Volume 28 — Oregon Reports

Clifford, Judge. This is an action by Isaac T. Maxwell against J. T. Bolles to recover possession of personal property.

Appsal from Union: Morton D. Clifford, Judge. This suit was instituted to foreclose three several mortgages executed by the Oregon Gold Mining Company to A. L. Schmidt as trustee to secure the. payment of certain bonds of the company, bearing dates respectively May first and October first, eighteen hundred and eighty-eight, and September first, eighteen hundred and eighty-nine.

B. Stearns, Judge. This is a suit by certain judgment creditors of Adolph Nicolai to set aside two deeds, and subject the real property therein described to the payment of certain judgments rendered against the grantor.

C. Fullerton, Judge. This is an appeal from an order confirming a sale of railway franchises and property on the foreclosure of a mortgage.

C. Fullerton, Judge. This is an appeal from an order confirming a sale of real property.

This is a special proceeding by G. W. Vedder against Marion County to review the action of the county court in the matter of changing the location of a county road in said county.

Burnett, Judge. This is a motion to dismiss an appeal. ,The facts are that on February twenty-fourth, eighteen hundred and ninety-four, the plaintiff, having commenced an action against the defendants, obtained a judgment therein for twenty-four thousand five hundred and fifty-six dollars and fifty cents, the amount due on a promissory note, containing a provision for reasonable attorney’s fees in case “suit” was instituted for its collection.

B. Shattuck, Judge. This is an appeal from a decree of the Circuit Court affirming an order of the County Court of Multnomah County.

The defendant, David L. Gee, was indicted for knowingly uttering and publishing a certain forged and counterfeit writing, in form and similitude of the certificate described in the indictment.

A. McBride, Judge. Suit by Lizzie E. Close against David H. Close, in which there was a decree for plaintiff. Defendant appealed, but, having failed to file the printed abstract of the record required by Buies 4 and 9 of the court, (24 Or. 595-597,) the respondent moved to dismiss the appeal.

Hanna, Judge. This is an action brought by the County of Jackson against George E. Bloomer' and the sureties on his bond as treasurer of such county, to recover for his alleged defalcation as such official.

This suit was brought by Philip R. Bishop against James L. Baisley and others to restrain trespass upon a mining claim, and to recover damages for the injurious use of it by the defendants.

C. Fullerton, Judge. The defendant Samuel G. Brown having been indicted, tried for, and convicted of, the crime of murder in the fir;it degree, by shooting and killing William Alfred Kincaid, in Douglas County, moved for a new trial, which was denied, and he was sentenced to be hanged.

: E. D. Shattuck, Judge. This action was originally commenced in a justice’s court to recover an alleged balance of two hundred and twenty-four dollars and twenty cents for certain lumber and building material sold and delivered by the Sugar Pine Door and Lumber Company to William Garrett and Company. A trial in the justice’s court resulted in a judgment in favor of plaintiff for the amount demanded.

D. Shattuck, Judge. The Portland Hibernian Benevolent Society, a corporation organized under the statute providing for the incorporation of churches, religious, benevolent, literary, and charitable institutions, brought this suit to restrain the sheriff of Multnomah County from enforcing the collection of taxes levied upon its property for state and county purposes for the year eighteen hundred and ninety-two, claiming that such property is exempt from taxation under the…

L. Bradshaw, Judge. This is in effect a suit for an accounting. On the thirty-first day of March, eighteen hundred and eighty-eight, D. S. Sprinkle made a general assignment of all his property for the benefit of his creditors to I. E. Dawson, under the general assignment laws of the state, which trust was accepted by the assignee, who qualified and took possession of the property, and proceeded with the administration of the insolvent’s estate.

D. Shattuck, Judge. This is a mandamus proceeding by School District Number Two of Multnomah County to compel the treasurer of that county to pay an order drawn upon Mm by tbe county school superintendent in favor of the clerk of said district.

A. Stephens,' Judge. The defendant, Joseph Kelly, (more familiarly known in the criminal records as “Bunco Kelly,) was jointly indicted with X. N. Steeves, an attorney of this court, on a charge of murdering George W. Sayres, and, having been convicted of the crime of murder in the second degree, brings this appeal, assigning as error the decision of the court overruling, his challenge to certain jurors for actual bias, and its refusal to exclude the jury from the courtroom…

This is an action by Samuel Connell against Martha E. McLoughlin to recover upon a promissory note alleged to have been executed by an agent of the defendant.

B. Shattück, Judge. This is a proceeding to review the judgment of a justice’s court. The record shows that a verified complaint was filed in the office of the justice of the peace of South Portland District, Multnomah County, charging Alfred Tyler with the crime of defacing a building not his own, and, a warrant being issued thereon, he was arrested and taken before the justice, who read the complaint to him, to which he entered a plea of not guilty.

