is no averment to make definite the ambiguous terms employed. The words are per se actionable, and it is difficult to perceive what office an innuendo could have performed in the complaint. The averment is that the words "were spoken of and concerning the plaintiff," and that averment precludes the idea that they were spoken of and concerning any other person but the plaintiff. In such case, no innuendo or colloquium was required under the common-law rules of pleading. "Courts take judicial notice of the meaning of words and idioms in the vernacular language, and no colloquium or innuendo is necessary to point their meaning." Townsh. Sland. & Lib. 180; Odgers, Sland. 106. But if any doubt existed on the subject under the common-law rules of pleading, such doubt is removed by section 460 of the Code of Civil Procedure, which reads as follows:

"In an action for libel or slander, it is not necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it is sufficient to state generally that the same was published or spoken concerning the plaintiff; and if such allegations be controverted, the plaintiff must establish on the trial that it was so published or spoken."

Section 164 of the New York Code is substantially the same, and in that state the courts have, in numerous cases, passed on the effect of the provision. In Fry v. Bennett, 5 Sandf. 54, the court says:

"The Code has made an important change in the rules of pleading in actions for libel or slander, in not requiring extrinsic facts, showing the application of the words to the plaintiff, to be stated in the complaint.'

See, also, Pike v. Van Wormer, 5 How. Pr. 174, and Bliss, Code Pl. § 305. To the same effect is section 2928 of the Iowa Code, with the same ruling. Clarke v. Jones, 49 Iowa, 478. In the case of McLaughlin v. Russell, 17 Ohio, 479, the court uses the following language:

"The objection taken to the declaration is that it does not show upon its face that the libel was upon Russell. This is a mistake. The declaration avers that the publication was concerning and against the plaintiff. * * * The words of the libel were actionable, and were alleged to have been published of the plaintiff. The particular words said to have been intended to indicate him are referred to, and averred to have meant him. This was sufficient."

We therefore repeat that, whatever the rule at common law, the complaint is good and sufficient under section 460 of the Code.

Another point made by the appellant is that there is no averment in the complaint that the words alleged to have been spoken were understood by the persons who heard them to have been applied to the plaintiff; and, it is claimed, that the omission is fatal. The words charged were spoken in the English language. "You are a thief; you make your money by stealing." were the words, and it is averred that they were spoken in the presence and hearing of C. Hoffman and others named in the complaint. The following is the language of Mr. Townshend in his work on Libel and Slander:

"The publication of language may, in reference to the place at which the publication is made, be either in the vernacular or in a foreign language. When the language published is the vernacular of the place of publication, it requires no proof that those who heard or read it understood it; but it may be shown that those who read such language did not in fact understand its signification. When the language published is one foreign to the place of publication, it will not be assumed that those who heard or read it understood it. * * ** When the matter published is in a language which he who hears

or reads it understands, it will be assumed he understood it in the sense which properly belongs to it." Section 97 "When language is published in a foreign language it is necessary to show that the hearers understood the language." Id. 147.

"The declaration must show a publication of the libel or slander, but any words which denote a publication are sufficient. An averment that the words were spoken in the presence of divers persons, although not stating that they heard or understood them, is sustainable." 1 Chit. Pl. 421. "Words in a foreign language, whether written or spoken, must be proved to have been understood by those who heard or read them." 2 Greenl. Ev. § 414. "If spoken in a foreign language the declaration must allege that the hearers understood them, and so must be the proofs." Zeig v. Ort, 3 Chandl. (Wis.) 26. It is only where the words are ambiguous and the application doubtful that any averment of extrinsic facts is required. Smart v. Blanchard, 42 N. H. 137; 2 Greenl. Ev. § 417. court or the jury is to place itself in the situation of the hearer or reader, and determine the sense or meaning of the language in question, according to its natural and popular construction." Townsh. Sland. & Lib. § 133. The language charged in this case was the vernacular of the country, and there was no ambiguity in it. "spoken of and concerning the plaintiff," and hence there was no ambiguity as to the person to whom it was intended to apply. The case of De Witt v. Wright, 57 Cal. 576, is clearly distinguishable from this. There, an ambiguity existed as to the person intended by the publication, and it was clearly necessary to aver that the persons who read it understood that the plaintiff was the person referred to in the alleged libelous publication. But the present case is very different. The words were spoken in the presence of the plaintiff, and it is alleged that they were spoken of and concerning him. This, it seems to us, was sufficient without any averment of extrinsic matter. On the trial, the plaintiff was allowed to prove, against the objection made by defendant, that he (plaintiff) was a married man, and had a family. In this there was no error. "The plaintiff may even prove in aggravation of damages his rank and condition in society." Townsh. Sland. & Lib. § 390.

