convicted. An objection to the improper assessment of costs is not available in this court unless a motion was made in the district court to retax the same.

4. Where the defendant, near the close of his trial for a misdemeanor, renders himself unable to attend the trial by the voluntary use of intoxicating liquors, and an application is made for a continuance of the trial upon that ground, a denial of the same will not be held to be fatal unless there is a clear abuse of discretion; and, held that, under the circumstances of this case, there was no abuse of discretion.

5. The evidence examined, and held to be sufficient to sustain the verdict and judgment. (Syllabus by the Court.)

Appeal from district court, McPherson county; Lucien Earle, Judge.

Nels Ellvin was convicted of selling intoxicating liquors unlawfully, and appealed. Affirmed.

Milliken & Galle, for appellant. John T. Little and Chas. W. Webster, for appellee.

JOHNSTON, J. On October 7, 1892, Nels Ellvin was convicted of the unlawful sale of intoxicating liquors, and the judgment of the court was 45 days' imprisonment in the county jail, and that he should pay a fine of $250 and costs. He appealed to the supreme court, and obtained a stay of the execution of the judgment by giving bond as provided in section 287 of the Criminal Code. Before the appeal was heard, and on March 26, 1893, the appellant died. Counsel for the appellant filed a motion for dismissal, but, upon the suggestion of the death, the administratrix of the estate of the deceased was brought in as a party, in order that the liability of the estate for the costs of the prosecution might be determined. It is still insisted that no inquiry can be made, nor any action taken in the case, except to note the fact of abatement and make an order of dismissal. This question was presented to the court in the case of State v. Fisher, 37 Kan. 404, 15 Pac. Rep. 606, where it was decided that the death of the defendant did not abate or destroy the judgment for costs. The judgment was stayed, and, in a certain sense, suspended by the appeal, but a dismissal of the same ordinarily leaves the judgment unimpaired and in full force. While the death of the appellant necessarily ends further prosecution, and prevents a recovery of the fine imposed as punishment, it does not relieve his estate from liability for the costs which had passed into judgment during his lifetime. It has been determined that the costs adjudged against one convicted of crime do not constitute a part of the punishment inflicted upon him, and this although the judgment may provide that he be imprisoned in the county jail until such costs are paid. It was further held that an unconditional pardon would not relieve the party from liability for costs adjudged against him. It was said that "such a judgment is merely a means of enforcing the legal obligation resting upon the defendant

and

to pay the costs which he by his original wrongful act and his subsequent acts has caused to be made, and which have accrued in the prosecution subsequent to the act for which he is punished; and these costs have not accrued to the public merely, but have accrued to individuals, and are given to such individuals as compensation for their services performed in the prosecution; the right of these costs, and the means for their collection, are vested rights, which cannot be disturbed or abridged or lessened by any pardon which the governor may grant." In re Boyd, 34 Kan. 570, 9 Pac. Rep. 240. The costs, although incidental to the punishment inflicted, constitute a separate civil liability in favor of the parties to whom they are due, and from which the estate of the defendant cannot be relieved except by a reversal of the judgment. A review proceeds here at the instance of the administratrix and for the benefit of the estate. In case of a reversal, of course no new trial can be had, and necessarily no further liability for costs can arise.

The first ground urged for a reversal of the judgment is that the affidavits which were used as a basis for the information were informal and insufficient. The aver ments contained in the information sufficiently describe the offense, and it is verified by the county attorney upon information and belief, and the objection made to the affidavits which were taken by and verified before the deputy county attorney and filed with the information have become immate rial.

After the arrest of the defendant upon the warrant, he voluntarily gave a recognizance, and obtained a discharge from custody. This was done before any objection to the warrant or the information was made, and the defendant has thereby waived all right to complain of defects or irregularities in the affidavits and in the issuance of the warrant. State v. Bjorkland, 34 Kan. 377, 8 Pac. Rep. 391; State v. Longton, 35 Kan. 375, 11 Pac. Rep. 163; State v. Ladenberger, 44 Kan. 261, 24 Pac. Rep. 347; State v. Tuchman, 47 Kan. 726, 28 Pac. Rep. 1004.

