Volume 130 — Washington Reports

<p>Appeal (232) — Right to Supersedeas — Self-Executing Order-Removal of Administrator. An order removing an administrator and appointing another is a self-executing order, and cannot be superseded on appeal as a matter of right; and the lower court’s refusal to stay the order pending appeal is well within its power and discretion.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered October 11, 1923,. in favor of the defendants, notwithstanding the verdict of a jury rendered in favor of the plaintiffs, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Whatcom county, Hardin, J., entered March 19, 1923, upon the verdict of a jury rendered in favor of the plaintiff by direction of the court, in an action on an accident policy.</p>

<p>Appeal from an order of the superior court for Pierce county, Chapman, J., adjudging defendant guilty of contempt in violating an order for the payment of alimony.</p>

<p>Appeal from a judgment of the superior court for King county, Bonald, J., entered February 7, 1923, upon sustaining a demurrer to the indictment, dismissing a prosecution for grand larceny.</p>

<p>Application filed in the supreme court January 14, 1924, for a writ of mandamus to compel the department of licenses to issue to relator a license to practice dentistry.</p>

, entered November 26,1923, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for damages sustained through an obstruction in a street.

, entered November 24, 1923, upon findings in favor of the defendants, in an action by a tenant for damages to goods by water, tried to the court.

<p>Arbitration and Award (3) — Agreement to Arbitrate — Condition Precedent to Action. Where a contract for extensions and improvements to a city water system provided for arbitration of disputes that might arise, a contractor is not justified in terminating the contract on the city council’s refusal to allow his claim in a dispute over the engineer’s estimates, but the agreement for arbitration will be enforced against him according to its terms.</p> <p>Same (3) — Offer to Arbitrate — Tender After Default of Contractor. In such a case, a communication from the contractor to the city to the effect he is willing to submit the matter to arbitration according to the contract comes too late after he has wrongfully terminated the contract, refused to proceed thereunder, and permitted the city to declare a forfeiture for his default.</p> <p>Pemberton, J., dissents.</p>

<p>Application filed in the supreme court February 23, 1924, for a writ of mandamus to compel payment of compensation under tbe industrial insurance act.</p>

<p>Appeal (440) — Review—Harmless Error — Striking Cbpss-Complaint. Error in striking a cross-complaint is harmless where it was not necessary to the proof to be offered under it, which was admissible under defendant’s general denials; and the testimony, not being brought up, will be presumed to support findings negativing the claim and proof under the cross-complaint or denials.</p>

<p>Indictment and Information (37) — Requisites—Designation of Accused. A complaint before a justice of the peace for the violation of an ordinance is not insufficient because it fails to set out the defendant’s name except in the title.</p> <p>Intoxicating Liquors (42) — Offenses—Unlawful Possession— Complaint — Sufficiency. A complaint charging the violation of a city ordinance is not objectionable in that it charges several offenses, viz.; receiving intoxicating liquor from a common carrier, of buying, selling and disposing of the same, having unlawful possession of liquor, of being a jointist, and also a bootlegger, where it is sufficient only as to the unlawful possession, being insufficient in the other respects in that it failed to allege that he opened up and conducted a place, or carried it about for the purpose of sale, the words “buy, sell,” etc., being necessarily eliminated because insufficient to charge any offense.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered December 11, 1923, dismissing an action to recover money paid on a policy of fire insurance.</p>

<p>Bills and Notes (9, 71) — Want oe Consideration — Accommodation Makers — Bona Fide Purchasers. Under Rem. Comp. Stat., § 3420, an accommodation maker without consideration is liable to a holder to whom the note was transferred and delivered prior to maturity.</p>

<p>Appeal from a judgment of the superior court for King’ county, John S. Jurey, judge pro tempore, entered October 6, 1923, awarding an allowance to a wife in an action for separate maintenance.</p>

<p>Cross-appeals from a judgment of the superior court for King county, Gilliam, J., entered June 13, 1923, in favor of the plaintiff, in an action on a promissory note, tried to the court.</p>

<p>Judgment (212) — Res Judicata- — Persons Concluded. Where a nonresident defendant, served outside the state, appeared specially to quash the-service of process, and this being denied, did not subsequently appear, the judgment is a nullity and not conclusive upon her.</p> <p>Equity (46) — Laches—Limitations. Mere lapse of time, short of the statute of limitations, in instituting a suit against a county to enforce payment of warrants, -does not amount to laches, precluding recovery, where the county was not induced to alter its position by the delay.</p> <p>Parties (43) — Bringing in New Parties — Jurisdiction to Compel. Where a public fund is involved in a suit to require the payment of county warrants, to which an adverse claim exists, the court, under its inherent and statutory power (Rem. Comp. Stat., § 196) to bring in new parties, should order all parties necessary to a complete determination brought in, even though the county treasurer failed to move for it.</p> <p>Appeal (488) — Decision—Remand for Further Action. The supreme court will not direct judgment for plaintiff requiring payment of county warrants, where the county treasurer neglected to bring in the adverse claimants who were necessary to a complete determination of the cause, but will remand with directions to bring them in.</p>

