railing. The only lantern in the room, the foreman had at the place of the accident. The evidence on plaintiff's part tended to show that he had never been in that part of the room, and did not know of the location of machinery in that place. Held, that a verdict for plaintif would not be disturbed on the ground that he had assumed such risk, or was guilty of contributory negligence.

Department 2. Appeal from superior court, city and county of San Francisco; Eugene R. Garber, Judge.

Action by one Gisson against one Schwabacher and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Estee, Wilson & McCutchen, for appellants. A. Ruef, for respondent.

DE HAVEN, J. This is an action to recover damages alleged to have been sustained by the plaintiff by reason of the dangerous condition of a flouring mill conducted by defendants, and in which plaintiff was employed as a laborer at the time he received the injuries complained of. The plaintiff recovered judgment in the superior court for the sum of $2,500, and the defendants appeal.

The plaintiff was employed as a sack sewer, and when not so employed, and when the necessity arose, it was also his duty to do such other work about the mill as the foreman might direct. On June 29, 1888, he was directed by the foreman to assist him in taking apart some rollers upon a raised platform on one side of the room in which he was engaged in sewing sacks, the foreman taking with him to the place where the work was to be done a lantern used by plaintiff when engaged in his ordinary work, and which was the only light in the room. Upon this platform, or, rather, passing over and above it, were rollers, belts, and pulleys, such as usually form part of the machinery of a flouring mill, but they could not be distinguished there, on account of the darkness of the room. The room was unlighted except with the one lantern which the foreman took with him, as already stated, and this was not sufficient to light that part of the platform occupied by the plaintiff at the time, and the belts, pulleys, and rollers were not protected in any manner by guards or railing. While engaged with the foreman upon this platform, the plaintiff, in some way, stumbled and fell, and became entangled in the belting and pulleys referred to, and sustained the injuries on account of which this action is brought. The appellants do not dispute the fact that the place where plaintiff was injured was extremely dangerous to a person working there, and that they knew of its dangerous character; but their main contention is that plaintiff knew, or ought to have known, of the risk and danger surrounding the place, and that he voluntarily assumed such risk when he went upon the platform, and, fur

We

ther, that he was guilty of contributory negligence in working there without a light. It is undisputed in the evidence that there was but one light in the room, and this the foreman had with him at the time and place of the accident. The evidence upon the part of plaintiff also tended to show that he was never upon this platform before the accident, and that he had no knowledge of the location of the machinery, belts, and pulleys in that part of the mill where he was engaged, and that his general duties were not such as to require him to have such knowledge. cannot, in view of the evidence, disturb the implied findings of the jury, to the effect that the injury received by plaintiff was not caused by any of the ordinary risks of his employment, and that he was not himself guilty of contributory negligence in going to work upon the platform under the circumstances above stated. Certainly, unless the plaintiff knew, or ought to have known, of the danger to which he was exposed in working upon the platform where he was injured, he cannot be said to have recklessly exposed himself to such danger, or to have voluntarily assumed these risks. Sanborn v. Trading Co., 70 Cal. 261, 11 Pac. Rep. 710. The court did not err in refusing to give the instructions requested by defendants. In so far as they correctly stated the law, they were embodied in the instructions given. The case was submitted to the jury upon instructions quite as favorable to defendants as they were entitled to, under the law, and of which, therefore, they have no right to complain. Judgment and order affirmed.

We concur: FITZGERALD, J.; McFARLAND, J.

PEOPLE v. WONG AH LEONG. (No.

20,949.) (Supreme Court of California. Aug. 31, 1893.) CRIMINAL LAW-CROSS-EXAMINATION OF DEFEND ANT-IMPEACHMENT.

1. On a prosecution for an assault with intent to commit murder with a knife, defendant testified as to his presence at the scene of the assault, and his arrest as the perpetrator thereof, but made no mention of anything happening after his arrest. Held that, under Pen. Code, § 1323, providing that a defendant who offers himself as a witness can be crossexamined only as to "matters about which he was examined in chief," defendant could not be cross-examined regarding a pistol which fell from his person just after his arrest.

2. Defendant, on a prosecution for assault with intent to commit murder, who testifies in his own behalf, cannot have his character impeached by evidence that he had a pistol on his person at the time of his arrest.

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

Wong Ah Leong was convicted of assault with intent to commit murder, and appeals. Reversed.

Robert Ferrall and Dorn & Dorn, for appellant. Atty. Gen. Hart, for the People.

