the petition that the petitioners are stockholders in said corporation above named, which was organized under the laws of California, for the purpose of doing business here, and are also, individually, the owners of certain lands in this state; but that they are citizens and residents of Massachusetts, and absent from California, and have been served only by publication of summons. One purpose of the said action of Kohler, assignee, against said corporation, was to collect from the defendants (petitioners here) certain moneys alleged to be due from petitioners to said corporation upon subscriptions to the capital stock thereof; and, upon the proper statutory affidavits being made, a writ of attachment was issued by virtue of which certain lands of petitioner were attached, -the said lands being in this state. Petitioners specially appeared in said action for the purpose of moving to discharge said attachment. They made such motion, and it was denied by the court. Whereupon they commenced the present proceeding in this court, and ask that respondent be prohibited from proceeding further in said action against petitioners, because, as they say, respondent has no jurisdiction so to do, for the reason that petitioners are non-residents. They concede that there would be such jurisdiction if the writ of attachment was properly issued and levied; but they contend that, no matter how sufficient the affidavits for attachment may have been, the complaint itself shows the action to be one in which no attachment could be legally obtained. On the surface said action seems to have been "an action upon a contract, express or implied, against a defendant not residing in this state," within the meaning of subdivision 2 of section 537 of the Code of Civil Procedure, and therefore one in which an attachment would lie; but we do not propose to examine or determine that question, because, in our opinion, prohibition is not a remedy which petitioners in this instance can invoke. Petitioners had the right to appeal from the order refusing to dissolve the attachment, and would have an appeal from any final judgment in the case; and such appeal, being a "plain, speedy, and adequate remedy in the ordinary course of law," within the meaning of section 1103 of the Code of Civil Procedure, prohibition does not lie. A remedy does not fail to be speedy and adequate because, by pursuing it through the "ordinary course of law," more time would probably be consumed than in the proceeding here sought to be used. And it makes no difference that in this instance a question of jurisdiction incidentally depends upon the validity of an attachment. If that were so, then, in every ordinary civil action, whenever a defendant chose to raise a point of jurisdiction, either of the person or of the subject-matter, he could, by prohibition, stop the ordinary progress of the action towards a judgment, until this court bad passed upon the intermediate question; and thus this tribunal would, in innumerable cases, be converted from an appellate to a nisi prius court. Petitioners com plain of the hardship which they would suffer if obliged to pursue ordinary reme dies, but their complaint really is that further special privileges and advantages are not added to those which, as non-residents, they already possess. Owing to our particular system of government, and certain judicial decisions, residents of other states, although doing business and owning property in California, are not compelled, in most instances, to submit them. selves to the jurisdiction of our courts when our citizens seek to enforce rights against them, although they may seek the aid of our courts when desirous of enforeing their own rights. But with respect to the question before us they are in no different position from that of a resident defendant who chose, in the ordinary course of a civil action, to raise a question about the validity of an attachment, or the jurisdiction of the court. In either case, the remedy is by appeal, and whatever hardship that remedy might impose would be common to both. The substantially correct rule is stated in High's Extraordinary Legal Remedies as follows: "Like all other extraordinary remedies, prohibition is to be resorted to only in cases where the usual and ordinary forms of remedy are insufficient to afford redress; and it is a principle of universal application, and one which lies at the very foundation of the law of prohibition, that the jurisdiction is strictly confined to cases where no other remedy exists, and it is always a sufficient reason for withholding the writ that the party aggrieved has another and complete remedy at law." Section 770. And, further, the same author says: "Thus, where the defendant, in an action instituted in an inferior court, pleads to the jurisdiction of such court, and his plea is overruled, no sufficient cause is presented for granting a prohibition, since ample remedy may be had by an appeal from the final judgment in the cause. Nor will the writ go to restrain an inferior court from proceeding with certain attachments, upon the ground of the insufficiency of the affidavit on which the