Rule 2 of the Supreme Court (176 Pac. vii), | Appellant cannot in one breath insist that she provides that

"The appellant in a civil action shall, within forty days after an appeal is perfected, except as hereinafter stated, serve and file the printed transcript."

Following this is a provision covering the procedure where the appeal is taken by the method adopted in the case at bar. Section 3 of that rule provides that

"The time above limited may be extended by written stipulation, or by order, based on affidavit, showing good cause therefor."

Section 953a, supra, provides that

"Upon receiving said notice it shall be the duty of the court to require the stenographic reporter thereof to transcribe fully and completely the phonographic report of the trial." (Italics ours.)

believes her attempted appeal to be well taken and in the next that it is immaterial to her whether the stenographer ever prepares and files such transcript. If it be contended that appellant had the right to await the pleasure of the stenographer, we answer that in availing herself of such right she must use it in such a way as not to infringe upon the rights of respondent here. There being, as we have seen, legal methods by at least one of which appellant could have compelled the reporter to act, and failing or refusing to avail herself thereof, she cannot now be permitted to take advantage of her own neglect and by so doing defeat this motion. In our opinion the legal maxim, "The law helps the vigilant, before those who sleep on their rights," applies here.

It is therefore held that because of the facts with which we are confronted, and for

Section 1085, Code of Civil Procedure, pro- the reasons herein expressed, the motion prevides that a writ of mandate

"may be issued *

sented must be granted.
The appeal is dismissed.

FINLAYSON, P. J.; WEL

son, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust or station.

Here, then, are indicated various methods which appellant might have pursued, and by so doing avoid her present unfortunate situation, the first of which would have cost nothing but a few moments for the preparation of the necessary papers, and their service upon the stenographer. The second would probably have produced the desired result with but little inconvenience or expense on the part of appellant. For we cannot believe that any stenographer would disregard the order of the judge in whose department he was reporting, particularly úpon such judge calling his attention to the case of Gjurich v. Fieg, supra. The latter method -writ of mandate-without doubt would have resulted satisfactorily.

We concur:
LER, J.

(47 Cal. App. 723)

CRAIG v. GOMES et al. (Civ. 3347.) (District Court of Appeal, First District, Division 1, California. May 25, 1920.) Limitation of actions 48 (7)—Junior mortgage not prior where senior mortgagee In possession, though mortgage barred by limitations.

Where mortgagors sold mortgaged propwhere purchasers sold property to holders of erty and took second mortgage thereon, and first mortgage, who took possession before their first mortgage became due, mortgagor's assignee of second mortgage, on foreclosure thereof, after first mortgage, was barred by limitations, and, while holders thereof were in possession of land, was not entitled to prior

lawed, since mortgagees in possession could not be ejected nor interfered with in any manner until payment of mortgage debt, even though mortgage was barred by limitations.

Appeal from Superior Court, Santa Cruz County; Benj. K. Knight, Judge.

With these facts before us, and considering the same in the light of the case above cited (where the Supreme Court, in intimat-ity over first mortgage because of its being outing what might be considered the proper procedure, said: "In this view of the law it was, of course, within the power of the appellant to have had mandate issued against the stenographic reporter to compel him to file his transcript with the clerk as the law contemplates, and in ordinary cases appellant's failure to do this within a reasonable time might be construed to be such lack of diligence as to justify the dismissal of an appeal") that case having been decided July 1, 1911, more than eight years ago-we think that a denial of respondent's motion would be a miscarriage of justice, and would transcend the limits of both precedent and rea

son.

[3] It was not to respondent's interest to take any steps other than those taken here.

Action by H. S. Craig against L. R. Gomes and others. From judgment rendered, plaintiff appeals. Affirmed.

H. S. Craig, of Oakland, in pro. per.

Sans & Hudson, of Watsonville, for re spondents.

KOFORD, Judge pro tem. The appeal is on the judgment roll, and the following statement of facts is taken from the findings:

J. L. Rankin (plaintiff's assignor) and his

(190 P.)

Rep. 314; Brandt v. Thompson, 91 Cal. 462, 27 Pac. 763; Peshine v. Ord, 119 Cal. 312, 51 Pac. 536, 63 Am. St. Rep. 131; Faxon v. All Persons, 166 Cal. 707, 137 Pac. 919, L. R. A. 1916B, 1209; Cameron v. Ah Quong, 175 Cal. 377, 384, 165 Pac. 961.

