the plaintiff was not the owner or in possession of the land, subject only to the paramount title of the United States; and this finding was, in our opinion, fully justified. We advise, therefore, that the judgment and order be affirmed.

We concur: SEARLS, C.; VANCLIEF, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

(99 Cal. 380)

PENNEY et al. v. SIMMONS. (No. 14,661.) (Supreme Court of California. Aug. 26, 1893.) MORTGAGE-WHAT CONSTITUTES EVIDENCE.

A deed absolute on its face will not be declared a mortgage, unless the evidence that it was so intended is plain and convincing, and the sufficiency of the evidence is a question for the trial court.

Department 2. Appeal from superior court, city and county of San Francisco; T. H. Rearden, Judge.

Action by Penney and others against Simmons to declare a deed absolute on its face a mortgage. There was a judgment in favor of defendant, and plaintiffs appeal. Affirmed.

Carroll Cook and J. E. Foulds, for appellants. Blake, Williams & Harrison, for respondent.

DE HAVEN, J. The plaintiffs brought this action to have a certain deed, absolute upon its face, declared to be a mortgage, and for a judgment directing the defendant, the grantee named in such deed, to execute to plaintiffs a reconveyance of the property described in the deed, upon the payment of the debt alleged to have been secured by the deed in question. The action was tried by the court without a jury, and the court found that the deed referred to in the complaint was not intended as a mortgage, or as security for any debt. The main contention of appellants upon this appeal is that this finding is not sustained by the evidence. In the late case of Mahoney v. Bostwick, 96 Cal. 53, 30 Pac. Rep. 1020, this court, in discussing the nature of the proof required upon the part of the plaintiff in this class of actions, said that the "presumption of law, independent of proof, is that the instrument is what on its face it purports to be,-an absolute conveyance; and that this presumption should be allowed to prevail, unless the evidence offered to show that the deed was in fact intended as a mortgage is entirely plain and convincing." And it was further said that "unless the evidence is such as to leave in the mind of the trial judge a clear and satisfactory conviction that the instrument, which in form is a deed, was intended by all the parties as a mortgage, the finding should be against the plaintiff." Whether, in any case, the evidence is sufficiently strong and clear v.33P.no.19-71

to produce this conviction, is, like all other questions of fact arising in the trial, a matter for the trial court to determine, (Brison v. Brison, 90 Cal. 327, 27 Pac. Rep. 186; Ensign v. Ensign, 120 N. Y. 656, 24 N. E. Rep. 942;) and the finding of the trial court that the deed was not intended as a mortgage will not be set aside in this court, when there is a substantial conflict in the evidence. We think this case presents such a conflict upon the point whether the deed mentioned in the complaint was intended by all the parties thereto as a mortgage, and for this reason the finding of the superior court cannot be disturbed by us.

The other questions discussed in the brief of counsel for appellants require no special consideration. It is sufficient to say that we discover no material error in the record. Judgment and order affirmed.

1. Where the clerk of the trial court, through inadvertence, failed to enter on the minutes the fact that the parties, by oral consent, in open court, waived written findings, the court properly directed that the minutes be corrected and amended nunc pro tune as of the day of the waiver, and denied a motion to set aside the judgment on the alleged ground that written findings had not been waived.

2. Where there is a substantial conflict in the evidence, the findings of the trial court will not be disturbed, on appeal, on the ground of insufficiency of evidence to support them.

Department 2. Appeal from superior court, city and county of San Francisco; William T. Wallace, Judge.

Action by Daniel T. Sullivan against one Hume for professional services as attorney at law. From a judgment for plaintiff, defendant appeals. Affirmed.

Estee, Fitzgerald & Miller, for appellant. Daniel T. Sullivan, in pro. per.

DE HAVEN, J. This action was brought to recover a balance of $850 claimed to be due from the defendant for professional serv ices rendered to him by the plaintiff in his capacity as an attorney at law. The plaintiff obtained a judgment in the superior court for $500, and the defendant appeals.

1. There were no written findings, and the defendant moved the court to set aside its judgment upon the alleged ground that such findings had not been waived. The motion was denied. The record shows that findings of fact were expressly waived by the oral consent of the parties, given in open court at the time of the submission of the case, but the clerk, through inadvertence, failed to enter the fact of such waiver upon the min

utes of the court at the time. This appearing, the court did not err in denying the motion of defendant, and in directing that the minutes of the court be corrected and amended nunc pro tunc as of the day of such waiver, so as to show the real facts in relation thereto. The court had an undoubted right to correct its minutes so as to make them state the truth in relation to the matter, and when this was done the minutes showed a waiver of findings in one of the modes prescribed by section 634 of the Code of Civil Procedure, to wit: "By oral consent in open court, entered in the minutes."