<p>Habeas Corpus (8-1) — Grounds for Relief — Correction of Error — Criminal Sentence. Habeas corpus does not lie to release a prisoner confined under a sentence and judgment for murder in the first degree, on the ground that a jury was not empanelled and did not fix the punishment, as required by Rem.-Comp. Stat., §2116, where the court had jurisdiction; since the judgment was not void and habeas corpus does not lie to correct error or irregularities or to collaterally attack a judgment.</p>

Application filed in the supreme court March 27, 1924, for a writ of mandamus to compel the secretary of state to issue to relator a permit to sell its capital stock.

<p>Appeal from a judgment of the superior court for Klickitat county, Kirby, J., entered May 22, 1923, in favor of the plaintiff as against one defendant, in an action to foreclose a mortgage, tried to the court.</p>

<p>Appeal from an order of the superior court for King county, Dykeman, J., entered July 20, 1923, denying a petition for the appointment of an alien as guardian of the estate of a minor, after a hearing to the court.</p>

<p>Appeal (418) — Review—Findings. Findings on conflicting evidence will not be disturbed on appeal where the evidence does not preponderate against them.</p>

<p>Executors and Administrators (11)- — Right to Appointment— Creditors' — Jurisdiction. Under Rem. Comp. Stat., § 1432, anyone sufficiently interested may apply for an appointment as administrator where it appears that property may be held in trust for the deceased or has been transferred in fraud of creditors of the deceased; and the court, having acquired jurisdiction, should act on the petition and make an appointment of some suitable person.</p> <p>Same (11) — Right to Appointment — Creditors — Unliquidated Claim. One holding a claim for unliquidated damages against the deceased, is not a “creditor” within the meaning of Rem. Comp. Stat., § 1432, granting the right of administration to a creditor.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered October 31, 1923, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

, entered January 24, 1924, upon findings in favor of the plaintiff, in an action to enforce the superadded liability of stockholders of an insolvent bank, tried to the court.

<p>Wills (59) — Construction-—Intent of Testator. The intent of tbe testator, if it can be gathered from the terms of the will, is the controlling consideration in its construction.</p> <p>Same (66) — Construction—Extrinsic Facts and Circumstances. In arriving at the intention of the testator as to the vesting of a legacy, consideration may be given to the fact that the legatee was a member of his family to whom he felt friendly and who was made a trustee and executor.</p> <p>Same (70) — Construction—Estates Created — Time of Vesting. In a will bequeathing income for life, and providing that, if the legatee die without issue, "then the trustees shall convey” to another, “then” relates to the time of enjoyment and not to the time when the interest vests.</p> <p>Same (70) — Construction-—Vested Remainder. The law favors the early vesting of estates, and such construction is to be invoked to create a vested remainder, which will not be considered contingent in any case where, consistently with the testator’s intention, it may be considered vested, even in doubtful cases.</p> <p>Same (70). Where a remainder to H. was contingent while it remained uncertain whether his wife would leave issue, upon his wife’s dying without issue, the contingency was removed and the remainder vested in H. at that time.</p> <p>Same (70). A remainder is deemed to have vested at the death of the testator where the devise or its enjoyment was postponed only for letting in intermediate estates, since no futurity is annexed to the substance of the conveyance, but only to its enjoyment.</p> <p>Same (60, 70) — Construction—In Favor of Heirs — Vested Remainder. Under a will appointing trustees to hold and distribute an estate, and only directing a certain legacy or devise to be paid at a future time without any gift independently of such direction, the “divide and pay” rule, requiring that the time of payment he annexed to the legacy itself and that heirs would not take if the legatee died before the time of payment, is not to be applied to create a contingent remainder, where the devise was implied from a direction to the trustees to convey an undivided one-half of certain lots to H. “to him and his heirs forever,” and where the futurity was not annexed to the substance of the gift; and in such case the will shows an evident intent to devise a vested remainder, that descended to his heirs, though the devisee died prior to the time of the conveyance, under the rule of construction favoring or requiring the vesting of devises whenever possible.</p> <p>Same (70) —1 Construction — Vested Remainder — Rule in Shelley’s Case. In such a case, the vesting of the remainder is not affected by the rule in Shelley’s case, which is, if an estate for life is granted and the remainder is limited by the same instrument to the heirs of the life tenant, the life tenant takes the remainder as well as the life estate (Mackintosh, J., dissents).</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered October 24, 1923, upon findings in favor of the plaintiffs, in an action on contract, tried to the court.</p>