attachments were issued, since the court itself may afford relief, or the party aggrieved may resort to an appeal. tion 771. Moreover, the point was directly decided by this court, and applied even to a criminal case, in Strouse v. Police Court, 85 Cal. 49, 24 Pac. Rep. 747. In that case the petitioner for the writ had pleaded to the jurisdiction of the police court; but the court here, PATERSON, J., delivering the opinion, said: “If the petitioner should be convicted in the police court, he will have a plain, speedy, and adequate remedy at law by an appeal to the superior court. Application for writ denied. See, also, Murphy v. Superior Court, 84 Cal. 598, 24 Pac. Rep. 310; Levy v. Wilson, 69 Cal. 105, 10 Pac. Rep. 272; State v. Cory, 35 Minn. 178, 28 N. W. Rep. 217. The demurrer to the application is sustained, and the proceeding dismissed. Sec We concur: BEATTY, C. J.; PATERSON, J.; HARRISON, J.; DE HAVEN, J.; SHARPSTEIN, J.; GAROUTTE, J. (90 Cal. 150) (Supreme Court of California. July 2, 1891.) SWAMP LAND-PURCHASE BY COUNTY TREASURER. Since, under the laws of California, the duties of the county treasurer in respect of swamp lands are merely to receive payment of the purchase money, whose amount and the conditions of whose payment are fixed by statute, and report the same to the register of the land-office, he is not disqualified to apply for and purchase such land himself. Commissioners' decision. In bank. Appeal from superior court, Tulare county; WILLIAM W. CROSS, Judge. Brown & Daggett, for appellant. N. O. Bradley and Lambertson & Taylor, for respondent. BELCHER, C. C. The plaintiff, E. O. Miller, brought this action against five defendants, to determine a contest as to which one of the parties thereto was entitled to purchase from the state a certain tract of swamp and overflowed land in Tulare county. The court below found that all of the applications to purchase the land were null and void, and accordingly gave judgment that neither of the parties to the action was entitled to purchase the land, or any part thereof. From this judgment the defendant Byrd alone appeals, and the case is brought here on the judgment roll. The only question presented for consideration and decision is as to the rights of the appellant. The facts, as shown by the pleadings and findings, may be briefly stated as follows: During the year 1873 the appellant was the duly elected, qualified, and acting treasurer of the county of Tulare. He desired to purchase the land in controversy, and, for the purpose of doing so, on the 3d day of January, 1873, made an affidavit in the form prescribed by section 3443 of the Political Code: and all the facts and matters therein stated were true. On the same day the affidavit was filed in the office of the surveyor of the county, and within 30 days thereafter the surveyor made a survey of the land, and completed the survey, plat, and fieldnotes thereof, and recorded them in a book kept in his office, and forwarded duplicate copies thereof, together with a copy of the application, to the surveyor general of the state for approval. These papers were received by the survey or general, and filed in his office, on the 25th of January, 1873, and on the same day he duly approved the survey and application. On the 15th day of March. 1873, the appellant paid to the county treasurer of Tulare county, in gold coin of the United States, 20 per cent. of the purchase price of the land, and interest on the balance thereof at the rate of 10 per cent. per annum from January 25, 1873, to January 1, 1874, together with $3 for the certificate of purchase. The county treasurer reported to the register of the state land-office the fact of the payment of these sums, and thereafter, on the 8th of April, 1873, the register issued to and in the name of the appellant a certificate of purchase for the land, signed by him and attested by his cfficial seal. At that time no other ap plication to purchase the land, or any part thereof, had been made. When appellant made his application, on the 3d of January, the land had been segregated as swamp and overflowed land, under authority of the United States, for more than six months. At the time of the trial the land was suitable for cultivation. It will be observed that the court found all the facts necessary to show that the land in controversy was subject to sale by the state, and that the appellant was qualified to purchase the land; and his proceedings to accomplish that end were regular and ef fective, unless the fact that he was county treasurer at the time debarred him of the right. It seems clear, therefore, that in making its decision that appellant's application was null and void the court below must have acted on the theory that, because appellant was county treasurer, he was an agent of the state for the sale of swamp lands in his county, and hence was disqualified to purchase the land in question. In Edwards v. Estell, 48 Cal. 194, it was held that a county surveyor, in receiving an application to purchase swamp lands, and making a survey of them, was an agent of the state for the sale of such lands, and therefore could not himself