court found that no alterations were made by the plaintiff after the execution of the instrument, and that it was executed and delivered to the defendants in the form claimed by the plaintiff. There being a substantial conflict of evidence, we cannot disturb the finding. In the testimony of the plaintiff and the defendant Yoakum there is a sharp conflict; plaintiff testifying that he called the attention of Yoakum to the defects in the mortgage, and that the changes were made at the suggestion of the latter, while Yoakum testified that he never authorized the plaintiff to erase the words "other than," and write in lieu thereof the word "and," and knew nothing whatever of such change having been made. So far as the defendant Barrett is concerned, the preponderance of the evidence, as shown by the record, seems to be in his favor, but we cannot say there is not sufficient evidence to support the finding. The plaintiff testified that the changes in the mortgage were all made by him at the same time. The defendant Barrett admits that the changes in black ink were made before he signed the mortgage, but denies that the erasure of the words "other than," and the insertion of the word “and,” in red ink, were in the instrument at that time. He says: "I did not sign the mortgage until it was complete. After all modifications were made, they came back to our side of the house, and I signed it. Then the document was acknowledged." If the court below believed the statement of the plaintiff that the changes were all made at the same time, it was natural to conclude that the defendant Barrett was mistaken in saying that the changes in red ink were not there when he executed the instrument.

The defendants moved for a new trial on the grounds of newly-discovered evidence. Among other things they showed by affidavit that the mortgage was acknowledged at least an hour before it was recorded. This was material, in view of the statement of the plaintiff that he went, immediately after the acknowledgment, from the notary's office to the office of the recorder. It was shown by the affidavit of one Pavkovich that the plaintiff, after the acknowledgment, returned to the office of Yoakum, "sat down near Mr. Barrett's desk, and appeared to be reading it over carefully. While in his hands, affiant saw him take a pen in his hand, and either write something in the mortgage, or erase something that was already in the mortgage." This, of course, was material. But while the evidence offerred was material, and not merely cumulative, the court below must have believed that the defendants had not used due diligence in attempting to discover this evidence before the conclusion of the trial. Generally, newly-discovered evidence after defeat is looked upon with suspicion, and the appellate court is always reluctant to interfere with the ruling of the court below on a

motion for a new trial on this ground. There must be a clear abuse of discretion. We cannot say that there was such an abuse in this case. The defendants had reason to believe from the issue that the plaintiff would deny that the changes were made after execution. His opportunity, therefore, to make such changes without the knowledge of the defendants, and before it was recorded, was naturally a subject of inquiry. When and where were the changes made? The notary's book would show the time when the instrument was acknowledged, and the recorder's book would show the time of recordation. Pavkovich occupied a part of the apartment rented by the defendant Yoakum at the time of the transaction, and stated that Barrett and Yoakum were present in his office most of that day, He was so close to the parties he heard them negotiating about the loan. The court below doubtless thought the defendants ought to have inquired before the conclusion of the trial as to what, if anything, Pavkovich knew about the transaction.

The court found that the sum of $360 had been paid on account of interest on the note, and appellant claims that this amount should be credited on the principal of the loan, if the court should find, as we do find, that the clause with respect to payment of taxes on the mortgage prevents the plaintiff, under the provision of the constitution quoted above, from recovering interest. The defendants were not bound to pay to the plaintiff any interest on the note. The payment of $360 was a voluntary payment. If it was made under a mistake of law, it cannot be recovered, nor can it be allowed as a credit other than as contemplated when the payment was made. Upon the finding of the court the case stands in this way: There is a clause in the mortgage for the payment by the mortgagors of the mortgage tax. This clause, being invalid under section 5 of article 13 of the constitution, supra, releases the mortgagors from any obligation to pay the interest stipulated in the note. The provision was inserted in the constitution for the benefit of the borrower, but it is a benefit which he may waive if he sees fit, and, if he voluntarily fulfills his promise to pay interest, it is through a mistake of law on his part, or a waiver of a known right. In either case he is bound by his own act. The respondent suggests that the decree should not be reversed, but simply modified, in case the court should hold that the plaintiff was not entitled to enforce the stipulation as to interest. In support of this contention it is stated that the appeal was not taken until after the sale, and that the land was sold under the decree for less than the principal of the note. But there is nothing in the record to substantiate these statements,nothing about a sale. The findings show, however, that the amount allowed plaintiff by the decree should be reduced in the sum of $883.63, that being the amount of interest

19,123.) (Supreme Court of California. Oct. 7, 1893.) VACATION OF JUDGMENT-WHEN ALLOWAble.

