sufficient is, it is urged, to deprive one situated as was this plaintiff of her property without due process of law. This particular contention has been before made in this court by this appellant, and overruled. It was held in Estate of Davis, 136 Cal. 590, 69 Pac. 412, that inasmuch as the rights of the nonresident heir are in no way concluded by the decree, he having an entire year thereafter in which to attack the will on the same grounds and for the same reasons that he could attack it before probate, the measure of evidence demanded of him for a successful attack being no different in the two cases, due process of law is in no degree denied to the nonresident heir by the provision as to notice of the original hearing. This ruling was affirmed in Re Davis' Estate, 151 Cal. 318, ante, p. 105, 86 Pac. 183, the court saying: "Whether or not this be a proper case for applying the doctrine of res adjudicata or that of the law of the case, we are satisfied with the conclusion reached and adhere to it." In O'Callaghan v. O'Brien, 199 U. S. 89, 25 Sup. Ct. Rep. 727, 50 L. ed. 101, the United States supreme court has decided a practically similar question in the same way. That case arose under the laws of Washington, the claim being made that the failure to give notice of an application for the probate of a nuncupative will, as required by the statute, made the admission to probate of such will a violation of the dueprocess clause of the fourteenth amendment to the constitution of the United States. The laws of Washington as to a contest within one year after probate were substantially similar to ours. It was held that, conceding for the purposes of argument that absence of notice might afford substantial ground to contend that rights protected by the constitution of the United States had been violated, if by its omission the parties were deprived of or lost their right to deny the will or question its probate, the full right given by the statute was a complete answer to the claim made under the federal constitution.

The further contention that section 1304 of the Code of Civil Procedure, requiring, in addition to the constructive notice provided for, personal notice to be mailed to or personally served on heirs of the testator residing in the state, but making no provision for such personal notice to nonresident 375 heirs, is violative of the fourteenth amendment of the federal constitution, as discriminating against nonresidents, we think to be entirely without merit. The very fact

that one is a nonresident of the state is, from the necessities of the case, a sufficient reason for a difference in the manner of notice, and has always been recognized as such. If the manner of notice provided for an absent party is reasonable and adequate for that purpose, he cannot complain thereof on the mere ground that it is different from the notice provided for residents. He has not been deprived of due process of law: See, also, Estate of Davis, 136 Cal. 590, 69 Pac. 412. The other federal questions suggested are disposed of by what has already been said upon the merits of the case.

For the reasons given above, the amended complaint failed to state a cause of action.

The judgment appealed from is affirmed.

Beatty, C. J., concurred in the judgment.

On the Conclusiveness of Decrees Admitting Wills to Probate, see Estate of Davis, 151 Cal. 318, ante, p. 105, and cases cited in the crossreference note thereto.

On Relief in Equity from the Decrees of Probate Courts, see the note to Froerich v. Lane, 106 Am. St. Rep. 639. It has recently been held that equity has jurisdiction to set aside the orders of a probate court procured through the fraudulent suppression of the decedent's will: Êwing v. Lamphere, 147 Mich. 659, 118 Am. St. Rep. 563. For other recent authorities recognizing the jurisdiction of equity to grant relief from probate orders procured by fraud, see Nelson v. Cowling, 77 Ark. 351, 113 Am. St. Rep. 155; Willis v. Rice, 141 Ala. 168, 109 Am. St. Rep. 26.

MARLOW v. SOUTHERN PACIFIC COMPANY.

[151 Cal. 383, 90 Pac. 928.]

CARRIERS OF PASSENGERS, Agents of are not Exclusive Judges of Identification.-Under a ticket signed by a passenger and specifying that the purchaser will sign her name and otherwise identify herself as such passenger when called upon to do so by any conductor or agent or agents of the carrier, they are not made absolute arbiters. The utmost they can require is reasonably satisfactory evidence of identification, and the carrier may therefore be held answerable if they wrongfully eject a passenger from a train. (p. 129.) DAMAGES, When not Excessive for Ejecting a Passenger from a Train.-Five hundred dollars is not an excessive sum to award for the wrongful ejection of a married woman, traveling with her infant, from a train, in the night-time, at a station far from home, and without baggage or money. (p. 130.)

J. W. McKinley, for the appellant.

Byron Waters and Winn Wylie, for the respondents.

384 HENSHAW, J. Plaintiffs brought their action to recover damages for the unlawful ejectment of Mrs. Marlow from a train of defendant upon which she was a passenger. The cause was tried before the court, which gave judgment for plaintiffs in the sum of five hundred dollars, from which judgment and from the order denying its motion for a new trial defendant appeals.

Plaintiff Edward Marlow had purchased for his wife a ticket entitling her to travel from Maricopa to Los Angeles and return. She was upon her return trip from Los Angeles to Maricopa, when she was ordered from the train by defendant's agent. Her ticket contained the following provision: "That I, the original purchaser, will sign my name and otherwise identify myself as such purchaser, whenever called upon so to do by any conductor or agent of the line or lines over which the ticket reads." This agreement was

signed by Mrs. Marlow.

