ing his cause of action, some of which were merely inducement, and others immaterial in making out his case. It is not requisite to state all that was said by counsel in opening his case, and would unnecessarily prolong this opinion to do 80. But on a fair construction of all that was said, we are of opinion that the counsel stated a cause of action, and should have been allowed to go on and put in his testimony. We should observe that it would be much better not to nonsuit on an opening statement, unless it is clearly made, and it is plainly evident therefrom that no oase can be made out. It is much better to permit the plaintiff to put in his testimony, and that the motion should be then made. It will be found on pursuing this course that on many occasions there would be no ground of nonsuit. The judgment and order should be reversed and the cause remanded, and it is so ordered. We concur; Sharpstein, J., Morrison, C. J. DEPARTMENT No. 1. [Filed December 30, 1881.] FRIXEN, RESPONDENT, VS. CASTRO ET AL., APPELLANTS. SPECIFIC PERFORMANCE-PLEADING-PAYMENT OF BALANCE OF PURCHASE MONEY-CONTRACT-LAND. In an action for the specific performance of a contract to convey land, plaintiff must allege a readiness and willingness to pay the balance of the purchase price of the land which he seeks to compel defendant to convey. Appeal from Twentieth District Court, Santa Clara County. It is essential that the plaintiff's pleading show a readiness and willingness on his part to pay the balance of the purchase price for the land which he seeks to compel the defendant to convey to him. (Fry on Specific Per., Section 608; Waterman on Specific Per., Section 96.) In the complaint in this case as amended, there is no such showing. The complaint is also defective, to say the least, in the averments respecting part performance. Judgment reversed and cause remanded with directions to sustain the demurrer to the complaint as amended, with leave to the plaintiff to amend in such particulars as he may be advised. JUSTICE'S COURT DEPARTMENT No. 2. [Filed January 9, 1882.] CARDWELL, RESPONDENT, VS. SABICHI ET AL., APPELLANTS. JUDGMENT-COLLATERAL ATTACK-SERVICE OF SUMMONS AND COMPLAINŤ. A judgment of a Justice's Court upon proof of service of summons and copy of complaint by endorsement following, is not open to collateral attack: "I hereby certify that I have served the within summons by delivering a copy thereof together with true copy of complaint, personally, at the township and county of Los Angeles, this twenty-fifth day of April, 1879. Fee, $2. W. Bettis, Constable. By J. H. Northcraft, Deputy." Appeal from Superior Court, Los Angeles County. It Bicknell & White and Graves & Chapman, for respondent. THORNTON, J., delivered the opinion of the Court: There is but one question of importance in this case. concerns a judgment rendered by the Justice's Court of Los Angeles township, county of same name, in the action of Perry et al vs. Louis Wolfskill. Plaintiff claims under this judgment, and defendants contend that it is void for a want of jurisdiction of the party defendant, for the reason that there was no service of summons and complaint on him, as required by law. As evidence of such service, the plaintiff in the Court below offered the following return, which was endorsed on the summons: "I hereby certify that I have served the within summons by delivering a copy thereof, together with true copy of complaint, personally, at the township and county of Los Angeles, this twenty-fifth day of April, 1879. "Fee, $2. "W. BATTIS, Constable. "By J. H. NORTHCRAFT, Deputy." The above was objected to by defendants when the papers including the judgment in the case of Perry et al vs. Wolfskill, were offered by plaintiff, on the ground that it did not prove service on Wolfskill. The Court overruled the objection and defendants excepted. It is true that Justices' Courts are inferior Courts of limited jurisdiction and their jurisdiction must affirmatively appear, or their judgments will be absolutely void. Lowe vs. Alexander, 15 Cal. 301-2; Rowley vs. Howard, 23 Id. 405. No intendments can be indulged in favor of the jurisdiction of such Courts. Lowe vs. Alexander, ut supra. See Peacock vs. Bell, 1 Saunders, 74; Brittian vs. Kounard, 1 B. & B. 482; Dempsier vs. Ponnell, 3 M. & G. 375; 1 Smith's Lead Cas. notes to Crupps vs. Donden, *816-17-18 &c.; Broom's Leg. Maxims, *413, 914. But within those rules, which are well settled and fixed in our jurisprudence, we think the service is proved by the above return. C. C. P. Secs. 849, 411, 415; Pol. C. 4315, 4176. In Legge vs. Stillman et al, 2 Cowen, 418, which was certiorari to a Justice's Court, the suit was by summons in the Court below, and the return on the summons was as follows: "Personally served May 14th, 1822. Fees, 0.13. Thomas McKnight, Const." The return was held sufficient. In the case cited, the objection to the judgment was made in a collateral action, as in the case before us for decision. The judgment was adjudged valid. Our views in the case are in accord with the ruling in Legge vs. Stillman, which ruling meets our approval. In the case cited, the time and manner of service were shown, and in this case, the time, manner, and place of service appear. In neither case