B. Shattuck, Judge. This is an action by Mathias Bixby against Charles P. Church and Joseph Gaston to recover for work and labor alleged to have been performed by the plaintiff for the defendants between the first day of June, eighteen hundred and ninety-two, and the first day of November of the same year.

About March first, eighteen hundred and ninety-three, one Matti Makarainin, at plaintiff’s instance, sold and delivered to it certain saw logs of the reasonable value of some three hundred and thirty-one dollars, from which the sum of two dollars and seventy cents was to be deducted as scaling charges, leaving a balance due from plaintiff of about three hundred and twenty-eight dollars, which Makarainin assigned two days thereafter to Eli Maketa, and he to defendant Lang and…

A. McBride, Judge. This is an appeal by L.- M. Stearns from a judgment of imprisonment in the penitentiary for the crime of embezzlement. At the beginning of the trial he objected to the introduction of any evidence on the ground that the indictment did not state a crime, because it did not aver the ownership of the property alleged to have been embezzled, nor its value.

O. Fullerton, Judge. This is a garnishment proceeding by P. L. Willis against M. B. Holmes and G. A. Smith, garnishee. On or prior to September sixth, eighteen hundred and ninety-three, the plaintiff commenced an action against Holmes to recover money, and caused a writ of attachment to be issued and served upon Smith, with notice that all money due from him to Holmes was thereby garnished.

Stearns, Judge. This is a suit to reform a contract and bond, and to recover damages for an alleged breach of the contract.

Burnett, Judge. This is an action to recover an alleged balance of an account.

Stearns, Judge. This is a motion to correct a decree in the case of S. O. Nicklin against W. E. Robertson and others, so as to relieve the plaintiff from the taxation of disbursements claimed to have been taxed against her through her excusable neglect. The facts are that on' September twenty-nineth, eighteen hundred and ninety-one, the circuit court dismissed the suit, and decreed that the defendants recover of the plaintiff their costs and disbursements.

<p>1. Res Judicata.— To make a matter res judicata there must be identity of persons and parties in both causes, and it must be an identity of ' real parties who have interests to be aifected by the decision. This identity is not destroyed by joining as additional parties in the second cause persons who were not parties to the former litigation, and who have no interest in the subject matter.</p> <p>2. Dismissing Appeal — Rules oe Court — Abstkact.—An appeal to the supreme court will not be dismissed because the abstract does not contain a formal statement of errors as required by the last paragraph of Rule 9 of the supreme court, (24 Or. 600,) where the appeal is from a decree on the pleadings, and it sufficiently appears that the alleged error upon which the appellant intends to rely is the action of the trial court in sustaining the respondent’s motion for the decree.</p> <p>3. Dismissing Appeal eob Failure to File Bbief — Rules oe Couet.— The rules of practice in the supreme court regarding abstracts and briefs were intended to facilitate business, and it is intended that they shall be substantially complied with; yet, if, through excusable neglect or oversight, some requirement has been omitted, the court may, on a proper showing, excuse the party in fault, as where a brief has not been filed in time through the delay of the printer.</p>

This is an action upon a fire insurance policy issued by the defendant on the seventeenth day of March, eighteen hundred and ninety-three, covering loss or damage by fire to the personal property therein described for the term of one year.

A. Stephens, Judge. The defendant C. O. Thompson, an attorney at law, was tried and convicted of the crime of larceny by bailee of a promissory note that had been intrusted to him in his professional capacity. From a sentence of one year in the penitentiary he appeals, assigning error in overruling a demurrer to the indictment, and in the admission of testimony.

