Beatty, C. J., I dissent. Reargument and ré-examination of this ease have convinced me that [435]our former decision was correct, and have not materially changed my views as to the validity of the particular grounds upon which it was based. It is conceded—it would have been impossible to deny—that the proof of respondent’s paternity is complete. The only argument that can be made against his claim to inherit his father’s estate rests upon a strict construction of the statutes, remedial in their nature, designed to secure to innocent unfortunates in his situation a just share of the rights to which they are by nature as fully entitled as are legitimate offspring. No doubt a strong argument can be built on this basis of strict construction against the decision of the superior court. But I adhere to the view so strongly -put and so satisfactorily maintained by Justice Works in his opinion, that in cases of this kind the only strictness required is in proof of paternity. That being satisfactorily established by plenary proof, I think courts should lean strongly in favor of a finding that the father of an illegitimate child has done what every honest and humane man should be not only willing but eager to do, and what a just law would compel the unwilling to do.
I also think it a wholly unauthorized construction of the statute to hold that the acts of recognition, acknowledgment, etc., necessary to legitimize a natural child, should be performed with the express intention on the part of the father of accomplishing that object. If the acts are in themselves such as the statute prescribes, I think they confer legitimacy without any reference to the intent with which they are performed. There is no danger to morality in recognizing the natural rights of illegitimate children as against their fathers, or other claimants of their estates. And there is no danger of encouraging the fabrication of spurious claims so long as strict proof of paternity is insisted upon.
From this point of view, the evidence here is amply sufficient to sustain the decision of the superior court. [436]Between the passage of the act of March, 1870, and the adoption of the code, Gershom P. Jessup, if the witnesses told the truth, did enough to legitimize the respondent,, and no subsequent neglect could deprive him of the status so acquired.
The following is the opinion above referred to, rendered in Bank on the original hearing on the 1st of July, 1889:—
Works, J. Gershom P. Jessup, an unmarried man, died testate, leaving an estate valued at about one hundred thousand dollars. By his will he devised and bequeathed his estate to his brother and sisters. The will was admitted to probate, and letters issued to the executors named therein. The respondent, Richard Page Jessup, filed his petition in the court below, alleging that he was the illegitimate son of the deceased, and had been adopted by him, whereby he became his legitimate son and heir, and praying for a partial distribution of the estate to him. Upon a full hearing the petition was granted, and an order made distributing the whole of the estate to the petitioner, upon his giving bond to secure the payment of the debts of the .estate and costs and expenses of administration.
From this order the executors of the estate and the legatees under the will have appealed.
The really controverted question in the court below was, whether or not the deceased had adopted the respondent as his son in such manner as to constitute him his heir.
Some objections are urged in the brief for appellants to certain rulings upon the admission and exclusion of evidence. Most of the rulings complained of relate to evidence tending to show that the respondent was the son of the deceased. Counsel for respondent contend that these rulings, if erroneous, were harmless, for the reason that the paternity was expressly admitted by [437]counsel in the court below. No such admission appears in the record, but the fact of such paternity' is not disputed in this court, and the evidence of the fact, independent'of any testimony claimed to have been erroneously admitted or excluded,, is so' clear and conclusive that the appellants could not have been injured by any of the rulings complained of.
So far as the rulings apply to other material matters, we find no error for which the cause should be reversed!
It is contended that the court below had' no jurisdiction to make the order appealed from, for the reason that the non-resident legatees were not -notified of the pendency of the proceeding. The court below proceeded under sections 1658 and 1659 of the Code of Civil Procedure. Section 1659 provides that notice of the application must be given to the executor or administrator personally, and to all persons interested in the estate, in the same manner that notice is required to be given of the settlement of the account of an executor or administrator.
Notice of the settlement of an account of an executor or administrator is provided for as follows: “The clerk must thereupon give notice thereof by causing notices to be posted in at least three public places in the county, setting forth the name of the estate, the executor or administrator, and the day appointed for the settlement of the account. The court or a judge may order such further notice to be given as may be proper.” (Code Civ. Proc., see.' 1633.)
It is not claimed that the notice expressly required by the statute was not given, but it is contended that this was a case in which the court should have ordered further notice to be given. Whether such additional notice shall be given or not, is a matter within the discretion of the court below, and in the absence of anything to show that such discretion has been abused, this court will not interfere. There was no such abuse of discretion [438]here. One of the executors, who was a resident of this state, was a brother of the deceased and of the other legatees under the will, and his interest in the proceeding was identical with those of the other legatees. As to the non-resident parties in interest, an attorney was appointed to look after their interests, and did so throughout the proceeding. Their rights, if they had any, -were thoroughly represented and carefully guarded by competent and able attorneys, who acted for them as well as the. executors.
Again, it is contended that the court had no jurisdiction to determine the question of the heirship of the petitioner in this proceeding; that the right to ask for partial distribution by an heir, where there is a will in which he is not named, must be confined to children born in lawful wedlock; and that he must assert his right to the estate, or any part of it, by a contest of the will, or must first establish the fact that he is an heir by proceeding under section 1664 of the Code of Civil Procedure. A distinction is thus attempted to be made between an heir born in lawful wedlock and one that has become such by adoption. Counsel contend that section 1386 of the Civil Code, which provides for the succession to and distribution of estates, does not apply to illegitimates, and in support of the position cite Estate of Magee, 63 Cal. 414; McCord v. Smith, 1 Black, 459; Hughes v. Decker, 38 Me. 153.
These cases relate generally to the right of an illegitimate child to inherit, and have no application to a case of adoption by the father.
Whether the petitioner was an heir, and entitled to distribution as such, was a question of fact to be determined by the probate court before an order for such distribution could be made. We see no reason for holding that the court could not consider and decide this question of fact, because his right of inheritance must be established by proof that he was an “illegitimate [439]child of the deceased, and adopted by him, instead of proof that he was a child born in lawful wedlock.” It is no more a contest of the will in one case than in the other. The fact of heirship, when established, must have the same effect upon the will, and the rights of the legatees thereunder, in both cases. The fact of heirship .is one that must be found by the court in either case, and the jurisdiction cannot be denied, because the fact to be adjudicated must be established by evidence of a different kind where the claim rests upon adoption. It cannot be treated as a contest or revocation of the will of the deceased, because the property distributed goes to one not named therein.
The position that this was a taking of property without due process of law cannot be maintained, for the plain reason that notice was given as required by law in such cases.
The position that the heirship of the petitioner must be established in the manner provided in section 1664 of the Code of Civil Procedure before he can maintain a proceeding for partial distribution is not well taken. The proceeding provided for in the section referred to is not exclusive of the right to have the question determined at the hearing of the application for distribution. (Estate of Oxarart, 78 Cal. 109.)
We come now to a consideration of the main issue in the ease, viz., whether or not the finding by the court below that the petitioner was adopted by the deceased as his son and heir, is sustained by the evidence. At the outset, counsel for the appellant insist that the question is not one of conflict of evidence, but purely a question whether or not the facts proved constitute such acts and conduct on the part of the deceased, toward the respondent, as amounted to an adoption of him as his heir, and that the claim of heirship must be sustained by evidence clear, indisputable, and conclusive. The question whether the acts and conduct of the deceased, [440]as testified. to, admitting them to have been proved, amount to-an adoption or not, is a matter of law to be determined by the court, but whether such facts are established by sufficient evidence,- there being testimony directly on the point, is a question of the weight of the evidence, and the credibility of the witnesses,.to which the well-established- rule as-to conflicting evidence must apply.
