rogated to the rights of the lienor. (Civ. Code, secs. 2818, 2849.) Of this right of subrogation defendant was deprived by the plaintiff's failure to file a claim of lien. For this reason we are satisfied that the complaint in this action, by omit. ting to state that a claim of lien had been filed, failed to state a cause of action against the defendant.

The judgment is affirmed.

James, J., and Works, J., pro tem., concurred.

[Civ. No. 2441. Second Appellate District.-December 19, 1917.] SANTA ANA SUGAR COMPANY OF SANTA ANA, CALIFORNIA, Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION et al., Respondents.

WORK MEN'S COMPENSATION ACT-CANCER RESULTING FROM FALL-FINDING SUPPORTED BY EVIDENCE.-In this proceeding to review an award of compensation for a sarcoma or cancer alleged to have resulted from a fall while engaged as a workman in a sugar plant, it is held that the finding of the commission is supported by the evidence. ID.-WEIGHT OF EVIDENCE-CODE PROVISION APPLICABLE.—The principle behind the rule declared in section 2061, subdivision 2, of the Code of Civil Procedure that juries are to be instructed that they are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number satisfying their minds, operates as strongly upon the Industrial Accident Commission as instructions under it do upon juries.

APPLICATION for a Writ of Review originally made to the District Court of Appeal for the Second Appellate District to review an award of the Industrial Accident Commission.

The facts are stated in the opinion of the court.

Redman & Alexander, for Petitioners.

Christopher M. Bradley, for Respondents.

WORKS, J., pro tem.-Candelario Villa suffered a fall while engaged as a workman at the plant of the petitioner,

Santa Ana Sugar Company. He made claim for compensation for a sarcoma or cancer on his left clavicle, which he contends resulted from the fall. The respondent accident commission found that it did so result and the finding is assailed as being without the support of any evidence.

The testimony of the physicians who were called as witnesses before the commission was in accord upon the point that the lump or swelling indicating the presence of a sarcoma, if it is caused by a fall or a blow, will not make itself manifest upon a bone on the day of the injury, nor on the next day, but only after a "few days," at the earliest; and the evidence appears to show that a sarcoma once appearing will remain apparent to palpation. Villa, his wife, and a friend of his family all testified to the presence, three or four hours after the accident, of a lump at the place on the clavicle at which, according to the testimony of nearly all of the experts, there was, at the time of the hearing before the commission, a sarcoma. The petitioner contends that the evidence of Villa, his wife and their friend as to the presence of the lump immediately after the accident is uncontradicted, and that, therefore, the sarcoma could not have resulted from the fall. The cases of Great Western Power Co. v. Pillsbury, 170 Cal 180, [149 Pac. 35], and Employers' Assur. Corp. v. Industrial Accident Commission, 170 Cal. 800, [151 Pac. 423], are cited to the point that where all the evidence before the commission upon a particular question tends in one direction and the commission makes a finding contrary to it, the finding must be set aside. But the record presented here is not a one-sided record. The physician who attended Villa immediately after the accident and on the same day it occurred says that he then discovered no injury to Villa except a scalp wound. He saw the patient the next morning, however, and at the request of his wife made a special examination of his left shoulder, stripping it down and going over it carefully. He says: "It was sensitive, also tender. I don't recall that it was swollen." The accident had occurred on September 5, 1916, and on the 8th the physician took an X-ray picture of the region he had thus examined. He says: "It showed a normal condition of the clavicle." There is other testimony to the same effect from the same physician.

There is thus a substantial conflict between the testimony of the physician and the testimony of the three other wit

nesses; although there is no doubt that the greater quantity of the evidence, looking at quantity alone, was to the effect that there was an elevation on the clavicle soon after the accident and on the same day. But the commission was not bound to take the greater quantity of the evidence as against the lesser. Its members may have seen ample reason to accept the testimony of the physician as against that of the other witnesses. In this state juries are to be instructed that "they are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number . . . satisfying their minds." (Code Civ. Proc., sec. 2061, subd. 2.) The principle behind this rule operates as strongly upon the Industrial Accident Commission as instructions under it do upon juries.

The award is affirmed.

Conrey, P. J., and James, J., concurred.

A petition to have the cause heard in the supreme court. after judgment in the district court of appeal, was denied by the supreme court on February 14, 1918.

[Civ. No. 2504. Second Appellate District. December 19, 1917.] In the Matter of the Estate of BJELKA PAULSEN, Deceased. UNITED STATES FIDELITY AND GUARANTY COMPANY (a Corporation), Petitioner, v. SUPERIOR COURT OF SAN DIEGO COUNTY et al., Respondents.