It is next contended that the testimony is insufficient to sustain the conviction. The information contained 26 counts, all charging unlawful sales of liquors, except the last one, which charged the keeping of a nui sance. Although there was much testimony tending to show numerous unlawful sales by Ellvin, the jury found him guilty only upon the third count of a sale to William Ferguson, and upon that count the state elected to rely for a conviction upon the third sale made to Ferguson. It was charged that the sales to Ferguson were made in 1891, and he testified to obtaining from four to ten bottles of beer from Ellvin during the summer of that year. His testimony, although indefinite in some respects, shows that he purchased beer from the appellant, a bottle at a time; that there were three

or more purchases; and that the price paid was 25 cents for each bottle. He was unable to state all the details and circumstances attending each sale that was made, but we think there was sufficient testimony tending to show the sale to Ferguson relied on for conviction, and the finding of the jury thereon, sanctioned as it has been by the trial court, ends the controversy upon that point. It is next urged that the court erred in imposing all of the costs of the entire trial upon the defendant. It appears that some of the witnesses were called and the costs accrued in an attempt to sustain charges in the information which were subsequently dismissed, or upon which the defendant was found not guilty. The defendant can only be held liable for the costs that arose upon the trial of the charge upon which he was convicted, and should not be required to pay costs accruing under the counts upon which he was acquitted. State v. Brooks, 33 Kan. 708, 7 Pac. Rep. 591. This objection is not available at this time, for the reason that no motion was made in the district court to retax the costs, nor any request made to separate those which he should recover from those which he should pay. Appeal of Lowe, 46 Kan. 255, 26 Pac. Rep. 749; In re Gilson, 34 Kan. 644, 9 Pac. Rep. 763. As was said in the case last cited: "Doubtless, upon a motion to retax the costs, the court will correct the judgment."

The only matter left for consideration is that the defendant was absent from the court during a portion of the trial. Near the end of the trial the defendant became unfit to attend court by reason of the excessive use of intoxicating liquors voluntarily taken by him, and an oral application for a continuance of the cause was made. An adjournment was taken for half of a day, when it was found that the defendant was still absent, owing to intoxication, or its effects. The court then concluded to proceed with the trial, and denied the adjournment. The presence of the defendant at a tial for misdemeanor is not indispensable. Crim. Code, § 207; State v. Baxter, 41 Kan. 516, 21 Pac. Rep. 650. In this case the defendant was personally present when the judgment of the court was pronounced. In view of the voluntary disability of the defendant, and other circumstances, we cannot say that there was an abuse of discretion in denying the application. We see no grounds which would justify a reversal, and hence the judgment for costs must stand. All the justices concurring.

In re HELDT'S ESTATE. (No. 15,221.) (Supreme Court of California. June 10, 1893.) APPEAL TIME OF TAKING APPEALABLE JUDGMENTS APPOINTMENT OF ADMINISTRATOR.

1. Under Code Civil Proc. § 1715, an appeal from a judgment or order appointing an administrator, and denying another application

for such appointment, must be taken within 60 days after such judgment or order is entered.

2. Where two petitioners for letters of administration on the estate of a deceased are heard together, under Code Civil Proc. § 1374, but no issue is joined as to any fact alleged in either petition, and no objection is made as to the competency of either party, a motion for a new trial is unauthorized, and no appeal will lie from an order denying the same.

Department 2. Appeal from superior court, Mendocino county; Robert McGarvey, Judge.

Petitions by R. B. Markle and another for letters of administration on the estate of Frederick Heldt, deceased. The petitions were heard together, under Code Civil Proc. § 1374, and letters of administration were granted to Markle. From the order granting such letters, and from an order denying his motion for a new trial, the other petitioner appeals. A motion was made to dismiss the appeals. Appeals dismissed.

J. H. Seawell, for appellant. J. A. Cooper, for respondent.

PER CURIAM. There are two appeals in this case. The first is from a judgment or order of the superior court granting letters of administration upon the estate of Frederick Heldt, deceased, to R. B. Markle, and refusing appellant's application for such letters; and the other is an appeal from an order denying appellant's motion for a new trial in the same matter. The respondent moves to dismiss both appeals, and we think the motion should be granted.

1. The appeal from the judgment or order appointing an administrator, and denying appellant's application for such appointment, was not taken within 60 days after the same was entered, and therefore was not taken in time. Code Civil Proc. § 1715; Estate of Harland, 64 Cal. 379, 1 Pac. Rep. 159; Estate of Burton, 64 Cal. 428, 1 Pac. Rep. 702; Estate of Fisher, 75 Cal. 523, 17 Pac. Rep. 640; Estate of Wiard, 83 Cal. 619, 24 Pac. Rep. 45; Estate of Backus, 95 Cal. 671, 30 Pac. Rep. 796.