MCFARLAND, J. The appellant was charged with and convicted of the crime of an assault with an intent to commit murder, the charge being that he committed the assault "with a deadly weapon, to wit, a knife, upon the person of one Leong Ly Chuen," and he appeals from the judgment and from an order denying a new trial.

Appellant contends that the court erred in certain rulings touching the admissibility of evidence. The prosecuting witness testified that while he was going up a pair of stairs leading from the street to the upper story of a house, he was cut by the appellant, who had followed him; that he (the witness) made an outcry, and immediately turned and pursued the appellant down the stairs, and that appellant was arrested a few steps frim the foot of the stairs by a man named Riordan. There was testimony on the part of defendant to the point that it was a third man who fled down the stairs, that the third man ran away and escaped, and that the appellant, who was passing along the street, had merely stopped near the foot of the stairs at the time of his arrest, because attracted by the outcry of the prosecuting witness. Riordan testified that he delivered the man whom he had arrested to some officers, and also testified, without objection, that, while the officers were taking appellant to the receiving hospital, a pistol fell from the person of appellant, and, going off, shot appellant in the leg. One of the officers, against the objection of appellant, also swore to the dropping of the pistol, and the pistol was admitted in evidence against appellant's objection.

The appellant was a witness in his own behalf, and in his testimony in chief merely gave an account of how he happened to be near the stairway at the time of his arrest. His narrative stopped at the point of his arrest. He said nothing about anything that occurred afterwards, and made no allusion to the episode of the pistol, but on crossexamination the prosecution immediately commenced asking him about the pistol; the very first question being, "Did you ever see that pistol before?" To this appellant's counsel objected as "not in cross-examination," and also as irrelevant and immaterial, and "calculated to convict the defendant of another and different charge." The objection was overruled, and appellant excepted. The ruling was clearly erroneous. tion 1323 of the Penal Code a defendant who offers himself as a witness can be crossexamined only as to "matters about which he was examined in chief." As the crossexamination was not as to a matter about which appellant had been examined in chief, and as it was not admissible for the purpose of impeaching his character, (Code Civil Proc. 2051,) we cannot conceive of any theory

By sec

upon which it can be justified. See People v. O'Brien, 66 Cal. 602, 6 Pac. Rep. 695; People v. Bishop, 81 Cal. 116, 22 Pac. Rep. 477. The only plausible position that can be taken by respondent is that the matter inquired of in the cross-examination was not of sufficient importance to have been prejudicial to appellant. But, in the first place, the prosecution, after having persistently endeavored all through the trial to prove the fact that appellant had a pistol, can hardly be heard to say now that such fact was not important; and, in the second place, it is quite clear that evidence of the fact that appellant had a pistol, although he was only charged with having committed the crime with a knife, greatly prejudiced him in the minds of the jury. There is no escape, therefore, from the conclusion that for said error a new trial must be granted.

As to the other alleged errors in rulings on evidence, it is sufficient to say that no exceptions were taken at the proper time. The charge of the court to the jury is not upon its face erroneous. We do not think that the language of the charge prevented the jury from finding appellant guilty of a lesser crime included within the information, or apparently influenced them to find a verdict for the highest offense.

The judgment and order are reversed, and the cause remanded for a new trial.

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

KIESSIG V. ALLSPAUGH et al. (No.

19,134.)

(Supreme Court of California. Aug. 31, 1893.) CONTRACTORS' BONDS-ENFORCEMENT AGAINST SURETIES.

1. Code Civil Proc. Cal. § 1183, provides that a building contract which is not recorded before work is commenced thereunder, when the contract price exceeds $1,000, shall be void, and no recovery thereon can be had by either party thereto. Held, that a bond for $5,000 given by the contractor to the owner to secure the latter against claims and liens for labor on materials, and which refers to a written contract that has not been recorded, made between the principal and obligee, is not within the meaning of the statute, and may be enforced without violating the above section. Kiessig v. Allspaugh, 27 Pac. Rep. 662, 91 Cal. 234, followed. Lumber Co. v. Neal, 27 Pac. Rep. 192, 90 Cal. 213, overruled; McFarland, J., holding that the cases are distinguishable. 2. The failure to record the contract did not increase the obligation of a surety on the bond.

Garoutte and Harrison, JJ., dissenting.

In bank. Appeal from superior court, San Diego county; George Puterbaugh, Judge.