2. Nor can we disturb the judgment upon the ground of the insufficiency of the evidence to sustain the implied finding of the court to the effect that the plaintiff was employed by defendant to act as his attorney in the trial of the case referred to in the complaint. This case comes squarely within the settled rule of this court that, where there is a substantial conflict in the evidence, the finding of the trial court or jury upon the disputed fact is conclusive here. The court below evidently gave credit to the testimony of the plaintiff, and that evidence was certainly sufficient to justify the judgment appealed from. Judgment and order affirmed.

MOWRY v. NUNEZ. (No. 14,533.) (Supreme Court of California. Aug. 26, 1893.) JUDGMENT BY DEFAULT-VACATION.

Where, in ejectment, default and judgment were taken and rendered against a tenant without the knowledge of his landlord, a motion to set aside the default and vacate the judgment was properly granted.

Department 2. Appeal from superior court, Alameda county; W. E. Greene, Judge. Ejectment by George B. Mowry against Joseph S. Nunez. There was judgment by default for plaintiff. From an order setting aside the default, and vacating the judgment, plaintiff appeals. Affirmed.

R. Percy Wright, for appellant. J. E. Simmons and A. A. Moore, for respondent.

MCFARLAND, J. This is an appeal by plaintiff from an order made December 1, 1890, setting aside the default of defendant, and vacating a judgment theretofore entered against him. The motion of respondent to open the default was upon the grounds "that said judgment and the said default were taken against him by and through the mistake, inadvertence, and excusable neglect of said Nunez." Afterwards, at the suggestion of the court, another ground was added, viz. irregularity of process, consisting of the issuance of the second summons upon an amended complaint without an order of court allowing it, and the court based its order vacating the judgment upon this latter

ground. But the affidavits showing mistake, excusable neglect, etc., were such that the court should have opened the default on that ground, and therefore it is not necessary to discuss the question about the invalidity of the process. This is a case where, in an action of ejectment, default and judgment were taken and rendered against a tenant without the knowledge of his landlord, and in such a case an order vacating a judgment will rarely be disturbed. The order appealed from is affirmed.

We concur: DE HAVEN, J.; FITZGERALD, J.

(99 Cal. 374)

(No. 15,152.) Aug. 26, 1893.)

In re JAMES' ESTATE. (Supreme Court of California. DIVORCE-DECREE OF OTHER STATE-COLLATERAL ATTACK-COMPLAINT-JURISDICTIONAL GROUNDS -PROCESS-REVIEW OF EVIDENCE.

1. A decree of divorce, rendered by a court having general jurisdiction, cannot be collaterally attacked on the ground that the complaint in the action does not state facts entitling the plaintiff to the relief demanded and awarded.

2. A decree of divorce of another state can be impeached on the ground that the court had not jurisdiction thereof, by reason of plaintiff's not having been a resident of the state for the period prescribed by statute before bringing the action.

3. An implied finding on a point as to which there was a substantial conflict of evidence will not be disturbed on appeal.

4. On collateral attack of a judgment by default, rendered on process served by publication, the process will be held to have given the court jurisdiction, where the published order for defendant to appear was in every way formal, and the only defect in the process was the failure of the clerk, on entering the original order in the records, to sign his name to it.

5. Where one has obtained a valid divorce in one state, the fact that his wife afterwards brings an action in another state for divorce from bed and board, and for support, and obtains judgment therefor, he not pleading his decree of divorce, will not change his status of a single man.

Department 2. Appeal from superior court, Santa Cruz county; F. J. McCann, Judge.

Petition by Sarah M. James for revocation of letters of administration issued to Leonora A. James on the estate of William E. James, deceased, and for grant of such letters to petitioner. Petition denied, and petitioner appeals. Affirmed.

Horace W. Philbrook, for appellant. Z. N. Goldsby and Joseph H. Skirm, for respondent.

DE HAVEN, J. This proceeding was commenced in the superior court of Santa Cruz county under the provisions of section 1383 of the Code of Civil Procedure, and the petitioner therein, Sarah M. James appeals from an order of that court refusing to revoke letters of administration theretofore issued to the respondent, Leonora A. James, upon the estate of William E. James, deceased,

and also refusing to grant letters of administration upon the said estate to the petitioner. The petitioner and the respondent each claims to be the widow of the deceased, and these conflicting claims present the general question which the court is required to determine at this time.