Appellant's first point is that there is no evidence showing that plaintiff identified herself by signature or otherwise in accordance with the terms of the ticket, and that she was therefore not entitled to passage thereon. The facts are that Mrs. Marlow was traveling with a nursing baby about a year and a half old, and that her trunk had been checked through to her destination. The train agent of defendant had asked for her signature while the train was in motion. While admitting a similarity, he expressed himself dissatisfied with a comparison which he made between the signature written for him and that upon the face of the ticket. Mrs. Marlow protested that the ticket was honestly hers, and asked for an opportunity to sign when the train was not in motion. She did so sign repeatedly, and still the train agent was unsatisfied. He asked her if she knew anybody on the train, or if there were any identifying marks upon her clothing. She knew nobody on the train and was unable to show the required identification marks. She still protested, however, that it was her ticket, declared that she had not money sufficient to pay her fare, but announced her willingness to pledge a ring, and begged to be allowed to continue her journey to Maricopa, where she assured the agent that friends 385 would identify her. The ticket was signed "Mrs. Edward Marlow" and the identification marks upon the ticket described the owner as "female, stout, middle-aged, light eyes, dark hair." That the plaintiff had in charge a nursing baby

was at least some evidence that she was a married woman, and it is not contended that in person she did not meet the description above given. Nevertheless, and despite her protest, her ticket was taken by the train agent and was reported to the conductor, and it became the conductor's duty to cause her to leave the train, which unpleasant duty he performed with courtesy. Mrs. Marlow was thus left at Colton with the care of a nursing, frightened, crying child, without her trunk, and without money. She was aided in telegraphing to her husband and in obtaining a night's lodging.

These facts present a different case from that of Southern Ry. Co. v. Barlow, 104 Ga. 213, 69 Am. St. Rep. 166, 30 S. E. 732, cited by appellant. That case holds merely that under a contract such as this, a validating agent who was not satisfied with the signature alone was justified in requiring other evidence of identity, and that the mere opinion of a hotel clerk as to the genuineness of the signature was no better evidence than the signature itself. Central Georgia Ry. Co. v. Cannon, 106 Ga. 828, 32 S. E. 874, a case also relied upon by appellant, was one where the plaintiff, against the advice of the agent, printed his name on the ticket instead of writing it in the first instance, thereby making it impracticable to identify himself by writing. The court very properly declared that it was incumbent upon such purchaser as a condition precedent to having the ticket signed and stamped, to furnish such proof of his identity, and of the fact that he was the original purchaser, as would be sufficient to satisfy a reasonable man, and that under such a contract the validating agent was entitled to call for other proof of identity than that offered merely by the holder writing his name. Certainly the evidence, as above pointed out, presents an entirely different case from those referred to, and furnishes what should have been sufficient assurance of plaintiff's right to travel.

Under this contract the agents of defendant were not made the absolute arbiters, as appellant contends, upon the 886 authority of Church v. Shanklin, 95 Cal. 626, 30 Pac. 789, 17 L. R. A. 207. The utmost which the agents could require was reasonably satisfactory evidence of identification. Church v. Shanklin was a case under contract whereby title to real estate was to be perfected "to the satisfaction of Church & Cory, attorneys," and this court held that the expression of Am. St. Rep., Vol. 121-9

their satisfaction with the title was what the parties had stipulated should be had, and that Church & Cory thus became umpires and arbiters whose judgment was final. Such, as we have said, is not the case here presented, nor will it be said that under the circumstances indicated the judgment was excessive.

The judgment and order appealed from are therefore affirmed.

McFarland, J., and Lorigan, J., concurred.

A Railway Ticket stipulating that the purchaser shall, when called upon by a conductor, identify himself as such purchaser, makes it incumbent on him to use reasonable means of identifying himself if required: Southern Ry. Co. v. Barlow, 104 Ga. 213, 69 Am. St. Rep. 166. But the identification need be by only such proof as would satisfy a reasonable, conscientious, and prudent man; it need not necessarily be such as satisfies the conductor: Southern Ry. Co. v. Cassell, 122 Ky. 317.

CHAPMAN v. MOORE.

[151 Cal. 509, 91 Pac. 324.]

ABATEMENT, Plea of in Suit to Quiet Title.-An action to quiet title is properly abated as to a defendant when it appears that a prior action brought by the plaintiff against such defendant to quiet title to the same property is still pending. (p. 132.)

JUDGMENT Based on Constructive Service of Process.-The statement in an affidavit for an order for the publication of summons need not show what the persons of whom the plaintiff inquired respecting the place of residence of the defendant told the plaintiff, if it further appears by the affidavit that such defendant cannot be found within the state after diligent search for him by the affiant, and that such search consisted of making inquiries of each and every person from whom he had reason to believe he would receive knowledge of the whereabouts of the defendant. (pp. 134, 135.)

JUDGMENT, Admissibility of as a Muniment of Title.-A judgment is admissible against one not a party thereto as a muniment of title. (p. 135.)

JUDGMENT Quieting Title, Admissibility and Effect of as Against Third Persons.-If it is admitted at the trial that the legal title to property at a date specified was in A, a judgment against him at a subsequent date in favor of B vesting title in him to the same property is admissible in a subsequent action against C for the purpose of proving that A's title had at and before the entry of such judgment passed to B. (p. 136.)

Charles Lantz, for the appellant.

William Chambers, for the respondents.