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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.

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 re quired, 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 pro

91 P.--21

(151 Cal. 558) LITTLD . THATCHER. (L. A. 2,005.) (Supreme Court of California. July 26, 1907.) ) 1. APPEAL-INSUFFICIENT UNDERTAKING.

A notice of appeal from an order denying a new trial is not supported by an undertaking 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.” 2. SAME-RIGHT TO CURE ERROR.

The recitals in an undertaking on appeal must identify the appeal it is intended to sup port, 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 Octo ber 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 dis undertaking must identify the particular apsatisfied with the said judgment and desir peal which it is intended to perfect. ous of appealing therefrom to tlie District The appeal is dismissed. Court of Appeals of California: Sow, therefore, in consideration of the premises, and of We coniur: ANGELLOTTI, J.; SLOSS, such appeal, the National Surety Company J.; SIIAW, J.; LORIGAN, J.; HEXSILAW, of New York, it corporation having its prin J.; MCFARLAND, J. cipal place of business in the city of New York, state of New York, and having complied with all the requirements of the laws

(151 Cal. 344) of the state of California respecting such cor

BELL v. STAACKE et al. (L. A. 1.8.2.) porations, does hereby undertake in the sum (Supreme Court of California. July 2.), 1907.) of three hundred dollars ($300) and promises 1. APPEAL — DISMISSAL-NEW TRIAL_EFFECT on the part of the appellant that said appel ON JUDGMENT. lant will pay all damages and costs which

Where an appeal from a judgment is dis

missed, the judgment is vacated by a subsequent may be awarded against them on said appeal, order granting a new trial on appeal from an or on a dismissal thereof not exceeding the order denying the same. aforesaid sum of three hundred dollars $300.- 2. SAME-SPECIFICATION OF Errors-FORM. 00, to which amount it acknowledges itself i ed 283 specifications of errors of law occurring

Appellant's motion for a new trial containbound."

at the trial as to which appellant's brief (ouThe undertaking, it will be observed, re- tained only a reference to pages "087-703" cites only the judgment, and states that it

of the transcript, making such pages and each

and all of the specifications of errors of law was rendered on the date when the motion

therein set forth a part of its specifications, desfor a new trial was overruled. It recites the ! ignating each of the errors as grounds for redesire of the said defendants to appeal there

versal of the order denying a new trial. The from, and the surety only undertakes that the

transcript merely contained bare specifications

of alleged errors, and there was neitlier in the appellants will pay such costs and damages as transcript nok brief any reference to the page may be awarded against them on "said ap or folio of the transcript where any ruling compeal." Clearly it is insufficient in terms to

plained of was shown nor any argument in sup

port of the alleged errors appeared. Held, that support the appeal from the order ; but, since

such specifications were fatally defective. an undertaking in proper form, approved by [Ed. Xote-For cases in point, see Cent. Dig. one of the justices of this court, was filed be vol. 3, Appeal and Error, $ 3093.) fore the hearing of the motion to dismiss,

Department 1. Appeal from Superior the question to be decided is whether the undertaking originally filed was merely insuffi

Court, Santa Barbara County; J. W. Tag

gart, Judge. cient within the meaning of section 951 of the

Action by John S. Bell against George Code of Civil Procedure, and the fault cura

Staacke and others. From a judgment in ble by the approval and filing of a new one,

favor of defendants and from an order or whether with respect to the appeal from the order it was in effect no undertaking at

denying plaintiff's motion for a new trial,

he appealed. Appeal from judgment disall. In a number of cases heretofore decided

missed. Order affirmed. this court has held that the recitals in an un

See 83 Pac. 245. dertaking on appeal must identify the appeal which it is intended to support, and that if