2. In this case both the appeilant and respondent filed a petition asking for the is suance of letters of administration upon the estate of the deceased, in each of which petitions the applicant stated that he had been requested to act as such administrator by the widow of the deceased, and both of the petitions were heard together, as provided by section 1374 of the Code of Civil Procedure. But no issue was joined as to any fact alleged in either petition, nor any objection made as to the competency of either of the parties. In such a proceeding, when no issues of fact are made by the pleadings, a motion for a new trial is not authorized; and if such a motion is made, and not enter tained, or is denied by the court, no appeal will lie from such an order. This is not in conflict with what was decided by us in Estate of Bauquier, SS Cal. 313, 26 Pac. Rep.

178, 532. In that case the right of an executrix named in a will to letters testamentary was contested upon certain alleged grounds of incompetency. In such a contest the Code expressly provides that the objections shall be in writing and that they shall be heard and determined by the court, (Code Civil Proc. 1351,) and in that case it was held that when a trial of such a contest had been had, and findings of fact made by the court, a motion for a new trial was proper, and that the party against whom the decree was made might ask the court to re-examine the questions of facts involved, and that an appeal would lie from an order denying a new trial of such a contest. But in that case the court very clearly intimated that a new trial in a probate proceeding was only proper in cases where there are issues arising upon pleadings authorized by the Code. We there said: "It would be impracticable to enumerate the cases in which a motion for a new trial is appropriate in probate proceeding, but it may be stated generally that whenever the action of the court which is invoked is dependent upon the existence of certain extrinsic facts which are presented to it for determination in the form of pleadings, and are to be decided by it in conformity with the preponderance of the evidence offered thereon, an issue of fact arises which, after its decision, may be reexamined by the court upon a motion for a new trial." And these views were reaffirmed in the later case of Leach v. Pierce, 93 Cal. 615, 29 Pac. Rep. 235, in which it was held that a motion for a new trial was not authorized in the matter of an application for a family allowance. In 1 Hayne on New Trial (section 5) it is said: "It may sometimes be difficult to decide what determinations in probate proceedings amount to orders merely, and what to decisions which are subject to re-examination on motion for a new trial. In Estate of Crosby, 55 Cal. 576, it was held that, whenever 'issues of fact' are tried in probate proceedings, findings are proper. Perhaps it may be said that, wherever findings are proper, a motion for a new trial may be made." We are clearly of the opinion that no findings were necessary in this case, and that the Code does not contemplate a motion for a new trial in a case where ex parte applications for letters of administration are heard together, and no issues joined as to the right or competency of either of the parties to act as such administrator. Appeals dismissed. Remittitur stayed 30 days.

ant corporation, and subsequently, on a shoving that the steamer was deteriorating in value, the receiver was authorized to sell the vessel, which he did. The sale was confirmed, judg ment was given for the amount of the mortgage, and execution awarded against defendant corporation for the deficiency. Held, that a personal judgment for the deficiency was properly entered, though Code, § 726, provides in terms for such judgment only "if it appears from the sheriff's return that the proceeds are insufficient."

2. A trustee to whom a chose in action has been transferred for collection is, in contemplation of law, so far the owner as to be entitled to sue in his own name.

3. Where a purchaser retains the article without any offer to rescind, and does not plead failure of consideration in an action on the purchase-money notes, he cannot set up, as a defense to such action, fraudulent representations by the seller in making the sale.

4. In the absence of a positive statutory provision, exhibits properly identified need not be attached to the depositions in connection with which they are offered in evidence.

Commissioners' decision. Department 2. Appeals from superior court, city and county of San Francisco; John F. Finn, Judge.

Action by Simeon B. Toby against the Oregon Pacific Railroad Company and the Oregon Development Company. From judgment for plaintiff, defendants appeal. Affirmed.

а

Milton Andros and Jas. L. Crittenden, for appellants. Page & Eels, for respondent.

SEARLS, C. There are two separate appeals in this cause by the defendants,-one from the final judgment, and the other from an order denying a motion for a new trial. As they depend to some extent upon the same statement, they will be considered together.

The action was brought to foreclose a mortgage upon the steamer Eastern Oregon, executed at the city of New York by the Oregon Pacific Railroad Company, a corporation, on the 10th day of February, 1887, to the Florida Steamship Company, to secure the sum of $115,000, with interest at 6 per cent. per annum, evidenced by 12 promissory notes of even date with the mortgage, 11 of which were for $10,000 each, and one for $5,000, and all payable 12 months after date. The Oregon Development Company, a corporation, was made a party defendant, upon the averment that it had, or claimed to have, some interest in the steamship, etc. Both the defendants are corporations organized and existing under the laws of the state of Oregon. The steamship in question was purchased for the trade between San Francisco and Southern Oregon, was brought from New York to this coast, and was within the jurisdiction of the courts of this state. The complaint averred the mortgagor defendant to be insolvent, and a receiver was appointed February 17, 1888, who took possession of the steamship, and continued in charge of her until sold, as hereinafter stated, on the 26th day of April, 1890, for the sum of $80,030.