We think that this is the correct principle to apply here. Rankin (plaintiff's assignor) is the very man who executed the first mortgage. In morals and equity he should pay it before he is given any judgment which may result in ousting the first mortgagee. The mortgagee in possession went into possession before his mortgage became barred. The second mortgage was executed while the first was a valid subsisting first lien, not barred, and not even due.

wife, on July 12, 1913, executed a $3,000, 437, 26 Pac. 203, 13 L. R. A. 137, 22 Am. St. mortgage due in one year, 1914, to Lillian R. Higman. This mortgage was assigned by the mortgagee and her successors several times, and came at last, on January 5, 1914, to defendants L. R. Gomes and Mary Gomes, his wife. After the making of said mortgage Rankin and wife transferred or sold the mortgaged premises to James Lomas, his wife, and William R. Orr, and the said grantees either coincidently or later (the findings do not show which) executed to said Rankin a second mortgage on the property for $1,500 on May 4, 1914. This is the mortgage which plaintiff, as the assignee of said Rankin and wife, foreclosed in the court be low. On September 11, 1916, the Lomases and said Orr, who had purchased from the Rankins as aforesaid, conveyed the property The cases relied upon by appellant do not to defendant L. R. Gomes and Mary Gomes. deal with a first mortgagee in possession, Thereupon Gomes and wife were the owners and their doctrine cannot be extended to a of the property, and also the mortgagees in case of this kind in violation of such plain the first mortgage, and the mortgage had equitable considerations as exist here. While not then outlawed. Then on September 29, plaintiff here is the assignee of Rankin, he 1916, Mary Gomes transferred to her hus- has no greater rights than his assignor. band, L. R. Gomes, all her interest, both in Furthermore, the doctrine of the cases last the property as a part owner, and in the cited has been extended to the assignee of said $3,000 mortgage, as mortgagee. The the original mortgagor and is not limited to defendant L. R. Gomes has been the owner the mortgagor himself. Cameron V. Ah and in possession ever since the last-named | Quong, 175 Cal. 377, 165 Pac. 961: date. It is therefore to be seen that the defendant went into possession before his mortgage outlawed.

This suit by plaintiff to foreclose the second mortgage of $1,500 was commenced shortly after the first mortgage had become barred by the statute of limitations. The decree of foreclosure provides that the first mortgage of $3,000, although barred by the statute of limitations, is a first lien and prior to the lien of plaintiff's $1,500 mortgage.

The sole question on appeal raised by plaintiff is that the first mortgage should not have been given a priority over his mortgage on account of its being outlawed.

Plaintiff does not contend that there has been a merger, and merger is not applicable under the facts. See Anglo-California Bank v. Field, 146 Cal. 644, 80 Pac. 1080, and 154 Cal. 513, 98 Pac. 267. He contends for the application of the principle that a junior mortgagee may invoke the aid of the statute of limitations against a prior mortgage, even though the mortgagor of the prior mortgage, as between himself and the mortgagee, may have waived its protection. Wood v. Goodfellow, 43 Cal. 185; California Bank V. Brooks, 126 Cal. 198, 59 Pac. 302; Brandenstein v. Johnson, 140 Cal. 29, 73 Pac. 744. The defendant contends for the application of the principle that a mortgagee in possession, even though his mortgage becomes barred, cannot be ejected nor interfered with in any manner by the mortgagor until the mortgage debt is paid. Spect v. Spect, 88 Cal.

The judgment is therefore affirmed.

We concur: WASTE, P. J.; RICHARDS, J.

1. Divorce 93(3)-Complaint held to show cruel and inhuman treatment.

Complaint for divorce of husband against wife, charging cruel and inhuman treatment and personal indignities through free association with other men while plaintiff was in the military service in France, held to state facts sufficient to constitute a cause of suit.

2. Divorce 91-Complaint, using word "res. ident" instead of "inhabitant," sufficient. Husband's complaint for divorce for cruel and inhuman treatment and personal indigni

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ties, alleging that plaintiff had been a "resident" of Oregon ever since the marriage of the parties in 1917, was sufficient to give the court jurisdiction, though not using the term "inhabitant," the words "resident" and "inhabitant" being used synonymously in L. O. L. 8

509, requiring plaintiff in suit for divorce to be an inhabitant of the state.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Inhabitant; Resident.]

3. Divorce 104-Amendment to show plaintiff "inhabitant" of state, as well as "resident," held proper.

In a husband's suit for divorce, the complaint alleging that he was a "resident" of the state, though such amendment was unnecessary, the trial court had a right to permit amendment of the complaint by inserting the words "and an inhabitant" after "resident" to bring it beyond all doubt within L. O. L. § 509.

Department 2.

friends, and relatives of this plaintiff, all of which became known to this plaintiff on his return from France, and caused him great mental pain and suffering, and greatly and deeply humiliated him, and all of which acts, statements, and conduct of the defendant

were calculated to have such effect, and were done by the defendant purposely and intentionally and with intent to wound and injure the feelings of the plaintiff and to bring public disgrace upon him and into the contempt of all right-thinking persons, and all of which will cause the impairment of the plaintiff's health and tends to permanently destroy his peace and happiness, and will so do unless the bonds of matrimony are dissolved and the plaintiff is freed from his marital obligations and duties.