The cases cited by the- appellant, to the effect that where clear and conclusive evidence of a fact is required, the appellate -court may inquire whether.'the evidence proves such fact to such a degree of certainty, no doubt state the law correctly; but in order to make them applicable here, it must be assumed that such a degree of certainty is required in this class of cases, which we think is a mere assumption without authority to support it. So far as the mere question of adoption is concerned, no greater degree of certainty' in the evidence should be-required-in-this than in other ordinary cases.
The cases cited by counsel are such as call for exceptionally clear proof, for the reason that they seek to defeat a written instrument or the like. (Ford v. Osborne, 45 Ohio St. 1; Cummings v. Baars, 36 Minn. 350; Anthony v. Chapman, 65 Cal. 73.)
In order that we may intelligently consider the evidence and the effect to be given it, we must first call attention to certain dates, and construe the several statutes bearing upon the question in dispute.
The respondent was born March 20, 1866. The will of the deceased was executed August 28, 1867. The deceased died November 2,-1886. His will was probated November 22, 1886, and the respondent’s petition for distribution was filed April 11, 1887. The law in force at the time of the birth of the respondent was the statute of April 11, 1850, which provided: “Every illegitimate child shall be considered as an heir of the person who shall, -in writing signed in the presence of a [441]competent witness, have acknowledged himself to be the father of such child.” (Stats. 1850, p. 220, sec. 2.)
By an act approved March 31,1870, general provision was made for the adoption of minors, and the statute of 1850 was expressly repealed. (Stats. 1869-70, p. 530.)
Section 9 of this statute related to the adoption of illegitimate children by either or both of the parents, and provided as follows:—
“ Sec. 9. Either or both parents of an illegitimate child, or the father with the consent of his wife, or the mother with the consent of her husband, may acknowledge such child as his or their own by a document in writing, executed by either if single, or both if married, or by treating, receiving, or acknowledging him publicly as his or their own legitimate child; and such child, and the one mentioned in the foregoing section, shall, to. all intents and purposes, be deemed legitimate from the time of its birth, and entitled to all the rights and privileges of legitimate offsprings.”
Section 3 of this act provided that an illegitimate child could not be adopted without the consent of its mother, and that the consent of a minor, if over twelve years of age, should always be necessary.
This statute continued in force until January 1, 1873, when the Civil Code took effect. Chapter 2 of the Civil Code provides generally for the adoption of minor children in much the same terms as in the statute of 1869-70. (Civ. Code, secs. 221-230.)
The Civil Code, section 230, provides: “ The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such an adoption.”
[442]Section 1387 of Civil Code, which is a part of the chapter on succession, provides: “Every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock.”
The appellants contend:—
1. That the statutes authorizing the adoption of an illegitimate child by the father should be strictly construed.
2. That there could have been no adoption of the respondent under the statute of 1850 by any acts or conduct of the deceased toward him, for the reason that, under that statute, the only way in which such adoption could have taken place was by a writing to that effect, signed in the presence of a competent witness.
3. That such acts as are shown to have been done prior to the enactment of subsequent statutes, enabling the father to adopt his illegitimate child without any written acknowledgment, cannot be considered in determining whether there was an adoption or not, because the statute cannot be construed to be retroactive, and the question of adoption is one of intent on the part of the father, and his acts and conduct, tending to indicate what his intention was, must be construed in the light of the statute in force at the time.
4. That there could be no adoption under either of the statutes, or the code, without the consent of the mother, and that no such consent has been shown.
5. That section 1387 of the Civil Code is a limitation upon section 230 as to the right of inheritance, and that under section 1387 there can be no inheritance except where there has been a written acknowledgment of the child.
6. That the evidence is insufficient to prove an adoption of the respondent by the deceased.
[443]The points stated are given in our own language, as the substance of the very elaborate briefs of counsel. We shall endeavor to dispose of each of them in its order.
1. As to the strictness with which the statutory provisions referred to should be construed, we are not without authority. (Estate of Sanford, 4 Cal. 12; Pina v. Peck, 31 Cal. 361.) The cases cited are clearly to the effect that the statute, being in derogation of the common lawq must be strictly construed. So far as the cases relate to the degree of proof required to prove the parentage of the alleged father, or that the claimant is his illegitimate child, we fully concur in the views expressed, but no further. If the proof of parentage is clear, then the rule to be applied should be the reverse of that contended for by the appellants. It should be the policy of the law to require the father of a child, whether legitimate or illegitimate, to assume toward it the duties and responsibilities of a father. (Hargrove v. Freeman, 12 Ga. 342.) This state has made no provision by wdiich the paternity of an illegitimate child may be judicially determined, and the father compelled to contribute to its support. These unfortunates are left to be supported by the mothers, who are usually unable to maintain or educate them properly, or by public charity, and as a result many of them, whose fathers are amply able to support and educate them, become paupers and criminals. The legislature has, in a very slight measure, made amends for this anomalous state of affairs by providing that the illegitimate child may, so far as its legal rights are concerned, by acts of the father be made legitimate. The object is laudable, and should receive the aid and encouragement of the courts, and to that end the statute, so far as it provides how this being born again may be brought about, should be liberally construed. If the paternity of the child be the matter in dispute, strict proof of the fact should be required, but once the pater[444]nity is established, the statute should be liberally construed, so far as it affects the question of legitimizing the child. We may fairly assume that such was the legislative intent. The earlier statutes requiring a written acknowledgment were, as we have seen, strictly construed. This was followed by more liberal statutes, authorizing the legitimizing of this class of children, which clearly indicates • that such construction was not consistent with the object and purposes of such legislation.
In this case, as we have said, the fact of paternity was so clearly established by the proof that it is not controverted here. The only question, therefore, that this court is called upon to consider is whether or not, being an illegitimate child of the deceased, the respondent was by the acts and conduct of his father adopted as legitimate. As to this branch of the inquiry we hold that the statutes relating to the subject should be liberally construed. (Dickenson’s Appeal, 42 Conn. 491; 19 Am. Rep. 553; see Commissioners' comments in note to section 230, Deering's Civil Code.)
2. The point made that there could have been no adoption under the statute of 1850 is well taken, for the reason that under that statute a written acknowledgment was necessary, and none such was shown by the evidence. But it does not follow that the conduct and acts of the deceased, prior to the enactment of subsequent statutes, cannot be taken into account in determining whether or not there was an adoption, where, as in this case, as we shall show presently, such acts, conduct, and treatment were continuous from the birth of the respondent until the death of the deceased. If the acts relied upon had all taken place before the statute authorizing an adoption in that manner took effect, the position of counsel for appellant that the subsequent statute could not be construed to be retroactive, so far as to render proof of such acts sufficient to establish the fact of adoption, would be [445]correct. (Estate of Pico, 52 Cal. 84; Brown v. Belmarde, 3 Kan. 41.)
