there intimated presents a question admitting of the gravest consideration, and that, too, whether the decree of the superior court be held to amount to conclusive evidence of certain facts, or only prima facie evidence of those facts. In Tregea v. Irrigation Dist., 161 U. S. 179, 17 Sup. Ct. 52, 41 L. Ed. 395, much is said tending to weaken the force and vitality of the confirmation act as an act providing for judicial procedure and judgment. It is there said, in speaking of the appeal then before the court: "But, going beyond this matter, we are confronted with the question whether in advance of the issue of bonds, and before any obligation has been assumed by the district, there is a case or controversy with opposing parties, such as can be submitted to and can compel judicial consideration and judgment. This is no mere technical question. All that could be accomplished by an affirmance of the decision of the state court would be an adjudication of the right to make a contract, and, unless, the board should see fit to proceed in the exercise of the power thus held to exist, all the time and labor of the court would be spent in determining a mere barren right, -a purely moot question. * *" And

again the court said: "It may well be doubted whether the adjudication really binds anybody." It is thus plainly manifest that, under the construction this court has always given the act, we find it badly maimed by this decision of the supreme court of the United States rendered in dismissing the appeal in the Tregea Case. It is to be regretted that the opportunity did not present itself to that court at that time to test the validity of the act in the crucible furnished by the constitution of the United States, giving the act the construction placed upon it by this court. But by our decisions the constitutionality of the act has been directly and impliedly passed upon and approved more than once, and we will not now enter into a discussion of that question. The issue was squarely made and met in Crall v. Irrigation Dist., 87 Cal. 140, 26 Pac. 797, and Cullen V. Water Co., supra, and we leave the matter resting upon those decisions and the cases there cited.

It is next insisted that the state is barred and estopped from bringing this action by reason of the proceedings taken under the confirmatory act in San Diego county, which resulted in a judgment to the effect that the organization of the district was regular, and the issue of bonds constituted a valid issue. If the construction of this confirmatory act heretofore given by this court be the correct construction; if the judgment rendered under that act be a judicial decision, possessing the scope, effect, dignity, and efficacy of the usual and ordinary judgment of courts of general jurisdiction; if it be not only such a judgment, but a judgment in rem,-then the state, like an ordinary individual, is estopped from questioning it. Such a judgment is

binding on the whole world, and the state comes within that territory. No case is cited, and we believe there is none, holding that a judgment in rem does not bind the state. This question as to the binding force and effect of such a judgment upon the state was directly raised and decided in State v. McGlynn, 20 Cal. 233. That was an action brought by the state, and it was held that the state was barred by a judgment in rem which had been rendered upon the probate of a will declaring that will to be a valid and testamentary instrument. And likewise in State v. Blake, 69 Conn. 78, 36 Atl. 1023, as to the probate of a will, it was held as to the state: "The present plaintiff was a party to that proceeding sufficiently to be bound thereby." In speaking as to the right of the state to inquire into these matters by quo warranto, the supreme court of Texas (State v. Goodwin, 69 Tex. 57, 5 S. W. 678) said: "The legislature, however, may make the fact of incorporation or no incorporation to depend upon the action and determination of some official or tribunal whose determination the courts will have no power to revise, and if this be done, in a proceeding by quo warranto against persons who assume to exercise powers given by the act of incorporation, no inquiry can be made into the legality of the corporation." If such action and determination of an official or tribunal is a conclusive bar to subsequent proceedings by the state in quo warranto, it surely cannot be urged successfully that a judgment, such as we have here, unappealed from and final in all respects, is not a bar to a proceeding in quo warranto by the state. The decisions from this state which we have heretofore quoted, and others not quoted, declare that proceedings taken under this act are judicial in character, culminating in the judgment of a judicial tribunal, and that such judgment is one fixing the status of these irrigation districts, and binding on all the world. For this reason it seems the state is foreclosed, by the judgment rendered in San Diego county, from attacking the validity of the organization of this district, and the validity of the issue of bonds made by the district.

