instanti, deprive her of her power to act, but is merely ground for a proceeding for her suspension and removal. (Schroeder v. Superior Court, 70 Cal. 343; McMillan v. Hayward, 94 Cal. 357.) The same principles apply in the case of an administratrix as an executrix, and there was, therefore, no error in this ruling of the court.

As the case is to be remanded for a new trial, we do not deem it proper to indicate any opinion concerning the weight of evidence upon the issues of negligence or contributory negligence.

The judgment and order are reversed.

MCFARLAND, J., concurred.

FITZGERALD, J., concurred in the judgment.

GAROUTTE, J., concurring.-It is claimed that the accident occurred by reason of the negligence of the engineer, a servant of the defendants and a fellow-servant with the deceased. To support plaintiff's case under this state of facts it was not only necessary to prove that the engineer was intoxicated at the time of the accident, but that defendants were guilty of negligence in employing him. It was proven that his general reputation for sobriety was bad, and it may be conceded for the purposes of this case, at least, that defendants were lacking in the exercise of due and proper care in hiring such a man. But there is no evidence in the record that he was intoxicated at the time. of the accident, and nothing therein from which we are justified in drawing an inference to that effect. I concur in the judgment.

DE HAVEN, J., concurred in the opinion of Mr. Justice Garoutte.

Rehearing denied.

[No. 15168. Department Two.-June 27, 1894.]

GEORGE GREENZWEIG, RESPONDENT, v. MARIE A. STRELINGER, APPELLANT.

ACTION UPON JUDGMENT RENDERED IN ANOTHER STATE-COLLATERAL IMPEACHMENT-WANT OF JURISDICTION.-In an ction upon a judgment rendered in another state. It is competent collaterally to impeach the judgment by extrinsic evidence, showing want of jurisdiction in the court pronouncing the judgment, notwithstanding a recital in the record of the judgment oʻ the existence of juris.ctional facts. ID.-SERVICE OF SUMMONS.-In an action upon such judgment, it may be proven that no summons was served upon the defendant in the action in which the judgment sued upon was rendered.

APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. The facts are stated in the opinion of the court.

H. H. Lowenthal, for Appellant.

The judgment being a foreign judgment could be collaterally attacked, and it was error to exclude evidence tending to show the want of proper service of summons. (Thompson v. Whitman, 18 Wall. 469.)

William Rigby, for Respondent.

The judgment could not be collaterally attacked. (Marsters v. Lash, 61 Cal. 622; Hill v. City Cab etc. Co., 79 Cal. 188; Hickman v. Alpaugh, 21 Cal. 225; Crim v. Kessing, 89 Cal. 478; 23 Am. St. Rep. 491; Sichler v. Look, 93 Cal. 600; Sacramento Sav. Bank v. Spencer, 53 Cal. 737, 740; Hodgdon v. Southern Pac. R. R. Co., 75 Cal. 648; Harnish v. Bramer,71 Cal. 155; Ex parte Sternes, 77 Cal. 156; 11 Am. St. Rep. 251; Lyons v. Roach, 84 Cal. 27; Provident Savings etc. Soc. v. Ford, 114 U. S. 635.)

DE HAVEN, J.-This is an action to recover money alleged to be due upon a judgment recovered against

defendant in one of the courts of general jurisdiction of the state of Illinois. The complaint is unverified, and the answer contains a general denial.

The plaintiff obtained judgment in the superior court, from which and an order denying her motion for a new trial defendant appeals.

The record shows that the defendant was sworn as 8 witness in her own behalf upon the trial, and was asked whether any summons was served upon her in the action in which the judgment sued upon was rendered. The court sustained an objection to this question upon the ground" that the judgment on which this suit was brought could not be attacked collaterally; that it could only be attacked in a supplemental proceeding in the suit itself in the court in which it was rendered, or by suit in equity directly aimed to set aside the judgment; that all evidence of defendant tending to show the want of service of such process or summons, or to contradict the return of the sheriff of Cook county, Illinois, as to such service, was inadmissible, and should be excluded on that ground." This ruling was erroneous. In the Estate of James, 99 Cal. 374, 37 Am. St. Rep. 60, we said that it was competent to collaterally impeach a judgment rendered in another state by extrinsic evidence showing want of jurisdiction in the court pronouncing the judgment, and this, too, notwithstanding the record of the judgment sought to be impeached might contain a recital of the existence of such jurisdictional facts. See, also, as sustaining this rule the following cases, which were cited in that opinion: Thompson v. Whitman, 18 Wall. 457; Grover etc. Machine Co. v. Radcliffe, 137 U. S. 287; Starbuck v. Murray, 5 Wend. 148; 21 Am. Dec. 172; Eager v. Stover, 59 Mo. 87.

