personal property as is by law exempt from execution, and also a homestead, in the manner provided by section 1465 of the Code of Civil Procedure."

The appellant contends that the court below erred in so doing, because the premises set apart to the insolvert never constituted his residence. The statute regulating this matter does not require that they should ever have constituted the residence. The finding of the court is that the property set apart is suitable and proper for a homestead, and that was a sufficient basis for the order setting it apart. As has been seen, the statute makes it the duty of the court to exempt and set apart for the use and benefit of the insolvent such real and personal property as is by law exempt from execution, and also a homestead, in the manner provided in section 1465 of the Code of Civil Procedure. That section is one of the sections relating to the estates of deceased persons, and reads as follows:

"Upon the return of the inventory, or at any subsequent time during the administration, the court may, on its own motion, or on petition therefor, set apart for the use of the surviving husband or wife, or, in case of his or her death, to the minor children, of the decedent, all the property exempt from execution, including the homestead selected, designated, and recorded, provided such homestead was selected from the common property, or from the separate property, of the person selecting, or joining in the selection, of the same. If more has been selected, designated, and recorded, or in case the homestead was selected by the survivor out of the separate property of the decedent, the decedent not having joined therein, the court must select, designate, and set apart, and cause to be recorded, a homestead, in the manner provided in article 11 of this chapter, out of the common property, or if there be no common property, then out of the real estate belonging to the decedent."

The statute does not attach the condition that the decedent must have resided upon the premises before a given piece of property can be set apart for the use of the survivor, or, in case of his death, to the minor children of the decedent; but, in express terms, provides that if no homestead has been selected, designated, or recorded, (under the general homestead laws,) or in case the homestead so designated was selected by the survivor out of the separate property of the decedent, the decedent not having joined therein, the court must select, designate, and set apart, and cause to be recorded, a homestead, etc. Such a homestead, as was held in Re Estate of Busse, 35 Cal. 310, may be carved out of any property left by the decedent which is capable of being made a homestead. Judgment affirmed.

We concur: MCKINSTRY, J.; Ross, J.

NOTE.

Respecting actual residence on property being required in California, when declaration of homestead is filed, see Skinner v. Hall, (Cal.) ante, 406, and note.

A city lot, bought by a man in contemplation of marriage, and for a homestead, and inclosed and improved after marriage, with the intention of building on it as soon as means permit, is exempt, even before any dwelling-house is built on it. Reske v. Reske, Mich.) 16 N. W. Rep. 895.

(69 Cal. 251)

THORN and others v. FINN. (No. 11,505.)

Filed April 1, 1886.

NEW TRIAL-NOTICE OF INTENTION TO Move for-WAIVER OF NOTICE OF DE

CISION.

A party may give notice of his intention to move for a new trial without waiting for the service of the notice of decision upon him, and by so doing service of the notice of decision was waived.

Department 2. Application for mandamus.

W. H. Tompkins, for petitioner.

A. N. Drown, for respondent.

THORNTON, J. In Savings & Loan Society v. Thorne et al., after the decision of the court was duly rendered in favor of plaintiff, and an order for judgment in favor of plaintiff entered on the minutes of the court, which was done on the thirty-first day of March, 1882, the defendants on the third of April, 1882, served and filed their notice of intention to move for a new trial. Subsequently a statement on said motion was prepared by defendants and served on plaintiff, to which plaintiff proposed amendments. These amendments were served on defendants. In the month of June, 1883, the plaintiff and defendants, by their respective attorneys, agreed to the statement. The statement they agreed on was afterwards, on the eighteenth of February, 1885, presented to the Hon. J. M. Allen, the judge of the superior court before whom the cause was tried, and by him was certified and allowed as correct. On a subsequent day the motion was regularly called for hearing in said court, and was on the sixth day of March, 1885, denied on the ground of "laches, failure, and lack of diligence in the prosecution thereof."

The findings in the cause above entitled were filed on the twentieth of October, 1882. No notice of this decision was ever served on defendants. Subsequently to the denial of the above motion, the defendants served and filed another notice of motion to move for a new trial, proposed a statement on said motion, and served the same on plaintiff's attorneys. To this statement plaintiff proposed amendments, at the same time reserving objections to this statement, and to the notice of intention to move for a new trial, just above mentioned. These objections were as follows:

"(1) That there is no motion for a new trial pending herein, the record herein showing that defendants gave notice of motion for a new trial on the third day of April, 1882, and thereafter proposed, and caused to be settled and filed herein, their statement on said motion for a new trial; and that thereafter, on the sixth day of March, 1885, the said motion of April 3, 1882, for a new trial was regularly denied by this court, and that the alleged motion for a new trial, made upon the sixteenth day of March, 1885, and upon which the present proposed statement of the defendants rests and is founded, was and is wholly void and ineffectual and inoperative.

"(2) That the said alleged motion for a new trial, of which notice was given and filed March 16, 1885, was made and notice thereof given and filed

too late; being about two and a half years subsequent to the decision herein rendered.

"(3) That the so-called proposed statement of the defendants was not served or proposed in time; being two years and a half or thereabouts, subsequent to the decision herein, and being nearly three years subsequent to the making, serving, and filing of said defendants' first notice of motion for new trial herein.

