v. Sutter, 15 Cal. 259; Angus v. Craven, 132 Cal. 691, [64 Pac. 1091].) In Curlis v. Sutter, supra, the court, speaking through Field, C. J., says that "there is no difficulty in so conducting a suit, under the statute, as to fully protect the legal rights of the parties, and at the same time to secure the beneficial result afforded by a court of equity in bills of peace which is repose from further litigation." The plain and direct manner of giving this repose is by enjoining the defeated parties from asserting a hostile claim. Such injunction is in no sense incidental to the relief sought. It is an inherent part of the relief itself. The judgment in an action for the quieting of title need not, to be sure, take the form of an injunction. The relief awarded may vary according to the circumstances of the case. (17 Ency. Pl. & Pr. 363.) But a decree like the one in the case before us, declaring that the plaintiff is the owner of the property and enjoining the defendant from further setting up a claim thereto, is a proper form of judgment. (Brooks v. Calderwood, 34 Cal. 563.) The injunction was a legitimate part of the relief granted, and the court below is authorized to enforce obedience to it pending the appeal.

To the suggestion that the plaintiff may lose valuable rights by being restrained from commencing actions which, if the judgment should be reversed, they will appear to have been entitled to bring, it may be answered that their position will not be impaired by the lapse of time. The statute of limitations does not run during the period when the commencement of an action is stayed by injunction. (Code Civ. Proc., sec. 356.)

The order to show cause is discharged.

Shaw, J., Henshaw, J., Melvin, J., and Lawlor, J., concurred.

ANGELLOTTI, C. J., Dissenting.-I dissent.

The facts are fairly stated in the prevailing opinion. The real question presented is whether the provision of the judgment enjoining the plaintiffs from making any claim to the property involved in the action is in force and operative pending the appeal taken from the whole judgment, which judgment, by reason of such appeal, is not as yet final. The claim of defendants that it is so operative and in force, notwithstanding the appeal, is based upon the settled doctrine of

CLXXIV Cal.-10

this court that an appeal does not stay the force of a prohibitory injunction. The question whether this is the situation when the prohibitory order is simply a part, as here, of an ordinary judgment quieting title in an action brought under section 738 of the Code of Civil Procedure, to determine adverse claims to real estate, has never been squarely decided by this court. It was expressly eliminated from consideration in Lake v. Superior Court, 165 Cal. 182, 188 [131 Pac. 371]. There is no suggestion that there was any foundation in the pleadings for injunctive relief other than the allegations of title. The character of an injunctive portion of a judgment in such a case has been referred to in several cases. The propriety at all of such an injunctive provision in a decree in an action to quiet title has been questioned, but it is settled that it is entirely proper for the reasons hereinafter referred to. In Brooks v. Calderwood, 34 Cal. 563, 566, it was said: "The very object of the suit was to determine whether the defendants had any just claim or title to the premises as against plaintiff, and settle the question forever. The court has determined that they have none, and we see no reason why it may not make its judgment effectual by restraining the defendants from further setting up a false claim. It has been judicially determined that defendants have no just claim, estate, or interest in a portion of the land, and as to that portion there is no reason why the plaintiff should be permitted to be further harassed by them." The italics are ours. Again, in Kittle v. Bellegarde, 86 Cal. 556, [25 Pac. 55], in reply to the objection that in such an action an injunctive provision against executing deeds in pursuance of a certificate of sale was inappropriate and unwarranted, it was said: "The injunction was merely ancillary to the principal relief, and was proper, if necessary to make that relief effectual." Again the italics are ours. And in Lake v. Superior Court, 165 Cal. 182, at page 191, [131 Pac. 371], it was substantially said that the injunctive provision to enforce the rights adjudicated in the judgment was both permissible and

proper.

The idea clearly appears to be that in such actions the real and substantial object is to determine the title, and the injunctive provision is designed solely to enforce the rights determined by the judgment as to title, and can have no other effect. Its whole basis is the judgment in regard to title, it

must stand or fall with that judgment, and it would seem necessarily that its effect must be suspended by anything that suspends the effect of the judgment as to title. To enforce it by contempt proceedings pending an appeal from that judg ment is in effect to enforce the provisions of the judgment as to title while the same remains absolutely ineffectual by reason of the appeal. In view of the pending appeal we have no final adjudication as to title as yet. The matter is still sub judice. I am unable to see that the case of Foster v. Superior Court, 115 Cal. 279, [47 Pac. 58], is not absolutely in point in principle. There was a contest of an election for directors of a corporation between two persons. It was determined by the superior court that Smith was elected, and the judgment so declaring also enjoined the other directors from interfering with Smith in the exercise of his office as such director. An appeal having been taken from the judgment, Foster, one of the other directors, excluded Smith from participation in a meeting of the directors, and was adjudged guilty of contempt for so doing. On certiorari proceedings, this court said: "The action of the superior court in the present case was a proceeding 'upon the judgment' from which the appeal had been taken, and was instituted for the purpose of enforcing a compliance therewith. . . . The injunction, in the judgment, against the interference with Smith's right to act as a director was but ancillary to the judgment determining that he had such right, and was merely incidental thereto... . As that portion of the judgment declaring that Smith was elected was suspended by the appeal, the injunctive portion of the judgment, being merely incidental thereto, was also suspended, and the power of the court to enforce any portion of its judgment by inflicting punishment for its violation was stayed. An enforcement of this portion of the judgment would operate to carry the decree into effect." It is true that it was also said that the injunction was, in effect, mandatory, but there can be no question as to the views of the court to the effect that it was suspended by the appeal from the judgment regardless of whether it was mandatory or prohibitory.

