the terms of which section of the code a writ of possession may follow a judgment in the plaintiff's favor.

[2] The appellant's next contention is that the judgment pleaded in his answer as having been rendered in his favor in an action for unlawful detainer and which was not appealed from constituted a sufficient plea in bar to the present action. It has been consistently held by this court that in such an action the sole question in issue is the right of present possession and that the question of title cannot be litigated therein. (Felton v. Millard, 81 Cal. 540 [21 Pac. 533, 22 Pac. 750]; Knowles v. Murphy, 107 Cal. 107 [40 Pac. 111]), and hence that the judgment-roll in an action of unlawful detainer is not admissible under a plea in bar in an action involving the title to the premises in dispute. (Fish v. Benson, 71 Cal. 428 [12 Pac. 454].) [3] Furthermore, the record in this case discloses that the question of the conflicting rights of the parties to this action to obtain title to the same from the United States government under the Desert Land Act was fully presented to the Department of the Interior in the method provided by said act for determining the rights of conflicting claimants under said act and was therein finally determined in the plaintiff's favor. Such holding is final and conclusive as to the issues involved in such hearing. (Green v. Hayes, 70 Cal. 281 [11 Pac. 716]; Shankland v. McNamara, 87 Cal. 378 [26 Pac. 345]; Grant v. Oliver, 91 Cal. 158 [27 Pac. 569]; Warmouth v. Gardner, 125 Cal. 316 [58 Pac. 20]; Gage v. Gunther, 136 Cal. 338 [89 Am. St. Rep. 141, 68 Pac. 710].) The defendants herein by their answer attempt to put in issue the same matters which were decided adversely to them by the Department of the Interior. This, under the foregoing authorities, they cannot be permitted to do. [4] In their counterclaim the defendants alleged that while in possession of said land they had made certain improvements thereon in the way of preparing the land for irrigation and of erecting certain buildings thereon, but in respect to these the trial court found that such improvements and expenditures were voluntary in character and were made while the defendants were mere trespassers upon the premises and hence that they were not entitled to reimbursement from the plaintiff for the same. [5] We perceive no error in this ruling; nor do we think that the trial court, after find

ing that the defendants were mere trespassers upon the land in question and finding otherwise in the plaintiff's favor, was in error in granting to the successful plaintiff the incidental remedy of a writ of possession, permitted by the express terms of section 380 of the Civil Code.

Judgment affirmed.

Lennon, J., Shurtleff, J., Sloane, J., Wilbur, J., Lawlor, J., and Shaw, C. J., concurred.

[S. F. No. 10164. In Bank.-June 6, 1922.]

CONSOLIDATED ADJUSTMENT COMPANY OF CALIFORNIA (a Corporation), Petitioner, v. SUPERIOR COURT OF THE COUNTY OF SONOMA et al., Respondents.

[1] JURISDICTION SUPERIOR COURT-AMOUNT INVOLVED DETERMINATION OF PRAYER.-The fact that the prayer of a complaint is for the recovery of more than three hundred dollars does not conclusively determine that the action is for the recovery of that amount and that the superior court has jurisdiction thereof. In order that the superior court may have jurisdiction, under the constitution, the demand in the action must amount to three hundred dollars.

[2] CONTRACTS - ALTERNATIVE OBLIGATIONS - SECTIONS 1448, 1449, CIVIL CODE-SELECTION-TIME.-In order that an agreement may come within the provisions of either section 1448 or 1449 of the Civil Code, providing for the selection of alternative obligations, there must be a time when, under the terms of the obligation, the party having the option will be able to do either one or the other of the acts, as he may desire, and so may choose between the alternatives.

[3] ID.-CONSTRUCTION OF CONTRACT SINGLE OBLIGATION - JURISDICTION. Where plaintiffs and defendant entered into a contract, whereby, in consideration of the payment by plaintiffs to defendant of $148.23, and the agreement to pay commissions on collections thereafter made by defendant of claims due to the plaintiffs, the defendant agreed to act in behalf of plaintiffs for the period of three years in the prosecution and adjustment of claims, and defendant guaranteed that it would recover in cash, or secured net settlement, from the claims at least $518.80, or re

fund the full initial fee paid at the termination of the contract, nothing having been collected on the claims, defendant had but one obligation after the termination of the contract, to wit, to repay the initial fee, and an action therefor is not within the jurisdiction of the superior court.

[4] PROHIBITION-WHEN LIES-QUESTION OF FACT.-Prohibition lies against any inferior tribunal only where there is not a plain, speedy, and adequate remedy in the ordinary course of law. The question whether or not there is a plain, speedy, and adequate remedy is a question of fact depending upon the circumstances of the particular case.

