After a decision by the district court of appeal a rehearing was granted in this case in order that we might further examine the two principal questions, which were as follows: 1. Was the evidence of plaintiff’s actual possession of the property sufficient? and 2. Was the abstract of title offered and accepted in evidence by the trial court properly admissible under the provisions of section 1855a of the Code of Civil Procedure? As we agree with the answer of the district court of appeal to the first question, we adopt a part of its opinion upon that subject, as follows:—

Here follows a catalogue of appellant’s specifications of alleged error, and then the opinion thus proceeds:

The trial court permitted the introduction in evidence of certain abstracts made up and certified long after the fire of April 18, 1906, and based partially upon Edwards’s Abstracts of Records or Breviate. Under section 1855a of the Code of Civil Procedure as it existed at the time of the trial, this ruling was erroneous. (Dahler v. All Persons etc., ante, p. 160, [ 124 Pac. 995 ].) It is suggested, however, that section 1855a of the Code of Civil Procedure having been so amended since the trial that the evidence offered in the case at bar would be now admissible, it would be useless to remand the cause for retrial. We do not doubt that the section in its present form would justify the rulings admitting the abstracts if the case were tried now, because. section 1855a at present provides that: “When, in any action, it is desired to prove the contents of any public record or document lost or destroyed by conflagration or other public calamity and after proof of such loss or destruction, there is offered in proof of such contents . . . any abstract of title, or of any instrument affecting title,'made, issued and certified as correct by any person, firm or corporation engaged in the business of insuring titles or issuing abstracts of titles, to real estate, whether the same was made, issued or certified before or after such loss or destruction and whether the same was made from the original records- or from abstracts and notes, or either, taken from such records in the preparation and upkeeping of its, or his, plant in the ordinary course of its business, the same may, without further proof, be admitted in evidence for the purpose aforesaid.” (Stats. 1911, Ex. Sess., p. 64.) But conceding that now the policy of the law is to admit abstracts in evidence in the court below, .does that .justify .the court in affirming a judgment-supported by evidence erroneously admitted at the-time of.the-trial? Section 1855a does not in terms, at least, assume any retroactive effect, and while it marks a change in legislative policy, it contains no express authority for this court to apply that amended policy to pending appeals. Appellant, relying upon the plain terms of the section as it existed at the time of the trial, may have omitted to put in all of the proofs of its asserted title. For aught we know, it may be in possession of other evidence which would have been introduced if the cause had been tried upon the rule which now prevails. A great injustice might be wrought if appellant were denied the opportunity of offering such proofs. When a remedy is sought which is not authorized by law, a subsequent statute giving such remedy dies not operate on the existing suit. (Wetzler v. Kelly & Co., 83 Ala. 443 , [ 3 South. 747 ].) Retro-action is never allowed to a statute unless required by express legislative mandate or unavoidable implication. (Smith v. Lyon, 44 Conn. 178 .) In Ex parte Sparks, 120 Cal. 400 , [ 52 Pac. 717 ], this language appears: “In regard to acts concerning procedure, the question as to their retrospective operation in general has reference to pending cases. No case is cited in which it has been held that such law, in the absence of a declared intent, has rendered valid a proceeding entirely closed before the enactment of the law.”. We find no authority which would justify us in sustaining the judgment because of the change in the statute after the commission of error in admitting the abstracts of title without warrant in the law then in force.

As the case must be again tried, it is unnecessary to discuss in detail the remaining points raised in the court below. One of these relates to the payment for years by defendant and its predecessors of the taxes upon a strip of land adjacent to its building and claimed by plaintiff. If the new trial shall reveal the fact to be (as the district court of appeal found upon the record before it, composed partly of the incompetent evidence) that plaintiff holds the fee to this strip of land and has occupied it by a portion of her building for many years, and that payment of taxes on it was based not upon any claim of title by Owens & Unger, but upon a mistaken assessment, then such payment would not defeat Mrs. Vanderbilt’s right to have her title to this strip of land quieted.

At the trial objection, was made by appellant that plaintiff had failed to give notice, as provided in section 1855a of the Code of Civil Procedure, of the intention to use certain abstracts at the trial. We need not pass upon the bearing which the failure to give such notice might have upon the rulings of the trial court, as this question may be so easily eliminated from the new trial by compliance on respondent’s part with all of the requirements of that section of the code.

The judgment and order are reversed.

Lorigan, J., Sloss, J., Shaw, J., Angellotti, J., and Henshaw, 3"., concurred.

Rehearing denied.