Volume 29 — Washington Reports

<p>APPROPRIATION OE LAND FOR HIGHWAYS •— PUBLIC USE-NOT A JUDICIAL QUESTION.</p> <p>A judicial determination as to the public utility of a county road which has been authorized by the hoard of county commissioners is not a prerequisite to the appropriation of land therefor under the power of eminent domain.</p>

<p>MUNICIPAL CORPORATIONS •— INJURY TO TRAVELER ON UNGRADED STREET — -LIABILITY OE OITY.</p> <p>A city cannot escape liability for injuries caused by defect's in an unimproved street where the street had been dedicated to the public and used by tbe public for years as a highway, and the city had. so far recognized it as a public street as to change its name by ordinance and to lay a sewer along it.</p> <p>SAME-ACTION FOR NEGLIGENCE-INSTRUCTIONS.</p> <p>In an action against a city to recover for the death of a fireman as the result of the overturning of a hosecart on which he was riding, caused by the cart’s striking the root of a tree projecting into the highway, the court properly refused a requested instruction to the effect that, if the accident occurred because of the negligence of the driver, plaintiffs could not recover, where the evidence did not show that the driver’s negligence was the sole cause of the accident.</p> <p>FELLOW SERVANTS-EMPLOYEES OF CITY FIRE DEPARTMENT.</p> <p>The driver of a hosecart and a fireman, although both in the employ of the city fire department, are not fellow servants.</p>

<p>IRRIGATION DISTRICTS ISSUANCE OF BONDS PROCEEDINGS - — ■ DUE PROCESS OF LAW.</p> <p>The fact that a section in the act authorizing the organization of irrigating districts and the sale of-bonds therefor makes provision for testing the legality of proceedings had thereunder by permitting the institution of a special proceeding by the board of directors of the irrigation district, without the requirement of personal service upon the property owners affected, would have no bearing upon the question whether the proceedings had for the organization of the district, or the issuance of bonds, were without due process of law, but that objection would apply only to the judgment rendered in the special proceedings and would not thereby affect the constitutionality of the whole act'.</p> <p>SAME- — - VALIDITY OF BONDS.</p> <p>An irrigation district was in debt to a contractor for work on its canal in the sum of $18,300 and was unable to pay him, by reason of the failure of the purchaser of its bonds to advance the money thereon. The contractor agreed with the board of directors of the district to accept bonds at ninety per cent, of their face value in payment of his claim, and bonds of the par value of $20,000 were accordingly delivered to him in satisfaction of his claim. Held, that a consideration existed for the issue of the bonds, and that the transaction was equivalent to a payment in cash for their sale.</p> <p>SAME-INTEREST.</p> <p>A purchaser of bonds issued by an irrigation district was unable to pay the price for the bonds issued and dated July 1st. In September following these bonds were delivered to another purchaser who gave $18,300 for $20,000 worth of bonds under an agreement to take them at ninety per cent, of their par value. At the time of payment for the bonds nearly three months’ interest had accrued thereon, while the contract under which they were sold provided that they should draw interest “from and after the date of payment therefor.” Held, that the $300 paid by the purchaser in excess of the ninety per cent, of the face value of the bonds was a substantial compliance with the contract.</p> <p>SAME-NEGOTIABILITY.</p> <p>The requirement of the statute that bonds issued by an irrigation district be “negotiable in form” means that the bonds shall contain words of negotiability and be in fact negotiable, and the recital on their face that they are payable from a particular fund would not affect their negotiability, though contrary to the rules prescribed by the law merchant.</p> <p>JUDGMENTS —• ENTRY BEFORE EXCEPTIONS TAKEN TO FINDINGS-EFFECT.</p> <p>The action of the trial court in entering judgment immediately upon filing its findings of fact and conclusions of law, though filed in the absence of, and without notice to, the losing party, would not constitute reversible error.</p>