Action by Kiessig against A. M. Allspaugh and M. S. Hall, as principals, and N. P. Lundeen, as surety, to recover on a building contractor's bond. From a judgment for plaintiff, defendant Lundeen appeals. Affirmed.

DE HAVEN, J. The plaintiff in this action seeks to recover $1,807.25 upon a building contractor's bond executed to him by the defendants Allspaugh and Hall as principals, and by the defendant Lundeen as surety. The bond sued upon was executed on October 15, 1887, and, after reciting the fact that the principals therein had upon October 14, 1887, entered into a contract with the plaintiff here to build for him a certain house, for the price and in accordance with the specifications contained in said contract, proceeds: "Now, therefore, we, A. M. Allspaugh and M. S. Hall, as principals, and H. V. Poser and N. P. Lundeen, as sureties, bind ourselves, our heirs, executors, and successors, in the sum of $5,000, to forever save and hold harmless the said Charles Kiessig against any claims, demands, or liens of all characters whatsoever for material or labor expended or used in the building, constructing, and finishing of the said house." The original building contract was not recorded, and the price therein agreed to be paid for the construction of the building was $8,000. Work under the contract was commenced after the execution of the bond just referred to, and the building was completed by the contractors in accordance with the plans contained in the original contract, but plaintiff was compelled to pay in addition to the contract price the amount sued for in this action for the purpose of discharging the liens for materials used in and labor performed on the building. Judgment was rendered in the superior court in favor of plaintiff, and the defendant Lundeen appeals.

It is provided by section 1183 of the Code of Civil Procedure that all contracts for the construction of buildings, when the amount agreed to be paid therefor exceeds $1,000, shall be in writing, and filed in the office of the recorder of the county where the property is situated, before work is commenced under the contract; and, if not so filed with the recorder, "they shall be wholly void, and no recovery shall be had thereunder by either party thereto." The section further provides that in such case the labor and materials of all persons except the contractor "shall be deemed to have been done and furnished at the personal instance of the owner, and they shall have a lien for the value thereof." The appellant, Lundeen, claims that the bond sued upon in this action is dependent upon the contract referred to therein, and that, as this contract is wholly void under the provisions of section 1183 of the Code of Civil Procedure just cited, because not filed with the county recorder, the bond is void also. The point thus presented was decided adversely to the contention of appellant in the case of Kiessig v. Allspaugh, 91 Cal. 234, 27 Pac. Rep. 662, in which the

one of the principals named therein, upon the ground now urged by appellant. In answering this objection to its validity, the court there said: "Although the original contract could not be enforced, because not recorded, the contractor might nevertheless perform, and the plaintiff could accept such performance, and neither be guilty of any wrong in so doing; and if, in performing, the appellant incurred a personal liability for labor or materials, which was discharged by the plaintiff in order to remove a lien from his own property, or at the request of the appellant, the obligation to repay plaintiff is created by law, and would exist independently of the building contract, and is not affected by any defect therein, and is a sufficient consideration to support the express undertaking of defendant to repay, and the bond may therefore be deemed so far an independent undertaking that the right to enforce it does not depend upon the subsequent or continued validity of the building contract. As already stated, this bond is not within the letter of section 1183 of the Code of Civil Procedure, and it may be added that it is not within its reason or spirit, and its enforcement is not in conflict with the policy of that section." The provision of section 1183 of the Code of Civil Procedure making wholly void, as between the parties thereto, a written contract for the construction of a building for a price exceeding $1,000, unless the same is filed with the county recorder before the commencement of work thereunder. is an arbitrary one, and is not to be extended to any contract not falling strictly within its letter. It does not extend to a bond like that under consideration here, the very object of which is to provide for the payment of all those liens and claims which it is the chief object of the statute to secure.

Nor did the failure of plaintiff to record the building contract increase the obligation assumed by appellant as a surety for the principal obligors named in the bond. It is true that, if such contract had been filed, the liens upon the property of plaintiff could not have exceeded the contract price, and might have been discharged with the money which the plaintiff retained in his hands until the final settlement with the contractors, as provided for in the building contract. But the failure to file this contract with the recorder was not an omission to discharge any duty which the plaintiff owed to the defendant as a surety, and did not add to the obligation imposed upon him by the terms of the bond which he signed. Undoubtedly, the defendant might have stipulated in the bond that the building contract should be filed as a condition precedent to his liability as a surety; but he did not do so, and the court is not authorized to construe or interpolate such a condition into the bond, and in this respect to make a

