are satisfied that the conclusion there reached was correct, but have taken occasion in Harmon v. Railroad Co., ante, 1024, (this day filed,) to explain and limit one or two of the points therein decided. The judgment and order are affirmed.

We concur: BEATTY, C. J.; SHARPSTEIN, J.; McFARLAND, J.; Fox, J.; THORNTON, J.

(84 Cal. 27)

LYONS v. ROACH et al. (No. 12,021.) (Supreme Court of California. May 3, 1890.) JUDGMENT-SETTING ASIDE DEFAULT-APPEARANCE.

A default judgment against an administrator will not be set aside because the summons and default name him as executor, where the judgment recites that defendant appeared by attorney, as such appearance, under Code Civil Proc. Cal. § 416, is equivalent to personal service, and such recital will be presumed correct, in the absence of a showing to the contrary in the record.

In bank. Appeal from superior court, city and county of San Francisco; F. W. LAWLER, Judge.

Matt I. Sullivan and R. Percy Wright, for appellant. J. C. Bates, for respondent.

MCFARLAND, J. After argument in bank, we are satisfied that the judgment should be affirmed. The action is for the enforcement of a street assessment. Patrick Cunningham in his individual capacity, and also Patrick Cunningham as a representative of the estate of May Cunningham, deceased, were made parties defendant. The complaint charges Cunningham as "administrator" of the estate, and the summons is directed to him as "executor." The affidavit of service of summons shows that he was served as administrator. A default was entered against him as "executor." Afterwards, Roach succeeded Cunningham as administrator, and was substituted as defendant; and he appeals from the judgment in favor of plaintiff. His main point is that the judgment against Cunningham as representative of the estate is void, because the summons and default name him as executor, while the complaint and judgment are against him as administrator. If we were compelled to decide this extremely technical point, we would be inclined to hold that the estate was substantially and fairly brought into court through its legal representative, and that the mistake or inadvertence by which he was called in some of the papers "executor," and in others "administrator, was not fatal to the default. But it is not necessary to determine this point, because the judgment recites that the defendants, "after service of summons, regularly appeared in said action by Robert Ash, Esq., an attorney of the court, who also was present on the trial thereof." This appearance was equivalent to personal service of summons and complaint. Code Civil Proc. § 416; Ghiradelli v. Greene, 56 Cal. 629. The Code does not require such appearance to be made part of the judgment roll; and, as appellant appeals upon the judgment roll alone, which shows nothing contradictory of, or inconsistent with, said recital, it must be taken as at

least prima facie true. All presumptions not contradicted by or inconsistent with the record are in favor of the correctness of the judgment. Parker v. Altschul, 60 Cal. 380. The doctrine of Lick v. Stockdale, 18 Cal. 219, Alderson v. Bell, 9 Cal. 315, and kindred cases, have been modified only with respect to those matters which are required to be shown in some part of the record other than the judgment itself. The cases cited by appellant are mostly cases where the recitals were of matters required to appear elsewhere in the roll, or which were inconsistent with matters which did thus elsewhere appear; and the main difference between collateral and direct attacks is that in the former the record alone can be inspected, and is conclusively presumed to be correct, while on direct attack the true facts may be shown, and thus the judgment itself, on appeal, may be reversed or modified. See Freem. Judgm. §§ 124-134, and cases there cited. But in the case at bar the appellant showed nothing, and offered to show nothing. He comes here on the judgment roll alone, and merely contends that the judgment roll, apart from the judgment itself, does not affirmatively show that appellant appeared by attorney. He does not attempt to show that the recital of appearance is not true. But, as before stated, the Code does not require the fact of appearance to be shown by the roll.

Respondent offered to amend the record by attaching to it a certified copy of a formal written appearance for Cunningham as administrator of the estate, filed in the court below. But, in the first place, such document, not being part of the judgment roll, could not be part of the record here; and, in the second place, under the views above expressed, it would not be necessary.

The printed record contains a statement, in parenthesis, made by some one, that the complaint was amended by changing "executor" to "administrator;" but this statement is no part of the judgment roll or of the record in this case, and cannot be considered. It would make no difference, however, as the apppearance by attorney was afterwards. And this answers appellant's second point, as to the service of amended complaint.

We think that the averments of the complaint were sufficient, particularly in the absence of a demurrer. Judgment aflirmed.

We concur: THORNTON, J.; SHARPSTEIN, J.; Fox, J.; PATERSON, J.

(84 Cal. 21)

DAVIDSON . ELLMAKER. (No. 12,068.) (Supreme Court of California. May 3, 1890.) UNLAWFUL DETAINER-ESTOPPEL TO DENY LANDLORD'S TITLE.