<p>1. Adverse Parties in Mechanics’ Lien Cases — Code, §537.— In mechanic’s lien cases all the lien claimants are “adverse” to each other, within the meaning of section 537, Hill’s Code, and must be served with the notice of appeal: The Victorian, 24 Or. 121, approved and followed.</p> <p>2. Service op Notice op Appear — Code, § 537. — The question of who are “adverse parties” necessary to be served with the notice of appeal must be determined by the conditions existing when the appeal is taken, and all who are then “adverse” must be served: Moody v. Miller, 24 Or. 179, approved and followed.</p> <p>3. Mechanics’ Lien Oases — Adverse Parties.— In a mechanics’ lien case the contractor is not an “adverse party” and need not be served with the notice of appeal, where he has not been served with summons and has not appeared, though named in the pleadings as a defendant.</p> <p>4. Right to Second Appeal.— An attempt to take an appeal, which in consequence of an irregularity is not perfected, does not take away the right to another appeal.</p> <p>5. Mechanics’ Liens — Parties — Pleading — Code, §§67, 71.— In a mechanic’s lien foreclosure the contractor is not an absolutely indispensable party — he ought to be brought in if he can be served, but the suit can proceed without him, though, of course, if he is not served he is not bound by the result. Not being an indispensable party, the objection of defect of parties must be made by demurrer or answer, otherwise it will be deemed waived: Code, §§67, 71.</p> <p>6. Variance — Mechanics’ Liens — Name op Contractor. — A difference between the name of the firms of contractors as alleged in the complaint for the foreclosure of a mechanics’ lien, and as disclosed by the contract, does not constitute a fatal variance where there is no question as to the identity of the two firms, and it is clearly apparent that the owner, who alone is contesting the lien, has not been misled in any respect by the difference.</p> <p>7. Notice op Lien — Name op Person Obtaining Materials — Code, § 3673. — The naming in a claim of lien, in good faith, of the parties to whom material was furnished as “J. W. Holm and Brother,” ■ while the contract between the owner and contractor was signed “C. N. Holmes and Company,” is immaterial, it not appearing that the owner was misled.</p> <p>8. Lien Notice — Contractual Relation Between Claimant and Property-Owner— Code, ¡¡§ 36G9, 3673. — A claim of lien for material or labor furnished a contractor filed under section 3673 of Hill’s Code, requiring the claim to contain a true statement of the demand, with the name of the owner or reputed owner, and that of the person by whom the claimant was employed, or to whom he furnished the materials, need not state the contractual relations existing between the claimant and the owner, as the relation is in effect established by section 3669, which provides that the contractor shall be held the agent of the owner for the purposes of the act: Rankin v. MalarJeey, 23 Or. 593; Curtis v. Sestanovich, 26 Or. 107; Willamette Manufacturing Company v. McLeod, 27 Or. 272, overruled on this point.</p>

B. Shattuck, Judge. This action was commenced in October, eighteen hundred and ninety-one, by J. M. Nickum against Tiny Gaston to recover possession of the northeast quarter of section twenty, township one south, range two east, in Multnomah County. It has been in this court before on appeal from a judgment awarding the land to plaintiff: Nickum v. Gaston, 24 Or. 391.

C. Fullerton, Judge. The defendant, Duncan Scott, an unmarried man, having been indicted, tried, and convicted of the crime of adultery, committed in Lane County with one Louisa Babb, wife of A. J. Babb, was sentenced to imprisonment in the penitentiary for the term of one year. From this judgment the defendant appeals, and assigns as error the denial by the court of his request that it instruct the jury to find a verdict of acquittal.

C. Fullerton, Judge. This is a proceeding by Sandford Bennett in the nature of a creditor’s bill to subject to the payment of his claim certain property alleged to have been transferred by the defendant T. S. Minott to his codefendants the Coos Bay Hardware Company, a corporation, and to Lizzie H. Minott, for the purpose of hindering, delaying,' and defrauding creditors.

<p>1. Instructions to Jury — Abstract Propositions.— Abstract propositions of law, not applicable to the facts of the case in hand, are misleading and mischievous, and to present such in an instruction to a jury is reversible error * : Bowen v. Clarke, 22 Or. 566, approved and followed.</p> <p>2. Ejectment — Statute op Limitations — Adverse Possession.— The title of a person who has been in adverse possession of land for more than the statutory period, entering under a survey which both he and the adjoining proprietor believed to be correct, cannot be affected by a subsequent survey showing that the division line had not been correctly located by the first survey: Joy v. Stump, 14 Or. 361, cited and approved.</p>

Stearns, Judge. This is a suit to set asid_e certain conveyances and mortgages as being in fraud of creditors. The facts out of which it arose are briefly as follows: On November ninth, eighteen hundred and ninety-two, Joseph Miller shot and seriously wounded the plaintiff, Otto Morrell, for which offense Miller was arrested the same day, and on the fifteenth of December the grand jury of Multnomah.

