question, executed a chattel mortgage | thereon to the Wyoming Loan & Trust Company to secure the payment of an in#debtedness owing by him to the company, and this mortgage was duly recorded within a few days thereafter. On December 6, 1887, the property was delivered by Stokes to the plaintiff under a contract of agistment, and at the time of trial the sum of $434.50 was due to the plaintiff under such contract. While the property was still in the plaintiff's possession, he sued Stokes in a justice's court, and converted a part of the claim into a money judgment. The plaintiff then caused an execution to be issued on the judgment, and, under his direction, the constable levied the same upon the property in controversy, and took possession thereof. After the levy by the constable, the chattel mortgage being unpaid, and a condition thereof being broken, the loan and trust company brought a suit in replevin against the constable, and obtained possession of the property. The plaintiff then brought this action against the loan and trust company, claiming that his agister's lien was prior in law to that of the chattel mortgage. The court found for the defendant, and entered judgment in its favor. The plaintiff moved for a new trial alleging that the decision was contrary to law, and, the motion being overṛuled, he now seeks a reversal of the judgment.

*

The only question presented by the record is as to whether the plaintiff, at the time of the commencement of the action, had a lien upon the property described in the petition. Section 1470, Rev. St. Wyo., provides: "Any ranchman, farmer, agister, or herder, * to whom any horses, mules, asses, cattle, or sheep shall be intrusted for the purpose of feeding, herding, pasturing, or ranching, shall have a lien upon said horses, mules, asses, cattle, or sheep for the amount that may be due for such feeding, herding, pasturing, or ranching, and shall be authorized to retain possession of such horses, mules, asses, cattle, or sheep until the said amount is paid. By enumerating the property to which the lien may attach, the statute excludes from its operation all property other than that so enumerated. The wagons, ox yokes, and chains do not belong to either of the classes of property named in the statute, and cannot be the subject of an agister's lien. Section 1482, Rev. St. Wyo., provides: "No mortgage on personal property shall be valid as against the rights and interest of any person entitled to a lien under the provisions of this law;" and the plaintiff contends that this section makes a chattel mortgage subordinate to an after-acquired agister's lien.

Waiving any question as to the effect of section 1482, continued possession is essential to the assertion of a lien of this sort. The lien being "founded upon possession, it must ordinarily cease when the possession ceases." Story, Ag. § 367. If one voluntarily parts with the possession of the property, the lien is thereby lost. When the plaintiff caused the property subject to his lien to be taken in execution at his own suit, and assented to the officer's taking possession thereof, he voluntarily relin

quished his right to the possession of the cattle, and thereby surrendered his lien. Jacobs v. Latour, 5 Bing. 130; Wingard v. Banning, 39 Cal. 543; Story, Ag. 367. The judgment of the trial court is affirmed.

CORN and SAUFLEY, JJ., concurred.

LEEK V. MCCLURE et al. (No. 12,487.) (Supreme Court of California. Sept. 14, 1889.)

Department 1. Appeal from superior court, city and county of San Francisco; JOHN F. FINN, Judge.

C. H. Parker and Nagle & Nagle, for appellant. M. S. Eisner and Spencer & McInerney, for respondents.

WORKS, J. This is an action to recover certain moneys alleged to have been collected by the respondents as attorneys, and not paid over on demand. The court below lected or received the money. found that the respondents had never colThe sole

question presented on this appeal is whether this finding is supported by the evidence or not. We think the evidence is such that we cannot disturb the judgment of the court below. Judgment and order affirmed.

In bank. Appeal from superior court, San Joaquin county; J. G. SWINNERTON, Judge.

Action by Rosina Berniaud, by her guardian ad litem, J. M. Hogan, against J. L. Beecher, to quiet plaintiff's title to certain land. On allegations and proofs the court found that plaintiff is alive and insane, and J. M. Hogan her duly appointed guardian ad litem; that plaintiff is the owner in fee of the land described in complaint, except the west 19% feet of lot 1, block 229, of which said defendant is the owner, under a sheriff's sale. Judgment for plaintiff, and defendant appeals.

Jas. A. Louttit, (Louttit, Woods & Lev-. insky, of counsel,) for appellant. John C. Byers and L. W. Elliott, for respondents.

WORKS, J. This is the third appeal in this case. Substantially all of the questions now presented were determined against the appellant on the two former appeals. 71 Cal. 38, 11 Pac. Rep. 802; 76 Cal. 394, 18 Pac. Rep. 598.

Counsel for appellant contend that the decision in the last appeal was upon the judgment roll, and therefore did not determine the question presented here, whether the findings of the court were sustained by the evidence. But on the first appeal the decision was that the evidence, which was documentary, and was the same as is in the record on this appeal, proved the plaintiff's title to the property; and it was further decided that the defendant not having been in the possession of the property, the defense of the statute of limitations was not made out. We do not base this decision on those cases entirely, however. We

think the evidence was sufficient to sustain the findings, and that the judgment of the court below was right. Judgment and order affirmed.

We concur: BEATTY, C. J.; SHARPSTEIN, J.; MCFARLAND, J.; Fox, J.; THORNTON, J.

