to the discussion in the appellate court opinion (19 Cal. App Dec. 669) of the ruling of the trial court in refusing to admit certain testimony offered, that the same does not show that error was committed in said ruling, and that the petition for rehearing is denied without regard to what is said in the opinion as to the effect of said ruling upon the verdict. Appeal from the Superior Court of the City and County of San Francisco-William P. Lawlor, Judge. For Appellant-N. C. Coghlan, Gail Laughlin, M. A. Ross. For Respondent-U. S. Webb, Attorney-General; John H. Riordan, Deputy Attorney-General. BY THE COURT. In denying appellant's application for a hearing in this court, after decision by the district court of appeal for the first district, we deem it proper: [1] 1st. To again call attention to what we said in People v. Davis, 147 Cal. 346, and in Burke v. Maze, 10 Cal. App. Rep. 211, as to the rule governing our action on such applications, in causes which, under the provisions of the constitution, are directly appealable to a district court of appeal, rather than to this court. [2] 2nd. To say, in regard to the discussion in the appellate court opinion of the ruling of the trial court in refusing to admit certain testimony offered, that the same does not show that error was committed in said ruling, and that our action in denying a hearing in this court is had without regard to what is said in the opinion as to the effect of said ruling upon the verdict. Lawlor, J., having been trial judge herein, does not participate in the foregoing. Crim. No. 1907. In Bank. January 16, 1915. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. CHARLES L. PRYAL, Defendant and Appellant. [1] CRIMINAL LAW-LIBEL-EVIDENCE-PUBLICATION WITH GOOD MOTIVES AND JUSTIFIABLE ENDS-ADMISSIBILITY-DENIAL OF REHEARING PORTION OF OPINION OF DISTRICT COURT OF APPEAL NOT APPROVED. It is held in denying the application for a hearing of this appeal in a proceeding for criminal libel in the supreme court after decision by the district court of appeal, that the denial of the application is not to be taken as an expression by the members of the supreme court to the effect that evidence tending to show that a publication complained of was published with good motives and for justifiable ends is not admissible in a criminal prosecution for libel, or as approving what was said by the district court of appeal on this proposition (19 Cal. App. Dec., p. 674). Appeal from the Superior Court of Alameda County-Stanley A. Smith, Judge. For Appellant-Jacob M. Blake. For Respondent-U. S. Webb, Attorney-General; John H. Riordan, Deputy Attorney-General. BY THE COURT. [1] The application for a hearing in this court after decision by the district court of appeal for the first district is denied. The denial of the application is not to be taken as an expression by the members of this court to the effect that evidence tending to show that a publication complained of was published with good motives and for justifiable ends is not admissible in a criminal prosecution for libel, or as approving what was said by the district court of appeal on this proposition. Upon this question we express no opinion. It further appears on the face of the opinion of the district court of appeal that the testimony here offered was of such a nature that it would not have tended to show either that the publication was made with good motives or for justifiable ends, but, as said by the court of appeal, instead of showing that the motive for publishing the matter "was an innocent one, would rather tend to strengthen the presumption that the publication was inspired by ill will and was malicious". This statement sufficiently justifies the denial of the application. S. F. No. 6562. In Bank. January 19, 1915. ANTONIO F. LIMA, Plaintiff and Respondent, v. ISABEL F. LIMA, Defendant and Appellant. Appeal from the Superior Court of Alameda County-Wm. H. Waste, Judge. For Appellant-Gonsalves & Keller. For Respondent-R. B. Tappan; Gehring & Wyman, amici curiae. I dissent from the refusal to grant a hearing in this court, after decision by the district court of appeal for the third district. If the decree of divorce was void for want of the jurisdictional prerequisites to an order for publication of summons, the defect is one that is apparent on the face of the judgment-roll, and the defendant's interests can be fully protected without any order setting the judgment aside. In any proceeding involving her status as a wife, or her property rights, she may assail such judgment collaterally, and successfully object to its use against her. Since the plaintiff in the action died before the making of these motions, there was no one upon whom the defendant could serve notice of motion to set aside the judgment. The trial court may no doubt upon its own motion set aside a judgment void on its face. If it had so acted here, and we were satisfied from an inspection of the judgment-roll that the judgment was void, the order made would not have been reversed on appeal. But this is a matter within the discretion of the court below. Its refusal to set aside the void judgment should not be reviewed, for the sufficient reason that the defendant is not aggrieved by such refusal, her rights being, as above pointed out, already fully protected. All of this, of course, is on the assumption that the judgment is void, a question that in my view it is not necessary here to decide, and that should be left for decision in a case in which the parties interested may appear and be heard. Of course, the alleged second wife of the original plaintiff, not being a party to this proceeding, is in no way bound by any disposition which may be made thereof. In a proper action to which she is a party, she may assert or defend her claim to the property involved absolutely regardless of such disposition. It may well be that in such an action as one to quiet title to this property, to which she and defendant are parties, it may develop that for some reason defendant is estopped to assert any claim to the property, or is barred by laches, notwithstanding that the judgment may be void on its face. No useful purpose is subserved by a reversal of the action of the trial court on these motions. ANGELLOTTI, C. J. We coneur: SLOSS, J. S. F. No. 6921. In Bank. January 19, 1915. *ELLA H. ARNOLD, Plaintiff and Respondent, v. HELEN M. KRIGBAUM and FANNIE SLATER CURTIS, Defendants and Appellants. [1] UNLAWFUL DETAINER-PLEADING COUNTER-CLAIM NOT PERMISSIBLE. Neither a counter-claim nor a cross-complaint is permissible in an action in unlawful detainer regardless of whether or not the subject-matter of the attempted pleading arises out of a violation of the terms of the lease upon which the action is brought, or otherwise. [2] ID.