It is sought by this action to re-examine the identical questions passed upon by the superior court of San Diego county. The judgment rendered in that court is not attacked on any equitable grounds, even if such a thing were within the law. But it is alone sought to again go over in the various steps leading up to the order made by the board of supervisors, and the judgment of the superior court declaring defendant an irrigation district regularly and legally organized under the Wright irrigation act. As supporting a claim of right to now review that action, it is urged that the state was not a party to the confirmatory proceeding. If the judgment was one in rem, it would seem, ex necessitate, that the state was a party to the proceeding. It was so held in the McGlynn

Case. We cannot imagine a judgment in rem to which the state would not be a party. The very nature and character of such a judgment forbids any other conclusion. It is insisted that the confirmatory act itself does not contemplate or allow the state to appear as a party at the trial held under the provisions of the confirmatory act. The act says: "The notice shall state the time and place fixed for the hearing of the petition and the prayer of the petition, and that any person interested in the organization of said district, or in the proceedings for the issue or sale of said bonds, may, on or before the day fixed for the hearing of said petition, demur to or answer said petition." St. 1889, p. 212, 3. Again the act says: "Any person interested in said district, or in the issue or sale of said bonds, may demur to or answer said petition." Id. p. 213, § 4. When we look at the purpose of this act, as indicated by its face, and as more clearly indicated by the decisions of this court, it is apparent that there never was any intention upon the part of the state legislature that the state should be allowed by quo warranto, or in any other way, to attack the organization of these districts after a judgment of confirmation had been had. If that could be done, then the entire confirmatory act is useless legislation,-a mere nullity. A judgment under the act would settle nothing. Again, under the provisions of the act just quoted, we are satisfied that the state could have appeared at the trial held under the confirmation act, and have denied the organization of the district. The opportunity then presented itself, and the state should have embraced it. Hence it has not been deprived of an opportunity to make the attack which it is now making.

This court has repeatedly held that corporations of the character of defendant are quasi public corporations, and by the complaint in this action it appears that the defendant is, at least, a de facto quasi public corporation. This court has also repeatedly held that upon collateral attack the validity and regularity of the organization of this class of corporations cannot be questioned. People v. La Rue, 67 Cal. 530, 8 Pac. 84; First Baptist Church v. Branham, 90 Cal. 22, 27 Pac. 60; People v. Water Co., 97 Cal. 276, 32 Pac. 236; Reclamation Dist. v. Gray, 95 Cal. 601, 30 Pac. 779; Swamp Land Dist. v. Silver, 98 Cal. 51, 32 Pac. 866; Quint v. Hoffman, 103 Cal. 506, 37 Pac. 514; Reclamation Dist. v. Turner, 104 Cal. 334, 37 Pac. 1038; Hamilton v. County of San Diego, 108 Cal. 284, 41 Pac. 305. If a proceeding in quo warranto by the state must be resorted to in order to test the de jure character of these corporations, the confirmatory act would serve no purpose on the statute books, if the state be not bound by the judgment rendered in the proceeding. Indeed, it would seem, in the light of the above decisions of this court, that this statute was enacted for the very object of binding the state. We see no other practical pur

pose that could have actuated the mind of the legislature in creating it.

It is claimed that the confirmatory act is unconstitutional, in this: That the subjectmatter thereof is not covered by the title. The title of this act is herein before set out. It is not necessary that the title of an act should embrace an abstract or catalogue of the contents. "When the general purpose of the act is declared, the details provided for the accomplishment of that purpose will be regarded as necessary incidents." Ex parte Liddell, 93 Cal. 636, 29 Pac. 251. In Spier v. Baker, 120 Cal. 370, 52 Pac. 659, it was held that an act, by its title pertaining to primary elections, could not contain legislation as to political conventions. Such character of legislation furnishes a clear example of a violation of the provision of the constitution here involved. In a proceeding brought for the purpose of determining the validity of an issue of bonds, one of the most vital questions arises upon the validity of the organization of the district contemplating the issue of said bonds. A valid organization of the district is a condition precedent to a valid issue, and, of necessity, the validity of the organization must be considered and passed upon in a proceeding brought directly to test the validity of the issue of bonds. For this reason we deem the title sufficiently broad to cover the subject-matter of the act. It is ordered that the judgment be affirmed.

1. Where plaintiff, prior to commencement of an action, had agreed with his attorneys that they should receive one-half of any recovery, it was error to enter judgment of dismissal against plaintiff under his stipulation with the attorneys for defendants, made without knowledge or consent of plaintiff's attorneys.

2. Plaintiff agreed with his attorneys that they should receive one-half of any recovery, after which judgment of dismissal was entered under stipulation with defendants' attorneys without the knowledge of plaintiff's attorneys. A motion of plaintiff to set aside such judgment of dismissal was overruled. Held, a bill of exceptions showing, as one of the grounds of the motion that plaintiff's attorneys did not know of such action, and that defendants appeared at the hearing of the motion resisting it on its merits. with no objection that previous notice had not been given, showed a waiver of the usual notice of motion.