<p>1. Cross-Examination.— Defendant in an action for injury from fire alleged to have been kindled by him cannot be cross-examined as to a custom to back-fire for the purpose of proving his negligence, where, on his direct examination, he has neither admitted that he set the fire nor testified to any custom.</p> <p>2. Instructions to Jury — Value of Expert Evidence. — Where witnesses who were present at a fire testified that the wind was from a certain direction, and an officer from the weather bureau, which was several miles distant, testifies that the automatic register, which was 1 -.catcd in an elevated position, free from obstruction, showed the wind to have blown from another0direction, it was not error for the court to state to the jury “ that when a man comes before you, and says that the direction of the wind at a certain time ivas from such a quarter, so many miles away, and was blowing at the rate of so many miles per hour, irrespective of hills or forests, you will take into consideration your own experience, and the experience of other witnesses who have testified, whether that instrument is to be believed, under such circumstances and at such a distance, or whether your own experience and the testimony of the witnesses are worth anything. Consult your own experience, as well as the report made by the officer.” This is only instructing the jury to apply to conflicting testimony the test of their own judgment and experience, which they certainly ought to do.</p> <p>3. Discretion of Court — Piling Cost Bill —Code, § 557. — It is within the discretion of the court to extend the time for filing an amended verified statement of costs where the application to extend is made within the five days allowed to file the statement.</p> <p>4. Statement of Items in Cost Bill — Code, §557.— A verified statement under Hill’s Code, § 557, showing the materiality and necessity of each item of costs objected to need not show the materiality of the testimony of witnesses whose fees are taxed, where it states that they necessarily attended court and were sworn and examined as witnesses at the trial, for their testimony must have have been material or it would not have been received.</p> <p>5. Costs — Bindings by Court — Code, §557. — A party having objected to certain items of a cost bill, the court, upon motion to retax costs, should make separate findings as to each item objected to: Thomas v. Thomas, 24 Or. 251, approved and followed.</p>

D. Shattuck, Judge. This is an action brought by John W. Brigham, a manufacturer of boots and shoes in Boston, Massachusetts, to recover for goods sold and delivered to George L. Hibbard.

A. Stephens, Judge. John A. Carr was convicted of the crime of offering to bribe one Thomas Huntington, a juror in a criminal action against Joseph Kelly, (State v. Kelly, 28 Or. 225,) and from the judgment upon such conviction brings this appeal.

D. Shattuck, Judge. This action was instituted in the name of Wilson T. Hume, district attorney, to recover upon the official bond of the defendant Penumbra Kelly, given as sheriff and tax collector of Multnomah County, Oregon, with the defendants George B. Markle and E. B. McFarland as sureties.

Stearns, Judge. This is a proceeding brought by the district attorney of the fourth judicial district, by direction of the governor, to ascertain whether the defendant bank has in its possession on deposit or otherwise any funds or other property which has escheated to the state.

A. Stephens, Judge. The defendant F. A. Hanscom was indicted, tried, and convicted of the crime of obtaining the signature of another to a writing, the false making whereof would be punishable as forgery, and sentenced to the penitentiary for the term of eighteen months.

Burnett, Judge. This is an appeal from the judgment of the circuit court dismissing an appeal from a judgment rendered by the recorder of the City of Salem, holding court as a justice of the peace ex oj/ieio.

G. Fullerton, Judge. This is a special proceeding by O. F. Godfrey, Peter Hume, and S. O. Flint, partners doing business under the firm name of the Douglas County Bank, to have the action of the County Court of Douglas County in the matter of increasing an assessment reviewed by the circuit court.

<p>Appeal from Lane: J. C. Fullerton, Judge.</p> <p>This is a suit by Thomas Day against Mike Schnider to remove a cloud upon the title to the northwest quarter of section twenty-two, township fifteen south, range one east, in Lane County, created by a tax deed. The complaint alleges, in substance, that the plaintiff is the owner and in possession of the real property in question; that the defendant Schnider claims some right or title thereto adverse to the plaintiff, under a sheriff’s tax deed of date February thirteenth, eighteen hundred and ninety-four, which on its face appears to be regular, and recites that said land was levied upon by the sheriff as the property of Frank Burgess for the taxes of eighteen hundred and ninety, amounting to seven dollars and twenty cents, and on the fifth day of February, eighteen hundred and ninety-two, was sold to .the defendant for the sum of eighteen dollars and eighty-five cents, being the amount of said taxes and accruing costs. It then proceeds, in six separate and distinct paragraphs, to aver facts which, if, true, show the deed to be invalid and a cloud upon plaintiff’s title. It further alleges that the plaintiff offered to pay, and tendered to the sheriff of the county, the taxes for the years eighteen hundred and ninety-one, eighteen hundred and ninety-two, and eighteen hundred and ninety-three, but he refused to receive the same or any part thereof, claiming that the taxes for all said years had been paid by the defendant Schnider; that prior to the expiration of two years from the date of the tax sale plaintiff sought to redeem the land, and inquired both of the sheriff and county clerk how much or what sum was required to redeem the same, but that both said officers refused to make or permit redemption to be made, but referred him to the defendant who held the certificate of sale, and who also refused to make or allow redemption thereof to be made, or to say for what sum he would relinquish his claim thereto. That since the execution of the tax deed, and prior to the commencement of this suit, the plaintiff offered and tendered to defendant the entire amount paid by him on account of his purchase, with twenty per cent, per annum interest on the original purchase price, and ten per cent, per annum on all other liquidated charges against said land, for a quitclaim thereto; that he deposited with the clerk of the court fifty dollars from which the court might reimburse the defendant for such outlay in case he should be found liable therefor; that any and all payments by defendant for said premises and subsequent taxes thereon have been voluntary on his part, and not at the request or wish of plaintiff, but against his wishes and will; that the reasonable value of said land is one thousand dollars. A motion and demurrer to the complaint having been sustained, and plaintiff refusing to plead further, a decree was entered dismissing the complaint, from which he appeals.</p>