The petitioner, Sarah M. James, was married to the deceased, in the state of New York, in the year 1859, and they lived together in that relation until 1871, when they separated. Thereafter, James went to Missouri, and on May 18, 1874, commenced, in one of the circuit courts of that state, an action against petitioner for a divorce, and on July 3, 1874, obtained a decree purporting to dissolve the bonds of matrimony theretofore existing between himself and the petitioner. The petitioner here was, during all the times of the pendency of the divorce proceedings, a resident of the state of New York, and had no actual knowledge of the pendency of that action, the process therein having been served by publication only. James subsequently became a resident of this state, and in February, 1883, married the respondent, then Leonora A. King, in the county of Santa Cruz, in this state. The marriage ceremony was performed by a minister of the Baptist church, at the home of the parents of respondent, and was witnessed by them, and others invited for that purpose. After their marriage, he and respondent lived together as husband and wife until or about the time of his death, which occurred in April, 1887. It will be seen from the foregoing statement that the decision of this case must turn upon the question of the validity of the decree of divorce which the deceased obtained in the state of Missouri. While there is some conflict in the decisions upon this point, we entertain no doubt that a decree of divorce which has been regularly obtained in one state, by a citizen thereof, against a nonresident defendant, constructively served with process in the action, and without other notice, and which is valid and effectual in the state in which such decree is rendered, is equally valid in a sister state. Ditson v. Ditson, 4 R. I. 87; Leith v. Leith, 39 N. H. 20; Gould v. Crow, 57 Mo. 200; 2 Bish. Mar. & Div. (6th Ed.) §§ 156, 157, 199e. See, also, Pennoyer v. Neff, 95 U. S. 734, 735; Cheely v. Clayton, 110 U. S. 701, 4 Sup. Ct. Rep. 328. We do not understand the appellant to question this proposition, but her contention is that the decree referred to is absolutely void (1) because the complaint in the action in which the decree was given did not state sufficient facts to entitle the plaintiff therein to a divorce; (2) that the court did not have jurisdiction to render it, for the reason that the deceased was not a resident of the state of Missouri for one year next before the commencement of the action resulting in the decree,-such residence being necessary, under the laws of

that state, in order to give its courts jurisdiction in actions for divorce; and (3) because no process was ever issued in the ac tion. These objections will be noticed in their order:

1. The attack here made upon the judgment in James v. James is collateral, and it is well settled that the judgment of a court having general jurisdiction of the subject-matter involved in the judgment cannot be successfully attacked in a collateral proceeding because of an imperfect or defective complaint in the action in which it was rendered. If the facts stated in the complaint are not sufficient to entitle the plaintiff to the relief demanded therein, and awarded by the judgment, the action of the court in deciding otherwise, and rendering its judgment in accordance with the prayer of the complaint, can be nothing more than error. Head v. Daniels, 38 Kan. 1, 15 Pac. Rep. 911; Rowe v. Palmer, 29 Kan. 337; Frankfurth v. Anderson, 61 Wis. 107, 20 N. W. Rep. 662; Van Fleet, Collat. Attack, § 61. See, also, Blondeau v. Snyder, 95 Cal. 521, 31 Pac. Rep. 591. The complaint in James v. James was sufficient to inform the court and the defendant therein of the relief which the plaintiff demanded, and of the facts upon which he based his right to the relief sought, and this was all that was necessary, in the way of a statement of facts, to give the court jurisdiction of the subject-matter of the action.

2. In regard to the second ground of objection to the decree in James v. James, we agree with appellant that it is competent to collaterally impeach the record of a judgment rendered in another state by extrinsic evidence showing that the facts necessary to give the court pronouncing it jurisdiction to proceed, did not exist, and this is true although the record sought to be impeached may recite the existence of such jurisdictional facts. Thompson v. Whitman, 18 Wall. 457; Machine Co. v. Radcliffe, 137 U. S. 287, 11 Sup. Ct. Rep. 92; Starbuck v. Murray, 5 Wend. 148; Eager v. Stover, 59 Mo. 87. But in this case there was a substantial conflict in the evidence as to whether or not the deceased was a bona fide resident of the state of Missouri at the time and for one year prior to the commencement of the divorce proceeding there, and, this being so, we cannot disturb the implied finding of the court below to the effect that he was such a resident, and had resided in the state for the length of time alleged in his complaint in that action.