3. Under Code Civ. Proc. § 473. providing for relief from judgments where plaintiff, prior to commencement of an action, had agreed with his attorneys that they should receive one-half of any recovery, after which judgment of dismissal was entered against plaintiff, under his stipulation with defendants' attorneys, without knowl

edge of his attorneys, no affidavit of merits was necessary on motion of plaintiff to set aside such judgment, as such proceedings need net be in accordance with section 473; the stipulation being invalid, the other grounds of the motion may be disregarded.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco.

Action by Morgan S. Toy against Sarah E. Haskell and another. From an order denying a motion to set aside a judgment of dismissal, plaintiff appeals. Reversed.

Borna McKinne and A. F. Benjamin, for appellant. Carson & Savage, for respondents.

GRAY, C. Appeal from an order denying plaintiff's motion to set aside a judgment of dismissal. In the beginning of this case the plaintiff appeared by the attorneys whose names are signed to the complaint herein. Previous to the commencement of the action plaintiff entered into a written contract with said attorneys by which they were to have one-half of whatever might be recovered in the action as compensation for their services, said attorneys agreeing to pay the necessary costs of the case. Thereafter, without any substitution or change as to his attorneys, and without their knowledge or consent, the plaintiff, in person, signed and delivered to defendants' attorneys a written stipulation prepared by them authorizing a dismissal of the case, and a judgment of dismissal was accordingly entered.

1. It is the law of this state, settled by repeated decisions, that a party must be heard in court through his attorney, when he has one, and the court has no power or authority of law to recognize any one in the conduct or disposition of the case except the attorneys of record. So thoroughly has this question been canvassed that it is useless to do more than to cite some of the more important cases on the subject. Canal Co. v. Montgomery, 124 Cal. 134, 56 Pac. 797; Wylie v. Gold Co., 120 Cal. 485, 52 Pac. 809; Mott v. Foster, 45 Cal. 72; Commissioners v. Younger, 29 Cal. 149. It should be borne in mind that the question here under consideration relates to the power of a party to control the course of the action in court; and the case, therefore, is to be distinguished from those which merely involve the right of a party to compromise, settle, and acknowledge satisfaction of the claim on which the action is based, and the effect of such a settlement as a defense to the action. Of this latter character is the case of Hogan v. Black, 66 Cal. 41, 4 Pac. 943, cited in respondent's brief. See Theilman v. Superior Court, 95 Cal. 224, 30 Pac. 193. We think the court erred in recognizing the stipulation signed only by the plaintiff, and should have corrected that error by granting plaintiff's subsequent motion, properly made through his attorneys, to set aside the judgment.

2. We think the record before us sufficient

to present the questions discussed on this appeal. The bill of exceptions, to be sure, cannot be recommended as a model, but it appears on the second page thereof that one of the grounds of the motion to set aside the judgment of dismissal will be "that the attorneys for the plaintiff did not consent to or have any knowledge of the stipulation or agreement signed by the plaintiff for said dismissal." The bill of exceptions shows that much of the evidence presented on the hearing was directed to the ground of the motion above quoted, and that some of the affidavits which are set out were "filed and read by the defendants on the hearing of said motion." It also appears that the motion was argued, submitted, and by the court denied. The appearance of the defendants at the hearing of the motion, and their resisting it on its merits, without any objection that no previous notice had been given, was a waiver of the usual notice of motion. We cannot, therefore, uphold respondents' objection based on the insufficiency of the record.

3. Nor do we think that an affidavit of merits was necessary. The motion was not to open a default, but to set aside a judg ment that had been entered without authority of law. The stipulation on which the judgment of dismissal was based was unauthorized, and the judgment was no better than it would have been if the court had arbitrarily dismissed the action without any stipulation or motion at all. It is apparent, therefore, that the proceeding to set aside a judgment like this need not be in accordance with the provisions of section 473, Code Civ. Proc., nor is it subject to the rules governing motions made to vacate judgments in pursuance of and for the reasons stated in that section. To be sure, one of the grounds of the motion stated was "inadvertence and surprise," but the motion should have been granted for the invalidity of the stipulation, and the other grounds stated may therefore be disregarded. That no affidavit of merits is necessary on a motion of this character is held in Norton v. Railroad Co.. 97 Cal. 338, 30 Pac. 585, 32 Pac. 452, and in Canal Co. v. Montgomery, supra. For the foregoing reasons, we advise that the order appealed from be reversed.

We concur: HAYNES, C.; SMITH, C.

PER CURIAM. For the reasons given in the foregoing opinion, the order appealed from is reversed.

128 Cal. 523

RAUER v. FAY. (S. F. 1,461.) (Supreme Court of California. May 5, 1900.) APPEAL AND ERROR--MOTION FOR NEW TRIAL -SPECIFICATION OF ERRORS-INSUFFICIENCY OF EVIDENCE-FINDINGS—ANSWER JUSTIFYING JUDGMENT.