"(4) That defendants have been guilty of gross laches and want of diligence in their failure to serve and file, for so long a period, the notice of motion for new trial, which was served and filed by them herein on March 16, 1885, and in delaying and neglecting for so long a time to propose the so-called statement on motion for a new trial heretofore, as aforesaid, served on April 4, 1885; and that by reason of such laches and negligence, defendants have forfeited and waived any right ever to prosecute the said motion of March 16, 1885, or to have settled the said proposed statement served on April 4, 1885.

"And hereby expressly reserving and claiming the benefit of the said exceptions and objections to the said motion for a new trial and to the said 'proposed statement' served and proposed on April 4, 1885, plaintiff furthermore comes and objects to the said proposed statement as a statement of the said case, and hereby proposes the following changes and amendments,"

etc.

Afterwards this statement, with the proposed amendments, were presented to Judge ALLEN for settlement, who refused to settle it on the grounds stated in plaintiff's objections. The statement and amendments were then presented to the Hon. J. F. FINN, the successor to Judge ALLEN, for settlement. Respondent also refused to settle the statement. This application is for the mandate of this court to Judge FINN, commanding him to settle the proposed statement.

We see no grounds for it. The motion for new trial was regularly heard and denied. The defendants contend that their first motion of intention having been served and filed before a notice of the decision was served on them, that it was a nullity, and that all proceedings under it were null. But a party may waive notice of the decision, and, by giving notice of intention to move for a new trial, he does waive it. This was substantially held in Cottle v. Leitch, 43 Cal. 322, and we think held correctly. Here the defendants not only gave notice of intention, but took all other steps preparatory to bringing that motion to a hearing down to a settlement of their statement in February, 1885, nearly three years after their first notice of intention was given. We do not think in this state of circumstances that the contention of defendants, that their notice first given was null, should be regarded with any consideration. If their conduct is not a waiver of notice of the decision of the cause, it would be difficult to say what conduct would amount to a waiver.

It is the judgment of the court that the application should be denied, and the proceedings dismissed. So ordered.

We concur: MCKEE, J.; SHARPSTEIN, J.

(68 Cal. 245)

ACKER v. SUPERIOR COURT. (No. 11,188.)

Filed April 1, 1886.

APPEAL FROM JUSTICE'S COURT-TRIAL IN SUPERIOR Court.

A superior court has no jurisdiction, on an appeal from the justice's court on questions of law and fact, to order the case back to the justice's court for trial, but should, under section 976 of the California Code of Civil Procedure, proceed with the trial.

Department 1. Writ of review.

Royce & Cummins, for petitioner.
Carl F. Graef, for respondent.

BY THE COURT. Writ of review. On the application for the writ this court held that, on appeal to the superior court on questions of law and fact, the superior court has no jurisdiction to order the case. back to the justice's court for trial, but should, under section 976, Code of Civil Procedure, proceed with the trial in the appellate court. The return of the writ is now before us, from which it appears that the appeal was taken as above indicated. For the reasons given in the opinion filed by this court in this case (9 Pac. Rep. 109) the order of the superior court remanding the cause to the justice's court for trial is annulled.

(13 Or. 297)

SUPREME COURT OF oregon.

BYERS v. Cook.
Filed March 24, 1886.

1. APPEAL-UNDERTAKING WHEN IT SHOULD BE PREPARED.

An undertaking prepared and signed, with a view to be used in perfecting an appeal, is good and binding, provided it was not prepared until after the judgment was rendered, and not filed before the filing of the notice of appeal, although prepared before such notice was served.

2. SAME-NOTICE OF APPEAL-UPON WHOM TO BE SERVED-ATTORNEY.

One who acts for another as attorney in a justice's court is not an attorney in the same sense as one who is retained as such in a court of record, and hence in the former case a notice of appeal need not be served upon such person.

J. H. Woodward, for appellant.

E. Mendenhall, for respondent.

BY THE COURT. This appeal is from a judgment entered upon an order dismissing an appeal from justice's court to said circuit court. A judgment was rendered against the appellant in the justice's court on the third day of August, 1885. On the seventh day of that month and year the appellant prepared and signed, with surety, an undertaking on appeal therefrom to the said circuit court. An affidavit of the surety showing that he was qualified as such was attached to the said undertaking, and on the twenty-fifth day of August, 1885, a notice of appeal having been duly prepared, was served upon the respondent; and on the twenty-eighth day of August, same year, said notice of appeal, with proof of service, was filed with the said justice, and thereupon said undertaking was also filed with him. The transcript of the justice's court proceedings in the case having been duly filed in the said circuit court, the respondent filed a motion to dismiss the appeal upon some six grounds enumerated therein, and on which motion the order was made, upon which said judgment was entered.

The first, second, third, and fifth grounds of the motion are so general that they cannot be considered.

The fourth one is to the effect that the notice of appeal was not served upon the respondent's attorney; and the sixth one that the undertaking was signed, and the affidavit of the surety taken, prematurely. Neither of these grounds, in the opinion of the court, is tenable. The undertaking was not intended to nor had any effect until filed. State v. Young, 23 Minn. 551. It was prepared and signed with a view, no doubt, to be used in perfecting the appeal; and so long as it was prepared after the judgment was rendered, and not filed until the notice of appeal was filed, it was valid and binding. The law will not concern itself about such trifles. It looks to v.10p.no.6-27