Richards & Currier and J. L. Crittenden, they fail to do so the error is incurable. for appellant. T. Z. Blakeman, for respondSee Estate of Heydenfeldt, 119 Cal. 317, 51

ents. l'ac. 5413, and cases there cited. See, also, Pac. Pav. Co. v. Bolton, 89 Cal. 154, 26 Pac. ANGELLOTTI, J. Plaintiff brought this 0:50, Schurtz v. Romer, 81 Cal. 244, 22 Pac. action against defendant Staacke, and the 637and cases cited under this case in the representatives of the estate of Thomas Bell, notes to California Decisions. I have never | deceased, to obtain a decree declaring that a yielded a willing assent to this strict con- tract of land in Santa Barbara county construction of the statute, but the rule is set taining 10,000 acres, the title to which stands tled, and there does not seem to be any of record in the name of said Staacke, is ground upon which this case can be distin- | held by him in trust for plaintiff, and guished from those in which the undertaking requiring a conveyance thereof to him by has been held to be fatally defective. The Staacke. The defendants, by answer and fact that when the undertaking was executed Cross-complaint, alleged that, while the title the time for appealing from the judgment to the land was held by Staacke in trust for had expired and that the only appeal by plaintiff, it was also held by him as security which the judgment might be set aside was for certain advances made by Thomas Bell an appeal from the order, the fact that the in his lifetime, at the instance and for the date of the judgment as recited shows that benefit of plaintiff, and asked that the claim

of the estate against the land be enforced order, and all the extraneous facts in the case by a sale thereof. Upon a former trial the amount to nothing in the face of the doctrine trial court, while finding that plaintiff was inupon which the rule is founded; the doc debted to the estate of Thomas Bell in the trine, that is to say, that the recitals in the sum of $32,120.13 for money advanced and

the surety confused the judgment and the o

loaned him by Thomas Bell, also found that The brief of counsel for plaintiff contains the land was held by Staacke in trust solely a statement of facts which they claim were for plaintiff, and not as security for any in admitted by the pleadings, and which, they debtedness due from him to the estate. It further claim, are in some respects contrary therefore gave personal judgment only in to the findings. This matter was available favor of the estate against plaintiff for the to plaintiff on the former appeal in support said amount, and directed a conveyance of

of the decision on the facts there under rethe land by Staacke to plaintiff. The defend view; there having been no change in the ants appealed from the judgment and from pleadings. We have examined the record in an order denying their motion for a new the light of this statement of counsel, and trial. The appeal from the judgment was find no admission in the pleadings contrary dismissed on the ground that the same had to any finding of fact, unless the pleadings been prematurely taken, Bell v. Staacke, 137 show an admission that on or about March Cal. 307, 70 Pac. 171. On the appeal from 6, 1889, the plaintiff and Thomas Bell by the order denying the motion for a new trial, consent rescinded the agreement relating to which was subsequently heard, it was de the holding by said Thomas Bell, as security cided by this court that the evidence was for plaintiff's indebtedness, of the Grover insufficient to sustain the conclusion of the notes and mortgages, which agreement is trial court that the land was not held as described in the former opinion. 111 Cal. security for the payment of the indebtedness 197. The allegation to this effect was made due Thomas Bell from plaintiff; it being in one of plaintiff's amendments to plaintiff's declared after a careful view of the evi amended and supplemental complaint, and dence contained in the record that such it is claimed that the allegation was not evidence showed without substantial conflict denied. It was apparently treated at the that the land was conveyed to Staacke to be trial as denied, and evidence was received held by him as security for the payment by thereon, the trial court finding against the plaintiff to Thomas Bell of all sums of allegation. This matter is, however, of no money theretofore advanced or thereafter to importance on this appeal. It may be asbe advanced to plaintiff by said Thomas Bell. sumed that the rescission of this agreement The order denying defendants' motion for a as to the Grover notes and mortgages was new trial was reversed, except as to the made as alleged, and there is still ample issues relative to the amount of indebtedness evidence to support the material findings of due the estate from plaintiff, and the cause the court as to the terms and conditions upon remanded for a new trial except as to the which the land in dispute was placed in the issues last referred to. Bell v. Staacke, 141 name of Staacke. If the court had found in Cal. 186, 74 Pac. 774. Upon the new trial, accord with such allegation of rescission, which was had on the same pleadings, with instead of against it, such finding would out change or amendment of any kind there have been simply a finding as to a specific in, the court found in favor of defendants fact not necessarily inconsistent with the upon the issues tendered by the answer and findings as to the agreement and understandcross-complaint, and determined that Staacke ing upon which the land was placed in the holds the land in trust, first, as security for name of Staacke. What we have said on the payment of the sums due the estate, this point sufficiently disposes also of the amounting with interest accrued on the claim that, by reason of said alleged admis$52,120.15 indebtedness to $95,101.07; and, sion, the decision is against law, and the second, in trust for the use and benefit of claim that, for the same reason, the findings plaintiff. Judgment was given for the sale do not support the judgment. It should be of the land for the payment of the indebted observed, however, that questions as to the ness, together with costs and accruing in sufficiency of the findings to support the terest. Plaintiff appealed from such judg- judgment cannot be considered on an appeal ment and from an order denying his motion

