had actually paid, or agreed to pay, any counsel fees whatever, or that she had employed any counsel to prosecute the action. It is alleged in the complaint that by the terms of the mortgage the appellant agreed to pay ali costs and expenses of foreclosure, including counsel fees at the rate of five per cent upon the amount of the debt, and that the same should become due upon the filing of the complaint; and it is further alleged that five per cent is a reasonable counsel fee to be allowed the plaintiff. This allegation of the terms of the mortgage is not denied, but the defendant denied that five per cent is a reasonable counsel fee to be allowed the plaintiff, and alleged that the plaintiff had never employed any counsel to prosecute any action, and had never paid, or promised to pay, any counsel fee or incurred any liability for such fees.

It was not necessary that the plaintiff should either allege in her complaint or show at the trial, as a prerequisite to her right to recover for counsel fees, that she had employed counsel to prosecute the action, or the amount which she had agreed to pay for their services. The complaint in the action is signed "H. C. Campbell, attorney for plaintiff." The court would take judicial notice that he was an attorney of the court, and, in the absence of any other evidence, his signature to the complaint authorized the presumption that he had been employed by the plaintiff to prosecute the action, and that she had become liable to pay him a reasonable fee for his services. It was shown at the trial that five per. cent upon the amount of the debt would be a reasonable fee in the case, and, as the appellant offered no evidence in support of his averments, the court was justified in allowing that amount. (Rapp v. Spring Valley Gold Co., 74 Cal. 532; Alexander v. McDow, 108 Cal. 25.)

The judgment is affirmed.

[S. F. No. 296. In Bank.-May 8, 1896.]

M. W. FOX, RESPONDENT, v. HALE & NORCROSS SILVER MINING COMPANY ET AL., DEFENDANTS. ALVINZA HAYWARD AND H. M. LEVY, AP

PELLANTS.

APPEAL-ORDER FOR JUDGMENT UPON ONE ISSUE-NEW TRIAL OF OTHER ISSUES TIME FOR ENTRY OF JUDGMENT-CONSTRUCTION OF DECISION. Where, upon a former appeal, the cause was remanded to the superior court with directions to enter a judgment as of the date of a former judgment for a specified sum, with interest from that date. upon one of the issues in the case, and to retry the cause upon other issues, the decision of the appellate court is to be construed as contempla ting but one final judgment in the cause, and the judgment ordered to be entered should not be entered before the new trial is had, but should form part of the final judgment in the cause, to be rendered after the close of the new trial.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. HEBBARD, Judge.

The facts are stated in the opinion of the court.

Garber, Boalt & Bishop, Lloyd & Wood, and W. F. Herrin, for Appellants.

The judgments in question, if otherwise conformable to the decision of this court, were prematurely entered, leaving material issues untried, without authority of law or of said decision. (1 Freeman on Judgments, 4th ed., secs. 16, 20; Benjamin v. Dubois, 118 U. S. 46; Bostwick v. Brinkerhoff, 106 U. S. 3; Coons v. Harlee, 17 Fla. 484; Code Civ. Proc., sec. 577; Lick v. Diaz, 37 Cal. 437, 447; Polhemus v. Carpenter, 42 Cal. 375; Ellis v. Jeans, 26 Cal. 272; Bagley v. Eaton, 10 Cal. 126; Benson v. Shotwell, 87 Cal. 49; McMenomy v. Baud, 87 Cal. 134; Wise v. Will iams, SS Cal. 30; Posachane etc. Co. v. Standart, 97 Cal. 476; Bucking v. Hauselt, 9 Hun, 633; Fales v. Lawson, 21 N. Y. St. Rep. 708; Belmont v. Ponvert, 3 Rob. (N. Y.) 693; Masters v. Barnard, 6 How. Pr. 113; Le Guen v. Gouverneur, 1 Johns. Cas. 509, 521; 1 Am. Dec. 121, 134;

Gage v. Allen, 84 Wis. 323; Chandler v. People's etc. Bank, 65 Cal. 498, 499; Sutherland v. Tyler, 11 How. Pr. 251.) There can be but one final judgment in an action. (Elliott's Appellate Procedure, secs. 90, 91; Stockton etc. Works v. Glens Falls etc. Ins. Co., 98 Cal. 557, 577; Barry v. Superior Court, 91 Cal. 486, 488; Paige v. Roeding, 96 Cal. 388, 390; Colton etc. Co. v. Swartz, 99 Cal. 278, 282; Von Schmidt v. Von Schmidt, 104 Cal. 547, 550; Western etc. Co. v. Locke, 107 Ind. 9; 1 Freeman on Judgments, 4th ed., secs. 238, 241.) Said judgments cannot be presumed to be, and were not in fact directed by this court to be, entered before the trial and determination of any of the issues in the cause. (Argenti v. San Francisco, 30 Cal. 458, 463.)