The defendant answered, denying the charges, and alleging that plaintiff has been guilty of cruel and inhuman treatment in falsely making and circulating reports of the

Appeal from Circuit Court, Coos County; character set forth in the complaint, and John S. Coke, Judge.

Suit for divorce by John C. Noble against Elsie Vivian Noble. From decree for plaintiff, defendant appeals. Affirmed.

asked for a decree of divorce from plaintiff. Upon the trial the court found in favor of plaintiff upon all the allegations, and later a decree was entered, granting plaintiff a divorce.

After the testimony had been taken and before a decree had been entered, the defendant's counsel moved the court to dismiss the suit for the reason that the complaint did not state facts sufficient to constitute a cause of suit, and because the court did not have jurisdiction, for the reason that there was no pleading or proof that plaintiff was an inhabitant of the state at the commencement of the action and for one year prior thereto, as required by section 509, L. O. L. Thereupon the plaintiff's counsel asked and obtained leave to amend the complaint to correspond with the proof by inserting the words "and an inhabitant" after the word "resident," which application was allowed, and thereafter findings and a decree were made and entered, as above stated, from which decree defendant appeals.

This is a suit for divorce. The complaint alleged, in substance, the marriage of the parties in Coos county, Or., on April 23, 1917; that plaintiff has been a resident of the state of Oregon ever since said marriage, and charged defendant with cruel and inhuman treatment and personal indignities, rendering life burdensome, the substance of such charge being as follows: That this plaintiff was, on or about the 4th day of December, A. D., 1917, duly inducted into the military service of the United States of America, and was sent to France and there engaged in the war against Germany and her allies with the American Expeditionary Forces; that while this plaintiff was in such military service, the said defendant, disregarding her marital status and the rights of this plaintiff, went to Portland, Or., and there represented to various and divers persons that she was a single woman, and during the entire time there went by the name of Elsie Wolfe, her maiden name, among the persons with whom she was thrown in contact, and thereafter began to accompany and go to dances with other men, the names of whom are unknown to this plaintiff, and allowed such other men MCBRIDE, C. J. (after stating the facts as to call upon her constantly and associated above). [1, 2] Without going into the matter with them in public places in said city of in detail we are of the opinion that the comPortland intimately and in the same manner plaint states facts sufficient to constitute as if she were unmarried, and conducted her- a cause of suit, and such of the testimony self in an unbecoming and unseemly manner as has been brought here in the transcript with them, and in the presence of mutual supports the finding of the court. The jurisacquaintances of the plaintiff and defendant | dictional question raised seems to depend spoke disparagingly of this plaintiff, and upon a supposed distinction between the stated that she would never return to him, and so conducted herself as to cause a great

Seneca Fouts, of Portland (Chas. I. Reigard, of Council Bluffs, Iowa, on the brief), for appellant.

L. A. Liljeqvist, of Portland, for respondent.

word "resident" as used in the complaint and the word "inhabitant" used in section

(190 P.)

defendant seems to be predicated entirely case is not in point here. In that case the upon this supposed distinction. We are of the opinion that whatever subtle distinction may be drawn in the definition of these terms by lexicographers, or in other statutes, they are synonymous so far as this statute is concerned. A reading of the section, as italicized below, makes this construction evident. It reads as follows:

"In determining the residence or permanent It appears from the record that after the habitation of the plaintiff," etc.

testimony had been taken and before the final decree was rendered, defendant's coun

And again, quoting from a Wyoming de- sel filed a motion which recited that, all the

To the writer the case seems strongly in ing the grounds urged here. Notwithstandfavor of respondent's position here.

which the court had a right to permit in | & Son and that sald Richvale Land Comorder to correct an expression which very technical persons might deem ambiguous. The decree is affirmed.

pany had a crop mortgage on said crop and would expect any advancement of the price to be made to said company. On October 1, 1917, plaintiff, not referring to defendant's

HARRIS, JOHNS, and BENNETT, JJ., letter of September 27, wrote defendant as follows:

ENNIS-BROWN CO. v. RICHVALE LAND 500 to apply on purchase price of Egyptian corn

(District Court of Appeal, Third District, Cal- will keep the record straight at your end. ifornia. May 17, 1920.) Please acknowledge receipt of the check and oblige. "Very truly, Ennis-Brown Company."

Appeal from Superior Court, Butte Coun- but not assented to by the other is of no ty; H. D. Gregory, Judge.