Stearns, Judge. This is a suit to foreclose a mechanics’ lien. The lien is claimed by virtue of a contract entered into between plaintiffs, Justice Brothers, and the defendant J. B. Elwert, by which plaintiffs agreed to furnish the materials, and do certain painting, graining, and calcimining for Elwert, upon her buildings at Portland, Oregon, at the agreed price and consideration of two hundred and eighty-five dollars, to be paid thirty days after completion of the work.

O. Fullerton, Judge. This is an action by J. I. Barbre against J. O. Goodale to recover upon two separate causes. The first is upon a written agreement which purports upon its face to be tbe agreement of one G. W. Handsaker, of the first part, and J. G. Goodale, of the second part.

Burnett, Judge. This is an action to recover upon the following contract as modified after the date of its execution by the parties thereto, namely, “This agreement made and entered into this eighth day of January, A. D. one thousand eight hundred and' ninety-one, by and between the county commissioners of Yamhill County, State of Oregon, in regular session assembled, parties of the first part, for and in behalf of said County of Yamhill, State of Oregon, and W. T.…

<p>1. Notice op Mechanics’ Lien — Code, §3673.— A claim for a mechanics’ lien reciting that claimant “have, by virtue of a contract heretofore made with B„ * * * in the furnishing sketches, plans, * ° * and superintendence of a certain dwelling-house. The ground on which said dwelling house was constructed being at the time the property of said B., who caused said house to be constructed,” — is insufficient, for failure to state the person to whom the services were rendered, as required by the Code: Dillon v. Hart, 25 Or. 49, approved and followed.</p> <p>2. Costs — Discretion op Coubt.— It is within the discretion of the trial court under Hill’s Code, § 543, to refuse costs to either party in a suit in equity: Lovejoy v. Chapman, 23 Or. 571; Cole v. Logan, 24 Or. 305, approved and followed.</p>

A. McBride, Judge. This is a suit by the Willamette Real Estate Company against H. H. Hendrix to quiet the title to lots three, four, five, six, seven, eight, nine, and ten in block twenty-five; lots six, seven, eight, nine, and ten in block twenty-six; blocks thirty-five, thirty-six, and four blocks known as the Courthouse Square, in the town of Cornelius, Oregon.

H. Hewitt, Judge. This is a suit to enjoin the defendants William P. Lord, H. R. Kincaid, and Philip Metschan, in their capacity as a state board of commissioners of public buildings, from carrying into effect certain acts of the legislative assembly providing for the construction of a branch asylum in the eastern portion of the state, and appropriating money therefor, because of the alleged unconstitutionality of the portions thereof locating such asylum in eastern Oregon.

H. Hewitt, Judge. This is a proceeding by mandamus to compel Harrison R. Kincaid, who is secretary of state, to draw a warrant on the state treasurer for the balance of salary alleged to be due James B. Eddy as railroad commissioner for the quarter ending March thirty-first, eighteen hundred and ninety-five.

This case is here on appeal from a judgment in proceedings against garnishees. On May fifth, eighteen hundred and ninety-four, the Brower and Thompson Lumber Company commenced an action against Miller and Giddings, and recovered a judgment therein for three hundred and twenty-eight dollars and fifty-nine cents.

B. Shattuck, Judge. This is an action by the Commercial Bank oí Vancouver, Washington, against D. F. Sherman, as indorser of a promissory note.

<p>Appeal from Multnomah: T. A. Stephens, Judge.</p>

<p>Appeal from Douglas: J. 0. Fullerton, Judge,</p>

<p>Appeal from Multnomah: Loyal B. Stearns, Judge.</p>

This action was brought by W. R. Willis, as administrator of the estate of M. B. Holmes, deceased, to recover from F. W. Holmes the sum of twelve thousand two hundred and thirty dollars as double damages, under section 1125 of Hill’s Code.

<p>Appeal from Jackson: W. C. Hale, Judge.</p>