1. In unlawful detainer, defendant claimed the premises as legatee of her husband, though she admitted having signed a lease from plaintiff's grantor, but denied that she ever took or hired the property under it. The court found that she signed the lease, but failed to find whether it was executed and delivered. Held, that such finding was error, as not covering the material issues.

2. Defendant, who at the time of the execution of the lease was in possession of the premises under claim of title, is not estopped from disputing plaintiff's title derived from the lessor.

In bank. Appeal from superior court, city and county of San Francisco; T. H. REARDEN, Judge.

W. T. Baggett, for appellant. E. J. & J. H. Moore, for respondent.

PATERSON, J. This is an action of unlawful detainer. The plaintiff alleged that the defendant, on August 11, 1880, took and hired from plaintiff's grantor the premises described in the complaint at the monthly rental of one dollar per month, payable in advance. Defendant admitted that she had signed the lease set out in the complaint, but denied that she took or hired the property thereunder, or at all, from plaintiff, and alleged that while in possession, on said August 11, 1880, she was induced by plaintiff's grantor to sign the alleged lease by false and fraudulent representations. She also alleged that neither the plaintiff nor the savings and loan society, under which he claimed, was the owner, or entitled to the possession, of the property, and averred that she, as sole legatee of her deceased husband, was the owner thereof. The appeal is from the judgment, and on the judgment roll only. findings do not cover the material issues.

The

1. There is no tinding on the issue as to whether the savings and loan society, plaintiff's grantor, leased the premises to the de

fendant. The court found that the defendant signed the agreement set forth in the complaint, but did not find whether the agreement was ever delivered. The relation of landlord and tenant cannot be predicated on the production of the lease signed without evidence of a delivery. Caldwell v. Center, 30 Cal. 544. The court found that "defendant Ellmaker never in any manner acknowledged the delivery, force, or effect of said tenant's agreement, except to execute the same." It is apparent from other findings that the court here used the word "execute" in the sense that it had before used the word "sign."

2. The court found that, at the time the agreement was signed, defendant was in possession of the premises, claiming title thereto. She was not estopped, therefore, even if the lease was executed and delivered, from disputing the title of the plaintiff. Peralta v. Ginochio, 47 Cal. 460. We are not advised by the findings whether she offered any evidence in support of her allegation of ownership. There is no finding on that issue.

Judgment reversed and cause remanded, with directions to the court below to find on all the issues upon the evidence taken at the trial, and such other evidence as may be adduced, and thereupon render judgment.

We concur. BEATTY, C. J.; MCFARLAND, J.; SHARPSTEIN, J.; THORNTON, J.; FOX, J.

(84 Cal. 1)

MYERS v. DAUBENBISS et al. (No. 12,252.) (Supreme Court of California. May 3, 1890.)

HIGHWAYS-LIMITATIONS-PARTIES.

1. Under Pol. Code Cal. § 2320, providing "a road not worked or used as a highway for five years ceases to be a highway for any purpose whatever, "a public road cannot be opened over a man's land 14 years after judgment rendered in the district court, establishing it as a highway over his property.

2. In a suit to enjoin the opening of a public road through plaintiff's land, the county supervisors may be properly joined as co-defendants with the road overseer, under Code Civil Proc. Cal. § 379, providing that any person may be made a defendant who has or claims an interest adverse to plaintiff.

Commissioners' decision. Appeal from superior court, Santa Cruz county; F.J. Mc CANN, Judge.

Wm. T. Jeter and Charles B. Younger, for appellants. Julius Lee, for respondent.

BELCHER, C. C. The plaintiff brought this defendants from laying out, opening, or conaction to obtain an injunction,restraining the structing a public road or any road over, across, or upon a certain described tract of land, situate in Santa Cruz county, or from opening, breaking, or tearing down the inclosure about the said tract of land, or in any manner entering thereon for the purpose of making such road. The court below granted the relief prayed for, and the defendants appeal from the judgment, and from an order denying them a new trial.

It is alleged in the complaint that, on the 18th day of August, 1873, an action for the partition of the rancho San Andreas was pending in the district court in and for the county of Santa Cruz, wherein Titus Hale was plaintiff, and Edward Briody, Francis Larkin, and others were defendants; that on the day named a judgment was duly given, made, and entered in the action, by which the tract of land described in the complaint in this action was allotted and set apart to the said Larkin in severalty; that under and by virtue of this judgment Larkin entered upon the premises so set apart to him, claiming and having the title thereto, and thereafter, continuously, up to October 21, 1882, had and held the actual, open, notorious, exclusive, and adverse possession of the whole of said premises, and paid all taxes levied or assessed thereon; that on the day last named Larkin sold and conveyed the whole of said premises to this plaintiff, who thereupon, under and by virtue of his deed of conveyance, entered upon the same, and has ever since had, held, and claimed the actual, exclusive, open, notorious, and adverse possession thereof, and has paid all taxes levied or assessed thereon; and that there is not and never was any road or highway across the said premises or any part thereof, but that the same at all times named have been inclosed by a substantial fence. It is further alleged that in December, 1883, and again in January, 1887, the defendant Freshour, who was the road

