mand that the real property of said firm should be first sold and the proceeds applied to the payment of the said alleged indebtedness of the deceased to said firm, and that after such application the said surviving partner should recover from said executors and executrix sufficient moneys to repay any unsatisfied balance of said indebtedness.

The defendant, Theodore P. Painter-executor and surviving partner-filed a short answer in which he substantially made default; but the other defendants, including the widow and children of the deceased, answered and denied all the material averments of the complaint. They specially deny that deceased at the time of his death owed said firm any borrowed money, or that he was indebted to said firm for any cause in any sum of money whatever; and they deny that the share of deceased in the personal property and assets of such firm, including large amounts due it upon bills receivable, is not sufficient to pay all partnership obligations.

The court found all the issues of fact in favor of defendants; and found particularly that the deceased was not indebted to said firm for borrowed money, or for any other cause, in any sum of money whatever. Judgment was rendered for defendants, and plaintiff appeals from the judgment.

The transcript includes a bill of exceptions which contains evidence introduced at the trial, and appellant contends that some of the findings are not sustained by the evidence; but he cannot be heard on these points because the appeal was not taken within sixty days after the rendition of the judgment. (Code Civ. Proc., sec. 939.) The cause was tried in 1887, and the findings of fact and conclusions of law were made and filed on December 3, 1887, and judgment ordered for defendants; although the judgment was not entered until October 18, 1894. The notice of appeal was not given until after the entry of the judgment, to wit, on November 19, 1894, which was nearly seven years after the filing of

the findings. The "rendition of the judgment," within the meaning of section 939, as has been frequently held by this court, took place when findings were filed and judgment ordered for defendants. (Schurtz v. Romer, 81 Cal. 244, and cases there cited; Crim v. Kessing, 89 Cal. 487, 488; 23 Am. St. Rep. 491.) Therefore, as the appeal was not taken within sixty days after the rendition of the judgment, we cannot consider the evidence. Under these circumstances the evidence could have been reviewed here only after a motion for a new trial. This makes it unnecessary to consider respondents' contention that there is no bill of exceptions here, because the proposed bill itself was not prepared and served within the time prescribed by section 650 of the Code of Civil Procedure.

Looking at the judgment-roll alone we see no good reason for reversing the judgment. The plaintiff is the sole appellant, and the findings and judgment are important here only so far as they affect him and his interests. In his complaint he asks, among other things, "that a construction be made by this court of the terms of the said will making the said bequest to the plaintiff and the said Theodore P. Painter." We assume for the purposes of this decision-without closely examining or determining the question-that appellant can, in this action, have the will construed so far as a construction thereof may determine the quantity of his interest as legatee in said partnership property. Now, upon this point the respondents aver that all the property in which the deceased had any ownership at the date of the will and at the time of his death was community property, and that he could not and did not. bequeath or devise any more than his half interest in said community property; and that, therefore, the bequest of the said property to appellant and said Theodore did not carry the interest of the surviving wife, Caroline H. Painter, therein. It is also averred that the respondent, Eugene Painter, who is a son of the

deceased and said Caroline, was born subsequently to the execution of the will (and a certain codicil thereto), and is therefore entitled, as heir, to such share of his father's estate, including the said property bequeathed to appellant, as he would have been entitled if no will had been made. If the appellant can have the will construed in this action for the purpose above stated, then these two last-mentioned averments of respondents are pertinent to that matter; and the court found in favor of both of said averments and decreed accordingly. As to the second of these averments the court was certainly right, for Eugene, having been born after the execution of the will, and not having been provided for or mentioned therein, succeeds to the same portion of his father's estate "that he would have succeeded to if the testator had died intestate." (Civ. Code, sec. 1306.) The words in the codicil, "my sons," refer to his sons then living and who are specially named and enumerated; and they certainly do not include an afterborn child-whether a son or a daughter. Neither do we see how, upon the record before us, the conclusion of the court that the will disposed of only one-half of the community property can be successfully attacked. Here there is no evidence and there are no extrinsic facts to be considered. Of course, as a legal proposition, a husband cannot, as against the wife, dispose of more than one-half of the community property; and the cases where wills undertaking to do more have been upheld have been cases which turned upon the point that the widow was put to her election either to take under the will or to stand upon her rights as surviving wife and repudiate it. No such question arises in the case at bar.

We see no other question in the case which it is necessary to discuss.

The judgment is affirmed.

HENSHAW, J., and TEMPLE, J., concurred.

