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.

510 LORIGAN, J. This action was originally commenced by M. M. Davis, as plaintiff, and subsequent to its commencement the present plaintiff, William Chapman, was substituted in the superior court for said Davis as plaintiff.

The action was brought to quiet title to lot 4 in block “C” of the Sunset Tract in the city of Los Angeles, the plaintiff making the usual allegations of ownership of the property, and the defendants asserting claims thereto adverse to him.

The defendant O. A. Moore in her answer denied the alleged ownership of plaintiff, and asserted ownership of the lot to be in herself; the defendants Strohm, in a separate answer, also denied the ownership of plaintiff, and asserted that the defendant Susan Strohm was the owner of the property. These latter defendants also pleaded in abatement of the present action the pendency of a prior action brought against them by M. M. Davis to quiet title to this same lot.

Upon the trial the court found in favor of the defendants Strohm on their plea of abatement; found also that plaintiff was not the owner of the property, and entered judgment that the action abate as to the Strohms, and in favor of O. A. Moore for her costs.

Plaintiff appeals from the judgment and an order denying a motion made by him for a new trial.

On the trial of the cause the only evidence presented upon the issue of ownership of the property was that offered by the plaintiff. No evidence was offered by the defendants at all, save by the Strohms in support of their plea in abate

ment.

511 As grounds for a reversal it is insisted by appellant that the court erred in sustaining the plea of abatement interposed by the Strohms, that it erred also in rejecting certain evidence offered by plaintiff, and that the finding of the court that plaintiff was not the owner of the property in dispute was not justified by the evidence.

As to the plea in abatement. This was the first issue tried by the court. In support of it the Strohms offered in evidence the record in the suit of M. M. Davis versus B. E. Ninde, Samuel Strohm, Susan Strohm, William Patterson et al., which showed that a suit to quiet title to the same lot involved in the action then on trial was commenced February 3, 1903 (the complaint in this action was filed August 27, 1904), and was then pending as to the said defendants Strohm. This was the only evidence offered, and at its conclusion a

motion was made on behalf of said defendants Strohm, on such showing, to have this action as to them dismissed, which was granted. The showing was sufficient to sustain the plea, and upon it the Strohms were entitled to have the subsequent action against them abated: Code Civ. Proc., secs. 430 (subd. 2), 433.

The Strohms by this order of the court having been dismissed from the case, the trial then proceeded between the plaintiff and the defendant Moore.

To sustain his title against her, plaintiff offered in evidence, among other documents, a certificate of sale of said property made July 3, 1895, to the state of California for state and county taxes for the year 1894; a deed of said property, dated July 6, 1900, from the county tax collector to the state of California for said taxes; also a deed of said property from said tax collector to plaintiff, dated September 21, 1901, made pursuant to an authorization of the state controller to sell said land. The court refused, upon defendants' objection, to admit such instruments in evidence, and this ruling is assigned as error. In the briefs of respondent no grounds are suggested in support of the ruling and no specific objections are urged against the validity of these several tax sale instruments. Counsel for respondent simply says: "The questions as to the validity of this state deed involved in this action are the same as those now before the supreme court in the case of Barrett [which should have been Baird] versus Monroe, Los Angeles No. 1623." The case of Baird v. Monroe, 150 Cal. 560, 512 89 Pac. 352, had not been decided by this court when the briefs in this present appeal were filed, but it has been since, and the various grounds urged against the validity of a tax deed there involved, similar to the one in question here, were deemed untenable and the validity of the deed sustained. It is unnecessary to refer here to the objections urged against the deed considered in that case, or to restate the grounds upon which the court sustained its validity, as they will fully appear from an examination of the decision rendered: Baird v. Monroe, 150 Cal. 560, 89 Pac. 352. See, also, Carter v. Osborn, 150 Cal. 620, 89 Pac. 608. It follows, therefore, that the trial court erred in refusing to admit in evidence the tax deed offered by plaintiff.