from an order granting or denying a motion for a new trial, but the appeal from the

for a new trial. judgment has heretofore been dismissed.

A claim that the superior court had no It is contended that the evidence on the re

jurisdiction to retry this case, notwithtrial was insufficient to sustain any of the standing that it was remanded by this court material findings in favor of defendant. An

for a new trial, is based on the fact that the examination of the 466 pages of the printed

appeal from the former judgment in favor transcript containing the evidence given on of plaintiff was dismissed. This, it is said, the retrial shows that the evidence before

constituted an affirmance of the judgment. the court was practically the same as that

preventing the subsequent giving of any given on the former trial. Most of the tes other judgment. But a judgment, even altimony given consisted, by stipulation, of though expressly affirmed on appeal, is vatranscriptions of the reporter's notes taken cated by an order granting a new trial. See at the former trial, and the additional evi Swett v. Grey, 141 Cal. 83, 88, 74 Pac. 551. dence introduced did not materially affect There are 285 specifications of errors in the situation. The evidence was amply suffi law occurring at the trial made in the state. cient to support all the material allegations. ment on motion for a new trial. As to these,

all that is said in their brief by counsel for | know of the defendants' whereabouts. Held, plaintiff is that they “hereby specially and

that the affidavit constituted a substantial com

pliance with Code Civ. Proc. $ 412, authorizing respectfully refer to pages 685 to 703 of

service by publication where the person sought the transcript as to the specification of er to be served "cannot after due diligence be found rors in law occurring at the trial and ex

within the state," though the affidavit failed to

expressly state the result of the affiant's incepted to by the plaintiff, and hereby make

quiries. said pages of the transcript, and each and

[Ed. Note. For cases in point, see Cent. Dig. all of the specifications of errors of law

vol. 40, Process, $ 118.] therein set forth a part of this point and of 3. JUDGMENT - QUIETING TITLE – EFFECT AS these points and authorities as if set forth EVIDENCE. at length herein, and we hereby point out Where a judgment in a suit to quiet title and designate each of said errors so specified determined that a party to the action was the as one of the grounds upon which appellants

owner of the property in controversy, such judg

ment was admissible in evidence in behalf of a claim the right to a reversal of said order party claiming under the judgment and subsedenying a new trial.” The portions of the quently asserting a claim to the property affecttranscript thus referred to contain simply

ed by it, as a link in his chain of title as

against persons not parties nor privies claiming the bare specifications of alleged errors.

an interest in the property. There is neither in transcript nor brief any [Ed. Note.-For cases in point, see Cent. Dig. reference to the page or folio of the 723 vol. 30, Judgment, g 1233.] page transcript where any ruling complained

Department 2. Appeal from Superior Court, of is shown, or any argument in support of

Los Angeles County; P. Conrey, Judge. the claim that the trial court erred to plain

Action by William Chapman against 0. A. tiff's prejudice in any of these rulings. Un. Moore and others. From a judgment in fader such circumstances we are justified in

vor of defendants, and from an order denydisregarding such claim altogether. See

ing plaintiff's motion for a new trial, he apPeople v. Wo, 120 Cal. 294, 297, 52 Pac. 833;

peals. Affirmed as to defendants Strohm Whyte v. Rosencrantz, 123 Cal. 634, 612, 56

and reversed as to defendant Moore. Pac. 436, 69 Am. St. Rep. 90; People v. Gibson, 106 Cal. 458, 475, 39 Pac. 864; People