become the purchaser; and inci dentally it was said that a county treasurer, in receiving the purchase money for swamp lands, was an agent of the state for the sale of the lands. It is a settled rule that one acting in a fiduciary capacity cannot deal with himself as an individual, for the reason that an opportunity would thereby be presented for the commission of frauds. Under the provisions of the Code in 1873 the rule thus declared was clearly applicable to a county surveyor. He received the application to purchase, surveyed the land applied for, if a survey had not already been made, and then forwarded the survey and application to the surveyor general for approval. It would have been possible for him, after an application had been presented and a survey requested, to have made another application for himself, and to have forwarded his own application with the survey to the surveyor general first; or he might, in making a survey for himself, have included more acres within the lines surveyed and marked out than appeared and were reported; thus committing a fraud upon the first applicant or the state. But does the rule apply to a county treasurer? He had no duties to perform until after all the preliminary steps to effect the purchase had been taken and approved by the surveyor general. Then he was simply to receive from the purchaser, if offered within 50 days after the approval, 20 percent. of the purchase money, with interest on the balance till the 1st of January following, and $3 for a certificate of purchase, and to report these payments to the register of the land-office. The money was to be placed to the credit of the "Swamp Land Fund" of the county. The statute fixed the price of the land,, the rate of interest to be paid, and the terms and conditions of payment. The treasurer had, therefore, no opportunity to commit frauds upon the state unless he did so by misappropriating or stealing the money. But such a fraud might | have been committed as well by misappropriating any other money paid into the treasury. If the theory suggested be true, it would seem to follow that, if appellant had applied to purchase the land, and his application had been approved, before he became county treasurer, he could not have completed the purchase by the payment of the money after he became County treasurer, because he would then have been the agent of the state to sell the land and receive the purchase inoney; or, if he had applied to purchase the land, and his application had been approved, and he had made the first payment of principal and interest, and a certificate of purchase had been issued to him, and thereafter he had become county treasurer, he could not have completed the purchase by paying the interest and balance due the state, because he would have been compelled to make such payment to himself, and, being the agent of the state for the sale of the land, his agency would have disqualified him in the premises; and, as a consequence, he would have forfeited his rights under the certificate of purchase if the state had proceeded against him on account of his non-payment. But this would be giving the law an absurd construction, and one never contemplated or intended by the law-makers. We see no practical difference between the duties of a county treasurer in the sale of swamp lands and those of registers and receivers in the sale of government lands at private entry. It is, however, well settled that registers and receivers may purchase government lands at private entry at the price fixed by the government. Lester, Land Laws, pp. 337, 338. The practice has been sanctioned by the land department of the general government, and it has not been suggested that the practice has violated any rule of public policy, or that the government or any citizen has been defrauded by means thereof. In our opinion, therefore, the decision as to the validity of appellant's application to purchase the land in question was erroneous. It is further suggested in the brief filed by the intervenor that appellaut was not entitled to have judgment entered in his favor, because it appeared that the land had become suitable for cultivation, and it did not appear that he was or had ever been an actual settler thereon. We see no force in this suggestion. When appellant made his application and obtained his certificate of purchase the land was not suitable for cultivation, and there was no provision of the constitution or statutes at that time that state lands suitable for cultivation could only be sold to actual settlers thereon. The certificate of purchase as prima facie evidence of legal title in the holder, (Pol. Code, § 3514; Code Civil Proc. § 1925;) and it must be presumed that the new constitution did not, and was not intended to, impair the obligation of contracts already made. The validity of the certificate must therefore be determined by the law in force at the time it was issued, and it cannot be affected by law subsequently passed. The case of Dillon v. Saloude, 68 Cal. 267, 9 Pac. Rep. 162, is not in conflict with what has been said. That case simply held that where one had only made application