There is but one other point in the case, and that relates to the question of damages. On the trial of the case, evidence was introduced, showing the nature of the transactions between the parties. It is true that the evidence did not establish the truth of the charge. v.6p,no.12-55

made by the defendant against the plaintiff, and did not, therefore, amount to a justification; but the evidence did show strong circumstances of mitigation. These circumstances were such as should have had strong influence on the minds of the jury, and, if they had seen duly considered, would certainly have reduced the amount of the ver dict below the sum found. We are therefore of opinion that the judgment should be reversed for excessive damages.

Judgment and order reversed, and cause remanded for a new trial.

Ross, J. I concur in the judgment of reversal.

THORNTON, J. I concur in the foregoing opinion, except as to that portion of it which relates to the admissibility of the evidence that the plaintiff was a married man, and had a family of two or more children. I am of opinion that the court erred in letting this evidence go to the jury. Any evidence in regard to the plaintiff's condition confined to himself personally was admissible, but the testimony admitted went further than this. It was in relation to other persons. Such testimony was not admissible on the question of malice. The fact that plaintiff had a wife or children, or both, was not in the mind. of the defendant when he spcke the words alleged. There is no evidence that defendant knew that this was the fact. Nor was such evidence admissible on the issue of the damage. The damage to plaintiff was the same whether he had a family or not. Such evidence might have an influence on a jury which ought to be avoided. For these reasons, I concur that the judgment should be reversed, and the cause remanded for a new trial.

MCKEE, J. I concur in the judgment, on the ground discussed in the opinion of Justice THORNTON.

MYRICK and SHARPSTEIN, JJ. I dissent. The reasoning of the chief justice on all the questions discussed by him, except that of excessive damages, is entirely satisfactory to me. On that question I think there is a departure from the prevailing doctrine on the subject, which is stated as follows in Wilson v. Fitch, 41 Cal. 363:

"The court will not interfere in such cases unless the amount awarded is so grossly excessive as to shock the moral sense, and raise a reasonable presumption that the jury was under the influence of passion or prejudice. In this case, while the sum awarded appears to be much larger than the facts demanded, the amount cannot be said to be so grossly excessive as to be reasonably imputed to only passion or prejudice in the jury. In such cases there is no accurate standard by which to compute the injury, and the jury must necessarily be left to the exercise of a wide discretion, to be restricted by the court only when the sum awarded is so large that the verdict shocks the moral sense, and raises a presumption that it must have proceeded from passion or prejudice."

I think the judgment and order should be affirmed.

(67 Cal. 1)

TYRRELL V. BALDWIN and others. (No. 8,968.)

Filed May 4, 1885.

1. EJECTMENT-VOLUNTARY APPEARANCE OF DEFENDANT-BINDING EFFECT OF JUDGMENT AGAINST.

A judgment in an action of ejectment will bind parties who voluntarily appear as defendants therein, and file an answer in which they deny the complainant's allegations, and allege ownership and right to possession of the premises sued for, in themselves, though they were not named as parties in the complaint, nor served with summons; nor was the complaint amended to include their names, nor any order of court granted allowing them to appear, or defend the action, or file an answer therein.

2. PURCHASE PENDENTE LITE FROM DEFENDANT-JUDGMENT AGAINST DEFENDANT AFTER HIS DEATH.

Judgment rendered against defendant, who died after his answer was filed and before trial, is not void as to those who purchased his interest in the premises sued for pendente lite.