<p>MUNICIPAL COBPOEATIONS- — -CONSTEUCTION OF BAILWAY IN STEEETBIGHTS OF ABUTTING OWNER-INJUNCTION.</p> <p>The owner of a lot abutting upon a public street, irrespective of the question whether the fee of the street is in the city or the abutting owners, has such a special interest therein as to entitle him to maintain injunction against the unlawful construction of a railway in the street.</p> <p>SAME-TITLE TO STREETS-EFFECT OF DEDICATION.</p> <p>The public control of streets and highways in this state does not amount to an ownership of the fee, under Bal Code, §§ 1264-1276, which declare the effect and purpose of dedication by city plats.</p> <p>SAME-ILLEGALITY OF PERMIT TO USE STEEET.</p> <p>A permit by the board of public works to use a public street for the purpose of constructing a railway track would confer no right to so use the street, nor afford a basis for the condemnation thereof, since the power of granting franchises for such purposes is reposed in the city council under a delegation of legislative functions to cities.</p>

<p>Appeal from Superior Court, King County. — Hon. Arthur E. Griffin, Judge.</p>

<p>Appeal from Superior Court, Pierce County. — Hon. William O. Chapman, Judge1.</p>

<p>APPEAL-EXCEPTIONS TO CONCLUSIONS OF LAW.</p> <p>When the facts as found by the court are not disputed, the only question is whether the judgment is authorized by the facts found, and this question is reviewable upon a general exception to the conclusions of law.</p> <p>EXECUTION SALES —' POSSESSION DURING REDEMPTION PERIOD.</p> <p>Under Laws 1899, p. 93, §15, a judgment debtor is entitled to the possession of farm lands sold on execution during the period of redemption.</p> <p>ACTIONS-SHIFTING OF ISSUES BY EQUITABLE DEFENSE-PRESUMPTION AS TO AMENDMENT OF PLEADINGS.</p> <p>Although an action in its inception may have been one merely for possession of land, yet where the defendants have asked for equitable relief, and the plaintiff on appeal has asked that the issue raised by defendants be determined, the supreme court will consider the pleadings amended so as to bring the matters suggested within the issues.</p> <p>JUDGMENTS-LIENS-WHAT LAND SUBJECT.</p> <p>Land conveyed to a grantee is subject to tbe lien of a judgment against bim, although no cash was paid therefor hy the grantee, hut the purchase price was paid in part hy money advanced hy his father and mother and the balance paid from funds arising from a mortgage given on the premises, the money advanced hy the parents being secured hy the execution of a mortgage to them on the same land, and there being no evidence of the land having been taken hy the grantee as trustee for his parents or any one else.</p> <p>MORTGAGES-CONVEYANCE TO MORTGAGEE-MERGER.</p> <p>Where a conveyance of mortgaged premises was made to the mortgagee in satisfaction of the mortgage debt, who took same in ignorance of a subsequent judgment lien thereon and canceled the mortgage of record, equity will not treat the conveyance as a merger of the mortgage lien in the absolute estate, hut will revive such lien as against a purchaser on execution sale.</p>

<p>RESCISSION-CONTRACT EOR SAXE OE MININS CLAIM-SUBEICIBNCr OF TITLE TENDERED.</p> <p>A contract between vendor and purchaser for a conveyance “by good and sufficient deed in fee simple” upon the payment of the full purchase price must be construed in the light of the circumstances surrounding the property, and where the property was a mining claim for which the vendor had paid the government and held the receiver’s certificate therefor, awaiting the issuance of patent, and the purchaser, with a knowledge of the situation, went into possession, worked the claim, made payments thereon, asked and obtained an extension of time for final payment, and, upon the expiration of that time, offered a bonus for a further extension, his final tender of full payment would not entitle him to a rescission and the recovery of payments made, because of the failure of the vendor to produce a patent for the claim, when the vendor stood ready to execute any kind of a deed the purchaser was willing to accept. (Dunbar, J., dissents.)</p>

<p>Appeal from Superior Co-urt, Ohehalis County. — Hon. Oliver V. Linn, Judge.</p>

<p>Appeal from Superior Court-, Pierce County.- — Hon. William H. Snell, Judge.</p>

<p>Appeal from Superior Court, Chehalis County. — Hon. Oliver V. Lists', Judge.</p>

<p>Appeal from Superior Court, Chehalia County. — Hon. Oliver Y. 'Linn, Judge.</p>

<p>Appeal from Superior Court, Pierce County. — Hon. Thau Huston, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. Leawdeb H. 1?batheií, Judge.</p>

