572, 6 Pac. 492; In re Clarke, 125 Cal. 392, 58 Pac. 22. In the latter case the insolvent in a proceeding in involuntary insolvency, having appeared, demurred to the petition, and filed an answer upon which issues of fact were raised and tried, was held to have submitted himself to the jurisdiction of the court, and could not thereafter be heard to complain that he was improperly brought before it by insufficient citation. The judgment appealed from is affirmed.

We concur: MCFARLAND, J.; TEMPLE, J.

(131 Cal. 575) MARTIN v. CITY AND COUNTY OF SAN FRANCISCO. (S. F. 2,243.) 1

(Supreme Court of California. Feb. 15, 1901.)

APPEAL-LACHES-DISMISSAL.

The dismissal of an action on the ground of laches in the prosecution thereof will not be disturbed on appeal, where no abuse of discretion is shown.

Department 1. Appeal from superior court, city and county of San Francisco; John Hunt, Judge.

Action by Eleanor Martin, administratrix, etc., against the city and county of San Francisco. From a judgment for defendant dismissing the action, plaintiff appeals. Affirmed.

S. W. & E. B. Holladay and D. P. Belknap, for appellant. Franklin K. Lane, City Atty., for respondent.

PER CURIAM. The action involves the title to a tract of land in San Francisco held by the defendant for public purposes. The complaint was filed in 1872, and the answer thereto was filed in 1873. In December, 1875, upon the petition of the plaintiff, the cause was removed to the United States circuit court, and in October, 1887, was remanded to the superior court of the city and county of San Francisco. No further steps therein were taken by either party to the action until June 28, 1899, when a motion was made on behalf of the defendant to dismiss the same upon the ground of laches and want of prosecution on the part of the plaintiff. The motion came on for hearing August 18th, at which time certain affidavits and other documentary evidence in support thereof were read, and, after argument by counsel, the court made its order granting the motion, and thereupon entered judg ment dismissing the action. From this judg ment the plaintiff has taken the present appeal, and in support thereof urges that the dismissal of the action was without the authority of the court. The authority of the superior court to dismiss an action, on the ground of laches on the part of the plaintiff in prosecuting the same, has been frequently exercised, and, unless it is made to appear that there was a gross abuse of discretion 1 Rehearing denied March 15, 1901.

in making such dismissal, its action will not be disturbed in this court. The matter was very fully considered in People v. Jefferds, 126 Cal. 296, 58 Pac. 704, and more recently in Nicol v. City & County of San Francisco (Cal.) 62 Pac. 513. Upon the authority of these cases, the judgment herein is affirmed.

(131 Cal. 615)

BAKER v. BORELLO et al. (Sac. 871.) (Supreme Court of California. Feb. 19, 1901.) PRACTICE AND PLEADING MODIFYING INSTRUCTIONS-BILL OF EXCEPTIONSAMENDMENT-JURISDICTION.

1. Where the court modified an instruction requested by the defendants before giving it to the jury, but did not import therein any error prejudicial to the defendants, the defendants could not object to it.

2. Code Civ. Proc. § 473, providing that the court, in its discretion, may allow an amendment to any pleading or proceeding, does not authorize the superior court to amend a bill of exceptions which had been settled and used on a motion for a new trial before an appeal had been taken from the order denying the motion, since after appeal the court was deprived of jurisdiction, and could not change the record on which it acted in denying the motion.

Department 2. Appeal from superior court, Merced county; E. R. Rector, Judge.

Action by Joshua Baker against F. M. Borello and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

J. W. Knox and P. F. Dunne, for appellants. J. F. McSwain, J. F. Peck, F. G. Ostrander, and F. W. Henderson, for respondent.

BEATTY, C. J. The defendants in this case appeal from an order denying a new trial. The respondent makes a preliminary motion to correct the record of the proceedings in the superior court. The facts are that the defendants, in support of their application for a new trial, served a draft of their proposed bill of exceptions, which showed that the trial judge of his own motion had given a certain instruction, numbered 18, to the giving of which they had duly excepted. The proposed bill also contained a special assignment of error upon the giving of instruction numbered 18. In this particular the bill of exceptions was settled and allowed by the trial judge, Hon. J. K. Law, in substance as proposed by defendants, and was filed April 27, 1900. The motion for a new trial was submitted to Judge Minor on June 28th and denied on July 2d. Defendants appealed July 14th, filed the transcript in this court August 22d, and on October 11th filed and served their brief, in which they presented their assignment of error upon the giving of said instruction. The attention of the respondent seems then to have been drawn for the first time to this feature of the bill of exceptions, and soon afterwards, and within six months from the settlement of the bill, he com