3. The laws of the state of Missouri in regard to the constructive service of process upon nonresident defendants in actions for divorce was introduced in evidence, from which it appears that the process prescribed in such cases is an order made by "the clerk or court in vacation directed to the nonresidents or absentees, notifying them of the commencement of the action; and

stating briefly the object and general nature of the petition," etc.; such order to be published for four weeks "in some newspaper, which the court, judge or clerk making the order may designate as most likely to give notice to the person to be notified." The order directing the defendant to appear in the divorce proceedings of James v. James was made by the clerk of the court in vacation. In form and contents, it complied with the statute, and was entered by him in the proper book of record kept in his office, but the name of the clerk was not signed to such entry. The copy of the order, as published, purported to be attested by the clerk, with the seal of the court, and was published in the paper named in the order for the length of time required by the order, and the laws of the state of Missouri. Upon this state of facts the appellant contends that no process was ever issued in the action of James v. James, and that the order notifying the petitioner here to appear as defendant therein was absolutely void, because of the failure of the clerk to sign the same as entered by him in the records of the court, and that the default judgment taken against the petitioner here, as defendant in that action, was and is, for this reason, void, in the broadest sense of that word, and must be so held in this collateral attack upon that judgment. But we do not think so. In the cases of Wilson v. Owens, 45 Ala. 451; Costley v. Driver, Id. 230; Winnemore v. Mathews, Id. 449,-cited by appellant, and also in Sheppard v. Powers, 50 Ala. 377, it was held that a summons not signed by the clerk issuing it is invalid, and will not support a judgment by default. But the question arose in each of these cases upon a direct appeal from the judgment based upon such defective summons, and not in a collateral attack upon the judgment, as in the case at bar; and, as the rule in relation to the effect of errors or irregularities of practice in obtaining a judgment is not the same in the case of a direct appeal from the judgment as when the judgment is collaterally assailed upon the same grounds, we do not regard the cases just referred to as any authority for the proposition that a judgment regular in all other respects must be held void, when collaterally brought under review, because of such an infirmity in the process upon which it is based. There is a clear distinction between the entire want of jurisdiction, and an irregularity in some one of the steps taken in obtaining jurisdiction. In the former case the judgment is absolutely void at all times, and whenever brought forward or called in question, but in the latter case the judgment is valid until reversed or set aside. "No principle of law," says Mr. Black in his work on Judgments, "is more firmly settled than that a judgment of a court of competent jurisdiction, so long as it stands in full force and unreversed, cannot be impeached in any collateral proceeding on account of mere er

rors or irregularities not going to the jurisdiction." Black, Judgm. § 261. See, also, 1 Freem. Judgm. (4th Ed.) § 126. In the case of Ambler v. Leach, 15 W. Va. 677, the court, in a careful opinion reviewing many cases, reached the conclusion that a summons otherwise regular is not absolutely null and void because not signed by the clerk, and that a judgment by default, based thereon, should not be held invalid upon a collateral attack. It is true that in the judgment held good in the case just mentioned the defective summons was personally served upon the defendant, while in the judgment now under consideration the service was by publication, but we do not regard this difference as material to the question we are now discussing. The order, as actually published in the case of James v. James, was full and complete, and purported to have been signed by the proper officer, and we think that the neglect of the clerk to sign his name at the foot of the order entered by him in the proper book kept for the entry of such orders should be treated, in this collateral attack upon the judgment based on such order, as a mere clerical omission in a matter more of form than substance, and such as was certainly cured by the entry of the judgment. order was in fact made when it was entered in the records of the court, and, while it would have been more regular to have authenticated it with the signature of the clerk, the irregularity was not of such vital character as to deprive the court of jurisdiction to enter the judgment which it did, based upon the constructive service of process, of which that order was a material part.

The

4. It also appears from the record before us that, after the rendition of the decree of divorce, James returned to the state of New York, and the petitioner here brought an action against him to obtain a divorce from bed and board, and in October, 1874, obtained such a judgment against him; and it was also further adjudged in that action that he pay to her, for the support of herself and children, $25 per week, and costs of the action. The validity of the decree of divorce obtained by James in the state of Missouri was not directly put in issue in that action, and there is nothing in the record to indicate that it was ever brought to the attention of the court in New York rendering this latter judgment. We do not think that the judgment just referred to is a bar to the right of the respondent to assert in this proceeding the binding force of the former decree of divorce rendered in the state of Missouri in the case of James v. James, and the lawfulness of her subsequent marriage to the deceased in this state. The decree of divorce obtained by the deceased in Missouri was valid, and established the status of the deceased as an unmarried man, leaving him free to again enter into the marriage relation with any other person consenting thereto. His failure to plead the judgment of divorce