<p>PUBLIC LANDS-GRANT OF RIGHT-OF-WAY- — DEFINITE LOCATION.</p> <p>Under 18 St. at Large, 482, which grants a right-of-way through the public land of the United States to any railroad company which shall file with the secretary of the interior a copy of its articles of incorporation and proof of organization thereunder, upon the condition that such railway company shall, within twelve months after the location of any section of twenty miles of its road, file with the register of the local land office a profile of its road, and upon approval thereof by the secretary of the interior the same shall he noted upon the plats of said office and thereafter all such lands shall be disposed of subject' to such right-of-way, a railway company which constructed its line upon unsurveyed public land thereby definitely located its right-of-way and has title thereto, as against a subsequent locator of a mining claim, although the officers of the land department declined to accept the profile until the survey of such lands.</p>

<p>Appeal from Superior Court, Skagit County. — Hon. George A. J ouster, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. Johst C. Kleber, Judge pro tern.</p>

<p>SUBSCRIPTION POR SUBSIDY-ACTION ON CONTRACT — -EVIDENCE.</p> <p>In an action upon a subscription contract, tbe admission of parol evidence on tbe part of tbe obligor of tbe purposes of a meeting of tbe subscribers prior to its execution is not erroneous, where plaintiff has given bis version of the meeting.</p> <p>SAME.</p> <p>In an action upon a subscription contract, tbe verdict of tbe jury in favor of defendant is warranted, where tbe evidence tends to show that a foreign corporation obtained subscriptions from defendant and other farmers as a subsidy for tbe erection of a beet sugar factory; that these subscriptions were placed in tbe bands of three of their number as trustees who- were to retain same until assurances of tbe satisfactory construction of tbe factory, when they were to be turned over to tbe obligee or its assigns; that correspondence between the corporation and the committee showed that it had abandoned the proposed factory prior to said assignment because of the fact that a foreign corporation could not hold land in this state; that one member of the committee, without consultation with the others, took said contracts from a safe where they were deposited and delivered them t'o an assignee of the foreign corporation; and that its assignee had duly constructed the factory within the time limited.</p> <p>SAME-EIGHTS OE ASSIGNEE-INSTBUCTIONS.</p> <p>In an action by an assignee upon a subscription contract given for the construction of a beet sugar factory, the court’s refusal to charge the jury that if plaintiff advanced money which was used in carrying out the objects and purposes of the note and contract sued on, and in advancing the money relied upon said note for his repayment, they should find for plaintiff, was not error, where the evidence tended to show that his assignor had no rights under the contract by reason of its non-assignment to such assignor by the original obligee, and the court had fairly and fully covered the ground as to the rights of plaintiff’s assignor in other instructions given.</p>

<p>Appeal from Superior Court, Stevens County. — Hon. William E. Richabdson, Judge.</p>

<p>TRIAL — STAY OF PROCEEDINGS — POWER OF COURT.</p> <p>A court has power, even in tbe absence of statutory authority, to stay proceedings in an action until a judgment in another cause in the same court' shall have been first paid and satisfied, when both actions are between the same parties and involve the same subject matter.-</p> <p>APPEAL-OBJECTIONS NOT URGED BELOW.</p> <p>That an affirmative defense is inconsistent with the denials of an answer cannot be urged for the first time on appeal.</p> <p>TRIAL-EXCLUSION OF EVIDENCE.</p> <p>Where the answer admits plaintiffs’ ownership of a lot in controversy, the refusal to admit in evidence the deed showing plaintiffs’ title would not be error.</p> <p>SAME-PAROL TESTIMONY DESCRIPTIVE OF PLAT.</p> <p>Where a plat' of land bordering upon tide water shows the meander line, it is not error to. refuse to allow a witness to testify, upon a view of the plat, as to whether the lot in controversy comes up to the meander line, since the plat would show that fact for itself.</p> <p>SAME • — • LEADING QUESTIONS.</p> <p>Questions ashed of plaintiff as' to what was said, to defendant about holding him to -his contract, the breach of which was in issue, were properly excluded as leading and suggestive.</p> <p>EVIDENCE-ADMISSIBILITY OF ERRONEOUS PLAT.</p> <p>A copy of the original plat of an addition, although containing errors, is admissible in evidence for the purpose of showing the location of a lot therein, the errors being explainable by other testimony.</p> <p>SAME — HARMLESS ERROR.</p> <p>In an action for breach of contract to apply for and procure from the state land commission for plaintiffs the tide land abutting upon their upland lot, the admission in evidence of what proof the defendant offered before the hoard to establish plaintiffs’ title was not prejudicial error, since it was merely cumulative of the record of the commissioners showing the judgment rendered, which must he presumed as based upon competent and satisfactory evidence.</p> <p>CONTRACT-BREACH.</p> <p>Failure to prosecute an appeal from the determination of the board of state land commissioners would not constitute a breach of a contract whereby defendant had agreed to make application, in the name of the plaintiffs, for the purchase from the state of tide land claimed to abut upon plaintiffs’ lot, and had agreed to “perform all conditions necessary and requisite in completing the title to said property at his own individual cost and expense, including the cost of appraisement and purchase of said land, attorney’s fees,” etc., in the absence of some provision clearly indicating that an appeal was within the contemplation of the parties.</p>