The cause was tried by the court without the intervention of a jury, and written findings filed April 11, 1890, in which, upon the facts as found, the court ordered judgment in favor of plaintiff for $115,000 and interest, and a decree of foreclosure and a sale of said steamship, as prayed in the complaint. On the 14th day of April, 1890, plaintiff filed a petition and affidavit showing that the steamship was deteriorating in value; that the expense of her maintenance, repairs, taxes, etc., amounted to about $300 per month, etc.,-and asked that the receiver be authorized to sell her. Such proceedings were thereupon had that the steamship was, by order of the court, sold at public auction on the 26th day of April, 1890, subject to the confirmation of the court. The sale was confirmed by the court April 29, 1890. Thereafter, and on the 22d day of May, 1890, the court entered a decree in the cause, in which, after reciting the filing of its findings and decision; that the court had ordered the receiver to sell the mortgaged property at public auction, pendente lite, to prevent further deterioration in its value, (the same being perishable,) and to pay the expenses and disbursements of said receiver, etc., the decree further recites the sale for $80,030; the confirmation thereof; the settlement of the receiver's accounts, leaving a balance of $70,224.62 in his hands. The decree then proceeds to award judgment in favor of plaintiff, and against the mortgagor defendant, for $137,655, (being the amount of the principal of said promissory notes, $115,000, and interest due thereon,) and costs of suit. The decree requires the receiver to pay the plaintiff the amount in his hands, ($70,224.62,) and awards execution in favor of plaintiff, and against the defendant the Oregon Pacific Railroad Company, for the balance remaining unpaid after crediting the judgment as aforesaid.

The first point by appellants, in the appeal from the judgment, is that the court had no jurisdiction or authority to enter a personal judgment for a deficiency until after a sale of the mortgaged property by the sheriff, and a sheriff's return showing a deficiency. This theory proceeds upon the basis that the mode of procedure provided by section 726 of the Code of Civil Procedure is exclusive. That section is as follows: "There can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter. In such action the court may, by its judgment, direct a sale of the incumbered property, and the application of the proceeds of the sale to the payment of the costs of the court, and the expenses of the sale, and the amount due to the plaintiff; and if it appears from the sheriff's return that the proceeds are insufficient, and a balance still remains due, judgment can then Cal. Rep. 32-34 P.-29

be docketed for such balance against the defendant," etc. The contention is that a foreclosure and order of sale are essential to authorize the sheriff to sell, and a sale by him, and a return showing a deficiency, are prerequisite to a personal judgment; that it is the return of the sheriff, showing a deficiency, which operates to crystallize the personal liability of the mortgagor, and to assess the amount for which the court is authorized to decree that a personal judgment may be docketed. A glance at the law, as it existed prior to the adoption of our statites in relation to mortgages, will tend to make manifest the evils sought to be obviated by those enactments. At common law a mortgage was regarded as a conveyance upon condition, to become absolute upon nonperformance of the condition. Upon such nonperformance the courts of law held the estate to be vested in the mortgagee, and refused to recognize the right of redemption. They conceded the jurisdiction of courts of equity to grant relief from the forfeiture, but that was the extent of the mitigation permitted until the passage of the judicature act of 36 & 37 Vict. c. 66, §§ 24, 25, which provide that when the rules of law and equity are in conflict those of equity shall prevail in all the courts. In the United States there has been no uniform doctrine in respect to mortgages. A majority of the states adopted the English doctrine. In Delaware, Mississippi, and Missouri the doctrine is that before default the title remains in the mortgagor, but passes to the mortgagee upon his taking possession after default, subject to be defeated› upon payment of the debt. Another hardship upon the mortgagor needed a remedy. The mortgagee could bring an action at law to recover the mortgage debt, and although he obtained judgment, and (where permitted so to do by law) imprisoned the mortgagor, it did not, without payment, impair his mortgage. The first of the hardships indicated was remedied by section 744 of our Code of Civil Procedure, which provides that "a mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the property without a foreclosure and sale." The right to a personal action to recover a debt secured by a mortgage is inhibited by section 726, Code Civil Proc., hereinbefore quoted. Under that section there can be but one action for the recovery of any debt, etc., which must be in accordance with the provisions of that chapter. It further provides that a personal judgment may be entered for a balance remaining due, if the proceeds of the incumbered property shall be insufficient, etc. To contine a recovery in such classes to one action, to make the mortgaged property the primary fund out of which satisfaction is to be had, and to give the plaintiff a personal judgment for such bal

ance as may remain due after the exhaustion of the mortgaged property, are the three essential things provided for.

