(Estate of Car

the failure of the court to make a finding." penter, 127 Cal. 587, [60 Pac. 162]; Eva v. Symons, 145 Cal. 202, [78 Pac. 648].)

Of course, a finding as to what was "due on the note" would have been a mere conclusion of law and entirely unnecessary. The amount due is a mere matter of calculation on the face of the note, the due execution of which and assignment to and consequent ownership in the plaintiff have been admitted by the pleadings. Of course, the defendants cannot be heard to complain that the judgment against them is for less than such computation shows to be due.

Appellants also complain that the findings of the court were entirely outside the issues, and this seems to be the fact. But such findings should be entirely disregarded, and cannot be ground for reversal. The judgment is within the case as made by the complaint, and rests for support on the admission of the answer that the note was duly executed and is now in the hands of the plaintiff as the owner thereof; and these findings outside the issues are entirely unnecessary to the support of the judgment, and may be treated as mere surplusage.

I am therefore of opinion that the judgment should be affirmed as it stands, and upon this I concur in the judgment as reduced, upon the theory that the greater includes the less.

[No. 190. First Appellate District.-October 10, 1905.]

REBECCA G. WHITE, Respondent, v. ANNA GAFFNEY, Appellant.

ACTION TO ABATE NUISANCE-JUDGMENT COSTS AND COUNSEL FEESSUBSEQUENT ABATEMENT APPELLATE JURISDICTION.-This court has appellate jurisdiction in an action to abate a nuisance; and where the judgment includes costs and counsel fees, and they have not been paid, the abatement of the nuisance in fact does not satisfy the judgment nor deprive this court of appellate jurisdiction over it to determine any question involved therein, including the propriety of the allowance of cents and counsel fees, though less than three hundred dollars in amount; and a motion to dismiss such appeal will be denied.

MOTION to dismiss appeal frora a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge.

The facts are stated in the opinion of the court.

John C. Partridge, for Appellant.

Sooy & Dorn, for Respondent.

HALL, J.-This is a motion by respondent to dismiss an appeal taken by defendant from a judgment in favor of plaintiff and against defendant, directing that defendant abate a certain nuisance, and further adjudging that plaintiff have and recover of and from defendant the sum of $292.50 as and for costs, expenses, and counsel fees incurred in the prosecution of said action.

Counsel for plaintiff insist that defendant having since the judgment abated the nuisance the judgment has been com plied with (although the costs and counsel fees have not been paid), and that defendant cannot be heard to question the allowance of the costs and counsel fees, as costs and counsel fees are mere incidents of the judgment.

There is no merit in this contention. We do not conceive that even counsel for plaintiff will admit that the abatement of the nuisance satisfies the judgment for costs and counsel fees. It we should grant his motion and dismiss this appeal, we have no doubt that when he applies to the clerk of the trial court for a writ of execution to collect the judgment for costs and counsel fees, he will insist that it is a very important and substantial part of the judgment remaining unsatisfied. Certain it is that if the defendant be finally com pelled by a writ of execution, or otherwise, to pay this judg ment, she will have a realizing sense of its substance and importance.

That part of the judgment awarding costs and counsel fees is as much a part of the judgment, subject to review on ap. peal from the judgment, as any other part of it. We are not now discussing an order of the court taxing costs on a disputed cost bill filed subsequent to a judgment awarding costs, but we are discussing the judgment itself that awards costs and counsel fees.

The cases are numerous where, on an appeal from a judgment awarding costs, the appellate court has reviewed and modified the judgment in that respect. We will cite but a few: Schmidt v. Klotz, 130 Cal. 223, [62 Pac. 470]; Quitzow v. Perrin, 120 Cal. 255, [52 Pac. 632]; Kelly v. Central Pacific R. R. Co., 74 Cal. 565, [16 Pac. 390]; People v. Campbell, 138 Cal. 11 (23), [70 Pac. 918]; Benson v. Braun, 134 Cal. 41, [66 Pac. 1]; Fox v. Hale & Norcross S. M. Co., 122 Cal. 219, [54 Pac. 731]; McCarthy v. Gaston Ridge Mill etc. Co., 144 Cal. 542, [78 Pac. 7].

In Kelly v. Central Pacific R. R. Co., 74 Cal. 565, [16 Pac. 390], the appeal was taken only from that part of the judgment awarding costs to plaintiff, and that part only of the judgment was reversed.

In Schmidt v. Klotz, 130 Cal. 223, [62 Pac. 470], the judgment was modified in regard to costs on an appeal from the judgment, which, in this regard, was erroneous on its face. The same is true in Quitzow v. Perrin, 120 Cal. 255, [52 Pac. 632]; Benson v. Braun, 134 Cal. 41, [66 Pac. 1], and Fox v. Hale & Norcross S. M. Co., 122 Cal. 219, [54 Pac. 731]. Where the judgment on its face shows that costs and counsel fees have been awarded contrary to the law, no bill of exceptions is necessary, as the question is presented by the judgment-roll.