[5] ID.-APPEAL WHEN NOT PLAIN, SPEEDY, AND ADEQUATE REMEDY. Where it appears that the office and principal place of business of the defendant is in a place alleged to be more than fifty miles from the place where the trial of an action is to be had by the superior court and it is alleged that defendant will be put to the cost of transporting its witnesses to that county, and it is obvious that an appeal to the district court of appeal in such case will involve considerable expense, since the transcript must be prepared and filed and all expense thereof must be paid and that there will be considerable delay and expense in attending the district court, an appeal is not a plain, speedy, and adequate remedy under the circumstances, in an action in which the superior court has not jurisdiction, and a writ of prohibition should be issued to restrain the superior court from proceeding to try the action.

APPLICATION for a Writ of Prohibition to restrain the Superior Court from proceeding to try an action. Writ granted.

The facts are stated in the opinion of the court.

P. R. Lund and Russell W. Cantrell for Petitioner.

Emmett I. Donohue for Respondent.

SHAW, C. J.-This is a proceeding in prohibition to prevent the superior court of the county of Sonoma from assuming jurisdiction and proceeding with the trial of an action therein, entitled William Evart et al., Plaintiffs, versus Consolidated Adjustment Company of California, Defendant.

The petition is based upon the proposition that the complaint in the action shows that the cause of action set forth therein is for the recovery of money to the amount of $148.23 and no more, and that the superior court has no jurisdic

tion of a cause of action to recover less than $300. The question for determination is whether or not said complaint sets forth a cause of action for the recovery of $300, or

more.

The complaint alleges that in April, 1918, plaintiffs and defendant entered into a contract, whereby, in consideration of the payment by plaintiffs to defendant of $148.23, and the agreement to pay commissions on collections thereafter made by defendant of claims due to the plaintiffs, the defendant agreed to act in behalf of plaintiffs for the period of three years in the prosecution and adjustment of claims aggregating $3,650.37. The agreement then proceeded as follows:

"The Consolidated Adjustment Company of California guarantees that it will recover in cash, or secured net settlement, from the claims of said client at least $518.80, or to refund the full initial fee paid at the termination of this contract."

It also contained a reservation by the defendant of the right to rescind the contract within twelve months, which is immaterial here. The complaint then proceeds to allege that thereupon the plaintiffs delivered to defendant for prosecution and adjustment the claims referred to in said contract and paid the defendant said initial fee of $148.23; that said agreement had terminated on April 29, 1921; that defendant has not recovered $518.80 on said claims, or any other sum whatever, and has not refunded to plaintiffs, or either of them, the initial fee aforesaid at the termination of the contract or at all. Thereupon the complaint prayed for $518.80.

[1] The fact that the prayer of a complaint is for the recovery of more than $300 does not conclusively determine the proposition that the action is for the recovery of that amount and that the superior court has jurisdiction thereof. In order that the superior court may have jurisdiction, under the constitution, the demand in the action must amount to $300. In Lehnhardt v. Jennings, 119 Cal. 198 [48 Pac. 56, 51 Pac. 195], the court had under consideration the question whether the prayer of the complaint, or the facts stated therein, constituted the determining factor in ascertaining whether the demand in suit amounted to $300, and it determined that the amount demanded was not conclusive, but that the allegations of fact were determinative of the ques

tion, and that where the complaint showed that less than $300 was really in controversy there was no jurisdiction in the superior court. In California etc. Assn. v. Ainsworth, 134 Cal. 462 [66 Pac. 586], the complaint prayed judgment for $700. Upon considering the facts alleged the court determined that the utmost the plaintiff was entitled to under the facts alleged was $14. Thereupon it held that the action was not within the jurisdiction of the superior court. The point for consideration, therefore, is whether or not, under the facts stated in the complaint, a recovery by the plaintiff of $300 or more can be had.

The plaintiffs claim that the case comes within the terms of sections 1448 and 1449 of the Civil Code. They read as follows:

"1448. If an obligation requires the performance of one of two acts, in the alternative, the party required to perform has the right of selection, unless it is otherwise provided by the terms of the obligation.

"1449. If the party having the right of selection between alternative acts does not give notice of his selection to the other party within the time, if any, fixed by the obligation for that purpose, or, if none is so fixed, before the time at which the obligation ought to be performed, the right of selection passes to the other party."

[2] We do not think the agreement in question comes within the provisions of either of these sections. In order to do so there must be a time when, under the terms of the obligation, the party having the option will be able to do either one or the other of the acts, as he may desire, and so may choose between the alternatives. Such is not the case here. [3] The contract extended for three years. During that period it was the duty of the defendant to perform its obligation to prosecute and adjust the claims due to the plaintiffs. Up to that time there was neither obligation nor opportunity to refund the initial fee. After that time there was neither obligation nor opportunity to continue the prosecution and adjustment of the claims. At the termination of the contract the defendant, even if it had desired to do so, could not have proceeded to prosecute and adjust the claims. Its duties in that regard were ended. It had not collected anything upon the claims. It therefore at that time had no alternative. The contract did not allow it then to do "one of two acts," or the other, at its pleasure. It was required