Charles Lantz, for appellant. William v. Daniels, 105 Cal. 262, 264, 38 Pac. 720;

Chambers, for respondents. Wheelock v. Godfrey, 100 Cal. 578, 589, 35 Pac. 317; Neylan v. Green, 82 Cal. 128, 23 LORIGAN, J. This action was originally Pac. 42; West v. Crawford, 80 Cal. 19, 33, commenced by M. M. Davis as plaintiff, and 21 Pac. 1123. It is proper to say, however, subsequent to its commencement the present that in our examination of the evidence con plaintiff, William Chapman, was substituted tained in the record we have discovered no in the superior court for said Davis as plainerroneous ruling on the part of the trial tiff. The action was brought to quiet title court.

to lot 4 in block C of the Sunset tract, in the The order denying plaintiff's motion for a city of Los Angeles; the plaintiff making the new trial is affirmed.

usual allegations of ownership of the prop

erty, and the defendants asserting claims We concur: SLOSS, J.; SHAW, J.

thereto adverse to him. The defendant 0. A. Moore, in her answer, denied the alleged own

ership of plaintiff, and asserted ownership of (151 Cal. 509)

the lot to be in herself. The defendants CHAPMAN V. MOORE et al. (L. A. 1,881.) Strohm, in a separate answer, also denied the

ownership of plaintiff, and asserted that (Supreme Court of California. July 16, 1907.)

the defendant Susan Strohm was the owner 1. ABATEMENT AND REVIVAL-OTHER ACTION

of the property. These latter defendants alPENDING. Evidence that a prior suit to quiet title to

so pleaded in abatement of the present acthe same lot against the same parties had been tion the pendency of a prior action brought brought by plaintiff's predecessor in interest,

against them by M. M. Davis to quiet title to and was pending as to defendants S. when the

this same lot. Upon the trial the court found present action for the same relief was brought against them and others, was sufficient to enti

in favor of the defendants Strohm on their tle them to the abatement of the present ac plea of abatement, found also that plaintiff tion.

was not the owner of the property, and enter(Ed. Note.-For cases in point, see Cent. Dig.

ed judgment that the action abate as to the vol. 1, Abatement and Revival, $$ 73, 76.]

Strohms, and in favor of 0. A. Moore for 2. PROCESS-PUBLICATION - SUMMONS - AFFI.

her costs. Plaintiff appeals from the judgDAVIT. An affidavit for publication of a summons

ment and an order denying a motion made by against nonresidents recited that they had been him for a new trial. On the trial of the sought for to obtain service, but after diligent

cause the only evidence presented upon the search and inquiry could not be found within the It then proceeded to show the kind of

issue of ownership of the property was that search and inquiry that had been made; that offered by the plaintiff. No evidence was ofthe a fliant had made inquiry of all persons fered by the defendants at all save by the from whom he could expect to obtain informa

Strohms in support of their plea in abatetion as to the residence of the defendants, to

ment. gether with the names of the persons of whom he made inquiries, and why he expected them to As grounds for a reversal it is insisted by

1

appellant that the court erred in sustaining v. Munroe, 89 Pac. 352. See, also, Carter v. the plea of abatement interposed by the Osborn, 89 Pac. 608. It follows, therefore, Strohms, that it erred also in rejecting cer that the trial court erred in refusing to adtain evidence offered by plaintiff, and that mit in evidence the tax deed offered by plainthe finding of the court that plaintiff was tiff. not the owner of the property in dispute was The only other questions presented upon not justified by the evidence.