SETTLERS' DITCH Co. v. HAYES et al. (No. 12,297.)

(Supreme Court of California. July 31, 1889.) In bank. Appeal from superior court, Tulare county; W. W. CROSS, Judge.

Brown & Dagget and M. Mullany, for appellants. Atwell & Bradley, M. S. Babcock, and Jarboe, Harrison & Goodfellow, for respondent.

MCFARLAND, J. This case is very similar to the case of Lakeside Ditch Co. v. Crane, (No. 12,296,) ante, 76. The issues in both cases were nearly the same, and so was the evidence; and the opinion delivered in the Lakeside Case is applicable to the case at bar, except in one or two respects, and, so far as applicable, is adopted as the opinion in this case. The findings in the case at bar are not so much exposed' to the criticism of uncertainty as were the findings in the other case; and, if they were all supported by the evidence, they would probably support the judgment. But, as in the Lakeside Case, we are constrained to say that the evidence does not support the finding that the Hyde ditch of defendants, constructed in 1876, "carried away no appreciable quantity of water," and that neither the defendants nor their grantors "claimed or asserted any right to the waters of Cross creek adversely to the plaintiff," prior to the month of May, 1884. For this failure of evidence, and for the reasons given on this point in the opinion in the Lakeside C'ase, the judgment must be reversed. There was sufficient proof of the incorporation of plaintiff, the opinion in the Lakeside Case on that subject being applicable here. What was said in that case as to the bearing of the statute creating water commissioners for Tulare County upon the rights of the parties is also applicable to the case at bar; and also what was said there on title by prescription, on rulings about the admissibility of certain evidence, and on the subject of what the findings should be on another trial. Judgment and order reversed, and cause remanded for a new trial.

MCKENZIE et al. v. McMILLEN. (Supreme Court of Colorado. Jan. 17, 1890.) Commissioners' decision. Appeal from district court, Lake county.

N. Rollins, for appellants. W. H. Nash and R. D. Thompson, for appellee.

RICHMOND, C. This was a suit upon a promissory note payable to Mrs. Marie Conolly, for the sum of $300, with interest at the rate of 4 per cent. per month until paid. It was assigned to plaintiff for a valuable consideration, and judgment entered, from which this appeal is prosecuted. Appellants' contention is that the note was first indorsed to McMillen Bros., and subsequently this indorsement was erased, and the name of Neil McMillen substituted, after suit was brought, without the knowledge or consent of the payee. There is not a particle of proof to support this position, and ample evidence to warrant the findings and judgment of the court. ment should be affirmed.

PATTISON and REED, CC., concur.

Judg

Sea, also, Certiorari; Error, Writ of; Exceptions,
Bill of; New Trial.

Costs on appeal, see Costs, 4, 5.

12. An order requiring a receiver to join an ad-
ministrator in the sale of certain property in which
the estate had an interest, and which was in the

I. APPELLATE JURISDICTION.

When lies.

1. The charter of the city of La Grande, which
gives the recorder jurisdiction of violations of city
Ordinances, and also such civil and criminal juris-
diction as is exercised by a justice of the peace,
and provides that "all proceedings in his court"
in similar cases, does not give the right of appeal
shall be governed by the laws applicable to justices
from convictions for violations of ordinances, al-

though an appeal lies from the judgment of a jus-
tice in criminal cases. - Barton v. City of La
Grande, (Or.) 22 P. 111,

2. A motion by defendant for a new trial was
granted, unless the plaintiff remitted $25 of the
judgment. Defendant's notice of appeal was from
the order granting a new trial. There was nothing
to show that plaintiff had remitted the 25. Held
that, as it appeared from the record that the judg-
ment appealed from was vacated by the order
granting a new trial, there was nothing before the
court for consideration.-Gross v. Kelleher, (Cal.)
22 P. 203.

Jurisdictional amount.

3. Under Const. Cal. art. 6, § 4, which confers
on the supreme court appellate jurisdiction in cases
at law in which the demand, exclusive of interest,
or the value of the property in controversy,
amounts to $300, the supreme court will dismiss an
appeal from a judgment of the superior court dis-
missing a writ of certiorari, and affirming a judg-
ment of a justice's court in defendant's favor for
$106.65, costs, though counsel fail to raise the point
of jurisdiction on the argument of the case.-Bien-
enfeld v. Fresno Milling Co., (Cal.) 22 P. 1113.

4. In California, in an action for a money de-
mand, the ad damnum clause of the complaint is
the test of appellate jurisdiction, whether appeal is
taken by the plaintiff or defendant.-Lord v. Gold-
berg, (Čal.) 22 P. 1126.

Appealable judgments and orders.

5. An order refusing to set aside an appealable
order is not appealable.-Davis v. Donner, (Cal.)
22 P. 879.

6. Neither a motion to dismiss an action, nor a
motion to dismiss an attachment, is reviewable,
until a final judgment has been rendered.-Simpson
v. Kirschbaum, (Kan.) 22 P. 1018.