-ID.-ID.-BREACH OF COVENANT ΤΟ REPAIR-COUNTERCLAIM FOR DAMAGES NOT PERMISSIBLE.-The defendant in an action in unlawful detainer cannot set up a counter-claim and crosscomplaint for damages arising out of an alleged violation by the lessor of a covenant to make certain repairs to the demised premises, where such covenant is independent of the covenant to pay rent. [3] ID. CONSTRUCTION OF STATUTE-JUDGMENT FOR RENT DUENATURE OF ACTION NOT CHANGED.-The fact that the statute provides that the court shall give judgment for the rent found due does not transform the action into an action on contract. [4] ID. PLEADING SERVICE OF THREE DAY NOTICE-SUFFICIENT AVERMENT. Where a copy of the three days' notice to quit is pleaded in full in the complaint and service alleged to have been made upon the defendants, the same is sufficient. [5] ID. NOTICE TO QUIT-AUTHORITY OF PERSON SIGNING.-Such notice is not insufficient for failure to show whether the representative who signed it for the owner as "her attorney" was the attorney in fact or at law. Appeal from the Superior Court of the City and County of San Francisco-Jas. M. Troutt, Judge. For Appellants-R. H. Countryman. For Respondent-Burrell G. White and Leo C. Tuck. This is an action in unlawful detainer and to recover the amount of rent due. The defendants in their answer set up by way of defense an alleged violation by the lessor of a covenant on her part to make certain repairs, whereby they had been damaged in the sum of $10,000, and also had been compelled to make expenditures to the extent of $900 in making certain necessary repairs. They also pleaded the same matters by way of counter-claim and also by cross-complaint. On motion the court struck out the counter-claim and cross-complaint, and at the trial refused them permission to introduce evidence in support of their defense on this ground and entered judgment for the plaintiff for the sum of $875 and costs. By stipulation of the parties said judgment contained no provision for the forfeiture of the lease. We have before us an appeal by defendants from said judgment. [1] It appears to be thoroughly established both in this state and in other jurisdictions having substantially similar statutes to our unlawful detainer statutes, that neither a counter-claim nor cross-complaint of any kind is permissible in an action in unlawful detainer. This question was discussed by the district *On hearing after judgment in District Court of Appeal, First District (18 Cal. App. Dec. 179). court of appeal of the first district in the recent case of Knight v. Black, 19 Cal. App. 518, where many authorities are cited. There is no distinction in the authorities between cases where the subject-matter of the attempted counter-claim or crosscomplaint arises out of a violation of the terms of the lease upon which the action is brought, and other cases. It is said in 24 Cyc., 1424, that the interposition of a set-off or counterclaim is usually not permissible in an action for unlawful detainer, or summary proceeding. [2] A covenant to repair on the part of the lessor and a covenant to pay rent on the part of the lessee are usually considered as independent covenants, and unless the covenant to repair is expressly or impliedly made a condition precedent to the covenant to pay rent, the breach of the former does not justify the refusal on the part of the lessee to perform the latter. In Peterson v. Kreuger, 67 Minn., page 450, the precise question here involved was presented, and the court said: "A tenant against whom an action is brought under this statute is not permitted to counterclaim for damages arising from a breach of any covenant in the lease which is independent of the covenant to pay rent. He cannot justify an unlawful detainer by alleging a violation of a covenant to repair prior to the commencement of the proceedings. (Citing cases.) There is no difference of opinion upon this question. All of the cases cited to the contrary by defendant's counsel simply bear upon the right of a tenant to counterclaim for damages in an action brought to recover rent." In Phillips v. Port Townsend Lodge, 8 Wash. 529, the answer set up a counter-claim on account of repairs made by the tenant which it was the duty of the landlord to make, and it was held that this was demurrable as not constituting a defense. The court said: "The very object the legislature had in view in enacting the statute under which the appellants were proceeding was to afford a summary and adequate remedy for obtaining possession of premises withheld by tenants in violation of the covenants of their lease, and this object would be entirely frustrated if tenants were permitted to interpose every defense usual or permissible in ordinary actions at law. . . In such proceedings counterclaims and offsets are not available." [3] The idea that such defenses are permissible in unlawful detainer is based on a misconception of the grounds on which that action rests. The code (sec. 1161, Code Civ. Proc.), in effect, provides that, upon failure of a tenant to pay rent or perform other covenants of his lease before the expiration of the three days' notice, the lease becomes forfeited and his subsequent possession of the premises is unlawful; he is then "guilty of unlawful detainer". His possession, formerly lawful in virtue of his lease, has become unlawful because of the forfeiture. The statute has provided a special action for the recovery of possession by the landlord, because it was deemed that a more expeditious proceeding and more complete relief than was afforded by an ordinary action for possession was desirable. In order to provide for the collection of the rent in the same action, it provides that the court shall give judgment for the rent found |