to purchase land suitable for cultivation before the adoption of the constitution in 1879, he could not, after its adoption, complete the purchase unless he was an actual settler on the land. It results, in our opinion, that the judgment against defendant Byrd should be reversed, and the cause remanded, with directions to the court below to enter judgment in his favor on the findings. We concur: TEMPLE, C.; VANCLIEF, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment against defendant Byrd is reversed, and the cause remanded, with directions to the court below to enter judgment in his favor on the findings. (90 Cal. 1) BRADY V. BURKE et al. (No. 13,207.) (Supreme Court of California. June 29, 1891.) STREET ASSESSMENTS-PRIORITY OF LIENS-FORECLOSURE-PARTIES-APPEAL-TIME OF TAKINGBILL OF EXCEPTIONS. 1. Where findings and an order for judgment are filed, but the judgment is not formally entered, an affirmance on appeal does not divest the trial court of jurisdiction to afterwards enter it, since an appeal, before formal entry, is premature and unauthorized, under Code Civil Proc. Cal. § 939, providing that an appeal from a final judgment may be taken within one year after entry thereof. 2. A judgment foreclosing a prior lien for street assessments conveys a superior title to one foreclosing a junior lien, although the latter judgment was first entered; and, although the junior lienholder had no notice of the pendency of foreclosure proceedings, the purchaser of such superior title may show, in an action to determine adverse claims, that the junior liens were invalid. 3. The purchaser, under foreclosure of such subsequent assessment, has no equitable right to require a sale of the property for the satisfaction of liens in the order of their priority, where the liens under which he claims have expired. 4. One who, without notice, takes title under foreclosure of a street assessment pending a suit to foreclose junior assessment liens, is a necessary party to the latter suit, since he holds the legal titie, and, if not so made, he is not bound by the decree. 5. Where the bill of exceptions does not set out the evidence, but merely states that it was sufficient to justify certain findings, insufficient of themselves to establish the validity of a street assessment, it will be assumed that the evidence was sufficient to establish such validity, and the omission of the necessary findings, without which the assessment would be invalid, is not ground for reversal. Department 2. Appeal from superior court, city and county of San Francisco; JAMES G. MAGUIRE, Judge. J. M. Wood and J. C. Bates, for appellants. Sawyer & Burnett, for respondent. DE HAVEN, J. This is an action under section 738 of the Code of Civil Procedure to determine adverse claims to two lots in the city of San Francisco. All of the par ties claim under a common source of title. The plaintiff, who is the respondent here, claims title to both lots upon sales made under judgments foreclosing certain street assessments, recorded November 14, 1870, and deeds executed by the sheriff on October 3, 1885, in pursuance of such sales. The defendants claim an interest in the lots in controversy, based upon various street assessments against said lots made and recorded subsequently to the commencement of the foreclosure suits under which plaintiff claims, and prior to the rendition of final judgment therein. Defendant Diggins claims the legal title to lot 5 by virtue of a sheriff's deed, under a judgment foreclosing one of these assessments, and the defendant Wood the legal title to lot 6 by virtue of two deeds, based upon judgments foreclosing two of said assessments. These deeds were executed during the pendency of the foreclosure proceedings under which plaintiff claims. These defendants also claim to hold the legal title in trust for certain of their co-defendants, to the extent of their interest, under street assessment liens. It is argued here by the appellants that the plaintiff acquired no title to lot 6 by the execution sale under which he claims; that the court erred in allowing plaintiff to show that the assessments resulting in the judgments upon which deeds of defendants depend, were invalid; and that, in any event, the de. fendants are entitled to have the lots sold, and the proceeds applied to the satisfaction of the several liens of all the parties in the order of their priority. 1. The ground upon which defendants attack the deed under which plaintiff claims title to lot 6 is this: Findings and an order for judgment were filed in plaintiff's action against Louisa Page, the owner of this lot, on March 21, 1878, but no judgment was ever entered until January 7. 1882. On March 20, 1878, plaintiff's attorney in said action served upon defendant therein notice of the rendition of judgment, and in November, 1878, said defendant appealed from said judgment to this court, and the judgment was affirmed. There is among the papers in said action a formal decree entitled in that action, dated March 19, 1878, and signed by R. F. Morrison, then judge of the district court in which the action was pending. This formal decree was never entered as the judgment therein, and on January 7, 1882, in the same action, a judgment and decree, signed by O. P. EVANS, a judge of the superior court of San Francisco, was entered. On appeal to this court from such judgment, taken by the defendant therein, it was affirmed. 