3. It follows that, conceding that the question of adoption is one of intention on the part of the alleged father, it was not only competent to prove such prior conduct on his part as tending to show the purpose and object of his subsequent treatment of the respondent, but the whole of his treatment of him, being continuous in its nature, must be taken into account in determining whether or not there was an adoption under the later statutes. If, taking his whole conduct toward and treatment of the child, it appears that it is sufficient to show an adoption, we think the case is made out, notwithstanding some of the acts proved appear to have taken place before the later statutes took effect.
In support of the opposite view, counsel cite Morgan v. Perry, 51 N. H. 559; Brown v. Belmarde, 3 Kan. 41; Estate of Pico, 52 Cal. 84: Hartinger v. Ferring, 24 Fed. Rep. 15.
These cases do not meet the question presented. In the Estate of Pico it was held that section 230 of the Civil Code could not be construed to be retroactive; that all of the acts shown, since the enactment of that section, were after the claimant had arrived at full age, and that as the statute only authorized the adoption of minors, the claimant was not within its terms, and no adoption was shown. This wás precisely the same, in legal effect, as if no acts tending to show an adoption, after the statute took effect, were shown, which presents an entirely different question. In the case of Brown v. Belmarde the statute under which, the adoption was claimed to have taken place was enacted after the death of the alleged father, and it was claimed that the statute related back. It seems unnecessary to say that this case is not in point. In the case of Morgan v. Perry the statute required marriage of, and recognition by, the parents. The parents of the claimant had married and taken him into the [446]family forty years before the statute was enacted, and it was held that the statute did not apply. Hartinger v. Ferring, is to the same effect.
We do not regard any of these cases as of any weight, except upon the simple question whether the statute can be treated as retroactive, in the sense in which we have held it to be so, as above stated.
4. As to the point raised that there could be no adoption without the consent of the mother, we cannot agree to the proposition that such consent is necessary where the adoption is by the father, and especially where such adoption is the result of his conduct toward the child, and does not depend upon any formal proceeding. The provision of the statute must be held to apply to adoptions by persons other than the father. This is apparent from a reading of the statute of 1870, and of the provisions of the Civil Code. (Stats. 1869-70, p. 530; Civ. Code, secs. 221-230.)
Sections 1 to 8 of the statute of 1870 relate exclusively to adoptions by other persons than the father, and include the provision requiring the mother’s consent. Sections 8 and 9, although parts of the same act, are, as to the procedure, essentially an act to themselves, providing for an adoption in an entirely different manner, not including such consent. This is made manifest by section 230 of the Civil Code, which provides in express terms that “ the foregoing provisions of this chapter do not apply to such an adoption.” One of the foregoing provisions is the one requiring the consent of the mother of the illegitimate child.
In Estate of Pico, 52 Cal. 84, relied upon by the appellants, the sole question was 'whether a person not a minor could be adopted under section 230. This court said in that case: “Except for the concluding words of the section, ‘the foregoing provisions of this chapter do not apply to such an adoption,’ it would be clear, beyond controversy, that this section, like all those which pre[447]cede it in that chapter, had reference to minor children. But taking the whole chapter together, we are satisfied that when section 230 declares that ‘ the foregoing provisions of this chapter do not apply to such an adoption,' it refers only to the procedure by which the adoption may be effected.”
This is in entire accord with the view we have taken. The provision for procuring the consent of the mother relates to the procedure necessary to effect the adoption, and is clearly within the language of the case cited.
5. We cannot agree to the proposition that the provision contained in section 1387 of the Civil Code, that “ every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child,” is a limitation upon section 230, and excludes an illegitimate child, adopted as provided in the latter section, from the inheritance. If so, section 230 would be deprived of much of its force. One of the legal consequences of an adoption is the right to inherit from the adopted father. Section 1387, of the code is, no doubt, based upon the former provision of the statute requiring the adoption to be in the manner therein indicated, and has never been made to conform to the later and more liberal provision. But however this may be, the provision in section 1387, that certain illegitimates may inherit, cannot be held to exclude others, who have been adopted as provided by law, from the right of inheritance. Section 230 expressly provides that upon the adoption of a child as therein provided, it shall “be deemed to be legitimate for all purposes.” (See Estate of Wendell, 57 Cal. 484.)
6. In order to a proper understanding of the comments we make upon the evidence, it is necessary to state its substance. The testimony on the part of the respondent tended to show that the mother of the respondent resided in Marysville, in this state, and was, while residing there, on terms of intimacy with the de[448]ceased; that she came to San Francisco, and was by him placed in charge of a nurse, an old colored lady, who, it appears, was a respectable, Christian woman. Soon after being placed with the nurse she was confined, and gave birth to the respondent. The deceased visited her fre-: quently during her stay at the house, paid all of the expenses consequent upon her sickness, and after the birth of the child the mother left the city, and the deceased took the entire charge of the child from that time on, leaving it with the nurse. He provided for its main-: tenance, appeared to be very fond of it, took it out with him frequently when it was young, to places of amusement, took great pride in seeing that it was well dressed, paid the nurse, and an extra nurse employed by her, liberally, for taking care of the child, and paid all of the doctor’s bills and other necessary expenses. After the child became old enough, he sent it to a private school, paying considerable sums of money for that purpose, and paid all of its necessary expenses. He caused a picture of it to be painted at an expense of one hundred dollars, and kept the same in his room. As to his declarations with reference to the child, we set out the evidence of various witnesses as to the same .without giving names, lettering the testimony of each witness separately.
(a) “He said: ‘This is my son, doctor, that I had by Miss-. Is n’t he a nice-looking boy? I think a great deal of that boy, and I am going to raise him as my boy, and look after him, and educate him, and make a man of him, and he shall be my heir.’ After that we had some talk, and I asked him on one occasion whether the boy was his son. He said he had him educating him, and also told me that Miss-had married and done well, and he was very glad of that, as it got her out of the scrape, and him too. Jessup said also that he did not want the mother to see the boy, because her parents would find it out, and he did not want [449]them to find it out; but he wanted to keep the boy as secret as he could from the parents, and it would save the reputation of the young lady. He told me that the boy had grown up and was most a young man, and he was going to make him his son and heir. He so told me more than once, and within the last five years, but I am unable to state when or where.”
(b) “ We had some further conversation after that; some conversation about the boy. He had grown to be four or five years old. Jessup knew that I knew all about the affair. We used to talk about it frequently. I recollect he brought the boy up to my place to have his teeth taken out, which I did.”