The only other questions presented upon this appeal involve the validity of a certain judgment and its effect, if

It was stipulated on the trial that a certain deed, dated and recorded in October, 1887, conveyed title in fee to the lot of land in controversy here to one Walter Patterson. Such admission being made, the plaintiff offered in evidence a judgment-roll in a suit brought by M. M. Davis, the predecessor of plaintiff, versus B. E. Ninde, Samuel Strohm, Susan Strohm, and Walter Patterson (the same action heretofore referred to as pleaded in bar by the Strohms), which showed that an action to quiet title to this same property was commenced by Davis against the defendants by complaint filed February 3, 1903; that an affidavit and order for publication of summons on one of the defendants-Walter Patterson-were subsequently made and filed and service of the summons made upon said Patterson by publication; that the default of Patterson was subsequently entered, and thereafter, on April 4, 1904, a decree was entered quieting the title of said Davis to said lot against the said defendant Patterson. No objection was offered to the admission of the judgment-roll, and it was received in evidence. The plaintiff supplemented this offer by proof of a conveyance of the lot in controversy from M. M. Davis to himself, and rested his case.

It is insisted by appellant that this showing-the admission of title in Patterson at a given date, the decree quieting title subsequently obtained against Patterson by plaintiff's predecessor Davis, and the conveyance of Davis to himself— 513 sustained his claim of ownership to the property against the defendant Moore, and the finding of the court that he was not such owner was not justified by the evidence.

This claim of appellant is, in our judgment, unquestionably true, unless, as insisted by respondent, the decree quieting title to the lot in question against Patterson in the case just referred to is void, or unless there is some merit in the position of respondent, that, even if valid, the decree was not available to plaintiff as a muniment of title against her.

Now, as to the validity of the decree. The order for service of summons upon the defendant Patterson by publication was based on an affidavit of the attorney for Davis purporting to make out a sufficient showing that defendant Patterson, at the time when the service of summons was sought to be made upon him, could not with due diligence be found in the state of California. It is contended by respondent, and this is the only point made as to the sufficiency of the affidavit, that while it shows that the affiant made inquiries to ascertain the

whereabouts of Patterson it does not appear what information he got from those of whom he made the inquiries; that for all the affidavit shows these persons may have informed him that Patterson was residing in Los Angeles or somewhere in the state; that a statement of the result of his inquiries in the affidavit was essential to warrant an order of publication; that without it the court had no jurisdiction to make the order, and the order for the service of summons and the service under it and the decree were all void.

It is true, as claimed by respondent, that the affidavit fails to state what information the affiant received concerning the whereabouts of Patterson from those of whom he inquired concerning him. But in the case of Ligare v. California S. R. R. Co., 76 Cal. 610, 18 Pac. 777, it was held that such an omission was not fatal, if from the other facts stated in the affidavit it could be reasonably inferred that such inquiries to ascertain the whereabouts of the defendant were unavailing. In the case at bar the affidavit, in so far as it bears upon the point involved, stated that Walter Patterson could not be found in the state of California after diligent search made therein for him by affiant; that such diligent search consisted of making inquiries of each and every person from whom he had reason to believe he would receive knowledge of the whereabouts 514 of Patterson. Then follows a statement of the persons of whom he made inquiries and why he expected them to know of his whereabouts. In the case cited the affidavit under consideration there contained the same statements, but, like the case at bar, failed to state what the result of the inquiries was. It was held, however, that the affidavit was sufficient, the court saying: "It is argued that the affidavit for publication was insufficient on the question of diligence. The code provides that service may be made by publication (among other cases) where the person on whom it is to be made 'cannot, after due diligence, be found within the state': Code Civ. Proc., sec. 412. The affidavit in question first states that certain defendants, among whom is the plaintiff here, 'have been sought for to obtain service of summons thereon, but, after diligent search and inquiry, cannot be found within the state.' It then goes on to show what kind of search and inquiry have been made, viz., that the affiant 'has made inquiry of all persons from whom he could expect to obtain information as to the residence of said defendants.' It is not expressly stated what was the result of