<p>Appeal from Superior Court, King County — Hón. Arthur E. Griffin, Judge.</p>

<p>Appeal from Superior Court, Walla Walla County.— Hon. Thomas H. Brents, Judge.</p>

<p>DEATH OE CHILD-ACTION BY MOTHER.</p> <p>Under Bal. Code, § 4829, which provides that “a father, or in case of the death or desertion of his family the mother, may maintain an action as plaintiff for the injury or death of a child,” the mother is entitled to maintain such action, where the parents had been divorced and the deceased child had been awarded the husband, who had returned him to the mother after a period of two weeks with a promise to support him, but wholly neglected to contribute thereto, and had disappeared, casting the duty of support and education upon the child’s mother.</p> <p>NEGLIGENCE • — ■ IMPLIED INVITATION ON DANGEROUS PREMISES.</p> <p>The rule making the owner of premises liable for injuries received as the result of implied invitation to children to enter upon dangerous premises is inapplicable in the case of a lease by a railway company of land on one side of its switch yard for a circus exhibition, to which a short cut could be taken through the yards, when there was a well traveled highway leading around the switch yard to the circus grounds, and the switch yard was enclosed by a fence, contained no other defect or danger than that inherent to moving trains, and the injured child had been twice warned to get off the premises by switchmen, while he was attempting to cross.</p> <p>SAME-EXCLUSION OE EVIDENCE-HARMLESS ERROR.</p> <p>The exclusion of a show bill, offered in evidence for the purpose of establishing an inducement' to the public to go upon the railway company’s premises was harmless, it error at all, when the company had admitted in its answer that it leased the grounds for show purposes, thereby admitting notice that the public would be in attendance.</p>

<p>Appeal from. Superior Court, King County. — -Hon. G. Meade Emoey, Judge.</p>

<p>EEAUDULENT CONVEYANCES — INSTEUCTIONS.</p> <p>In an action by a mortgagee of a stock of goods to recover tbeir value' from the sheriff who had sold them under an attachment' levy, where the evidence merely showed that after the mortgagee took possession of the stock he handed three dollars from the proceeds of the sale of goods to the mortgagor, who was his brother, telling him to keep it, and that the mortgagee had allowed the mortgagor to give fifteen dollars worth of goods to their mother, an instruction that if the jury should find that, after the mortgagee took possession of the stock, any considerable part thereof was retained by or delivered to the mortgagor by and with the consent of the mortgagee, with intent to hinder, delay or defeat the creditors of the mortgagor, or if the mortgagee allowed the mortgagor to sell any of said goods, and retain the money so received from such sale, for his own use, with like fraudulent intent to hinder, delay or defraud his creditors, with the knowledge of the mortgagee, then such mortgage was void, was erroneous, if the instruction meant that the jury must infer fraud from the disposition of the three dollars and the groceries, or if it meant that the mortgage was constructively fraudulent', as a matter of law.</p>