is defendant mentioned either by name or by being designated as defendant. As to the point that the return does not show that the copy of the complaint served was the copy of the complaint in the action of Perry et al vs. Wolfskill, we have to say that we do not think it tenable. The return afforded some evidence that it was such copy, and we cannot say that the proof in this regard was not sufficient to authorize the Justice to render a judgment by default. (See C. C. P. Sec. 871; Drake vs. Duvenick, 45 Cal. 463.) We have examined the cases cited by appellant's counsel as to the points discussed herein. The cases from the Mississippi Reports (Merritt vs. White, 38 Miss. 438, and Woodliffe vs. Connor, 45 Id. 552,) were decided on a statute different from ours as to the return. (See Code of Mississippi, 1563-4.) The provisions of this Code are stated in Merritt vs. White, above cited. Bellingall vs. Gear, 3 Scam. (Ill.) 575, was a case for the foreclosure of a mortgage by scire facias. The provisions of the statute of Illinois as to the service and return of the writ of scire facias in such action differ greatly from our statute as to return of summons in civil actions, as will be readily seen by a comparison. (See the case above cited where the provisions of the statute are stated.) Besides the question was made on appeal in the case cited above, and not on a collateral attack. On appeal, the question of regularity is before the Court, and there is a great difference between an entire lack of jurisdiction and irregularity in obtaining jurisdiction. (Drake vs. Duvenick, 45 Cal. 463.) Tullis vs. Scott, 38 Texas, 537, and Bourd vs. Board, 4 Abb. (N. Y.) 295, were appeals from judgments in the action or proceeding; and the same observations as to irregularity made above, apply. In Litchfield vs. Brunnel, 5 How. Pract. (N. Y.) 341, the question arose on a motion for judgment in the action, where the question was as to regularity of service. We de not see that the cross-complaint of defendant Sabichi sets up anything which would go to defeat the claim of the plaintiff, admitting all the facts stated therein to be true. The judgment and order denying a new trial are affirmed. We concur: Sharpstein, J., Myrick, J. DEPARTMENT No. 2. [Filed December 30, 1881.] CHARLES, RESPONDENT, VS. DAVIS ET AL., APPELLANTS. LEASE-GROWING CROP-ABANDONMENT. By the terms of a lease the lessees were to hold the land long enough to raise a crop of barley, and then re-deliver the land to the lessor: Held, it was the duty of the lessees to harvest and remove the crop within a reasonable time after it became ripe, and if they did not, the lessor had a right to enter and resume possession. The Court found that the lessees abandoned the leasehold and crop: Held, the evidence sustained the finding. ID. HARVESTING BY LESSOR. The lessor was entitled to one-fourth of the crop after it was harvested and put in sacks by the lessees, for the use of the land. After the crop had been abandoned by the lessees, the lessor harvested the barley and put it into sacks, which cost more than twice its market value: Held, neither the lessees nor their creditors had any interest in the crop. Appeal from Superior Court, Los Angeles County. Lynell, Smith, Brown & Hutton, for appellants. The finding of the Court that the lessees abandoned the leasehold and crop is so far sustained by the evidence as to forbid our disturbing it. By the terms of the lease the lessees were to hold the land long enough to raise a crop of barley, and then re-deliver the land to the lessor. It was the duty of the lessees to harvest and remove the crop within a reasonable time after it became ripe, and if they did not, the lessor had a right to enter and resume possession. This he did when the crop was on the point of being lost. Neither of the lessees returned until after harvest time. After that time they had no right to occupy the land, because their term expired as soon as the proper period for harvesting and removing the crop terminated. And it does not appear that they, or either of them, ever made any claim to the crop after they left the premises. The alternative which presented itself to the lessor was to harvest the crop or let it go to waste. He adopted the first, as he had a perfect right to, particularly as he had received no rent and was entitled to one-fourth of the crop after it was harvested and put in sacks by the lessees, for the use of the land. The harvesting of the barley and putting it into sacks cost more than twice its market value. Under these circumstances, we are unable to perceive that the lessees had any interest in it which their creditors could reach. Judgment and order affirmed. DEPARTMENT No. 2. [Filed January 20, 1882.] No. 7971. EVANS ET AL., RESPONDENTS, VS. JACOBS ET AL., APPELLANTS. CASE FOLLOWED-COSTS-EVANS VS. JACOBS (7742) followed. Held, further, it could not be determined from the record that the Court below erred in its order retaxing the appellant's costs. Appeal from Superior Court, Trinity County. Taylor and Dann, for appellants. C. E. Williams, for respondents. By the COURT: We cannot determine from the record before us that the Court erred in its order retaxing the appellants' costs, and the order is therefore affirmed. |