Appeal—Judgment Reversed Without Further Direction—Effect— New Trial—Bower of Lower Court to Grant.—On the reversal of a judgment by an appellate court without further direction, the parties are placed in the same position as if the ease had never been tried, and the court below acts within its powers in directing that a new trial shall be had.

Foreign Judgment — Collateral Attack — Service of Summons by Bublication—Evidence—Affidavit 'and Order for Bublication. A foreign judgment or the judgment of a sister state may be attacked collaterally and impeached by evidence not incorporated in the technical “judgment-roll,” and, therefore, although under the laws of Oregon the affidavit and order for publication of summons form no part of the judgment-roll of a judgment on a service procured by publication in that state, such affidavit and order may be introduced as evidence in this state to impeach the judgment and must be considered.

Id.—Affidavit foe Publication of 'Summons — Dub Diligence.— Where an Oregon statute authorized the publication of summons “when the defendant cannot, after due diligence, be found within the state, and when that appears to the satisfaction of the court or the judge thereof,” an affidavit of the plaintiff that he has made diligent search and inquiry, “and knows that said defendant is not within the state of Oregon,” is competent evidence in a California court to prove the fact that the defendant could not be found within the state, it being a positive statement that the plaintiff knew that the defendant was not at that time within the state.

Id.—Foreign Law—Presumption.—It being adjudicated law in California that where there is not an entire absence of evidence in an affidavit on behalf of a plaintiff to sustain an order for publication of a summons it cannot be regarded as void, and it not being shown that the law of Oregon, on this point, differs from that of California, it is therefore presumed to have been the same.

Id.—Order for Publication of Summons—Mailing to Present Address of Defendant—Reasonable Diligence to Ascertain Address.—Where the Oregon law required the court ordering publication to direct the mailing of a copy of the summons to the defendant unless it appeared that his residence “is neither known to the party making the application, nor can with reasonable diligence be found by him,” and the affidavit on which an order for publication was obtained did not purport to aver that the residence of the defendant could not, by reasonable diligence, have been found by the plaintiff, nor that he used reasonable or any diligence to ascertain it, and the order contained no directions for mailing, such order for publication, if there were no other foundation for it, would be invalid under the Oregon statute.

Id.—Recitals of Due Service of Process.—Recitals in a decree of due sendee of process are conclusive of the fact unless the recital is contradicted by other parts of the record, or by proof independent of the record, where such proof is admissible.

Id.—Recitals in Decree — Reference to Affidavits — Presumption That There was More Than One Affidavit.—Where an Oregon judgment recited that service of summons was made by publication of the summons, the same having been ordered “upon due and proper affidavits,” and the transcript certified by the clerk of the Oregon court and introduced in evidence in a California court contained only one affidavit which was insufficient to support the order made, it would be presumed on a collateral attack, from, the use of the word “affidavits,” in the plural, that there was another affidavit which was sufficient to support the order, and that, for some reason, the clerk failed to incorporate it in the transcript.

Id.—Publication of Summons—Date of Order fob Publication.— The Oregon law not requiring that a summons should be dated, but requiring that a published summons shall contain, besides other requirements, “the date of the order for service by publication,” a date, which was in fact the correct date of such order, but which appeared only at the foot of the summons in the words “Dated September 11, 1893,” following the signatures of the plaintiff’s attorneys, was presumed to be intended as the date of the publication order which was referred to in the summons.

Estates of Deceased Persons—Will—Revocation by Marriage — Validity of Divorce from Former Husband.—Record of a divorce judgment rendered by an Oregon court examined, and the judgment held to be valid, so that a second marriage of the divorced wife in California was also valid and effective, under section 1300 of the Civil Code, as a revocation of a will made by her previously to the ' second marriage.