new contract for the parties who executed it. The bond was executed in view of the fact that the contractors were about to commence the erection of a house for plaintiff in accordance with the written contract mentioned in the bond, and the sole purpose of the bond was to protect the plaintiff against the consequences of a failure of the contractors to pay the personal obligations which they might incur for labor and mate rials, in the event that they actually constructed for him the building referred to in the contract; and it is the duty of the court to enforce it according to its terms. The case of Lumber Co. v. Neal, 90 Cal. 213, 27 Pac. Rep. 192, cited by appellant, does sustain his contention; but, upon a more careful consideration of the question therein decided, we are not satisfied with the conclusion reached in that case. Judgment and order affirmed.

In re BLYTHE'S ESTATE. (No. 14,837.) (Supreme Court of California. Aug. 31, 1893.) RES JUDICATA-PENDING RIGHT TO APPEAL.

Since, under Code Civil Proc. § 1049, by which an action is pending until the time for appeal has expired, or the judgment has been sooner satisfied, a judgment until then is not final, an unsatisfied decree, the time for an appeal from which has not expired, is no evidence of the facts thereby adjudged.

In bank. Appeal from superior court, city and county of San Francisco; J. V. Coffey, Judge.

Petition, in the matter of the estate of Thomas H. Blythe, deceased, for a family allowance to Florence Blythe. Appeal from an order granting the same. Reversed.

H. S. Brown, John R. Jarboe, W. S. Goodfellow, and Edward R. Taylor, for appellants. W. H. H. Hart, Garber, Boalt & Bishop, Thos. I. Bergin, and W. W. Foote, for respondent.

GAROUTTE, J. This appeal is prosecuted from an order granting a family allowance to Florence Blythe. Upon the hearing of the petition for the allowance, counsel for the applicant introduced in evidence the findings of fact, conclusions of law, and the decree heretofore made and entered in the action of Blythe v. Ayers et al., wherein it is found and adjudged that Florence Blythe is the lawful child and heir of Thomas H. Blythe,

deceased. The petitioner, aside from certain matters pertaining to property, rested her application upon the foregoing evidence. Appellants thereupon requested the court to grant a continuance for such reasonable time as would enable them to perfect an appeal to the supreme court from the judgment in Blythe v. Ayers, and stated that they intended in good faith to appeal from such judgment, and also asked for a continuance for the purpose of introducing testimony to prove that the petitioner was not, in fact, the child of said Thomas H. Blythe, de ceased, or a member of his family. These motions being denied, appellants then moved the court to deny the prayer of said petitioner, upon the grounds that no evidence had been introduced that she was the child of said Thomas H. Blythe, deceased, or a member of his family, other than the findings, etc., (to which reference has already been made,) and that said findings of fact, conclusions of law, and decree show that petitioner never was the adopted child of Blythe, the deceased. This motion was de nied, and the family allowance ordered.

We do not find it necessary to consider the claims of counsel that the court abused its discretion in not granting appellants a reasonable continuance for the purposes stated, as the decree must be reversed upon other grounds. Neither do we deem the contention of appellants sound wherein it is insisted that the court had no jurisdiction to make the order of allowance, because the petitioner's status as the child of Blythe was denied. That was a question of fact for the court to determine before denying or granting the application, and in no sense jurisdictional. The decree must be reversed because there is no evidence to support it. Appellants were present at the hearing of the application, and denied the allegation of the petition that Florence Blythe was the child and heir at law of Blythe, deceased. To prove that fact, findings, conclusions of law, and decree in the case of Blythe v. Ayers were introduced in evidence. We think them wholly insufficient to prove it. The findings and decree in that action were filed and entered October 22, 1890. The application for an allowance was filed and heard October 31, 1890. The judgment was but nine days old when offered in evidence, and, under the statute, the losing parties were entitled to an appeal from it at any time within 60 days from its rendition. By virtue of section 1049 of the Code of Civil Procedure, an action is pending until the time for appeal has expired, or the judgment sooner satisfied. This judgment, being but nine days old at the date of the hearing, and not satisfied, afforded no evidence of the facts therein found, for it was not a final judgment, inasmuch as the action was still pending. A judgment, in order to bo admissible in evidence for the purpose of proving facts therein recited, must be & final