Department 2. Appeal from the superior court of the city and county of San Francisco.

William Royal, for appellant.

B. S. Brooks, A. L. Rhodes, and William Leviston, for respondent. SHARPSTEIN, J. The judgment in McLeran v. McNamara on its face purports to be a judgment against plaintiff's grantors, Sarah and Charles McDonald, and if they were parties to that action, such judgment was properly admitted in evidence in this case. The McDonalds were not named in the complaint filed in McLeran v. McNamara, nor does it appear that the summons in that action was served on either of them by any name. Nor was the complaint amended by inserting either of their names. No order of court granting either of them leave to appear in or to defend the action, or to file an answer therein, is found in the record. But nearly seven months after the complaint was filed, and long before trial, they filed an answer denying each and every allegation of the complaint, and alleging that they were the owners, and entitled to the possession, of so much of the demanded premises in that action as their grantee, the plaintiff in this action, seeks to recover herein; and unless their voluntary appearance in McLeran v. McNamara gave the court jurisdiction of their persons, the judgment against them in that action is void for want of such jurisdiction.

In McKinlay v. Tuttle, 42 Cal. 570, the court said, "the question is whether a judgment can be sustained against persons who are not mentioned in the complaint;" and reversed the judgment because it had been rendered against persons not so mentioned. In that case the attack was direct; in this, it is collateral. And if the judgment is not void, it is not subject to a collateral attack. A later case than McKinlay v. Tuttle is Campbell v. Adams, 50 Cal. 203. The judgment, which was held to be valid as against a collateral attack, in that case was rendered against a person who was not named in the complaint. The summons, however, had been served on him by a fictitious name, as he stated in his answer. In that respect the case

differed from McKinlay v. Tuttle. But the difference is immaterial. The decision in McKinlay v. Tuttle rests solely on the ground that the judgment had been rendered against a person who was not mentioned in the complaint, and for that reason, as the court held, not charged with ousting the plaintiff, or withholding the possession from him.

The voluntary appearance of a defendant is equivalent to personal service of the summons and a copy of the complaint upon him. An appearance before being summoned, confers jurisdiction equally with an appearance after being summoned. Under our practice a person who is not named in the complaint, nor served with the summons, if he has an interest in the matter in litigation, may become a party by obtaining leave of the court to file a complaint in intervention. Here the McDonalds, without objection or opposition, filed an answer, in which they denied all the allegations of the complaint, and alleged that they were the owners, and entitled to the possession, of a certain portion of the demanded premises. They were permitted to do without opposition, and by tacit consent, what they might have done by leave of the court. But why ask leave of the court to do that which nobody objected to their doing? They invoked the judgment of the court upon the issues raised by their answer to the complaint, and they got it. Can they now be heard to say that the judgment is a nullity because they obtruded themselves into the action? Their answer showed that they might properly have been made parties to it. And the record shows that they availed themselves of all the rights and privileges of which they could have availed themselves if they had been named and sued as defendants in the complaint. As soon as the answer was filed, the complaint might have been amended by adding the names of the McDonalds to those of the other defendants in the action. Did the failure to do so affect the substantial rights of the parties? Clearly not. And if not, the judgment is not affected by reason of that defect in the pleadings or proceedings. Code Civil Proc. 475.

The fact that Charles McDonald died after his answer was filed, and before the trial, does not, according to the weight of authority, render the judgment against him void as to those who purchased, pendente lite, his interest in the demanded premises. "That a judgment against a person, dead at its rendition, is valid until reversed or set aside by some competent judicial authority, and that it cannot be collaterally attacked, is established by a larger preponderance of the authorities than can be brought forward to shield a judgment against a married woman from collateral assault and overthrow." Freem. Judgm. § 153.

None of the cases in this state which seem to militate against this doctrine involved this question. In none of them was it a question whether such a judgment could be collaterally attacked. Ewald v. Corbett, 32 Cal. 493; Judson v. Love, 35 Cal. 469; McCreery v. Everding, 44 Cal. 286.