Under Code Civil Proc. § 473, providing that the court may relieve a party from a judg ment or order taken against him through his mistake, surprise, or excusable neglect, provided that application be made within a reasonable time, but in no case more than six months after the judgment or order, the court which rendered a judgment or order has no power on an ex parte motion to set it aside 13 months after its rendition.

Department 1. Appeal from superior court, San Diego county; E. S. Torrance, Judge.

Action by one Brackett against Manuel Banegas and J. W. Lucas. From an order setting aside a decree and allowing the filing of a supplemental complaint making Nievas Banegas a party defendant, and from an order refusing to vacate the same, said Manuel and Nievas Banegas appeal. Reversed.

Menzies C. Cleveland and J. B. Mannix, for appellants. Sprigg & Barber and Patterson & Sprigg, for respondent.

HARRISON, J. The respondent filed his complaint against Manuel Banegas, the appellant, and J. W. Lucas, for the foreclosure of a mortgage executed to him by said Manuel; and upon the default of Lucas and the answer of Banegas the cause was tried, and judgment rendered in favor of the respondent March 9, 1891. Upon this judgment an order of sale was issued March 14th, and the mortgaged premises sold to the plaintiff for the amount of the judgment April 6, 1891, and the order of sale and judgment returned satisfied. On the 13th of April, 1892, upon the ex parte application of the plaintiff in said action, respondent herein, the court made an order "that all subsequent proceedings herein after the service of summons and the return thereof upon defendants Manuel Banegas and J. W. Lucas be, and the same are, set aside, and said decree opened, without prejudice to the rights of the plaintiff in said decree of foreclosure, and that plaintiff be, and he is hereby, allowed to file an amended and supplemental complaint herein." Thereafter the plaintiff filed an amended complaint, making Nievas Banegas a party defendant, and a summons was issued thereon, and served upon Manuel and Nievas. These two defendants thereupon made a motion to set aside the aforesaid order' and the summons issued therein, and to strike from the files the said amended complaint, upon

the grounds that the court had no jurisdiction to make the said order, and that the same had been made without any notice to the defendants, or either of them. The court denied the motion, and the said defendants have appealed from the original order, and also from the order refusing to vacate the

same.

Section 473, Code Civil Proc., provides that the court may relieve a party. "from a judg ment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; provided that application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order or proceeding was taken." Under the provisions of a statute in New York similar to this, it is held that a party in whose favor judgment has been rendered is entitled to relief the same as though the judgment had been rendered against him; that the statute is intended to be remedial, and should receive a liberal interpretation. Montgomery v. Ellis, 6 How. Pr. 326. See, also, Code Civil Proc. § 4; Downing v. Still, 43 Mo. 309. Under the common law a court could amend, modify, or vacate its judgment at any time during the term at which it was rendered; and this power could be exercised of its own motion, and without any notice to the party affected thereby. Having the absolute control over its judgment during the term, it was immaterial whether the party had notice or not. But by the adjournment of the term the court lost all control over its judgments, unless its jurisdiction was preserved by some motion or appropriate proceeding within the term upon which the hearing might be continued to a point after the adjournment of the term. The decision upon such motion had relation to the time within the term when the motion was made, and operated as an order made at that time. This rule was established in this state at a very early day, (Baldwin v. Kramer, 2 Cal. 582,) and was rigidly followed until changed by statute, (Morrison v. Dapman, 3 Cal. 255; Lurvey v. Wells, 4 Cal. 106; Carpentier v. Hart, 5 Cal. 406; Shaw v. McGregor, 8 Cal. 521; Bell v. Thompson, 19 Cal. 706; Casement v. Ringgold, 28 Cal. 335.) Under the provisions of section 68 of the prac tice act, (corresponding to section 473, Code Civil Proc.,) as originally enacted in 1851, the court could relieve a party from a judgment taken against him only during the term at which it was rendered; but in 1853 the section was amended so as to authorize the court to relieve a party from a judgment taken against him to the extent of allowing him to answer to the merits of the original action at any time within six months after the rendition of the judgment, if he had not been personally served with the summons and a copy of the complaint. In 1866 (St. 1865–66, p. 843) the section was still further amended by providing that “when for any cause satisfactory to the court or the judge at cham