5 Pac. Rep. 103. Upon the return of the remittitur execution was issued upon this judgment, and it is upon the sale thereunder that plaintiff claims title to lot 6. The appellants contend that the judgment so entered on January 7, 1882, was void under the rule announced in Mulford v. Estudillo, 32 Cal. 139. We do not think that the case cited is in point. It may be conceded that, after a final judgment of the trial court has been affirmed on appeal to this court, the court from which such appeal was taken would be without jurisdiction to retry the case, and render another judgment, and that, consequently, such subsequent judgment would be void. The reason which supports this rule is that by a valid appeal the case is removed from the jurisdiction of the lower court, and final judgment in the case is rendered in the appellate court. This, of course, terminates the litigation. But such a rule has no application here, because this court never acquired jurisdiction of the first appeal. Under section 939 of the Code of Civil Procedure, which was in force at the date of the first appeal in the case of Brady v. Page, no appeal could be taken to this court until after the entry of the judgment in the trial court, and it has been uniformly held here that an appeal taken before such entry is premature. It has also been held that the trial court can at any time before its judgment is entered change its conclusions of law, and order a different judgment. Condee v. Barton, 62 Cal. 5. Until the judgment is entered, such court retains complete jurisdiction of the case, of which it cannot be divested by any unauthorized appeal to this court. If the attention of this court had been called to the fact that it had before it an appeal from a judgment which had never been entered, and which was still within the control of the lower court, the appeal would have been dismissed. But, whether this was done or not, the appeal was ineffectual, and this court was in fact without jurisdiction to entertain it. The appeal was futile, and the case remained in the lower court undisturbed. Home for Care of Inebriates v. Kaplan, 84 Cal. 488, 24 Pac. Rep. 119. It follows that the superior court had jurisdiction to enter the judgment of January 7, 1882, and that the execution sale thereunder, under which plaintiff purchased, was not void. 2. The judgments under which plaintiff claims were conclusive as against the owners of the lots in controversy, as in each of said actions the owner of the lot upon which the lien was foreclosed was a party defendant, and therefore the execution sales transferred the legal title of such owners to the plaintiff; and, although the sheriff's deeds inade to defendants Wood and Diggins antedated those of plaintiff, and are based upon judgments rendered prior to those under which plaintiff claims, yet, as the liens under which plaintiff's title has its origin are older than the liens to which the deeds of defendant relate, plaintiff has the superior legal title. Littlefield v. Nichols, 42 Cal. 374. The most that defendants can claim is that, as they were without actual or constructive notice of the pendency of plaintiff's foreclosure suits, he took such legal title incumbered with all valid liens thereon held by them at the date of his judgment. Assuming that defendants were without this notice, which is the most favorable view for appellants, the court did not err in allowing the plaintiff to show that the liens foreclosed in the actions, which resulted in the sheriff's deeds to defendants, were invalid. The plaintiff was not a party to said actions. He was not in privity with the defendants therein, within the meaning of the rule which makes those in privity with parties to an action bound by the judgment therein, because his title re lates back to the date of the original liens foreclosed by the judgments under which he claims, which liens were prior in point of time to the origin of defendants' alleged title under their deeds. Shay v. McNamara, 54 Cal. 169; Chester v. Association, 64 Cal. 42; Horn v. Jones, 28 Cal. 203; Campbell v. Hall, 16 N. Y. 575. In this latter case will be found a very full and satisfactory discussion of the rule which makes those in privity with parties to a judgment also concluded by it. As to two of the deeds relied upon by defendants, it is found that the work for which the assessment underlying said deeds was made was not completed within the time fixed by the contract, and that the order of the board of supervisors granting an extension was not made until after the expiration of the time allowed by the contract for its completion. This being so, it has been repeatedly held that the contract or never acquired any valid lien upon the property. Beveridge v. Livingston, 54 Cal. 54; Raisch v. City and County of San Francisco, 80 Cal. 1, 22 Pac. Rep 22; Fanning v. Schammel, 68 Cal. 428, 9 Pac. Rep. 427. As to the other deed to defendant Wood, the court finds that the board of supervisors failed to publish for the length of time required by law the resolution of intention to do the street-work, which resulted in the subsequent assessment, foreclosure, and deed. This failure to publish rendered the assessment void. Richardson v. Tobin, 45 Cal. 32. Upon the facts found by the court, the alleged liens, upon which defendants' deeds depend for their validity, were void, and defendants acquired no interest in said lots as against plaintiff by said deeds. 