Hearing in Bank denied.

BEATTY, C. J., dissented from the order denying a hearing in Bank.

[S. F. No. 148. Department Two.-July 20, 1896.] JOSEPH VON ARX, RESPONDENT, v. THE SAN FRANCISCO GRUETLI VEREIN, APPELLANT. MUTUAL AID SOCIETY-PROPERTY RIGHTS OF MEMBERS-JURISDICTION OF COURTS.-The code of this state recognizes voluntary associations organized for mutual aid and benevolence, and courts have jurisdiction to protect the property rights of members of such associations. ID.-EXCLUSION OF MEMBER-BY-LAWS-NOTICE OF PROCEEDING--OPPORTUNITY ΤΟ DEFEND MANDAMUS-REINSTATEMENT. Where member has been excluded from a mutual aid society in accordance with reasonable by-laws, the courts will not ordinarily interfere; but where there are no by-laws applicable to the difficulty, the court will inquire whether or not an expelled member has had a reasonable notice of the proceeding which resulted in his expulsion, and a fair opportunity of presenting his defense in accordance with the general principles of right and justice, and, if not, mandamus will lie to compel the association to reinstate the excluded member.

a

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. J. M. SEAWELL, Judge.

The facts are stated in the opinion of the court.

Shadburne & Herrin, for Appellant.

Defendant has the inherent right to expel a member for nonpayment of dues and assessments, and may provide in its by-laws that such nonpayment within a stipulated time after notice shall, without personal or other notice, ipso facto, work a forfeiture of all the member's rights of membership. (Niblack on Mutual Benevolent Societies, sec. 41; Rood v. Railway etc. Assn., 31 Fed. Rep. 62; McDonald v. Ross-Lewin, 29 Hun, 87.) Courts will not interfere with by-laws. (Dawkins v. Antrobus, L. R. 17 Ch. Div. 615; State v. Milwaukee Chamber etc., 47 Wis. 670; Hussey V. Gallagher, 61 Ga. 86; People v. Board of

Trade, 80 Ill. 134; Society for Visitation of Sick v. Commonwealth, 52 Pa. St. 125; 91 Am. Dec. 139; Barrows V. Massachusetts Med. Soc., 12 Cush. 402; Anacosta Tribe etc. v. Murback, 13 Md. 91; 71 Am. Dec. 625; People v. New York etc. Assn., 18 Abb. Pr. 271.) It was not necessary to serve charges and set a day for trial for the purpose of imposing the fine. (7 Am. & Eng. Ency. of Law, 992; State v. St. Johnsbury, 59 Vt. 332; Yonkers Soc. v. Yonkers, 44 Hun, 338; Board of Supervisors v. Sullivan, 51 Wis. 115; Platteville v. Bell, 43 Wis. 488; Son v. People, 12 Wend. 344; People v. Taylor, 3 Denio, 98; People v. Clark, 1 Park. C. C. 360.) As a general rule courts will not interfere with the proceedings of the association. (High on Injunctions, sec. 230; Walker v. Wainwright, 16 Barb. 486; White v. Brownell, 4 Abb. Pr., N. S., 162; Shannon v. Frost, 3 B. Mon. 253; Gregg v. Massachusetts Med. Soc., 111 Mass. 185; 15 Am. Rep. 24; Watson v. Jones, 13 Wall. 679; Chase v. Cheney, 58 Ill. 509; 11 Am. Rep. 95.)

Clitus Barbour, for Respondent.

As the constitution and by-laws of defendant provide no procedure for imposing fines, expelling members, or for notice, or for specific charges, or for anybody to investigate charges, the law will interfere. (Hiss v. Bartlett, 63 Am. Dec. 776, 777, note; Bacon's Benefit Societies, secs. 101, 107; Hutchinson v. Lawrence, 67 How. Pr. 47; Erd v. Bavarian etc. Relief Assn., 34 N. W. Rep. 555.) Respondent was entitled to notice of the proceedings, and to be heard in defense of himself. (Bacon's Benefit Societies, 101; Otto V. Journeyman Tailors' etc. Union, 75 Cal. 308; 7 Am. St. Rep. 156.)

MCFARLAND, J.-This is an appeal by the Gruetli Verein from a judgment of the superior court in a mandamus proceeding, by which appellant was commanded to restore the respondent, Von Arx, to all the rights, etc., of a member of said appellant; and also from an order denying a new trial. The Gruetli Verein is a so