Darlington

This is an action to determine the respective rights of the parties to certain school land situated in El Dorado county. Plaintiff had judgment from which and from the order denying his motion for a new trial intervener Kohn appeals.

The record presents the following facts: In 1888, defendant Butler filed her application in the state land office to purchase the land; thereafter one Graham filed therein a similar application, and on demand and protest of Graham the surveyor general referred the conflicting claims of Graham and Butler to the superior court for adjudication,- on May 4, 1889, a complaint was filed by Graham in said court in the action entitled Graham v. Butler, and summons issued, but no return was made thereon; on May 7,1903, appellant, intervener Kohn, “presented his application to purchase and protest to the surveyor general, who refused to file the same on the ground that the matter had been proferted to the superior court of El Dorado county, and until judgment was had they (sic) had no jurisdiction to receive the same”; on May 22, 1903, Kohn, by leave of court, filed his complaint in intervention, and an alias summons issued thereon, and on August 19, 1904,…