3. The point, however, most earnestly in sisted on by appellants, is that the court should at least have directed the lots to be sold, and the proceeds applied in satisfaction of all liens which were originally valid, in the order of their priority. The argument seems to be that, as plaintiff is asking for relief from a court of equity, the court may require him to do equity. All of the liens asserted by defendants are creations of the statute, and most of them have long expired by the lapse of time given for their enforcement by the statute in which they have their origin. As to some, no steps whatever have been taken to enforce them, while others were foreclosed more than six months before the commencement of this action, and no execution issued on the judgments of foreclosure, and by the express language of the statute the lien obtained by recording the assessment expires at the end of six months after the final determination of the action foreclosing it. Upon this state of facts, to say that in equity the liens still exist, and to refuse plaintiff a judgment to the effect that they do not exist, would be for the court to give the statute, which authorized their creation, an effect in direct conflict with its terms. The maxim that he who asks equity must do equity cannot be made rightfully to support such a conclusion. We have examined the cases cited by appellants on this point, and we do not think that any of them support their position. Liens of this class are purely statutory, and only exist for the term given by the statute. In their creation and enforcement they are at every step adverse to and against the consent of the owner of the property affected thereby, and he may, without violating any rule of equity, insist that the claimant shall find bis right to enforce them in the statute which authorized their creation. 4. Two of the judgments foreclosing the asserted liens were rendered October 12, 1886, after the commencement of this action, and less than six months prior to the filing of the answer herein. The plaintiff was not a party to either of them, and it does not appear that he had any notice, actual or constructive, of their pendency, and is therefore not bound by them. On the day of their rendition the defendant was not the owner of the lots upon which the liens were decreed to exist, and plaintiff's deeds, showing title in him, were duly recorded. It is true that at the time of the commencement of these actions the plaintiff was not a necessary party, but he became so when he acquired the legal title, and should then, by proper proceedings, have been made a party thereto. The statute which authorized the enforcement of the liens contemplates that the legal owner, at the time of the rendition of the judgment, shall be a party, unless he is a purchaser pendente lite, affected with notice of the action. It fol lows that these judgments are ineffectual for any purpose, as against the title of plaintiff. 5. In regard to the pending suits for the foreclosure of the liens asserted by defendants, if it should be assumed that the defendants may yet make the plaintiff a party thereto, it is sufficient to say that the findings do not disclose that any of these alleged liens are valid. The substance of the findings on this point is that the superintendent of streets made, recorded, and issued an assessment, with a warrant and diagram thereto annexed, for the cost of the street-work named, under a contract which had been before that awarded to the contractor by the board of supervisors. All that is said in the findings may be true, and still the proceedings prior to the making and recording of the warrant, assessment, and diagram have been invalid. The board of supervisors may not have had any jurisdiction to award either of the contracts upon which the assessments were made. It was incumbent upon the defendants, asserting such liens, to show the facts establishing their validity. As no objection was made to the answer, and the case seems to have been tried upon the theory that it was sufficient, it must be deemed here as sufficiently alleging the validity of these liens. But the court should have found the facts in regard to their creation. The bill of exceptions does disclose that evidence was introduced on this point, but there is nothing therein to indicate how the facts should have been found from such evidence. It is simply stated that the evidence was sufficient to justify certain findings named, but these findings do not assert that any of the steps required by the statute to be taken prior to the awarding |