(c) “My mother spoke to him about Miss-, and wanted him to marry her; told him that Miss-was feeling very bad, and that he had confessed to my mother that he was the father of the child. He said: ‘ Yes; I know I am. She was a good girl when I met her, and I caused her fall. I am the father of the child, and I intend to marry her.’ Mr. Jessup called quite often; I cannot tell the number of times; two or three times a week, I should think; oftener after the child was born. He was not there more than twice before. He paid forty dollars a month for the care of Richard; that was for the board exclusively. As for his clothing, he wanted him dressed in the best. He said that he was able to pay for it, and he wanted him dressed nicely, and always to look nicely. He did not want him to wear calico dresses. He wanted him dressed in white always. He wanted him kept in white, and whatever the expense was he would pay it. He had plenty to take care of Richard with, and he intended to take care of him, and wanted him always to look nice. He visited the child, after the mother went away, quite often. I cannot tell just how often, but very often. He visited him quite often at my mother’s house, before the child went to Petaluma. I cannot tell how often. If the [450]child was awake when he came, he would take him up and play and talk with him; if he was not awake, he would wait until he awoke. He -would call him his boy and many other affectionate names. He would take him up in his arms and say, ‘ Come to your papa; come to your daddy’; and hold him up and ask if he was not a fine boy. He always seemed very pleased if mother said that he looked like his father. He was very fond of him. He used to take him out; would come very often, and used to take us down to North Beach; for Richard, as a baby, was very fond of the birds and monkeys and wild animals that were kept down at North Beach at the time, and his father, learning of his fondness for them, would take us down there to visit those animals, and he would buy nuts and candy for Richard to give them. The baby was rather sickly from the time it was horn, and needed a good deal of care, and Mr.' Jessup told my mother whenever she thought it was necessary to get a physician, and take good care of him. He was called Richard by his father’s request. He said he wanted him called Richard after a uncle of his, a brother of Mr. Jessup’s, who, Mr. Jessup said, -was very wealthy. He said he was dead, and he would receive his estate, and that whatever he got would belong to Richard. He was leaving it to Richard, and he intended to leave him all that he had, and he would like to have him named, after his uncle. He said: ‘If Richard behaves himself, and does what I want him, he will not he sorry for it’; said he wanted to make a man of him; he wanted him well educated; fretted, I think, that Richard did not want to remain at school. He said that Richard was all that he had, and there were only the two of them, and that he ought to try and make him happy, and do just as he wanted him to do. He thought he ought to try and make him happy, and he would do anything for him, and make a man of him, and after his death he would have ‘ all that I have.’ He further said he wanted
(d) “ I knew Gershom P. Jessup in his lifetime, about ten or twelve years, probably. We were friends. Never had any conversation with him directly about his family. With regard to the boy I had a conversation once. One of my sons was with me, and I introduced him to Mr. Jessup, and he said to me, ‘ I have a son that I am educating and bringing up.’ ”
(e) “ I painted the portrait for Mr. Jessup. During the process of painting the picture Mr. Jessup called at my studio, and seemed quite interested in the portrait; T cannot exactly state how, except that he came up in the room and expressed himself pleased with it.”
(/) “I said, ‘You have not anything to detain you here; have not got any family, have you?’ He said, ‘ I have got a son here.’ He spoke of having two sisters in the East, and his brother here. He said he did not expect-—-well, he said, ‘ the way I feel, and the way this thing [referring to some litigation] worries me, I do not think I will last long.’ He said he had made a will providing for his sisters, his brother, and for his son.”
(ff) “ The boy always accompanied him to the store. I do not remember any statement he ever made with reference to the boy as to who he was. He would say, ‘ I want a suit for the boy.’ The way he spoke I thought it was his boy, though I do not remember his saying whose boy it was. He selected the best goods, and made no objection to the price. I think I last made an overcoat, I cannot remember; it must have been ten or twelve years ago.”
[452](7i) “ I knew Mr. Jessup in his lifetime. At one time he came and asked me the fare to San Diego. I told him, and asked him whether he was going. He said no; he was going to send some one. He said he was going to send a boy. I said, ‘ What boy? ’ He said, ‘ I have got a boy as big and as old as yours.’ He did not tell me where the boy was. He said he had been to college, and was going to send him to a ranch on a vacation. He asked for the ticket to be made out to Richard Miller, and it was so made. He told me that the ticket was for his boy,—his son. I asked him, ‘ Why do you make it out for Richard Miller?’ Well, he said that he wanted to avoid trouble with a woman, or the mother, as some people at the back of her, by talking with her, were making trouble.”
(i) “ Q. Did you hear the boy call his father by any names? A. Papa. Mr. Jessup’s manner was very affectionate. He would take.the boy and caress him, and kiss him, bring him fruits, cakes, lady-fingers, and be very fond of him.”
(j) “He said that she had been married, and that he did not think that he ought to look out for her any more; that he had this heir,—this boy, rather,—and he had looked out for him from his infancy and intended to look out for him, but he did not think he should be bothered with the mother. He said that he was giving the boy a schooling. He had looked out for him from infancy. • I don’t think he told me who the child was with. He said he had him off at school. I think he told me that the mother had nothing to do with the boy; that he had taken care of him; that is my recollection. I said: ‘ Mr. Jessup, that is my boy.’ He said: ‘My boy is as old as your boy.’ I said: ‘ Your boy ought to be three or four years older than mine, I don’t know but more, and my boy is fully sixteen years’; and he said, ‘He is.’ I asked him: ‘ Where is your boy? What have you done with him?’ ‘ Well,’ he said, ‘he is at work; it is well [453]enough for parents to learn their boys to go to work.’ I said: ‘ I agree with you; that is a good idea.’ ”
(/c) “ He said: ‘ That is my boy.’ He had a little boy with him. I judged in my own mind that it was his son at the time. He said: ‘ What do you think of him?’ I took him to be his son, for he looked upon him with such pride and affection, as if he must be his child.”
(l) “ He spoke to me several times about his family; about having a son. I told him to bring him up one time, I should like to see him. That was about five years ago; may be a little -longer. He brought him in after-wards a couple of times, and they had dinner together. I says to Mr. Jessup: ‘ You cannot deny that boy; he is the very picture of you.’ Jessup said: ‘ The boy puts me to a good deal of trouble sometimes now. It don’t matter; I will never forget him.’ He said he had property on Stevenson Street and on Clay Street; some property that he said he would make over to him. He was sick then a great deal. He could hardly walk sometimes. He often used to come over. He would say, ‘ I am not able to Avalk.’ He told me the boy was in the country with friends, and that he loved the boy dearly. We were then talking about children. I had children myself. He said if the boy would do right, and all this and that, he would give him everything he had got. He said that he did not want him with him; that he would keep him in the country. He would be better off with his friends than he would be with him.”
(m) “ I saw the child with him. The child was dressed in a very handsome black suit, with a black cap, and had long hair. I was going down Market, and he .was going up with the child by the hand. I asked: ‘Is that the first production? and are there any more of them?’ He said: ‘No; it was the first one. Don’t you think he looks like me?’ I always understood him to saj that he had the child in good hands, or was taking the best care of him. I do not know that I ever spoke to him about the [454]boy more than five or ten or twenty times during our couple or three years’ acquaintance. He,would speak to me about how the boy was, and about how he was taking care of him. He used to speak about the boy, as ‘ little Dick,’ or ‘ my little Dicky,’ or my little boy.’ ”
(n) “ One day he asked me if I know his boy; I asked him who his boy might be. He said, ‘ Dicky Jessup.’ I said I did not know him by that name. He then said: ‘He may go over here by the name of Miller; he is hiding over here.’ ‘Yes,’ I said, ‘I know him.’ He said: ‘If you see him, tell him to come over to see me, corner of Fifth and Market streets. I am residing there, and you will confer a favor upon me.’ ”
(o) “ I knew the boy, who gave me his name as Bichar d Jessup Miller. He was sent to me from San Francisco by A. A. Denning about six years ago, when I was living on my ranch. He told me his name was Bichard Jessup, but his aunt made him call himself Bichard Jessup Miller. That was when he first came to my place. He was with me about six months, and then went back to San Francisco. I received several letters from Mr. Jessup. He send me money for the boy. He told me to be kind to him, and make a man of him. He returned to San Francisco at the request of Mr. Jessup, who sent him money to buy him clothing and buy him a ticket.”