Judgment in the cause; and, if the action in which the judgment is rendered is still pending, necessarily the judgment is not final. As was said in Hills v. Sherwood, 33 Cal. 478: "Although a judgment may be final with reference to the court which pronounced it, and as such be the subject of appeal, yet it is not necessarily final with reference to the property or rights affected so long as it is subject to appeal, and liable to be reversed." The sound policy of a law which will not allow a decree to stand upon such evidence is well illustrated by the Blythe litigation. This judgment, which was introduced in evidence upon the hearing of the matter of family allowance to prove the paternity of the child, has since been attacked by appeal, and the matter is now pending in this court. Let us assume that the judgment will be reversed upon the findings, and the cause remanded, with directions to enter judgment for appellants; by such assumption the judgment upon which the decree of family allowance was based has gone forever. It has not only disappeared, but the evidence of the paternity of the child upon which the allowance was granted is declared by the court of last resort to be no evidence of such paternity. If this judgment was evidence of the fact of paternity, it was conclusive evidence of that fact, it was res adjudicata. Yet that cannot be possible, for nothing is res adjudicata until it has reached final judgment. As was said in Webb v. Buckelew, 82 N. Y. 560: "It is therefore only a final judgment upon the merits which prevents further contest upon the same issue, and becomes evidence in another action, between the same parties or their privies. Until final judgment is reached, the proceedings are subject to change and modification, are imperfect and inchoate, and can avail nothing as a bar or as evidence, until the judgment, with its verity as a record, settles finally and conclusively the question at issue." And, again: "Whenever it fails to fix and determine the ultimate rights of the parties, wherever it leaves room for a final decision yet to be made, it is not admissible in another action, for the plain reason that it has finally decided and settled nothing. Until the judgment comes, no man can know what the ultimate decision will be." In Harris v. Barnhart, (Cal.; decision filed March 18, 1893,) 32 Pac. Rep. 589, it is decided that a Judgment cannot be pleaded in bar where it has not been satisfied and the time for appeal has not expired. In other words, the judgment is not a final judgment if the action is still pending, and the plea should be in abatement. In Naftzger v. Gregg, (Cal.; decision filed July 21, 1893,) 33 Pac. Rep. 757, the doctrine is again declared, some of the justices holding that "when, upon the submission of the case, it appeared to the court that a year had not elapsed since the entry of the judgment, and no other evi

dence upon that issue had been introduced, the court should have held that it did not constitute a bar, for the reason that under the provisions of section 1049, Code Civil Proc., the action was deemed to be still pending." Other members of the court went to greater lengths, and declared the judgment inadmissible as evidence for any purpose. For the foregoing reasons we conIclude the evidence is wholly insufficient to support the order. Let the order be reversed.

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

VON SCHMIDT ▼. WIDBER, Treasurer. (No. 15,160.)

(Supreme Court of California. Sept. 11, 1893.) COURTS-PRACTICE-ORDERS.

1. Under the present constitution, whenever a judge of the superior court is present at the place designated for the transaction of judicial business, and there assumes to transact such business, his acts are the acts of the "court;" and therefore an order dispensing with an undertaking on an appeal, made and signed by a judge of the superior court of San Francisco county while holding a session of one of the departments of the court at its court room, is a sufficient compliance with Code Civil Proc. § 946, providing that the "court" below may dispense with an undertaking on appeal in certain cases.

2. Since there is no provision requiring orders of the superior court to be entered at length on its minutes, it is sufficient if an order dispensing with an undertaking on appeal be filed with the clerk.

Department 1. Appeal from superior court, city and county of San Francisco; A. A. Sanderson, Judge.

Action by one Von Schmidt against one Widber, treasurer of the city and county of San Francisco. There was a judgment for plaintiff, and defendant appealed. Respondent moves to dismiss. Denied.

Harry T. Creswell, for appellant. Tilden & Tilden, for respondent.

HARRISON, J. Motion to dismiss the appeal. The appellant was sued in his official capacity, as treasurer of the city and county of San Francisco, and has appealed from the judgment against him. Section 946, Code Civil Proc., provides that the court below may, in its discretion, dispense with an undertaking on appeal "when the appellant is an executor, administrator, trustee, or other person acting in another's right;" and in Scheerer v. Edgar, 67 Cal. 377, 7 Pac. Rep. 760, it was held that this section applied to an action against a municipal officer in his official capacity. On the 19th of July, 1892, after the defendant had given his notice of appeal, the Honorable James M. Troutt, one of the judges of said superior court, and the presiding judge thereof, while holding a session of one of the departments