<p>Carriers (122, 123) — Passengers—Loss ok Baggage — Liability. An auto stage, receiving baggage of a passenger, is liable for its loss, notwithstanding no check was issued for it and no extra compensation paid for its carriage.</p>

<p>Limitation op Actions (17) — Oral Contracts — Partly in Writing. An action to recover an agent’s commissions of five per cent upon the amount of ship building contracts secured by the agent, pursuant to an oral agreement, confirmed by letters from the principal to the agent stating that the principal is able to comply with certain specified conditions and referring to the agent’s statement that the agent “will award me a contract to.build eight vessels for the French Syndicate at a price of $305,000 each, less 5% com,” is an action on an oral contract, subject to the three-year statute of limitations; since the terms of the agreement for commissions are not contained in the writing and rest in parol. .</p> <p>Same (17). In such a case, a letter written on the same day to the principal by the party for whom the ships were to be built, stating that “it is agreeable to me that you pay” to the agent five per cent commission for his services, “this also being in conformity with your mutual agreement as per the letter from you” to the agent of the same date, constitutes no part of the contract for the commissions; and it is not error to strike the allegation thereof from the complaint, thereby precluding the inclusion of the same in .an amended complaint (Mitchell, Tolman, and Pemberton, JJ., dissent) .</p>

<p>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered May 28, 1923, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Bridges (3) — Counties (58) — Torts—Liability for Defective Bridge on Boundary Line. A county is liable for personal injuries sustained through the defective condition of an approach to a bridge over a boundary line stream, where the county built the bridge and both approaches and maintained the approach within the limits of the town, and assumed the duty of erecting barriers and protecting both approaches without consultation with, or co-operation of, the town authorities.</p> <p>Bridges (3) — Highways (66) — Liability for Defects — Counties and Towns- — -Boundary Line Bridge. Where the approaches on both sides of a boundary line bridge or culvert were washed out through insufficient capacity of the culvert to care for flood waters, and the bridge was the connection between a town street and a county highway, both the town and the county are liable for negligence in the maintenance of the approaches, on the principle that the defect was at the boundary line at a point common to both the town and county.</p> <p>Same. In such a case, the town cannot escape its legal liability to travelers by the fact that the county built and maintained the bridge and both approaches and assumed sole control and responsibility in keeping up repairs and erecting barriers, etc.</p> <p>Trial (13) — View of Premises. It is within the discretion of the trial judge to allow the jury to view the scene of an accident in an action for personal injuries sustained on a highway.</p> <p>Same (55-2) — Conduct of Counsel — Correction of Objectionable Matter. -Objectionable portions of counsel’s opening statement to the jury may be corrected by then instructirg the jury that it was not to be regarded as testimony.</p> <p>Appeal (386) — Review — Parties Entitled — Acquiescence in Error. Where appellants did not oppose a motion to strike the evidence óf a witness who violated the rule as to exclusion from the court room, and no exception was taken to the order striking the evidence, the error is waived.</p> <p>Damages (80) — Excessive Damages. A verdict for $10,000, for personal injuries sustained through a defect in an approach to a bridge, will not be held excessive, where plaintiff was terribly mangled, many bones were broken, and he suffered permanent disfigurement about the face, including his nose, mouth and jaws and was permanently disabled.</p>

<p>Pledges (1, 4) — Property Subject — Construction — Evidence. There was a valid pledge of a crop on premises sold, and mutual provisions which either party could enforce, where the vendee agreed to plant a crop, the title to which should remain in the vendor as a pledge for security for part of the purchase price, and the vendor agreed to apply it thereon.</p>

R. Hovey, judge pro tempore, entered January 5, 1923, denying relief for an alleged infringement of a trade name, after a trial on the merits to the court.

<p>Constitutional Law (113) — Insurance (9) — Equal Protection oí' the Laws — Class Legislation — Regulation of Business — Limitation on Number of Insurance Agents — License. Laws 1923, p. 57, §2 [Rem. 1923 Sup., § 7088], providing that fire insurance companies shall have no more than one agent in cities of less than 50,000 inhabitants, and no more than two agents in larger cities, denies the equal protection of the laws and takes property without due process of law, in violation of Const., Art. 12, § 5, and the 5th and 14th amendments to the Federal constitution; since it deprives citizens of the right to engage in a lawful calling, without any reason or any reference to the public morals, health, safety or welfare (Parker, Fullerton, and Mitchell, JJ., dissenting).</p>

, entered September 24, 1923, upon findings in favor of the defendant, in an action by a trustee to recover property of a bankrupt, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered October 29, 1923, upon findings in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Gilbert, J., entered October 4, 1924, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Benton county, Truax, J., entered August 29, 1923, in favor of the plaintiff, in an action to recover storage charges, tried to the court.</p>

<p>Appeal from an order of the superior court for Pierce county, Clifford, J., entered September 7, 1923, in probate proceedings.</p>