My conclusion in no degree infringes the rule that an appeal does not stay the force of a prohibitory injunction. What I have said shows the distinction between the cases in which it has been so held, and such cases as this. The only prohibi

tory relief here given is that deemed essential to make the decree as to title when it shall have become final broad enough to accomplish its object and fully protect those in whose favor it was given. It rests on no other foundation than the decree as to title, and is an inseparable part and incident of that decree.

To my mind it is entirely clear that enforcement of the provision of the judgment enjoining the plaintiffs from making any claim to the property involved in the action is stayed by the appeal from the judgment, and that plaintiffs are entitled to a writ of supersedeas as prayed. Were it not for the fact that so many of my learned associates have come to a different conclusion, I would say that this is so clear as not to admit of question.

Lorigan, J., concurred.

Rehearing denied.

[Sac. No. 2260. In Bank.--December 28, 1916.]

WARREN SMITHSON, by His Guardian ad Litem, T. A. SMITHSON, Respondent, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY (a Corporation), Appellant.

FEDERAL EMPLOYERS' LIABILITY ACT-ACTIONS IN STATE COURTS-DECISIONS OF UNITED STATES COURTS CONTROLLING.-In actions brought in the state courts under the provisions of the Federal Employers' Liability Act, approved April 22, 1908, the decisions of the supreme court of the United States are controlling in the construction of the act.

ID. STATE ACT PROHIBITING EMPLOYMENT OF MINORS DURING CERTAIN HOURS-STATUTE ENACTED FOR SAFETY OF EMPLOYEES-ERRONEOUS INSTRUCTION. In an action brought in the state court under the provisions of the Federal Employers' Liability Act to recover damages for personal injuries sustained by a minor while in the employ of a common carrier engaged in interstate commerce, it is error to instruct the jury that the act of the legislature of the state of California providing that no minor under the age of eighteen years shall be employed or permitted to work between the hours of 10 o'clock in the evening and 5 o'clock in the morning (Stats. 1911, p. 910), is a

statute enacted for the safety of employees, as those words are used in section 3 of the federal act.

ID.-STATE ACT NOT EFFECTIVE AS POLICE REGULATION.-Such act of the legislature, notwithstanding it is in no wise in conflict with the federal act, cannot be employed with and as a supplement to the federal act as a state police regulation, for the legislation of Congress upon the matter is exclusive.

ID. INJURY TO EMPLOYEE-VIOLATION OF "ANY STATUTE" CONTRIBUTING TO INJURY-FREEDOM FROM CONTRIBUTORY NEGLIGENCE-CONSTRUCTION OF ACT-STATE STATUTES EXCLUDED.-The phrase "any statute," as that language is employed in section 3 of the Federal Employers' Liability Act, providing that in any action brought against any common carrier under it an employee "shall not be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee," means another federal statute, and does not include the statutes of a state.

ID. INJURY TO ENGINE HELPER-LACK OF SIGNAL TO MOVE ON TURNTABLE-TRIAL ON ISSUE-INSUFFICIENCY OF DENIAL-APPEAL-OBJECTION NOT REVIEWABLE.-In an action against a railroad corporation to recover damages for personal injuries received by an employee, whose duty it was to assist in running engines into the roundhouse after they had finished their trips, where the answer did not deny the allegation that no signal was given by plaintiff for the engine which caused the injury to move upon the turntable, but the denial was taken by both parties upon the trial as an accepted fact, and issues joined without objection, neither party will be permitted for the first time on appeal to claim that such issue was not joined.

APPEAL from a judgment of the Superior Court of Stanislaus County, and from an order denying a new trial. L. M. Fulkerth, Judge.

The facts are stated in the opinion of the court.

U. T. Clotfelter, L. J. Maddux, and A. H. Van Cott, for Appellant.

Cushing & Cushing, Hatton & Scott, and Erwin E. Richter, for Respondent.

HENSHAW, J.-This action was brought by Warren Smithson, a minor, by his guardian ad litem, to recover damages from defendant for injuries sustained by plaintiff while