<p>TAXATION — BOARD OF EQUALIZATION — POWER TO RAISE AGGREGATE VALUATION OF PROPERTY IN STATE.</p> <p>Under § 2, art. 7, of tbe constitution, which, provides that the legislature shall provide by law a uniform and egual rate of assessment' and taxation on all property in the state, and shall prescribe such regulations by general law as shall secure a just valuation for taxation of all property, and under § 60 of the revenue act of 1897 as amended by Laws 1899, p. 288, which provides for a state board of equalization and empowers it to “examine and compare the returns of the assessment of the property in the several counties of the state and proceed to equalize the same, so'that each county in the state shall pay its due and just proportions of the taxes for state purposes for such assessment year, according to the ratio the valuation of the property in each county bears to the total valuation of all the property in the state” and to that end “they shall classify all property, real and personal, and shall raise and lower the valuation of any class of property in any county to a value that shall be equal and uniform, so far as possible, in every part of the state, for the purpose of ascertaining the just amount of tax due from each county for state purposes,” power is conferred upon the state board of equalization to raise the valuation of certain classes of property in certain counties, even if thereby the aggregate valuation of all the property in the state he increased.</p> <p>SAME-ANNUAL EQUALIZATION.</p> <p>Under Laws 1897, p. 136, §§ 1, 6, which provide that all real estate shall be subject to taxation upon equalized valuations thereof, fixed with reference thereto on the 1st day of March in each and every year in which the same shall be listed, and that all real estate subject to taxation shall be listed by the assessor each year in the detailed and assessment list, and under § 60 of the revenue act of 1897 as amended in 1899 which authorizes the state hoard of equalization at its annual meeting to raise or lower the valuation of any class of property in any county, the state board has power to change real estate valuations in odd numbered years, although Laws 1897, p. 140, § 6, provides that “in each odd numbered year the valuation of each .tract [of real estate] for taxation shall be the same as the valuation thereof as equalized by the county board of equalization in the preceding year:”</p>

<p>Appeal from Superior Court, King County. — Hon. William R. Bell, Judge.</p>

<p>QUIETING TITLE-REMOVING CLOUD CREATED BY TAX SALE-TENDER OR TAXES.</p> <p>The owner of land sold for delinquent! taxes cannot maintain an action to quiet title without tendering defendant the amount paid by him, with interest, on account of such delinquent taxes, although defendant’s incipient title under the tax sale may have become null and void for failure to perfect it within the statutory time, since such failure would not extinguish the lien itself as provided by Laws 1893, p. 361, § 88, which declares that “the taxes assessed upon real property shall be a lien thereon from and including the first day of April in the year in which they are levied, until the same are paid.”</p>

<p>Appeal from, Superior Court, Leivis County. — 3Ion. A. E. Rice, Judge.</p>

<p>Appeal from Superior Court, Skagit County. — Hon. George A. Joiner, Judges</p>

<p>Appeal from Superior Court, Spokane County. — Hon. George W. Belt, Judge.</p>

<p>Appeal from Superior Court, Walla Walla County.— Hon. Thomas H. Brents, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. Leahder H. Prati-ier, Judge.</p>

<p>Appeal from Superior Court-, San Juan County.- — Hon. George A. J outer, Judge.</p>

<p>Appeal from Superior Court, King County. — Hon. Boyd J. Tollman, Judge.</p>

<p>Appeal from Superior Court, King County. — Hon. George Meade Emory, Judge.</p>