this appeal involve the validity of a certain As to the plea in abatement: This was

judgment and its effect, if valid. It was the first issue tried by the court. In support stipulated on the trial that a certain deed of it the Strohms offered in evidence the rec

dated and recorded in October, 1887, conveyord in the suit of M. M. Davis v. B. E. Ninde,

ed title in fee to the lot of land in controverSamuel Strohm, Susan Strohm, William Pat sy here to one Walter Patterson. Such adterson et al., which showed that a suit to qui

mission being made, the plaintiff offered in et title to the same lot involved in the action evidence a judgment roll in a suit brought then on trial was commenced February 3, by M. M. Davis, the predecessor of plaintiff, 1903 (the complaint in this action was filed versus B. E. Linde, Samuel Strohm, Susan August 27, 1901), and was then pending as to Strohm, and Walter Patterson (the same acthe said defendants Strohm. This was the tion heretofore referred to as pleaded in har only evidence offered, and at its conclusion a by the Strohms), which showed that an action motion was made on behalf of said defend to quiet title to this same property was.comants Strohm, on such showing to have this menced by Davis against the defendants by action as to them dismissed, which was complaint filed February 3, 1903; that an af. granted. The showing was sufficient to sus

fidavit and order for publication of summons tain the plea and upon it the Strohms were

on one of the defendants-Walter Patterson entitled to have the subsequent action against -were subsequently made and filed and servthem abated. Section 430, subd. 3. Code Civ. ice of the summons made upon said PatterProc. and section 433, Code

Code Civ. Proc. son by publication; that the default of PatThe Strohms by this order of the court having terson was subsequently entered and therebeen dismissed from the case, the trial then after on April 4, 1904, a decree was entered proceeded between the plaintiff and the de quieting the title of said Davis to said lot fendant Moore. To sustain his title against against the said defendant Patterson. No her, plaintiff offered in evidence, among oth objection was offered to the admission of the er documents, a certificate of sale of said judgment roll, and it was received in eviproperty made July 3, 1895, to the state of dence. The plaintiff supplemented this offer California for state and county taxes for the by proof of a conveyance of the lot in conyear 1894, a deed of said property, dated Ju. troversy from M. M. Davis to himself, and ly 6, 1900, from the county tax collector to rested his case. the state of California for said taxes, also a It is insisted by appellant that this showdeed of said property from said tax collector | ing—the admission of title in Patterson at a to plaintiff dated September 21, 1901, made given date, the decree quieting title subsepursuant to an authorization of the State quently obtained against Patterson by plainController to sell said land. The court re tiff's predecessor Davis, and the conveyance fused, upon defendants' objection, to admit of Davis to himself-sustained his claim of such instruments in evidence, and this ruling ownership to the property against the deis assigned as error. In the briefs of re fendant Moore, and the finding of the court spondent no grounds are suggested in sup that he was not such owner was not justified port of the ruling and no specific objections by the evidence. This claim of appellant is are urged against the validity of these ser in our judgment unquestionably true, unless, eral tax-sale instruments. Counsel for re as insisted by respondent, the decree quietspondent simply says: "The questions as to ing title to the lot in question against Patterthe validity of this state deed involved in son in the case just referred to is void, or unthis action are the same as those now before less there is some merit in the position of rethe Supreme Court in the case of Barrett spondent, that, even if valid, the decree was (which should have been Baird) versus Mun not available to plaintiff as a muniment of roe, Los Angeles No. 1023

*." The title against her. case of Baird v. Munroe, 89 Pac. 352, had not Now, as to the validity of the decree: The been decided by this court, when the briefs order for service of summons upon the dein this present appeal were filed, but it has fendant Patterson by publication was based been since, and the various grounds urged on an affidavit of the attorney for Davis puragainst the validity of a tax deed there in porting to make out a sufficient showing that volved, similar to the one in question here, defendant Patterson, at the time when the were deemed untenable, and the validity of service of summons was sought to be made the deed sustained. It is unnecessary to re uopn him. could not, with due diligence, he fer here to the objections urged against the found in the state of California. It is condeed considered in that case, or to restate the tended by respondent, and this is the only grounds upon which the court sustained its point made as to the sufficiency of the affidavalidity, as they will fully appear from an vit. that, while it shows that the attiant examination of the decision rendered. Baird made inquiries to ascertain the whereabouts

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