(p) “He said: ‘0, no; there no mystery about the child. I have always taken care of the child, the boy, from his birth. I have always done for him, and always will.’ I think he told me that he had him at Washington College, over at Alameda, and said: ‘ I have done for him. I have had him down in Lower California. I have spent large sums of money on him. I have always taken care of him, and always shall.’ He seemed to want to impress on my mind the fact that he wanted to make the boy self-sustaining, self-supporting; to show him how to save money, how to make money.”
(q) “ I saw Mr. Jessup once with a little boy. I do [455]not know how old. I should think about five. He was dressed in a kind of fancy suit. I think he said: ‘ This is my boy.’ I don’t know about the word ‘son.’ He said the little boy or his boy— meaning his son, I presume. He did not say his son, I do not think. I said he looked very much like him.”
(r) “He told me that he had a young boy going on two years; those were the words he used. I will not be positive now whether he said boy or son.”
(s) “I got to speaking to him, — was very well acquainted with him,—and I told him I thought he was very well fixed for wealth. He said, ‘Yes, I am well fixed.’ I said, ‘ I suppose you have got fully one hundred thousand dollars.’ He said yes, he had fully that much. I heard him speak about his sou at different times; I forget the date. I said, ‘When you die, you must remember me,’ in a kind of joking way. ‘Well,’ he says, ‘I have got a son that will come in for a good part of that.’ Then I commenced to laugh at him. I says, ‘How is that you have a son, and have no wife.’ He said, ‘Can’t a man have kids, and not have a wife?’ On one occasion he asked me if I had any family beside my little girl. I said none,' with the exception of two brothers and a sister, aged fifteen, seventeen, and nineteen. ‘That,’ said he, ‘is the age of my boy.’ This was in 1885. On my expressing my surprise, he said, ‘0 yes; I have a son; he is across the bay.’”
(í) “ He said that he had a fine boy by her, and that he was going to make a Dick Jessup of him. He told me the boy was in school. I cannot tell which one. He spoke about his boy that he had put at school; said that lie was a fine boy, but he believed he was going to make him a great deal of trouble.”
In opposition to this array of evidence, tending strongly to show an adoption, it appears that the respondent did not go by his father’s name; that he lived with a colored woman, daughter of the old nurse, and [456]was brought up with her children and went by her name. But it appears from some of the evidence above that •this might have been, not for the purpose of concealing his parentage, but through the fear that the mother of the boy, or some of the family, might assert some claim to him.
Again, it is shown that the deceased never took the boy into his family. But the evidence shows clearly that he never had any family, or any place that could be called a home. He roomed in various places in the city, and a great part of the time lived with a mistress, the wife of another man. It was to his credit, and bears strong evidence of his regard and affection for the boy, that he was not willing to subject him to the influences that had contaminated his own life.
It was also shown by a number of reputable witnesses that they had known the deceased with more or less intimacy, had met him in business, at the clubs, and at lunch, and never heard him speak of having a son. But this is testimony of a negative kind, and entitled to but little weight. Besides the fact that it appears that the deceased was a reticent man, not given to talking about his affairs, he would not be likely to discuss such a matter, under such circumstances, and if he had, the witnesses would not be likely to remember it.
There is evidence tending to show that the respondent was christened under the name of Richard Page Jessup, and that this was done at the request of the deceased, but as to the latter the evidence is conflicting.
Was this evidence sufficient to show an adoption? This depends, in part, upon the construction to be given to the two statutes in force during the time covered by the testimony.
The appellants contend that, under section 9 of the statutes of 1870, which provides for the adoption of a child “by treating, receiving, or acknowledging him publicly as his or their own,” should be construed to [457]mean receiving and acknowledging, and that both must be proved to show an adoption. As we view the evidence, it is unnecessary to determine this question. If the testimony is sufficient to establish one of these requisites, it is equally sufficient to prove the other.
But it is further contended that the requirement that he should publicly acknowledge him as his own legitimate child is not established by proof that he acknowledged him openly to various persons as his son; that a public acknowledgment, as here used, means some formal acknowledgment of him as his legitimate son, in an open and public way, and that it is not enough to show that he made such acknowledgment to friends and acquaintances, no matter how many.
We do not so understand the statutes. To establish his right to inherit, a claimant must prove two things: 1. That he is the illegitimate child of the alleged father; 2. That he has been openly and publicly acknowledged and received, and treated as such. But in order to avoid imposition and fraud, the statute requires that these things shall be established by certain proof. Under the statute of 1870, it must be proof of his “treating, receiving, or (and) acknowledging him publicly as his own legitimate child.” That is to say, he must treat, receive, or (and) acknowledge him as if he were his own legitimate child; and in order that the proof may be made by disinterested parties, and fraud and imposition •avoided, all of these must be done openly and publicly, and not secretly.
But this does not mean, as counsel for appellants seem ■to think, that the alleged father must cry out from the house-tops, “ This is my illegitimate son, that I now and here publicly acknowledge as my own legitimate son,” or go about with a lie upon his lips, saying, “This is my legitimate son.”
Section 230 of the Civil Code, although differently worded, is in effect the same. The language is, “ by [458]publicly acknowledging it as his own, receiving it as such into his family, and otherwise treating it as if it were a legitimate child."
Undoubtedly the most satisfactory way of establishing the necessary facts is by proof that the claimant has been received into the family, and given the family name.
But this is not necessary where there is sufficient proof of a reason for not having done either, as we think is shown in this ease. The deceased could not take the respondent into his family because he had none. He did not openly give him his name for the reason that he feared the mother or some of her family would attempt to take him from him. But he did give him the Christian name of a favorite brother, and expressed the hope that he might be able to raise him to be like his uncle. In other respects he treated him as such a man might be expected to treat his legitimate son; and that he openly and publicly acknowledged him to be his son there can be no doubt, if the witnesses who testified to the facts were to be believed. Whether they were worthy of belief or not, was for the court below to determine. He performed toward the respondent the duties which would have devolved upon him as the father of a legitimate child, viz., those of protection, maintenance, and education. Therefore he treated him as his legitimate child.
When the status of the respondent was thus fixed, it could not be affected by subsequent acts of the deceased, by failing to name him in his will, or otherwise. The statute, together with such acts done under it as will constitute an adoption, fix the status of the illegitimate child irrevocably. (McGanigle v. McKee, 77 Pa. St. 81; Hosser’s Succession, 37 La. Ann. 839.)
It is said that the statutes under which the respondent claims to have been adopted were enacted after the will of the deceased was executed, and therefore the adoption, if proved, cannot affect the rights of parties named as legatees in the will, but the will gave no vested right at [459]the time of its execution, and for that reason, if for no other, the point is not well taken. (Sewall v. Roberts, 115 Mass. 262.)
The evidence is sufficient to sustain the order of distribution.
Order affirmed.
Sharpstein, J., Paterson, J., and Beatty, 0. J., concurred.
McFarland, J., and Thornton, J., dissented.