overseer of the district in which the plaintiff's land was situate, was insolvent, and was "instigated thereto and aided and abetted" by the other defendants, who were the supervisors of the county, broke and tore down plaintiff's inclosure, and entered upon his land, dug up and removed the soil, trampled down and destroyed the grass and other crops growing thereon, and cut down and removed trees standing thereon, with the avowed intention and purpose of laying out, opening, and constructing a public road over and across said land; that the acts of defendants are trespasses which, if continued, will do great and irreparable injury to the plaintiff, and that they will be repeated and continued, unless restrained by the court. The defendants demurred to the complaint on the grounds: (1) That there was a misjoinder of parties defendant; and (2) that the facts stated were not sufficient to constitute a cause of action. The demurrer was overruled, and an answer filed. The answer denies plaintiff's ownership of the land, and most of the other allegations of the complaint. It then sets up that, by the judgment in the partition suit of Briody v. Hale et al., entered on the 18th of August, 1873, it was, among other things, ordered, adjudged, and decreed that there be, and thereby was, laid out and established over and across the lands allotted to Larkin a public road, which was known and called the "Larkin Valley Road," and was particularly described, and that it was this road which defendants were trying, and had a right, to open. At the trial the plaintiff offered and read in evidence the judgment roll in the case of Briody v. Hale et al., and thereupon the parties stipulated as follows: "This action is hereby submitted to this court for its decision and judgment upon the following question of law, viz. Does the said judgment in said action of Briody v. Hale et al. of itself establish or declare a public road or highway over or across the lands described in the complaint herein, called in said judgment the "Larkin Valley Road," (it being conceded that the said Larkin Valley road named in said judgment passes over the lands described in said complaint herein, so far as said judgment can establish a road,) so as to justify the defendants herein, acting in their official capacity of supervisors, or road overseer, or otherwise, in now entering upon said lands, and opening, laying out, working, or using a public road over or across the same, along the route set out and described in said judgment, defendants not having entered upon any other portion of said lands? If the court shall decide that said defendants are not justified in so doing, then plaintiff is entitled to a judgment as prayed for in his complaint, but without damages; if defendants are so justified, then they are entitled to a judgment that plaintiff take nothing by said action, but that they recover their costs herein, and that said road be adjudged a public road in accordance with the prayer

of defendants' answer." The case was then submitted for decision.

1. We think the court acted rightly in overruling the demurrer. The complaint stated a cause of action, and, if its averments were true, the supervisors were joint trespassers with the road overseer, and were properly joined with him as defendants. Code Civil Proc. § 379; Grigsby v. Burtnett, 31 Cal. 406.

2. The stipulation leaves for consideration only one other question, and that is, did the partition judgment, rendered in 1873, "of itself," and unaided by any other fact, authorize the defendants in December, 1886, and January, 1887, nearly 14 years afterwards, to break the plaintiff's close, and enter upon his land to construct the road? In the pleadings in the case referred to there was no reference to roads, and no prayer that any portion of the property be set apart for road purposes; and at that time the statutes gave the district courts no power to set apart or establish roads by their judgments in actions for partition. On March 24, 1874, this power was conferred, for the first time, by an amendment to section 764 of the Code of Civil Procedure. In support of the proposition that the judgment of the court, setting apart and declaring the Larkin Valley road to be a public highway, was binling and conclusive, and not subject to collateral attack. counsel for appellants cite Carey v. Rae, 58 Cal. 159. But that case does not sustain their contention. This is made evident by an examination of the record of the case, which shows that the judgment of partition then under review was entered in December, 1876, more than two years after the amendment above referred to was made. Counsel also cite section 2618 of the Political Code, which declares that "in all counties of this state public highways are roads * * laid out or erected as such by the public, *** or made such in actions for the partition of real property." This section, however, cannot aid the appellants, for the reason that the last clause of it, on which they rely, was first made a part of the section by an amendment adopted in 1883. The other cases cited hold only, in effect, that, when a court has jurisdiction of the parties and of the subject-matter, its judgment, though erroneous, cannot be attacked collaterally. This is undoubtedly true; but did the court, in Briody v. Hale et al., have jurisdiction of the subject-matter, of laying out and establishing highways? The power to lay out roads was at that time given by the statutes exclusively to the boards of supervisors, and if the court had such jurisdiction how did it obtain it? Suppose the court had undertaken by its judgment to set apart for the use of the public a portion of the land as a public park, would it have had jurisdiction of that subject-matter, and would its judgment in that respect have been final and conclusive as against any collateral attack? It is unnecessary to answer these

*

of using said court and its process in an improper effort to obtain the possession of said property in an unlawful manner, without having previously tried the title of said property, or obtained a judgment in said action." The petitioner claims that the facts stated in the judgment are not supported by the testimony taken at the hearing, but admits that, under the decisions of this court, they are conclusive in this proceeding. He contends that the judgment is void for the following reasons: (1) Material allegations of the affidavits are made upon information and belief; (2) the facts alleged do not show any abuse of the process of the court, or any offense for which the court could adjudge him guilty of contempt.

