of November, 1917, and that said court therefore was without jurisdiction to proceed further in said action. That said court proceeded to try said particular issues and thereafter on the 16th day of January, 1918, signed and filed its findings of fact and conclusions of law," and on said day made and entered its interlocutory decree awarding said George Stinnett his decree of divorce from said plaintiff. It is alleged that the court was without jurisdiction to render said judgment and decree on the ground that the court had no jurisdiction "to perform any judicial act in said cause from and after the date of the filing of petitioner's notice of appeal from said judgment and decree made and entered by said court on the 15th day of November, 1917.”

The situation briefly is this: Judgment was entered; both parties moved for a new trial; the motion was denied as to plaintiff and was granted as to defendant; after these orders were made, plaintiff gave notice of appeal from the judgment; shortly thereafter defendant, by leave of court, filed an amendment to his cross-complaint alleging residence of the plaintiff and the court, over plaintiff's objection, proceeded to take evidence upon the special issue referred to in defendant's motion, made and filed findings of fact and conclusions of law and entered judgment awarding defendant a divorce. The question is, Had the court jurisdiction to proceed in the case after notice of appeal from the judgment?

The proceedings for a new trial are independent and collateral to the judgment for, "under our system, from the entry of the verdict or filing of the findings of the court, the motion for a new trial is a kind of episode, or in a certain sense, a collateral proceeding-a proceeding not in the direct line of the judgment; for the judgment may be at once entered and even executed, while a motion for a new trial is pending in an independent line of proceeding, which ends in an order reviewable on an independent appeal." (Spanagel v. Dellinger, 38 Cal. 278, 284; 1 Hayne on New Trial and Appeal, Rev. ed., p. 15.)

The granting of defendant's motion for a new trial had the effect to set aside the judgment, and the court had the power thereafter to allow defendant's proposed amendment to his cross-complaint and to hear and determine the case, make findings, and enter judgment thereon.

Furthermore, plaintiff had her right to appeal from this second judgment and to move for a new trial and thus bring up for review these later proceedings. This right furnished a plain, speedy, and adequate remedy which, under the statute, precludes her right to a writ of review. (Code Civ. Proc., sec. 1068.)

For the foregoing reasons, the writ is denied.

[Civ. No. 2312. First Appellate District.-February 16, 1918.]

HAZEL P. NORRIS, Appellant, v.

Respondent.

ELI WRIGHT,

DAMAGES-CONVEYANCE OF INTEREST IN ESTATE SECURITY FOR MONEY LOANED-EVIDENCE-AFFIRMANCE OF JUDGMENT.-In this action for damages alleged to have been sustained in conveying an interest in a certain estate as security for the repayment of money loaned, it is held that the judgment in favor of defendant must be affirmed, there being no claim that plaintiff at the time of the transaction was an infant or incompetent, or that the relations between the parties were confidential, and no evidence of misrepresentations or fraud.

APPEAL from a judgment of the Superior Court of Santa Clara County. W. A. Beasly, Judge.

The facts are stated in the opinion of the court.

J. C. Black, for Appellant.

H. A. Hardinge, for Respondent.

KERRIGAN, J.-This is an action to recover damages alleged to have been sustained by the plaintiff in conveying certain property interests to the defendant, said transfer being charged to have been procured by means of false and fraudulent representations made by the defendant.

The plaintiff was the owner of a one-quarter interest in a certain estate in course of probate, and soon after she had ac

quired such interest the defendant made to her at short intervals of time, six loans of comparatively small amounts, taking from her at each transaction a grant, bargain, and sale deed of her said one-quarter interest as security for the repayment of the sum then loaned, with interest, commission, and costs. On the first of this series of transactions the defendant took plaintiff's note for $85, with interest at two per cent per month, for which she received from him in cash $50, which was the amount she desired to borrow, the balance of the note ($35) representing so-called expenses, and being the amount charged by defendant for his trouble in ascertaining whether or not the loan might be safely made.