1. Where a motion for new trial under Code Civ. Proc. § 659, requiring specification of par

ticular errors when insufficiency of the evidence is designated as the ground of a motion, and that the statement be disregarded if no specification is made, contained no specification of insufficiency of evidence as to affirmative defenses found by the trial court to be true, no examination of such statement to determine the sufficiency of the evidence can be made on appeal from an order granting the motion.

2. Where an answer in a suit for work done under a contract between plaintiff's assignor and defendant pleaded as a defense that plaintiff's assignor, at the time of making the contract, agreed that defendant should not be compelled to pay for any of such work, and executed an acquittance from all liability under the contract, which defense was found by the court to be true, a motion for new trial on a statement of the case, which did not contain specifications of particulars as to insufficiency of the evidence to support such defense, was erroneously granted, though such motion contained specifications of particulars as to portions of the complaint supported by the evidence, but found to be untrue, since a failure to specify insufficiency of the evidence was an admission of its sufficiency; and, as such defense justified a judgment, the decision did not rest on the allegations of the complaint, and they were immaterial, and an erroneous finding that they were untrue was of no consequence.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco.

Action by J. J. Rauer against David Fay to recover for work and labor. There was a judgment for defendant, and from an order granting a new trial he appeals. Reversed.

Wm. H. Chapman, for appellant. Geo. D. Shadburne, for respondent.

CHIPMAN, C. The cause was here once before, and is reported in 110 Cal. 361, 42 Pac. 902. The action there was to enforce a mechanic's lien for certain street work done under a contract entered into between the plaintiff's assignor and defendant. The plaintiff had judgment, which was reversed. It was held that the contract was too uncertain and indefinite to entitle it to be admitted under the allegations of the complaint, but it was suggested that "possibly, had the contract been set out in the complaint, with proper averments of the intention and object of the parties, it might, upon proof, have been so reformed as to be available as a basis of recovery." The amended complaint sets forth the contract in its legal effect, and not by its terms, and does not ask for its reformation. It calls for a personal judgment, and the matter of lien is eliminated. At the trial, defendant had judgment, and on plaintiff's motion the court made an order granting a new trial. Defendant appeals from the order. The trial was by the court without a jury, and it made general findings as follows: "(1) That none of the allegations of plaintiff's complaint are true; (2) that all the allegations of defendant's answer are true." And, as conclusion of law therefrom, "that defendant is entitled to judgment against plaintiff for his costs," and judgment was accordingly entered.

Plaintiff, in his specifications of particu lars, pointed out several averments of the complaint, which, as is claimed, in fact were fully supported by the evidence, but which the court found to be untrue. At the former trial, when the contract was offered in evidence, it was objected to, but the objection was overruled. The ruling was held to be error on appeal, for the reasons above stated, and that it should have been excluded. At the last trial the contract was admitted in evidence without objection, and witnesses were permitted, without objection, to state the work performed pursuant to the contract. Defendant denied specifically the allegations of the complaint, and pleaded, by way of a second defense, a release and full acquittance, and also a third defense, based upon certain ordinances of the city, which required a permit from the superintendent of streets, based upon a contract signed by threefourths of the property owners on the portion of the street where the work was proposed to be done. There is no specification of insufficiency of evidence to sustain the last two affirmative defenses, and appellant claims that as to these the statement must be disregarded,-citing section 659, Code Civ. Proc.; and it is contended that, if either of these defenses is good, the judgment should stand, and the new trial should have been denied. It is well settled that the party moving for a new trial, upon a statement, for insufficiency of the evidence, must point out the particulars wherein the evidence is insufficient, and that, failing to do so, the statement relating to the alleged insufficiency must be disregarded. Upon an appeal from an order denying a new trial this court cannot consider the sufficiency of either the complaint or of the findings to support the judgment. Brison v. Brison, 90 Cal. 323, 27 Pac. 186. The above rules are applicable also where the appeal is from an order granting a new trial. There being no specifications of particulars relating to the evidence in support of defendant's second and third defenses, we cannot examine the statement to determine whether or not the evidence was insufficient to support them. We must assume that it was sufficient, and it follows that the only question before us is whether the judgment necessarily rested upon the findings as to the truth or falsity of the allegations of the complaint. If the cause was properly decided upon the issues raised by the special defenses, and the decision did not necessarily rest upon the allegations of the complaint, the latter became immaterial, and it is of no consequence whether the finding as to them was or was not contrary to the evidence. Brison v. Brison, supra; Moore v. Copp, 119 Cal. 429, 51 Pac. 630; Code Civ. Proc. § 475. The court found the facts as to the special defenses alleged in the answer to be true, and, as this finding cannot be attacked as the record stands, we are to determine whether the result would