The contention of appellant that there can be no deficiency judgment without a sale, and formal return by the sheriff, seems to me too technical to give effect to the evident intent of the lawmakers in many cases. Suppose, in the present case, the steamship mortgaged had been lost by perils of the sea, pendente lite. Would the plaintiff have been without remedy? Or can it be claimed that the court would have been forced to the useless expedient of foreclosing the mortgage, ordering a sale, and awaiting the return of the sheriff, before a deficiency judgment could be docketed? Would it not rather be said that the court, having obtained jurisdiction of the parties and of the subject-matter, would, under the rules of equity, proceed, under the altered circumstances, and in view of the fact that the security was exhausted, to do justice by the entry of judgment for what would then become the deficiency, viz. the full amount due? Again, suppose the ship had been insured in favor of the plaintiff against the perils of the sea, and lost. Can it be doubted that the insurance money, if paid into court, could be applied to the satisfaction of the mortgage without a judgment over for the balance, if any, due? I think not. It is true the statute provides for docketing a personal judgment for the balance shown to be due by the return of the sheriff. Doubtless this language is used because it is the usual manner by which the application of the primary fund and a deficit remaining are ascertained, but after all it is the existence of these facts which entitles the plaintiff to a personal judgment against the defendant; and where they exist, and can only reasonably be ascertained by other means, they are not to be ignored because made apparent in a different way.

The court was authorized, in a proper case, to appoint a receiver of the mortgaged property. Code Civil Proc. § 564. That the court had jurisdiction of the subject-matter, and was authorized to foreclose the mortgage, will not be disputed. Section 187 of our Code of Civil Procedure provides for cases of this character. It is as follows: "Whenever jurisdiction is, by the constitution or this Code, or by any other statute, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code." The mode of proceeding adopted by the court was a suitable one, under the cir cumstances. Mawson v. Mawson, 50 Cal.

539.

I am of opinion that a sale of the whole

of the mortgaged property under the interlocutory decree of the court, pendente lite, by a receiver, and the application of the proceeds to the extinguishment of the amount found due the plaintiff, were such an ascertainment of the balance as warranted the court in rendering judgment therefor. I have examined Biddel v. Brizzolara, 64 Cal. 362, 30 Pac. Rep. 609, and Brown v. Willis, 67 Cal. 235, 236, 7 Pac. Rep. 682, and find nothing in them in conIflict with the views herein expressed.

It is objected that the decision of the court called for the entry of a decree of foreclosure. Subsequent to the decision, and prior to the entry of the decree, the mortgaged property had been sold by the receiver under order of the court. The decree recites these facts which show the changed conditions, and rendered the decree of foreclosure and order of sale unnecessary. It dealt with the property in its altered form, as money, and decreed that it be applied upon the amount found due. If the court had a right, at that stage of the proceedings, to order that property to be sold as perishable, it certainly possessed the power of applying the proceeds as would have been done by the sheriff had the sale taken place under a final decree.

The second point made by appellant, that "the said judgment is against law," is supported by the same argument made in favor of the first point, and need not receive further elaboration.

The further objection that the judgment is not in accordance with the findings in which the difference is between the decision ordering a decree of foreclosure and sale, and the decree finally entered, has also been referred to. It is also urged that the plaintiff was not entitled to a judgment upon the findings, for the reason that the plaintiff, in his complaint, avers that the Florida Steamship Company assigned to him the mortgage and 12 promissory notes, and that he is estopped to prove that he holds the notes or mortgage as a trustee. The allegation of the complaint is "that on the 27th day of January, 1887, the said corporation, the Florida Steamship Company, assigned, transferred, and set over to this plaintiff the said mortgage, and the said promissory notes thereby secured, and this plaintiff is now the holder of said notes and mortgage." Defendant does not deny, in its answer, that the notes and mortgage were assigned to the plaintiff, or that he now holds them. It does aver that he is not a bona fide holder for a valuable consideration, and that be holds them for collection, without consideration, and as the agent of said steamship company, which is the real owner thereof, and that the action is prosecuted for the use and benefit of the steamship company. It will be seen that the issue is not as to the fact of the transfer, but the character of it, which defendant attacks. The court