bers, the party aggrieved has been unable to apply for the relief sought during the term at which such judgment, order or proceeding complained of was taken, the court or the judge at chambers in vacation may grant the relief upon application made within a reasonable time, not exceeding five months after the adjournment of the term." The section as thus amended was re-enacted in section 473, Code Civil Proc., upon the adoption of the Codes in 1872, and in 1874 the period of time within which such relief might be granted was extended to "not exceeding six months after the adjournment of the term." Upon the adoption of the present constitution, terms of court were abolished, and at the first session of the legislature thereafter section 473 was amended in its present form for the purpose of adapting it to the provisions of the constitution. The legislature does not attempt to define "a reasonable time," as that would depend upon the circumstances of each case, but by declaring that it shall in no case exceed six months after the judgment was taken it has precluded the court from exercising this power in any case, unless the application therefor shall be made within six months after the judgment was taken.

In the present case the plaintiff did not make his application to set aside the judgment until more than 13 months after its entry, and at that time the court was without authority to grant him the relief he asked. By section 1049, Code Civil Proc., the cause had then ceased to be pending in the court, and the court was without any jurisdiction to render any further judgment therein. It was said in Carpentier v. Hart, supra: "Upon the adjournment of the term the court loses all control over cases decided, unless its jurisdiction is saved by some motion or proceeding at the time, except in the single case provided by statute where the summons has not been served, in which the party is allowed six months to move to set the judgment aside. The reason for this rule is obvious. There must be some finality in legal proceedings, and a period beyond which they cannot extend. The safety and tranquility of parties require that their interest should not be constantly suspended, and their repose liable to be disturbed at any moment by the discretion of the court. * * The court lost all jurisdiction in the matter. The case was effectually out of court, and could not be reinstated, except, perhaps, by the consent of parties." By the judgment as originally entered herein the obligation of the mortgagor to the plaintiff had become fixed at a certain amount, bearing interest at the rate of seven per cent. per annum. If, however, the court could at any time thereafter vacate this judgment after it had been satisfied, without any notice to the mortgagor, and re-establish the original obligation against him, bearing interest at the rate of 18 per cent. per annum, its judgment would not have been "a final determination of the rights of the par

ties," and the parties to the action could never feel secure in any action of the court. For the reason that the law does not sanction such injustice, it has been wisely determined by the legislature that the court shall have no power upon a mere motion to vacate its judgment after the lapse of six months from its entry. The orders appealed from are reversed.

We concur: BEATTY, C. J.; PATERSON, J.

(4 Cal. Unrep. 269) MOORE v. MOTT et al. (No. 19,158.) (Supreme Court of California. Oct. 7, 1893.) ATTACHMENT-ACTION ON BOND-Judgment— PRESUMPTION.

In an action on a bond given to secure release of attached property, conditioned for liability in case judgment was rendered against defendant in attachment, a finding that a judg ment was not rendered is not warranted where, in the record of the attachment suit subsequent to a judgment of nonsuit, appears a judgment for plaintiff therein, as to the legality of which there is no evidence, there being a presumption in its favor.

Department 1. Appeal from superior court, Los Angeles county; W. N. Clark, Judge.

Action by Alfred Moore against S. H. Mott and W. C. Furney. Judgment for defendants. Plaintiff appeals. Reversed.

S. B. Gordon, for appellant. John D. Bicknell, J. W. Swanwick, and A. W. Hutton, for respondents.

PER CURIAM. This action is upon an undertaking given to procure the release of property from an attachment. The writ was issued in an action brought by Alfred Moore, as plaintiff, against one Dorward. The undertaking is in the form prescribed by statute, and a copy is attached to the complaint. It recites the issuance and levy of the attachment, that the defendant had applied to the court for an order releasing and discharging the property from the operation of the attachment, and that the court had fixed the value of the property attached at $1,200; and in consideration of the premises the sureties (defendants herein) undertook and promised that, in case the plaintiff recovered judgment, defendants would, on demand, redeliver the attached property to the sheriff, to be applied to the payment of the judgment, or, in default thereof, the sureties would pay, on demand, to the plaintiff, the sum of $1,200. It is averred in the complaint that plaintiff, on the 8th of November, 1889, recovered a judgment against the said Dorward, in the said attachment suit, for $831.63, and that due demand had been made on said defendants for payment. The defendants, appearing by their respective counsel, (1) deny that plaintiff did recover judgment in the attachment suit against Dorward; and (2) aver that, in said

(52 Kan. 119)

BROOK v. TEAGUE et al. (Supreme Court of Kansas. Oct. 7, 1893.) ACTION ON NOTE-PAROL EVIDENCE-FRAUDBURDEN Of Proof.