It is also insisted that no appeal lies in this case for the reason that the only matter now involved is less than three hundred dollars. This matter has been finally settled in this state contrary to the contention of the plaintiff in Harron v. Harron, 123 Cal. 508, [56 Pac. 334], which reviews and overrules preceding cases relied on by plaintiff. See, also, Southern California Ry. Co. v. Superior Court, 127 Cal. 417, [59 Pac. 789]. Harron v. Harron was an action for divorce, and it was held that as the constitution gave appellate jurisdiction to the supreme court in such actions, a motion to dismiss an appeal from an order allowing one hundred and forty dollars for costs and counsel fees would not lie.

The constitution gives this court appellate jurisdiction in actions to abate a nuisance. This gives us appellate jurisdiction over the whole and every part of the judgment in such an action.

The motion to dismiss the appeal is denied.

Cooper, J., and Harrison, P. J., concurred.

[No. 64. First Appellate District.-October 10, 1905.]

ANNIE BLACK, Administratrix, etc., Appellant, v. VERMONT MARBLE COMPANY, Respondent.

ACTION AGAINST

FOREIGN CORPORATION-STATUTE OF LIMITATIONSFAILURE TO DESIGNATE AGENT.-Under the act of 1872, and the act of 1899 amendatory thereof, a foreign corporation doing business in this state which fails to file with the secretary of state its designation of some person residing in the county of its principal place of business upon whom process shall be served cannot defend an action on the ground that it is barred by the statute of limitations.

ID. PLEA OF STATUTE-ADMISSION OF PLEADINGS-BURDEN OF PROOF. -Where it was admitted by the pleadings that defendant is a foreign corporation, and it pleaded the statute of limitations, the plea being deemed controverted by section 462 of the Code of Civil Procedure, the burden is upon the defendant in order to avail itself of the defense to show that it had complied with the statute by filing the required designation with the secretary of state. ID.-DESIGNATION PENDING SUIT-PROTECTION OF STATUTE-TIME OF RUNNING. Where the foreign corporation designated an agent pending suit, such designation is only prospective from its date as to the protection of the statute of limitations, and it cannot avail itself of any defense as to the running of the statute prior thereto.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Frank H. Kerrigan, Judge.

The facts are stated and referred to in the opinion of the court.

George C. Sargent, for Appellant.

F. William Reade, for Respondent.

HARRISON, P. J.-Action to recover from the defendant certain moneys received by it upon a sale by the sheriff of certain merchandise belonging to the defendant.

The facts connected with the transaction are given in the opinion in an action between the same parties reported at 137 Cal. 683, [70 Pac. 776], the difference between the two

actions being that the former was an action in claim and delivery for property purchased by the defendant at the sheriff's sale therein referred to, while this is for moneys received by the defendant from the sheriff upon the sale by him to other persons. The defendant sets up in its answer as special defenses to the action the statute of limitations and the pendency of another action. Upon this latter defense the court found that the action referred to was not for the same cause of action as that set forth in the complaint herein. It found that the plaintiff's cause of action accrued more than three years prior to the commencement of the present action, and is barred by subdivision 1 of section 339 of the Code of Civil Procedure. Judgment was thereupon rendered in favor of the defendant, from which and from an order denying a new trial the plaintiff has appealed. The only question presented upon this appeal is whether the plaintiff's cause of action is barred by the statute of limitations.

The defendant is a foreign corporation, and the present action against it was commenced October 3, 1900. The appellant contends that the statute of limitations is not available to the defendant as a defense herein for the reason that it did not at any time prior to May 2, 1901, file with the secretary of state any designation of a person upon whom process against it might be served, as is required under the act of April 1, 1872 (Stats. of 1872, p. 826), as amended by the act of March 17, 1899 (Stats. of 1899, p. 111).

The right of a state to prescribe the terms upon which a foreign corporation may carry on business within its territory is well established (Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, [5 Sup. Ct. 739].) "Having no absolute right of recognition in other states, but dependent for such recognition and enforcement of its rights upon their assent, it follows as a matter of course that such assent may be granted upon such terms and conditions as those states may think proper to impose. They may exclude the foreign corporation entirely; they may restrict its business to particular localities, or they may exact such security for the performance of its contracts with their citizens as in their judgment may best promote the public interest. The whole matter rests in their discretion." (Paul v. Virginia, 8 Wall. 168.) In Hooper v. California, 155 U. S. 648, [15 Sup. Ct. 207], the