After the rendition of the opinion of the 30th of November, 1889, the respondent moved to vacate the judgment entered thereon, and for the issuance of a remittitur in accordance with the opinion of the 1st of July, 1889. On this motion the following opinions were rendered on the 20th of December, 1889: —
Beatty, C. J. This cause was originally submitted to the court in Bank without any previous decision or hearing in either of the Departments.
On July 1, 1889, a decision was rendered, concurred in by a constitutional majority of the justices, affirming the decree of the superior court. On the 31st of July we decided to grant the petition of the appellants for a rehearing. No order in writing directing such a rehearing was signed by any of the justices, but the clerk was directed to enter the order in the minutes of the court, and on that day he made an entry in the minutes in the following form:—-
“In Bank.—Estate of Jessup. No. 12941. Rehearing granted.
By the Court.”
Subsequently, in pursuance of this order and without any objection to its sufficiency, the cause was reargued and again submitted for decision. On November 30, 1889, a second decision was rendered reversing the decree of the superior court and our own former judgment.
[460]The respondent now moves to vacate and annul this second judgment, on the ground that it was “made improvidently and without color of law,” and demands the issuance of a remittitur upon the judgment of July 1st. TIis motion is based upon the ground that said judgment of July 1st became final and irrevocable on July 31st, by reason of the fact that no order granting a rehearing of the cause was made on or before that day, in conformity to the requirements of section 45 of the Code of Civil Procedure, which reads as follows;—
“Sec. 45. The chief justice or any four justices may convene the court in Bank at any time, and the chief justice shall be the presiding justice of the court when so convened. The presence of four justices shall be necessary to transact any business, and the concurrence of four justices present at the argument shall be necessary to pronounce a judgment in the court in Bank, provided, that if four justices so present do not concur in a judgment, then all the justices qualified to sit in the cause shall hear the argument, but to render a judgment a concurrence of four justices shall be necessary; and every judgment of tibe court in Bank shall be final, except in cases in which no previous judgment has been rendered in one of the Departments, and in such cases the judgment of the court in Bank shall be final, unless within thirty days after such judgment an order be made in writing, signed by five justices, granting a rehearing.”
Most of this section and of several preceding sections consists of a mere repetition in substance of express constitutional provisions (article 7, sections 2, 3); but the part italicized is not contained in the constitution, either in substance or in form. Nevertheless, it may be valid and obligatory as a statute, and undoubtedly is so unless it conflicts with the constitution.
Therefore, since it has not been complied with in granting the rehearing in this case, it becomes necessary to determine whether or not it is constitutional.
[461]The question is by no means a new one. The provision above quoted was adopted as an amendment to the code April 1, 1880, and naturally became the subject of consideration by the court within a short time after its enactment. The court at that time was composed of the seven justices first chosen by the people of the state to administer the new constitution and the laws passed in pursuance of it. They decided, without a dissenting voice, so far as the records of this court show, and so far as can be learned from any source of information accessible to me, that the provision in question was invalid, and they continued after the act, as before it, to grant rehearings by orders entered in the minutes of then proceedings. The same practice has been continued without change or interruption to the present time; and during the year that I have occupied a seat upon the bench, its propriety has not been questioned, until now, by any member of the court, or by any party to a cause depending here. It has not, however, always passed unchallenged. Our records show that cm at least two occasions formal objection has been made by the prevailing party to the order granting a rehearing on the ground that it was not made in the form prescribed by this statute.
In the great case of Lux v. Haggin, decided in 1884, and reported in 69 Cal. 255,—a case -which directly involved interests of very great magnitude, and, as a precedent, affected the rights of a large portion of the land-holders of the state,—the decision was made by the court in Bank without a previous hearing in Department. A bare majority of the members of the court concurred in reversing the decree of the superior court, and on petition of respondent a rehearing was granted by a minute order in precisely the same form as the one made in this case.
Counsel for appellant in that case, without waiting for a reargument, promptly made the objection that the or[462]der granting the rehearing was void, and demanded the issuance of a remittitur upon the judgment already rendered. This motion was made and submitted to the court in February, 1885, and by the court overruled.
It is time that no reasons were assigned by the court' for its conclusion, but no member of the court—divided as it was and continued to be as to the merits of the case—dissented, and the point was clearly and necessarily decided that an order like that in question here was valid, and had the effect of putting the case in the same position as if it had never been decided or submitted.
Again, in the case of Bull v. Coe, which was originally submitted to the court in Bank, the judgment was affirmed in 1887. Subsequently a rehearing was granted by a minute order entered in identically the same form as the order here. Counsel for respondent, in their printed argument on the rehearing, made the objection that the judgment of affirmance had become final by reason of the failure of the court to file an order in writing signed by five justices. The court nevertheless proceeded upon rehearing to reverse the judgment appealed from and its own previous judgment, just as has been done in this case, merely remarking, in response to the objection to the order: “The position as to the power of the court to grant a rehearing, and the sufficiency of the order granting it, do not require special notice.” (77 Cal. 63.)
It is to be regretted that the court in deciding these motions did not set forth explicitly the grounds of its decision, as it would probably have prevented a recurrence of the question. The omission to do so was probably due to the fact that then as now the time of the court was so fully occupied in formulating opinions upon cases in which a statement in writing of the grounds of its decision was made obligatory by the constitution, that it could with difficulty spare the time to state fully and at large its reasons for deciding a motion involving [463]only a question as" to the form of making its orders,—a question upon which no litigant could by any possibility need either information' or caution for the purpose of any action to be taken.by him.
But however that may be, it is plain that the question has been twice distinctly decided in determining contested motions. It has also been decided by the uniform and unvarying practice of the court in passing upon a great number of petitions for rehearing during the period of almost ten years since the adoption of the amendment under consideration. If any course of construction could settle a question of practice, it seems to' me that this must be regarded as settled, irrespective of any doubt that may now be entertained as to the correctness of the original decision. If the question was originally doubtful, it has been resolved too often in one way to admit of an opposite solution now, even if the opinion of the court should change. At least we should not visit the consequences of our inconsistency upon litigants, though we should feel constrained to change our practice. The rights dependent upon orders that we have made are protected by the rule stare decisis.
But I do not feel it necessary in this matter to rest upon the doctrine of stare decisis, or upon the mere authority of the former members of this court. There is certainly a sufficiently strong presumption that they Avere right in their decision; but aside from such presumption. I think its correctness may be' easily shown.
The jurisdiction of this court is derived from the constitution, and can be neither enlarged' nor abridged by the legislature. What it was in the beginning it remains, and it must remain until the constitution itself is changed. If the constitution has denied to this court the power to grant rehearings in causes that have been decided in Bank, the legislature cannot confer the power. If the constitution has conferred the power, the legislature cannot take it away, or by pretense of regulating [464]its exercise substantially impair it. And whatever matters are by the constitution committed to the jurisdiction of the court, the court may by a constitutional majority—that is to say, by the voice of four of its seven justices—decide. The legislature has no more right to say that we shall not decide a matter within our jurisdiction, unless five justices subscribe an order in writing, than we should have to require all acts of the legislature to be subscribed by two thirds of the members of each house. The constitution has conferred the power of deciding all matters within our jurisdiction upon a majority of the court; the legislature cannot require more than a majority.