W. T. Baggett, L. D. McKisick, and E. S. Pillsbury, for Respondent.

This court has been given ample power to direct the entry of any judgment upon the hearing of the appeal which, in its opinion, is proper and appropriate to the ends of justice. (Const., art. VI, sec. 4; Code Civ. Proc., sec. 53; In re Jessup, 81 Cal. 464, 465; Rhea v. Surryhne, 39 Cal. 581.) It was the intention of this court to order the entry of the judgment in question, without waiting until the remaining issues were disposed of. The judg ment entered in this case is a final judgment, and is, in effect, a judgment of the supreme court, for this court. might have, without the intervention of the lower court, directed its own clerk to make the entry. (Marysville v. Buchanan, 3 Cal. 212; McMann v. Superior Court, 74 Cal. 106; Gahan v. Neville, 2 Cal. 81.) Courts of equity, in a case where there are separate claims and several issues as to liens and claims upon property involved in the litigation, make several decrees, settling the rights of several parties, and an appeal may be taken by each of the parties whose claims have been denied, without taking up the whole case, or stay further proceedings. (Milner v. Meek, 95 U. S. 252; Heinlen v. Martin, 53 Cal. 343; Woodroof v. Howes, 88 Cal. 202.)

VAN FLEET, J.-On a former appeal herein (Fox v. Hale etc. Co., 108 Cal. 369, where the purposes and history of the action are fully stated) the cause was remanded to the superior court, with these directions:

"The judgment appealed from is set aside, and the superior court is directed to enter a judgment as of the date of its former judgment against Alvinza Hayward and H. M. Levy, for the sum of two hundred and ten thousand one hundred and ninety-seven dollars and fifty cents, with interest from that date, upon the issue presented by the claim for having paid an excessive price for milling the ore in the Mexican and Nevada mills; and upon that issue the order denying a new trial as to these defendants is affirmed. As to the other appellants, except the Nevada Mill and Mining Company, the order denying a new trial as to this issue is reversed, and a new trial thereon ordered. Upon the issue presented by the claim for damages sustained by reason of the imperfect and fraudulent milling, the order denying a new trial is set aside as to all the appellants, and the court is directed upon the evidence already taken in the case, and such other evidence as may be presented by either party, to make findings in accordance with the views herein before expressed." Then follow some specific suggestions as to particular facts to be found, not pertinent to be here noticed.

Upon the going down of the remittitur upon that appeal the superior court, on motion of the respondent and against the objection of the appellants, immedi ately, and without awaiting the determination of the issues as to which a new trial had been so granted by this court, and before the same had been disposed of, rendered and had entered therein a judgment against the defendants Alvinza Hayward and H. M. Levy, upon the issue as to which the order denying them a new trial had been affirmed, for said sum of two hundred and ten thousand one hundred and ninety-seven dollars and fifty cents, with interest, etc., and making reservation of the other issues as to which a new trial had been

granted, substantially in the language of the judgment of this court above recited.

From this judgment the defendants Hayward and Levy now appeal.

The main contention of appellants, and the only point we find it necessary to notice, is that the judgment as entered was unauthorized by law or the directions of this court; that there can be but one final judgment in a case, and, as the judgment herein finally determines the rights of the parties as to one of the issues only, leaving and reserving others to be thereafter tried, it is premature and contrary to the course of law.

That the judgment as entered is final in form and character as to the issue involved therein, no ques. tion is made. Nor is it controverted that the general rule in this state, as elsewhere, is that there can be but one final judgment in an ordinary civil action or proceeding.

It is not necessary for the purposes of this appeal to decide whether or not this case is a suit in equity (as to which see Thompson on Corporations, secs. 4472, 4479; 1 Morawetz on Corporations, sec. 236 a, et seq.), nor whether in a suit in equity in this state several judgments, each finally determining some of the rights. of the parties, can be entered (as to which see Code Civ. Proc., sec. 647; Thompson v. White, 63 Cal. 505; Watson v. Sutro, 77 Cal. 609; Trustees v. Greenough, 105 U. S. 527). This court has no power to review its own final judgments; and we cannot now inquire whether our judgment on the former appeal was or was not warranted by law. The only question we can consider on this appeal is whether the judgment now appealed from was entered in accordance with the mandate of this court.

It is, however, certain that the cases, if there are any, which can be taken out of the general rule above stated -that but one judgment, final in effect if not in form, can be entered-must be altogether exceptional and de