There was no error in sustaining the objection to the other question in relation to the omission of the sheriff to read to the witness the writ of attachment and summons issued in the action resulting in the judgment sued upon.

Judgment and order reversed.

FITZGERALD, J., and MCFARLAND, J., concurred.

Hearing in Bank denied.

[No. 19250. Department Two.-June 27, 1894.]

HENRY L. RYAN ET AL., APPELLANTS, v. BURKILL JACQUES ET AL., RESPONDENTS.

CORPORATIONS-ACTION BY JUDGMENT CREDITOR TO ENFORCE UNPAID SUBSCRIPTIONS OF STOCK-PLEADING-JOINDER OF CAUSES.-An action may be brought by a judgment creditor against several stockholders in a corporation to subject an alleged balance remaini- unpaid to the corporation upon the stock held by the defendant in satisfaction of a judgment recovered by the plaintiff against the corporation; and a complaint averring the several amounts of stock held by each defendant, and of unpaid subscriptions due from each, does not show a misjoinder of parties or causes of action, and is sufficient as against a general demurrer. ID.-UNCERTAINTY-AMBIGUITY-FAILURE TO DEMUR SPECIALLY.-Where the complaint states facts showing the liability of the defendants, the complaint must be sustained, notwithstanding they are imperfectly stated, or not stated with the clearness and precision which good pleading requires, where no special demurrer for uncertainty or ambiguity is Interposed.

ID. CONSTRUCTION OF PLEADING.-In the absence of a special demurrer, if a complaint or any allegation of the complaint is capable of different constructions, that which the plaintiff gives it, or which the court finds necessary to support the action will be given, and the pleading must be construed for the purpose of determining its effect with a view to substantial justice between the parties. 1.-CERTAINTY-PLEADING-FINDINGS.-In the absence of a special demurrer that is pleaded with sufficient certainty, which is capable of being sufficiently ascertained from the complaint, and that which is sufficiently certain in findings will be sufficiently certain in the complaint. ID. FINDINGS-ADMISSIONS OF PLEADING-CONCLUSION-SUPPORT OF JUDGMENT. Where the complaint alleged that the par value of each share was $100, and that only $9.50 had been paid thereon, and neither of these allegations were denied, no finding is required of either fact, and the court is bound to draw the conclusion from the admissions that $90.50 remained unpaid upon each share, and a finding to the contrary will not support a judgment for the defendant.

ID. BONA FIDE PURCHASE O STOCK-PLEADING-DEFENSE.-If the defendarts had purchased the stock, without notice, under such circumstances as to relieve them from liability for the amount unpaid upon the shares,

it is matter of defense to be pleaded and proved by them, and the plaintiff is not bound to anticipate and negative such defense. ID.-ORIGINAL

SUBSCRIPTION-TRANSFER-PRESUMPTION-PLEADING-DE

FENSE EXONERATION FROM LIABILITY.-Where it is alleged that the stock held by each of the defendants was held as original subscribers, it will not be presumed that they sold the stock after paying $9.50 per share, and that the purchasers paid the remainder and then sold the stock back to the defendants; and any facts showing that the defendants were not liable for the remainder of the subscription price must be pleaded to exonerate them from liability.

ID. PLEADING

FINDING-ADMISSION-CONCLUSION OF LAW.-Where the complaint alleges that only $9.50 on each share of $100 had been paid, anu tue answer does not deny it, the aliegation that the defendants are liable for the balance of $90.50 due upon each and every share is of a conclusion of law, and a denial of the defendant's liability for that or any other sum raises no issue, and a finding that the same is not, nor is any sum que, is of a conclusion of law also, and not the finding of a fact, and such finding cannot contradict the admission of the allegation of the complaint that only $9.50 had been paid upon each share.

APPEAL from a judgment of the Superior Court of San Diego County.

The facts are stated in the opinion.

Trippett, Boone & Neale, for Appellants.

J. E. Deakin, James E. Wadham, and Hunsaker, Britt & Goodrich, for Respondents.

HAYNES, C.-This action was brought against several stockholders in the Santa Rosa Land and Improvement Company by appellant Ryan, to subject an alleged balance remaining unpaid to the corporation upon the stock held by the defendants in satisfaction of a judg ment recovered by him against the corporation. Trippett, the other appellant, is also a judgment creditor of the corporation, and came in as an intervener, and sought similar relief.

All the defendants had judgment, and this appeal is upon the judgment-roll from the judgment in favor of four of the defendants, viz: Burkill Jacques, William H. Anderson, J. E. Deakin, and T. C. Stockton. (The appeal as to Anderson was dismissed.)