If these propositions are true, it only remains to inquire whether, under the constitution, and wholly independent of legislation, we have the power to grant rehearings in cases that have been decided by the court in Bank. D
The constitution of 1849 conferred certain appellate jurisdiction upon a supreme court composed of a chief justice and two associate justices. By the amendment of 1863 a slightly different jurisdiction was conferred upon a supreme court composed of a chief justice and four associate justices. By the present constitution, adopted in 1879, substantially the same jurisdiction was committed in substantially the same terms to a supreme court composed of a chief justice and six associate justices. That is to say, certain cases were enumerated in -which it was declared the supreme court should have appellate jurisdiction. This was all the framers of the constitution thought it necessary to say. They did not pretend to define appellate jurisdiction, nor did they undertake to prescribe in detail wdiat orders and judgments the court, in the exercise of its jurisdiction, might make. They assumed, what was undoubtedly true, that the term “jurisdiction” had a well-defined and well-understood meaning. If this had not been so, the [465]constitution would have been without meaning, and if, in the absence of any definite provision in the constitution, it had rested with the legislature to prescribe the powers and duties of the courts, as well as their mode of procedure, the judicial department, instead of being co-ordinate and independent, -would have been entirely subject to the will of the legislature. No one, of course, contends at this day for such a proposition, and the only possible controversy is as to the extent of the power implied ex vi termini by the phrase “ appellate jurisdiction.” That this embraces the right to review the final judgments of the courts of original jurisdiction, — the right, in other words, to reverse, affirm, or modify them, and to enforce by some appropriate mandatory process the judgment of the appellate tribunal,— will scarcely be denied. And yét the legislature has assumed to confer upon this court by statute these identical powers. (Code Civ. Proc., sec. 53.) This is only one of many instances in which provisions have been incorporated into the statutes, which, either in express terms or by necessary implication, are contained in the con-stitution itself, and we cite it because it is referred to by counsel in support and illustration of their argument that powers conferred upon this court by the legislature may be by the legislature regulated, limited, and restricted. It may be conceded that, in so far as the legislature can confer upon the courts created by the constitution powers that they do not possess independent of legislation, such powers may be limited and restricted to any extent, but the fact that the legislature has assumed to confer a power upon a court does not prove that the power rests upon legislative authority. This will be more clearly apparent if we suppose a statute to have been passed, which, instead of authorizing this court to affirm, reverse, or modify the judgments of the superior courts, had declared that we shovM not reverse or modify such judgments unless five justices concurred
We need not, therefore, have been embarrassed by the fact, if it had been a fact, as counsel contend, that the legislature has undertaken to give this court the power to grant reliearings in causes that have been decided in Bank. But in truth the legislature has not assumed to confer the power. On the contrary, the statute relied on (Code Civ. Proc., sec. 45), above quoted, assumes the existence of the power, and merely attempts to restrict the court in the mode of exercising it. On this point the court and the legislature are at one; they agree that, under the constitution, and independent of statute, the power exists.
If so, what is its origin? Necessarily the constitution; and as it is not expressly mentioned in the constitution, it must owe its existence to the principle that it is one of the inherent powers of every appellate court to revise, to modify, and to correct its judgments, so long as they are under its control.
There is abundant authority for this proposition. The practice of the supreme courts of many of our sister states and of the supreme court of the United States is in accord with it, and rests upon no other foundation. But I need only refer to the decisions of the supreme court of this state under former constitutions; for it is in the light of these decisions that the new constitution must be read.
In the case of Grogan v. Ruckle, decided in 1850, and reported in 1 Cal. 183, the judgment of the district court had been reversed, and before issuance of a remittitur a rehearing ordered. Afterwards, and notwithstanding [467]the order for a rehearing, a remittitur was improperly issued and sent to the district court. On the rehearing, counsel for appellant challenged the power of the court to grant a rehearing after judgment. In delivering the opinion of the court, Judge Burnett said: “On the reargument of this cause, the objection was taken by appellant that this court cannot, after its judgment has been pronounced, direct a rehearing.
“Section 280 of the Practice Act provides ‘that after an appeal shall have been heard and determined, the judgment or order of the supreme court therein, and all things concerning the same, shall be remitted to the district court of the proper county, and thereupon such further proceedings shall be had in that court as may be necessary to carry such judgment or order into effect.’
“Section 18 of the act organizing this court is to the same effect. It declares that ‘the supreme court may reverse, affirm, or modify the judgment or order appealed from, and its judgment shall be remitted as soon as practicable, after judgment pronounced, to the court below, to be enforced according to law.’
“We are of opinion that this court loses jurisdiction of the cause when the remittitur has been sent to and filed in the court below; but that our control over the cause does not cease until that has been done; and so are the decisions of courts, the jurisdiction and powers of which are analogous to those of this court. (Burkle v. Luce, 1 N. Y. 240; Martin v. Nelson, 1 N. Y. 241; Delaplaine v. Bergen, 7 Hill, 591.)
“In this cause, the remittitur, it appears, was filed with the clerk of the district court ‘ on or before ’ the twenty-fifth day of December last; but the order for a rehearing was made and entered on the eighteenth day of the same month, when the court had jurisdiction of the cause and the power to make the order. The remittitur was improperly sent to the district court after the entry of the [468]order granting a rehearing, and such act ought not to be permitted to supersede the order.”
This decision was made under the constitution of 1849, which contained not one word on the subject of rehearings, and under statutes which provided, in substance, that when an appeal had been heard and determined the judgment or order of the supreme court should be remitted as soon as practicable to the court below. The only principle upon which it could be sustained was that above stated, viz., that the power to grant rehearings is inherent,—is an essential ingredient of jurisdiction, and ends only with the loss of jurisdiction. And this principle so established in the jurisprudence of California was followed down to the adoption of the present constitution without deviation, not only in the numberless instances in which it -was acted upon without express reference to its origin, but also in several cases in which it was more or less fully discussed. In all of the cases the doctrine consistently maintained is this: that from the time an appeal has been perfected until a remittitur has been regularly issued and transmitted to the lower court, the jurisdiction of the case is in this court, and that we have the power to make any proper order concerning it, including an order for a rehearing. As the law did not fix a precise time after judgment for the issuance of the remittitur, the court at first made a standing rule that no remittitur should issue short of ten days after judgment, except by consent, and this, for the purpose of affording to the losing party an opportunity of moving for a rehearing, or for an amendment or modification of the judgment. (Blanc v. Bowman, 22 Cal. 26.)
After the reorganization of the court under the amended constitution of 1863, which, like the old constitution, was silent on the subject of rehearings,—substantially the same statutory provisions remaining in force,— the time for filing petitions for rehearing was extended by rule of court, and it was likewise provided [469]that no remittikir should issue until the time for petitioning had expired, and that the filing of the petition .should operate a stay of proceedings until the determination of the motion. (Rules of supreme court as amended January 3, 1866, printed as an appendix to volume 28 California Reports, pages 708, 709. See also Mateer v. Brown, 1 Cal. 231; Leese v. Clark, 20 Cal. 387; Rowland v. Kreyenhagen, 24 Cal. 52.)