7. Where a motion for a new trial has been de-
nied, and a subsequent motion for a new trial has
been denied on the ground of the previous decis-
ion, the latter order is not appealable.-Romine v.
Cralle, (Cal.) 22 P. 296.

8. In Oregon, an appeal from a judgment of
conviction in a city tribunal for violation of a city
ordinance does not lie unless expressly given by
the city charter or by some statute. The proper
proceeding is by writ of review.-Cunningham v.
Berry, (Or.) 22 P. 115.

9. An appeal lies from the final decision of a
circuit court, in proceedings under Act Or. Feb.
25, 1889, conferring powers upon certain benev-
olent corporations, in relation to the control and
disposition of homeless, neglected, or abused chil-
dren. In re Woman's North Pacific Presbyterian

Board of Missions, (Or.) 22 P. 1105.

10. The court overruled a motion by defendant
to quash the summons and to dismiss the action, and
also a motion to discharge the attachment and to
dismiss the action, and permitted plaintiff to amend
his undertaking in the attachment. Before any
judgment was rendered, defendant appealed. Held,
that while the case is still pending the foregoing
orders cannot be reviewed.-Simpson v Roths-
child, (Kan.) 22 P. 1019, Same v. Frankenthall, Id.

11. An appeal will not lie from an order deny-
ing a motion to set aside a judgment, there being
no motion for a new trial, and the judgment being
itself appealable.-Goyhinech v. Goyhinech, (Cal.)

22 P. 175.

-Steele v. Holladay, (Or.) 22 P. 555.

13. No appeal lies from an order that the ad-
ministratrix of an estate allow her name to be used
as plaintiff in an action to recover property alleged
to have been fraudulently conveyed by decedent in
his life-time, though Code Civil Proc. Cal. § 963,
subd. 1, provides for an appeal from a final judg
ment in special proceedings; as Const. Cal. art. 6,
§ 4, provides that "the supreme court shall have
* in all such probate
Civil Proc. Cal. 903, subd. 3, providing for appeals
appellate jurisdiction *
matters as may be provided by law," and Code
peal from such an order.-In re Ohm's Estate,
in probate matters, makes no provision for an ap
(Cal.) 22 P. 927.

14. In an action for divorce and alimony, an or-
der for judgment and decree is a final determina-
tion of the issues involved, from which an appeal
will lie; and the appointment thereafter of a ref-
eree to ascertain the amount and character of the
community property is a proceeding to carry the
judgment into effect, and any orders in relation
thereto are themselves the subjects of appeal.-
Sharon v. Sharon, (Cal.) 22 P. 131.

II. REQUISITES.

Time of taking.

15. An appeal from a judgment which is not
judgment, as required by Code Civil Proc. Cal. g
taken within a year after the entry of the final
939, will be dismissed.-Bunting v. Salz, (Cal.) 22
P. 1132.

16. Under Code Civil Proc. Cal. § 939, an excep-
tion to a decision on the ground that it is not
supported by the evidence will not be considered,
unless the appeal is taken within 60 days after judg-
ment.-McGrath v. Hyde, (Cal.) 22 P. 293.

ment by the court, and not its entry in the judg
17. The rendition of a judgment is its announce
ment book, within Code Civil Proc. § 939, provid-
ing that "an exception to the decision or verdict
on the ground that it is not supported by the evi-
dence cannot be reviewed on an appeal from the
judgment, unless the appeal is taken within sixty
Schurtz v. Romer, (Cal.) 22 P. 657.
days after the rendition of the judgment."—
Notice of appeal.

18. Under Sess. Laws Colo. 1885, p. 159, § 4, pro-
viding that, in case an appeal is not taken from a
judgment of the county court to the district court
on the day on which it is rendered, a written no-
tice of the appeal must be served on the appellen
or his attorney within five days after the appeal is
taken, the filing and approval of an appeal-bond
by the court in presence of appellees is not notice
of the appeal.-Hunt v. Arkell, (Colo.) 22 P. 825.
Bond.

lier date, the order directing it to be entered as of
19. If the order was actually made on the ear-
that date must recite the fact that it was so made.
The question cannot be tried on affidavits in the
supreme court.-In re Skerrett's Estate, (Ca).) 22

P. 85.

20. Where notice of an appeal was given Janu-
ary 7th, and no undertaking filed until January
25th, there is no appeal before the court to be con-
sidered or dismissed.-Bellegarde v. San Francisco
Bridge Co., (Cal.) 22 P. 57.

21. On appeal from an order of distribution to a
legatee, an executor of a deceased heir of the es-
tate cannot claim the benefits of Code Civil Proc.

Cal. § 965, relating to appeals by an executor from
orders made in proceedings upon the estate "of
which he is executor," etc.-In re Skerrett's Es-
tate, (Cal.) 22 P. $5.

22. Code Civil Proc. Cal. § 946, provides that
the trial court may, in its discretion, dispense with
or limit the security on appeal, when the appellant
is an executor, administrator, trustee, or other per-
son acting in another's right. Held that, in order
to save the appeal in such cases, the order dispens
ing with the security must be made within the