have been the same if the court had found the allegations of the complaint to be true. The answer alleged that simultaneously with the execution of the contract sued on "the said J. G. Duffy [plaintiff's assignor] agreed that this defendant should not be required to pay any sum of money whatever for any of said proposed work, and then and there, and as a part of the said contract, the said J. G. Duffy made, executed, and delivered to defendant a full acquittance from any and all liability on said contract by reason of this defendant so having signed the same; and that said contract herein referred to is the only contract ever entered into between said Duffy and this defendant." As to the alleged release the court said in the former appeal: "The mere fact that the plaintiff was not aware of this release at the time he took an assignment of the contract is of no moment. He must be deemed to have taken such contract cum onere, subject only to the duty of defendant to notify him of any conditions not specified in the contract itself; such as its full execution, payment thereunder," etc. This defense was, therefore, sufficiently pleaded, and, if supported by evidence, would constitute a complete defense to the action. The court found the allegations of the answer to be true. We cannot see but that it justified the judgment in favor of defendant, even if it be admitted that the allegations of the complaint are true, and were erroneously found to be untrue. With this finding before the trial court, unassailed for insufficiency of the evidence to support it, the court had no discretion to grant a new trial. A failure to specify insufficiency of the evidence is an admission that it is sufficient. The reason of the rule is obvious. The trial court is entitled to have the insufficiency of the evidence pointed out in order that it may intelligently pass upon it, and in order, also, that the statement may be amended, if necessary, to conform

the evidence. And this court will not consider the statement unless such specification is made, for the reason that it can take notice only of what was first presented to the lower court. If plaintiff had desired to challenge the findings as to defendant's special defenses, it was his duty to present specifications of insufliciency of the evidence to support them. Having failed to do so, we cannot consider the evidence to see whether it does or does not support such defenses. It is not necessary to inquire whether the third defense was sufficient, as the judgment may rest upon the second defense.

Respondent quoted, in his brief, from the opinion of the learned trial judge when rendering judgment at the trial. Whether the court granted a new trial because it thought the reasons given for its decision at the trial were wrong we do not know. The court gave no reasons for the order, and it is not material what the reasons were. Appellant claims that the court had a right to recon

sider its conclusions of law drawn from the proof of the special defenses pleaded by defendant. This would be true if respondent had properly presented the matter by specifications. How can we say that the court reconsidered its conclusions when it appears that it did not have any specifications before it pointing out the insufficiency of the evidence? It is advised that the order be reversed.

We concur. GRAY, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the order is reversed.

(128 Cal. 516) CARPENTER v. SAN FRANCISCO SAV. UNION. (Sac. 776.)1

(Supreme Court of California. May 4, 1900.)

SWAMP LANDS

RECLAMATION DISTRICTSSWAMP-LAND FUND-EVIDENCE OF RECLAMATION-SALE OF LAND-STATUTORY CONSTRUCTION.

1. Pol. Code, § 3472, provides that reclamation districts of swamp lands may be formed. Section 3476 declares that when the board of supervisors is satisfied that the work of reclamation is completed, or $2 per acre has been expended on the work, such facts shall be certified to the register. Section 3477 authorizes repayment to the original purchasers from the swamp-land fund after the certificate to the register. Plaintiff's assignor on November 13. 1895, presented evidence that he had expended $2 per acre in reclamation of swamp lands, which evidence was acted on by the board of supervisors July 15, 1897. On December 31, 1895, the lands were conveyed to defendant, who collected the amount found due. Held, in an action to recover the payment, that when the evidence was presented November 13, 1895, and acted on in July, 1897, the right to the money related back to the date of presenting such evidence, and as such amount was personal property, and did not follow the land, the party who expended the money and became entitled to payment did not lose such right because he afterwards sold the land, and payment made defendant could be recovered.

2. Under Pol. Code, § 3477, authorizing repayment to original purchasers or their assigns of money expended in reclaiming swamp lands, the word "assigns" refers to one to whom the indebtedness had been assigned by the owner, and not to a purchaser of the land.

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

Action by Mrs. Elizabeth Carpenter against the San Francisco Savings Union to recover payment made of swamp-land funds for reclamation of swamp lands. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

II. H. McCloskey, for appellant. Needham & Dennett, for respondent.

COOPER, C. Judgment was entered in favor of plaintiff upon an agreed statement of facts, and defendant has appealed from the judgment. The statement, so far as material here, shows the following facts: On and prior to the 13th day of September, 1895, one Rehearing denied May 31, 1900.