This being the uniform course of practice and decision in the highest court of the state for thirty years preceding the formation of the present constitution, it may safely be assumed that if the framers of that instrument had intended to deny or qualify the long-asserted doctrine .of the inherent power of the supreme court to order rehearings after judgment, they would have incorporated in the constitution some express provision clearly evincive of such intention. The force—the conclusiveness — of this argument has not been overlooked by counsel for the respondent, who meet it with the assertion that the new constitution has prohibited rehearings of causes decided in Bank, not, they concede, in express terms, but, as they claim, by necessary implication. In support of this proposition, they cite the •provisions of section 2, article 6, in regard to rehearings after decision in Department, and they say this express provision that a cause decided in Department may be reheard in Bank is an implicit prohibition of any other rehearing.
The trouble with this argument is, that it proves too much. If the constitution has in any manner prohibited all rehearings, except in cases decided in Department, the legislature cannot authorize them; the legislature cannot confer a power inhibited by the constitution. We have seen, however, that, not only has this court constantly assumed the right 'to grant rehearings after decision in Bank, but the legislature itself has recognized the existence of the power in the very statute by which [470]it has sought to limit and regulate it. And not only is this contention of counsel opposed to all authority, legislative and judicial, but it is wholly unsupported by any inference deducible from the section of the constitution upon which they rely. The framers of the constitution in authorizing the supreme court to sit in two Departments made it absolutely necessary that the relations of the Departments to the court, and the extent of their dependence upon it, should be exactly defined. Without express provision as to the effect and conclusiveness of Department decisions we should have had two independent supreme courts, following possibly two conflicting lines of decision. To prevent this inconvenience in the only way it could be prevented, Department decisions were made conclusive only upon condition that a rehearing in Bank should not be ordered. This regulation of a matter imperatively demanding regulation in view of the powers conferred upon the Departments by no means implies an intention to deprive the court in Bank of a power well understood to be inherent in it, and essential to a pro'per discharge of its functions.
But, conceding the power of the court to order rehearings after, judgment in Bank, counsel contend that the legislature has the undoubted right to regulate the exercise of such power, and that section 45 of the Code of Civil Procedure does nothing more. - We concede, to quote the language of Chief Justice Wallace (Ex parte Harker, 49 Cal. 467), that "the mere procedure by which jurisdiction is to be exercised may be prescribed by the legislature, unless, indeed, such regulations should be found to substantially impair the constitutional powers of the courts, or practically defeat their exercise." We concede the pow'er to regulate, but not the power to take away or defeat, the exercise of jurisdiction. And this, in our opinion, the legislature has, by the section referred to, attempted to accomplish.
The law, by its very terms, assumes the existence under [471]the constitution of the power to grant rehearings after judgment in Bank, and then proceeds to prohibit its exercise in one class of cases, and in another to require for its exercise the concurrence of more than a constitutional majority of the court.
That this is an attempt to impair the constitutional power of the court seems to admit of no doubt. The legislature may have the right to prescribe the time for the issuance of remittiturs upon the judgments of this court, and if so, it could, by making provision on that subject, limit our power — as to time—to grant rehearings. But for forty years the time of issuing the remittitur has been left to the court to regulate; and rules have been made fixing the period after judgment during which the remittitur should be retained. During such period it has been held without question that the jurisdiction of this court to make any proper order in the case was preserved. " It would be very remarkable if it should now be discovered that this court has for forty years been acting upon an erroneous view as to the proceeding by which its jurisdiction over a cause is terminated.
There is, moreover, no consideration of justice or expediency calling for a change of view in regard to this matter.
Our rule and practice create no uncertainty or confusion as to when our judgments become final and conclusive. By a standing order all remittiturs are directed to issue thirty days after judgment, and we have never heard that this has been found unreasonable delay. The losing party avails himself of the opportunity afforded by the rule to petition for a rehearing. If we are satisfied, from the petition, that, owing to any mistake of law or misunderstanding of facts, our decision has done an injustice in the particular case, or if the principle involved is important, and the decision will make a precedent establishing a rule of property or of right, and it is seriously doubted whether we have correctly decided, [472]we grant a rehearing. The effect of this is, no doubt, to cause some inconvenience and delay to the parties interested, but this inconvenience is less to be dreaded than the greater inconvenience of making a bad precedent, or the injustice of allowing a decision to stand which we believe to be wrong. However, the question for decision here is not the expedience of the system, but the source of the power and the extent of the right to grant rehearings. As to that, we have sufficiently stated the grounds upon which we hold: —
1. The perfecting of an appeal gives us jurisdiction .of a cause, and that jurisdiction lasts until a remittitur is regularly issued;
2. While the cause remains subject to our jurisdiction we have the power derived from the constitution to grant a rehearing after judgment, just as we have the power independent of legislative enactment to reverse, affirm, or modify the judgment of the inferior court and to enforce our own judgments;
3. By the constitution, a majority consisting of four justices may decide any matter within our jurisdiction; and an act of the legislature requiring more than four justices to concur in a decision is unconstitutional.
These propositions are decisive of this motion, and they are sustained by many decisions of this court, and by its uniform course of practice since the organization of the state government. In one single case (Hegard v. Cal. Insurance Co., 72 Cal. 535), in an opinion by the court, after deciding that the record presented no ground for granting a rehearing, it is held that the right to petition for a rehearing will not be recognized in cases decided in Department and afterward in Bank. Preliminary to this conclusion some reference is made to the silence of the constitution on the subject of rehearings, and to the terms of section 45 of the Code of Civil Procedure. But this was only for the purpose of showing that the petitioner had no absolute right to be [473]heard, a decision as to the power of the court to grant the rehearing being expressly reserved. This is the only evidence I have been able to discover in the reported decisions of the court that any member of it ever doubted its inherent power to grant rehearings. Since I became chief justice I have found that one or two of my associates entertained doubts as to the power of four justices to grant a rehearing after decision in Bank, and for that reason no such order has been made without the concurrence of five justices, but this has happened simply because in all cases in which four justices have strongly favored a rehearing another justice has added his vote for the purpose of giving the order unquestioned validity, after which it has been entered as an order of the court.
In this case the order was made with the concurrence of five justices, viz., justices McFarland, Thornton, Sharpstein, Fox, and myself, and it was an order eminently proper to be made. The case was of great importance, not only in the - magnitude of the interests directly involved, but still more so as a precedent. It was originally argued before only six justices of the court, and submitted along with more than a hundred other cases, many of them of great importance, all requiring to be decided within a period of ninety' days. The record of this ease covers 444 printed pages, almost the whole of which consists of the condensed report of conflicting testimony, upon the effect of which the correctness of the judgment depended. Besides the time required for the consideration of the conflict of the evidence, important questions of law were involved. The printed argument of counsel upon these questions of law and fact covered 439 pages, in which were cited numerous decisions of other courts. Such being the case, and considering the multiplicity of other demands upon our attention, the time allowed for its consideration was far from abundant. After such consideration [474]as we were able to give the case, a majority of the court concurred in the decision that was made, the other members dissenting. Under such circumstances, no reasonable man can doubt the propriety of subjecting it to further examination and deliberation, and the fact that, after reargumeut,our former judgment was reversed, so far from proving that the order was improperly made, is a complete vindication of its propriety. If we are never to change our opinions after reargument, it would be. difficult to suggest a reason for granting a rehearing.
Motion denied.
McFarland, J., Fox, J., Thornton, J., and Sharp-stein, J., concurred.