Wilcox

The defendant made his promissory note to the plaintiff for the sum of two thousand dollars, and in an action brought against him thereon in the superior court for San Francisco suffered default, and judgment was rendered against him and in favor of the plaintiff for the full amount of the note. Thereafter upon his motion, based upon his affidavit that at and prior to the commencement of the action and ever since he had been consul general of the republic of Chili, residing in San *641 Francisco and engaged in performing tbe functions'of bis office, tbe court vacated and set aside tbis judgment and ordered tbe action dismissed upon tbe ground tbat by reason of bis position as consul be was not subject to tbe jurisdiction of the courts of tbis state. From this order tbe plaintiff has appealed.

Tbe correctness of tbe order appealed from is to be deteimined upon the construction to be given to tbe constitution of tbe United States and the legislation of Congress thereunder, and not upon any consideration of tbe rules of international law. The immunity of ambassadors and public ministers from suits in tbe courts of tbe country to which they are sent is not extended by any principles…

dissenting. I dissent. My views of the ease were expressed in my opinion delivered when the case was in Department.

The following is the opinion of Department Two, rendered on July 16, 1896, referred to and adopted by Mr. Justice McFarland:

McFARLAND, J. — The only question presented in this case is, whether the superior court had jurisdiction in a civil ease over the person of the defendant, who is the consul general of Chili for the United States, resident at San Francisco, California. The court below held that it had no jurisdiction, and the plaintiff appeals from the judgment.

The question was determined adversely to the contention of appellant by this court in the case of Miller v. Van Loben Sels, 66 Cal. 341 . Appellant contends that said case should not be considered as conclusive authority upon the question, because at the time it was decided the ninth section of the judiciary act of 1789 expressly provided that the jurisdiction of the United States over consuls was exclusive; and that since then, on February 18, 1875, the Congress of the United States, by an act entitled “An act to correct errors, etc., in the Revised Statutes," repealed the said section of the said…