On the occasion of each of the other loans the defendant, in addition to deducting interest at the rate of two per cent per month on the previous loans, also deducted ten per cent, by agreement with the plaintiff, as a commission for making the loan. When the indebtedness of the plaintiff to the defendant thus created reached the sum of nine hundred dollars, and the defendant had received six several conveyances of the plaintiff's said interest (which it is not disputed were in effect mortgages given to secure the repayment of the loans), the defendant refused to advance plaintiff any further money on her interest in said estate, but agreed to purchase her said interest for a total sum of $1,550, which he did, the purchase price being made up of the nine hundred dollars owed as aforesaid by plaintiff to the defendant, one hundred dollars paid by defendant, with the consent of plaintiff reluctantly given, to an attorney who represented her interest in said estate; $75 paid by defendant with her consent for searching and perfecting title to the property covered by the conveyance; $75 charged by the defendant as a commission for making this sale to himself, and, finally, the sum of four hundred dollars paid by defendant to plaintiff. According to the appraisement made in the estate in which the property in ques tion figured and other evidence in the case, $1,550 appears to have been about the market value of the plaintiff's interest thus sold to the defendant, although evidence was also introduced placing its value at a much higher figure. It also appears that on the occasions of her transactions with the defendant plaintiff was accompanied by her husband, who approved of them.

It is perfectly apparent that the plaintiff was unfamiliar with business affairs and that the defendant imposed unconscionable burdens upon her; but it is not claimed that at the time of the transactions she was an infant, or incompetent, or that the relations between her and the defendant were confidential. No evidence was introduced to show that the defendant made any misstatements or misrepresentations of fact to the plaintiff, or that he practiced upon her any deceit or fraud. It follows that this appellate court is powerless, as was the court of first instance, to afford the plaintiff any relief against this modern Shylock.

Some criticism is made of the findings. While they cannot be commended for clearness, still under all the circumstances of the case they cannot be regarded as seriously defective. Judgment affirmed.

Lennon, P. J., and Flood, J., pro tem., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 16, 1918.

[Civ. No. 2414. First Appellate District.-February 16, 1918.] GLOBE INDEMNITY COMPANY, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION et al., Respondents.

WORKMEN'S COMPENSATION ACT-ACCIDENT IN CROSSING STREET TO MAIL LETTERS-INJURY IN COURSE OF EMPLOYMENT.-An injury sustained by a bookkeeper and clerk from being run down by an automobile while in the act of crossing a public street to mail letters for his employer according to custom, is an injury arising out of his employment under the Workmen's Compensation Act.

APPLICATION for a Writ of Review originally made to the District Court of Appeal for the First Appellate District to annul an award of the Industrial Accident Commission.

The facts are stated in the opinion of the court

D. Hadsell, Jos. G. Sweet, and E. A. Ingalls, for Petitioner.

Christopher M. Bradley, for Respondents.

BEASLY, J., pro tem.-This application for a writ of certiorari to review an award of the Industrial Accident Commission against the petitioner is denied upon the following considerations:

The applicant for compensation, Roberts, was a bookkeeper and clerk of one C. H. Kobicke at the time the accident happened. Among his duties was to write letters for his employer and to take these letters to the nearest mail box, which was at the corner of Valencia and another street, in doing which it was necessary for him to cross Valencia Street, and this he did in performing this duty perhaps once each working day of the month. On the day of the accident he took two letters to the mail-box for the purpose of posting them. The letters were written for his employer in the course of his duty. He crossed the street, posted the letters, and while on his way back recrossing Valencia Street was struck by an automobile driven by one E. S. Kimberly, Jr., who was in no way connected with any of the parties to this proceeding. When struck, Roberts was between the sidewalk and the street-car track which runs up the middle of the street. There is no testimony showing or tending to show that the point where the accident occurred was any different or more dangerous than any other section of Valencia Street or any other street in San Francisco. He was not loitering along the street; was not diverging in the least from his duty, and was strictly in the course of his employment when this accident happened.

It is conceded by petitioner that Roberts was so in the course of his employment at the time he sustained the injury, but it contends that this injury did not arise out of the employment.

We take the opposite view, and hold that it did arise out of his employment.

The general rule is laid down very clearly in Kimbol v. Industrial Accident Commission, 173 Cal. 351, [Ann. Cas.