ESTATES OF DECEASED PERSONS-APPOINTMENT OF SPECIAL ADMINISTRATOR LACK OF EVIDENCE OF DEATH-ANNULMENT ON CERTIORARI. Where a special administrator is appointed without evidence of the death of the alleged deceased, the order is void for want of jurisdiction, and subject to annulment upon proceedings under a writ of review, since no appeal lies from an order appointing a special administrator.

[D.—AFFIDAVIT OF DEATH-INSUFFICIENT EVIDENCE.-An order appointing a special administrator made upon the recital of the fact of death in an affidavit is void, since affidavits may be used as evi

dence only in cases expressly permitted by section 2009 of the Code of Civil Procedure.

ID.-ORDER SETTING ASIDE VOID LETTERS-TIME.-A void order appointing a special administrator may be vacated within a reasonable time upon proper procedure by the person alleged to be deceased, if alive, or by an heir at law, if the former be dead, and the six months' period provided by section 473 of the Code of Civil Procedure is inapplicable.

ID.-PROCEEDING TO ANNUL ORDER APPOINTING SPECIAL ADMINISTRATOR -PARTY BENEFICIALLY INTERESTED.-The surety on the bond of a removed administrator who has been joined with such administrator in an action for fraud in the administration of the estate is a party beneficially interested in a proceeding to annul a void order appointing a special administrator for a person interested in such estate who was by an order of court made a party plaintiff in such action.

APPLICATION for a Writ of Review originally made to the District Court of Appeal for the Second Appellate District to annul an order appointing a special administrator.

The facts are stated in the opinion of the court.

Patterson Sprigg, and Thomas, Beedy & Lanagan, for Petitioner.

Bischoff & Thompson, for Respondents.

WORKS, J., pro tem.-On September 14, 1917, upon petition regularly filed, the respondent made an order appointing Ingina Ostergard special administratrix of the estate of Bjelka Paulsen, deceased; but at the hearing on the petition no evidence was received of the death of Bjelka Paulsen. This proceeding is instituted for an annulment of the order because of the lack of the evidence mentioned. An administrator of the estate of a person manifestly cannot be appointed until such person is deceased, and the only manner in which death can be shown to the court which is asked to appoint is by the production of evidence of death. When a tribunal is clothed with authority or jurisdiction to act only upon the existence of certain facts and it receives no evidence tending to show that such facts exist, its action is void for want of jurisdiction and will be annulled upon proceedings under the writ of review (Great Western Power Co. v. Pillsbury, 170 Cal. 180, 184, 185, [149 Pac. 35]), provided, of course, no right of appeal exists in the premises; and no ap

peal lies from an order appointing a special administrator (Code Civ. Proc., sec. 1413).

The respondent apparently concedes the invalidity of the order appointing the administratrix, for counsel makes no reply, in his argument, to the contention of petitioner that the order is void. At any rate, it is void. To clarify the situation, it may be stated that the order of appointment was made upon a recital of the fact of death in an affidavit, which, of course, was not evidence, as affidavits may be used as evidence only in cases expressly permitted by the code (Code Civ. Proc., sec. 2009), and that permission is not given in the case of an application for the appointment of an administrator, either general or special.

There is but one real controversy presented for our consideration and what we have said above is only introductory to it. Section 1069 of the Code of Civil Procedure provides that the writ of review will issue on the petition of the party beneficially interested in a given controversy, and the respondent contends that the petitioner has not such an interest in the outcome of the present proceeding. A more complete statement of the facts is necessary to a discussion of this question. The petitioner is surety upon the bond of E. M. Barber as administrator of the estate of James Ostergard, deceased. The letters of Barber were revoked and a new administrator was appointed in his stead. The new administrator commenced suit for fraud in the administration of the estate against Barber and petitioner, upon Barber's bond. The superior court then ordered that all parties having an interest in the estate of James Ostergard, deceased, be joined as parties plaintiff to that action. Bjelka Paulsen was an heir at law of the decedent, and therefore came within the order. Thereupon, and for the purpose of complying with the order as to parties, Ingina Ostergard filed her petition for appointment as special administratrix of the estate of Bjelka Paulsen, deceased, alleging the death of the latter. The petition came on for hearing with the result above stated. The petitioner in this proceeding presented to respondent, before the filing of its petition here, a motion to set aside the appointment of the special administratrix on the ground that the court heard no evidence of Bjelka Paulsen's death and the application was denied. By this step petitioner put itself in proper train for the maintenance of this proceeding (Elliott v. Superior