1. Parol evidence is admissible as between the original parties to a negotiable note to show fraud, and so as to third parties with notice, or without having paid value.

2. If the maker of a negotiable note proves that there was fraud in the inception of the instrument, or if the circumstances raise a strong suspicion of fraud, the owner must then respond by showing that he acquired it bona fide for value, in the usual course of business, while current, and under circumstances which create no presumption that he knew the facts which impeach its validity.

3. When a purchaser of a negotiable note takes it under circumstances showing bad faith, or with knowledge that the maker has a defense to the same, the holder is not an inrocent purchaser.

(Syllabus by the Court.)

two small rooms in the building they claimed to own; that Eberle had only two doctors helping him, and that they were not in good standing in their profession. After the defendants' evidence was all in, and they had rested their case, the plaintiff moved the court to strike out the evidence, and withdraw from the jury all statements made by the witnesses, including the defendant Teague, in reference-First, to statements of Dr. Eberle as to the number of physicians associated with him; second, the kind and character of buildings occupied by him or the Medical and Surgical Health Institute at Kansas City, Mo.; third, that they held the notes executed to them, and never indorsed or transferred them to any one; fourth, all statements in reference to the contract, or what Dr. Eberle or the Medical and Surgical Health Institute agreed to do, which were

Action on a promissory note by H. M. Brook against M. Teague and another. Defendants had judgment, from which, and an order denying a new trial, plaintiff brings error. Affirmed.

W. R. Biddle and A. A. Harris & Son, for plaintiff in error. J. D. McCleverty, for defendants in error.

HORTON, C. J. This was an action brought by H. M. Brook against M. Teague and Sabina Teague upon a promissory note for $225, dated May 17, 1888, due one year from date, executed by the defendants to Dr. H. A. Eberle, and which was alleged as indorsed for value to the plaintiff before maturity by Eberle. The defense was fraud in obtaining the note by the payee, and failure of consideration. The evidence tended to show that before Brook obtained the note Eberle's agent visited defendants' house about May 1, 1888, and left some advertising circulars there; that Eberle came along on May 17th; that he represented his institute --called by him the "Medical and Surgical Health Institute"-consisted of 10 or 11 physicians,-"specialists;" that any patient would get the benefit of the services of all of them; that they owned the building in which they were located; that it was one of the most valuable in Kansas City, Mo.; that no one need fear to give a note, as they never transferred any paper, always holding it, so that upon failure to cure it could be returned; that no incurable cases were taken; that they worked on the "No cure, no pay" plan, and that no one would have to pay unless cured; that in case of failure their note would be returned; that these representations were relied upon, and were not found out to be untrue for some months; that the note was originally part of a larger piece of paper; that no cure had been effected or benefit derived; that the medical and surgical health institute only occupied

was made. The motion was overruled, and the court refused to take from the jury any portion of the testimony, to which the plaintiff excepted. The plaintiff then filed a demurrer to the evidence, which was overruled by the court, and excepted to by the plaintiff.

The rule is that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument, but this rule is not infringed by the admission of parol evidence showing that the instrument is void between the original parties by reason of fraud. 1 Greenl. Ev. § 284. Browne, in his new work on Parol Evidence, says: "Parol evidence is admissible as between the original parties to show fraud or duress, and so as to third parties with notice, or without having paid value." Page 259, § 79. At the time that the Teagues executed the note, Eberle delivered to them a written contract signed by him for the Medical and Surgical Health Institute. It provided, among other things, that "the medicines, prescriptions, advice, etc., or surgical apparatus for 'course of treatment,' be furnished from time to time [to the Teagues] by the above institute, free of charge, aecording to the tenor of this contract, [except express charges,] until cured of the present disease or diseases." Between the original parties the note and contract are to be taken together, and, if construed together, the note was not to be paid or to become due until the Teagues were cured. The evidence received and objected to did not contradict or vary the terms of the written contract, but the circulars and statements of Eberle were representations concerning the standing of the Medical and Surgical Institute, its staff of physicians, and its manner of collecting and returning notes received from patients. Most of these representations and statements were false. The "Institute," so called, consisted only of Eberle and his two assistants. These false representations were properly received in evidence, as tending to establish the fraud committed by Eberle in obtain