1. Whatever the rule may be with respect to the rights of persons held for examination

under an attachment which has been issued upon an affidavit made on information and belief alone, we do not think that, after a full and fair hearing, in which the prisoner has been given full opportunity to present his defense to the charge made against him, a judgment of conviction can be held to be void because some of the charges are made on information and belief. It would be impossible, in many cases of contempt committed out of the presence of the court, to secure the apprehension or conviction of the guilty parties if every fact essential to sustain the judgment were required to be stated in positive terms. In the case at bar, if the moving parties had been required to state positively, upon oath, that the petitioner was the person who removed the grain, the proceedings, probably, could not have been instituted. We think, at least, that after judgment the point made is not well taken. Ex parte Ah Men, 77 Cal. 198, 19 Pac. Rep. 380; Ex parte Kearney, 55 Cal. 228.

2. A great many reasons are assigned for the contention that the facts stated constitute no offense. It is said that the action had been dismissed, and no contempt could be committed unless the litigation was pending; that if any offense was committed the remedy was by criminal action; that there was an adequate remedy by action at law on the undertaking; that no process or order was abused or violated, and no deceit was practiced; that there was no rescue of property in the hands of an officer, and no such charge was made against him in the affidavits, yet the court found him guilty of that offense, thus going beyond the issues; that petitioner was entitled to the possession of the property, under section 514 of the Code of Civil Procedure, because the time within which the defendants could give a counter-bond, and claim the property, had expired before he took the property from the keeper. We have carefully considered all of these points, and are unable to agree with counsel for petitioner. If the facts stated are true--and they cannot be assailed here as contrary to the evidence-the acts of petitioner were contempts, within the meaning of section 1209 of the Code of

Civil Procedure. That section provides that "the following acts in respect to a court of justice, or proceedings therein, are contempts of the authority of the court: (4) Deceit or abuse of the process or proceedings of the court by a party to an

* * *

action or special proceeding; * * * (7) rescuing any person or property in the custody of an officer by virtue of an order or process of such court. See, also, Biggs v. Garrard, 6 B. Mon. 484; King v. Barnes, 113 N. Y. 476, 21 N. E. Rep. 182. And, if the facts stated are true, it is clear that the petitioner could not, by a dismissal of the action, shield himself from the legal consequences of his acts. The fact that the petitioner may be prosecuted in criminal and civil actions does not prevent a prosecution for contempt. A party may be liable civilly and criminally for an assault upon an officer in open court, and at the same time may be punished for the indignity laid upon the court.

We think the findings of fact are within the issues. It was alleged that the petitioner deceived the officer of the court, and thereby unlawfully converted the property to his own use; that he abused the process of the court, and used the same for a purpose whol ly at variance with the purpose for which it was issued, and to deprive the owners of it, and appropriate it to his own use; that the grain was removed from the farm of Lindsay, with the consent and connivance of petitioner, and for the purpose of placing the property in a position which would enable him, by a dismissal of the action, to unlawfully take the same, and deprive the defendant thereof. The summons was not served on the defendant S. E. Acock until August 26th, and she made a demand, and gave an undertaking, for the return of the property on August 30th. Each one of the defendants was entitled to claim the redelivery of the property at any time within five days after service of notice upon her. Upon the giving of the undertaking within the five days after service upon defendant Acock, it was the duty of the sheriff to hold the property until the sureties justified, and upon such justification to turn it over to her. Sections 514, 515, Code Civil Proc. It is found that, after the giving of said undertaking, and justification by the sureties, the petitioner, knowingly, and for the purpose of preventing the return of the property to the defendants in the action. removed the property from Lindsay's ranch, and dismissed the action.

We have examined the cases cited by counsel for petitioner, and find nothing in them which, taken in connection with the provisions of our Code, cited above, support the contentions made herein against the validity of the judgment. The prayer of petitioner is denied, and the petitioner is remanded into the custody of the sheriff of Sacramento county.

We concur: MCFARLAND, J.; SHARPSTEIN, J.; Fox, J.; THORNTON, J.