Appeal from the District Court of the Third Judicial District, County of Santa Clara.

The defendant is an attorney and counsellor at law. This action was commenced against him on the 24th day of December, 1868, to recover damages for the alleged careless, negligent, and unskillful manner in which he had conducted the defense of an action brought by Francis M. Quivey against this plaintiff', on the 4th day of April, 1865. Said action of Quivey v. Gambert was ejectment to recover possession of a lot in the City of San José, Santa Clara County. On the 12th day of July, 1847, John Burton, Alcalde of the then Pueblo, and now City of San José, granted the lotto Joseph S. Ruclcel; and on the 13th day of June, 1850, Ruekel mortgaged it to Peter Quivey, to secure th e payment of six thousand seven hundred and ninety-eight dollars. In the mortgage the lot was, by mistake, described as lot two, block three, whereas its true description was lot two, block two.

The mortgage was afterwards foreclosed, and the lot sold by the Sheriff to Peter Quivey, who, after due time, received a Sheriff’s deed. The mistake in the description ran through all the proceedings in the foreclosure and sale, and was copied into the Sheriff’s deed. The purchaser at the Sheriff’s sale entered into possession. The title of Peter Quivey thus acquired came by mesne conveyances to Morris Wise, who, after the discovery of the mistake, and in June, 1862, commenced an action against Peter Quivey, John Tontz, William War, A. Ingram, and said Buckel, to correct the said mistakes, and to quiet his title. The Sheriff* served the summons on all the defendants, except Ingram and Buckel, and returned that he was unable to find them.

The judgment roll contained this return of the Sheriff*. It also contained an affidavit of the proprietor of the San José Tribune, that the summons had been published three months, and an order of the Judge that such publication be made, but no affidavit to justify said order. Judgment was rendered against the defendants by default, and the plaintiff’s title was quieted, and a Commissioner appointed by the Court to convey whatever title the defendants had to the plaintiff. The Commissioner then executed the conveyance. The title of Wise thus acquired afterwards passed to Gambert, the present plaintiff; and after the Commissioner had made said deed Buckel conveyed the lot to Francis M. Quivey, who, on the 4th day of April, 1865, commenced an action of ejectment against Gambert to recover possession of the lot, relying on his deed from ítuckel, and the grant made to Buckel by the Alcalde. To cut off" Gambert’s title under the action brought to correct the proceedings on the foreclosure, he relied on the fact that the publication of the summons in that action gave the Court no jurisdiction over the persons of Buckel or Ingram. The judgment in said last named action recited that the summons had been served on all the defendants. The cases of Forbes v. Hyde and McMinn v. Whelan, the first in the 31 Cal. 344, and the last in the 27 Cal. 312, will throw light on the question of the jurisdiction of the Court before the case of Hahn v. Kelly, mentioned in the opinion. The following is the contract between Gambert and the defendant in relation to the ejectment suit:

“ The understanding and agreement between J. B. Hart and myself as to. the (his) fees in this case is, that I am to pay him five hundred dollars in gold coin, in case the suit is gained after a trial, or trials, before the Supreme Court on its merits, and I retain my property, and nothing if it is lost. As to the disbursements in regard to the first appeal from the order striking out the statements, sixty-five dollars of those disbursements I am to pay, and Hart is to pay the residue; that is, the printing, and Clerk’s costs, and his expenses. The suit is not to be compromised without Hart’s consent; if I do, without Hart’s consent, I am to pay him the five hundred dollars in gold or silver coin.

“ April 9th, 1867.

[Stamp, H. S. Rev.] “F. GAMBERT.”

“The above is a true copy of the original in my possession. J. B. HART.”

On the trial of the ejectment suit, F. M. Quivey recovered judgment and was placed in possession by virtue of a writ of restitution. The defendant prepared a statement on motion for a new trial. The Court below, in deciding this case, filed the following opinion, which is referred to in the opinion of Mr. Justice Crockett:

“ The plaintiff in this action was sued in an action of ejectment commenced by one Quivey to recover possession of a lot of land in San J osé. He employed the defendant as an attorney at law to make his defense to that action. The defense consisted of a claim of title to the lot deraigned through a certain judgment, execution, and Sheriff’s sale and deed. But this judgment, according to the decisions of the Supreme Court in Jordan v, Giblin, People v. Haber, Steinbach v. Leese, Forbes v. Hyde, Braly v. Seaman, Ricketson v. Richardson, and McMinn v. Whelan, was void for want of jurisdiction of the person of the defendant in the action, and the defense to the action against the plaintiff here, resting as it did upon that judgment, was unavailable.

“ Of this, learned counsel other than this defendant advised the plaintiff’ and that it would be best for him to settle the action; but this advice he disregarded, and employed the defendant to make his defense. The defendant made it, and made it honestly and to the best of his knowledge and ability, so tar as appears by the evidence before me. Judgment was rendered in the action against the plaintiff at the May Term, 1866, of this Court, but the defendant continued to conduct proceedings in the action for the purpose of having the judgment vacated and obtaining a new trial. In the course of his proceedings, the Court, by an order, struck out his statement on motion for a new trial, for some informality. From this order he appealed to the Supreme Court, and the Supreme Court dismissed his appeal. This Court then set aside its order striking out his statement, and allowed him to proceed with his" motion for a new trial. That motion was afterwards presented by him, but he presented it'without a certified statement, as required by law, and his motion for a new trial was denied. It was undoubtedly a mistake, if not a blunder, to present the motion for a new trial without a certified statement; but, working under the decisions of the .Supreme Court which I have mentioned, and to which nisi prius Courts owed the duty of obedience, there was no error in rendering judgment against the plaintiff" in that action, and it could not, according to law, have been set aside and a new trial granted. The mistake of the defendant, therefore, in a mere matter of practice, did not damage the plaintiff, in legal contemplation, and it has not been shown that it caused to him any damage in fact. True, the plaintiff has been dispossessed of the property which was involved in the action; but that was not in consequence of the defendant’s mistake on the motion for a new trial, but in consequence of the judgment rendered against the plaintiff according to the law as it had been announced by the highest judicial tribunal. Had the law remained as in the reported cases at the time of the entry of the judgment and order denying the motion for a new trial, there would have been no cause for this action. But afterwards, the Supreme Court, in Hahn v. Kelly, without, in express terms, overruling the cases I have mentioned, changed its opinion of the law announced in them, and in consequence the judgment through which the plaintiff claimed title to the property, and which according to them was void, became valid.

“The change, however, came too late for the plaintiff. He suffered from the preterlapsed law, and could not have his rights readjudicated by that which was announced to take its place. The judgment against him was affirmed at the very term at which Hahn v. Kelly was decided. His case is only another one among which serves to illustrate the uncertainty of the application of law to the rights of persons and property.

“Let judgment be entered for the defendant.

“S. B. McKEE, District Judge.”

On the trial of the ejectment case against Gambert, the Court below refused to admit the judgment roll in Wise v. Quivey ei al. in evidence as against B-uclcel, because the Court had no jurisdiction of his person.

Judgment was rendered for the defendant, and the plaintiff appealed.

The other facts are stated in the opinion.