menced proceedings to amend the record so as to make it appear that the instruction of which the appellants are complaining was really given at their request, and not volunteered by the court. After considerable delay, occasioned by a change of incumbents in the office of superior judge, an order was made by Judge Rector on January 15, 1901, correcting the bill substantially in accordance with the motion of the respondent; that is to say, it appears from the order of Judge Rector that the defendants presented the instruction to Judge Law-the trial judgewith a request that it be given, but it was not given in precisely the form in which it was requested. Before giving it, Judge Law struck out one or two words, and altered one sentence slightly, but without changing its meaning or effect. The only tendency of the alterations made by him was to make the instruction somewhat less open to the objection now urged against it than it was as originally requested by the defendants. Because of this modification of the instruction by the court before giving it, the appellants contend, in opposition to this motion,-that the statement contained in the bill of exceptions as proposed was true,that the instruction given was not the instruction they asked, but an instruction volunteered by the court; and upon this point they cite Morgan v. Peet, 32 Ill. 281, where it was decided that the party asking an instruction may except to the giving of such instruction with an addition which is prejudicial to him, and is not law. I should not doubt the correctness of that decision, but it does not fit this case. This bill of exceptions, as corrected, shows that defendants asked a certain instruction, and that the court gave it in a slightly modified form. Their right to object to it therefore depends upon whether the changes made by the trial judge imported into it some new and distinct error prejudicial to them, as in the Illinois case. We cannot see that any such change was wrought in the instruction, but, if there was, they have their exception to the modification, and that matter could be considered when the appeal is heard upon its merits. In the meantime the action of the trial court in modifying, before giving, the instruction, is no obstacle to making the record speak the exact truth. We are brought, then, to the question whether it was competent for the superior court to correct this bill of exceptions after the entry of the order denying a new trial, and an appeal to this court, and the filing of the record here. This bill of exceptions being the basis of the motion for a new trial, and the record upon which the order overruling that motion rests, can it be changed without first setting aside that order, and can that order be set aside by the superior court after it has been appealed to this court? We have no doubt that a bill of exceptions or statement which has been settled after appeal

taken may be corrected by a proper proceeding under section 473, Code Civ. Proc., commenced, as this was, within six months after the settlement, for in such cases the superior court is empowered to settle the bill or statement-i. e. to complete the recordafter, and for the purposes of, the appeal. Flynn v. Cottle, 47 Cal. 526; Sprigg v. Barber, 118 Cal. 592, 50 Pac. 682; In re Lamb's Estate, 95 Cal. 408, 30 Pac. 568. But a bill of exceptions, prepared and settled beforehand, to be used in support of a motion for a new trial, after the denial of the motion and an appeal therefrom presents a different question. We are of the opinion that in such case the record cannot be amended, and this for reasons which, though technical, are nevertheless conclusive. The appeal deprives the superior court of jurisdiction to set aside its order denying the new trial, and while that order is in force the record upon which it is based cannot be changed, and this court must review the order upon the same record upon which it was made. Hayne, New Trial & App. § 160, and cases cited. It has been held-and, we have no doubt, correctly held-that, where a new trial has been granted by an order improvidently or prematurely made before the record was properly settled and certified, this court, upon reversal of the order, may remand the cause for further and orderly proceedings upon the motion (Morris v. De Celis, 41 Cal. 331; Thomas v. Sullivan, 11 Nev. 280); but this rule of practice does not meet the exigencies of this case. What was said obiter in Grand Grove U. A. O. D. v. Garibaldi Grove No. 71, U. A. O. D. (Cal.) 62 Pac. 486, cannot be applied as a universal rule, but only to those cases in which the power of amendment has not been lost. The motion to amend is denied.

1. Where the complaint in an action against a transportation company for the loss of a trunk alleged that defendant lost the trunk, and set forth its value, and that defendant had refused to pay the same, and defendant set up a special contract limiting its liability, and offered to submit to a judgment for a certain sum, an objection after verdict that the complaint was insufficient, in that it failed to allege damages, was without merit.

2. Civ. Code, § 2176, declares that a passenger or consignor, by accepting a contract for carriage, with knowledge of its terms, assents to any limitation of liability stated therein; and section 19 declares that every person who has notice of circumstances sufficient to put a prudent man upon inquiry has constructive no

tice, where by prosecuting inquiry he might have learned them. Held that, in an action for the loss of a trunk, it was error to refuse to charge that if, when a receipt which limited the carrier's liability was delivered to plaintiff, the circumstances were such that a prudent man would have read the limitation as to liability, then he had notice thereof, and that it would not excuse him to say that he did not read the notice of limitation.

3. Where, in an action for the loss of a trunk, the court erroneously refused to charge that it was for the jury to say whether plaintiff had constructive knowledge of the limitation of liability contained in a receipt given him, such error was not harmless, on the ground that the evidence showed gross negligence on the part of the carrier, from which it cannot be exempt from liability under Civ. Code, § 2175; the question of gross negligence not having been submitted to the jury.

4. In an action against a transportation company for the loss of a trunk, it was error to admit testimony as to expenditures by plaintiff for wearing apparel, as leading the jury to consider such expenditures outside of the value of the contents of the trunk.

Department 2. Appeal from superior court, city and county of San Francisco; W. R. Daingerfield, Judge.

Action by Charles Merrill against the Pacific Transfer Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

J. P. Langhorne, for appellant. Samuel Knight, for respondent.

HENSHAW, J. This action is brought by plaintiff, assignee of his wife, to recover from the defendant, a common carrier, damages for its failure to deliver a trunk and its contents. In its answer defendant denied that the loss of the trunk was occasioned through its negligence, and further, as a special defense, pleaded a contract for the carriage of the trunk by which the limitation of liability for its loss was $100, and offered to allow plaintiff to take judgment for $100 in compensation for his injury. The case was tried before the court and a jury, and a verdict rendered in plaintiff's favor for $950. Defendant's motion for a new trial was denied, and from the judgment and from the order so denying its motion it prosecutes this appeal.

The point was made in the lower court upon the motion for a new trial, and is pressed in this court, that the complaint was not sufficient to sustain the judgment, in that it fails to allege that plaintiff has sustained damages. But, however inartificially it may have been drawn in this respect, that pleading sufficiently charges the failure of defendant to deliver the trunk in accordance with its contract, and avers that by its gross negligence and that of its servants it lost the trunk, sets forth the reasonable value of the trunk and of its contents, pleads that defendant, though requested to pay the value of the same, has refused to do so, and prays judgment in the sum of $950. Defendant by its answer treated this as a sufficient pleading, made denial of the material allegations,