<p>PURCHASE AT EXECUTION SALE-RIGHT OF TENANT IN POSSESSION.</p> <p>Laws 1899, p. 93, § 15, awarding possession during the period of redemption from an execution sale to a tenant in possession holding under an unexpired lease confers no rights upon one whose tenancy was created by persons who had had no interest in or t'itle to the property whatever.</p> <p>EJECTMENT-POSSESSION OF DEFENDANTS-ALLEGATIONS OF COMPLAINT.</p> <p>The complaint in an action of ejectment states a cause of action against all the defendants instead of but one, when it avers they are all in possession, and further avers that on,e of them claims his right to possession by virtue of a tenancy from the others, but does not allege that he is in exclusive possession or that he claims such right.</p> <p>SAME-EVIDENCE-MATERIALITY.</p> <p>Where it is admitted by the pleadings in an action of ejectment that' the defendants are jointly in possession, and that one of them claims to hold under the others as their tenant, the terms of the tenancy are not material, and hence, the rejection of evidence bearing thereon would not' constitute error.</p> <p>SAME.</p> <p>In an action of ejectment it is not error to refuse the admission in evidence of a deed to defendant’s grantor from one who never had the legal title to the premises, and who had parted with whatever equitable interest he had therein prior to the execution of the deed.</p> <p>SAME-DEED AS EVIDENCE-MISDESCRIPTION OF PROPERTY-EFFECT.</p> <p>A deed which fails to identify the property cannot be given in evidence in an action of ejectment in order to prove defendant’s title, although an offer is made to show a mistake in the description; it could not be rendered competent as evidence, until reformed in a proceeding brought for that purpose..</p> <p>EXECUTION-CANNOT ISSUE ON TRANSCRIPT OF JUDGMENT.</p> <p>In the absence of statutory authority, an execution cannot be issued upon a mere transcript filed in one county showing the judgment rendered in another county, although,. hy virtue of Bal. Code, § 5132, the filing of such transcript of judgment establishes a lien upon the debtor’s real estate in the county where filed.</p> <p>EXECUTION SALE — ESTOPPEL OF DEBTOE TO DISPUTE VALIDITY.</p> <p>The fact that a judgment debtor was present at a void sale on execution of his land, which was bid in for the amount of the debt, by the judgment creditor on the expressed wish of the debtor and his wife that he do so, and that the debtor after-wards acted as agent for such purchaser in collecting rents from the property, would not estop such judgment debtor nor his successors in interest from questioning the purchaser’s title, where such execution sale was absolutely void and the debtor had acquiesced therein through ignorance of that • fact, and the purchaser had nbt been placed in'any worse position by reason of such acquiescence.</p> <p>SAME — EIGHT OF DEBTOE TO WAIVE LEGAL FOBMALITIES.</p> <p>A debtor in failing circumstances, upon all whose real estate a levy has been made, cannot waive any of the formalities established by law for the sale of property under execution.</p> <p>APPUETENANCES — CANAL AND WATEE EIGHTS.</p> <p>A canal and water right, constructed a.nd used by the owners of mill property for the benefit of the mill, is appurtenant thereto, although a portion of the water flowing through the canal may be applied to irrigating purposes.</p>

<p>PROCESS-SERVICE OF COMPLAINT-WHEN SUFFICIENT TO GIVE COURT JURISDICTION.</p> <p>Where a complaint had been served with a summons that was quashed, and an alias summons had thereafter issued and been served without a copy of the complaint, but' notifying defendants the complaint was on file, the service was sufficient to give the court jurisdiction, of which it would not be deprived by failure to serve a copy of the complaint as required under Bal. Code, § 4873, which provides that when the complaint itself is filed in the office of the clerk of the court within five days after service of summons, the service of a copy of the complaint may be omitted; “but the summons in such case must notify the defendant that the complaint will be filed with the clerk of said court, and if the defendant appear within ten days after the service of the summons, the plaintiff must serve a copy of the complaint on the - defendant or his attorney within ten days after the notice of such appearance.”</p> <p>UNLAWFUL DETAINER-NOTICE TO QUIT-CHARACTER OF NOTICE NECESSARY.</p> <p>Where a tenant has continued in possession of agricultural lands for more -than sixty days after the expiration of the term for which the premises were let to him, he is entitled, under Bal. Code, § 5528, to hold for another year, when he will again be guilty of unlawful detainer for a period of sixty days succeeding the end of that holdover year, but any notice prior to the end of his term is sufficient to authorize the bringing of the action of unlawful detainer.</p> <p>SAME.</p> <p>Service of the statutory notice to pay rent or quit is unnecessary, where the action is not one to terminate the lease on account of failure to pay rent, but is to terminate the lease at its expiration whether rent is paid or not.</p> <p>STATUTE OF FRAUDS-INOPERATIVE AFTER PERFORMANCE OF CONTRACT.</p> <p>After a lease, invalid for want of acknowledgment', has been fully performed, neither party thereto can take advantage of its invalidity so as to relieve himself of obligations incurred under it.</p> <p>ACTION FOE RENT — LIMITATIONS.</p> <p>In an action to recover rent, the complaint is not demurrable because the statute of limitations has run against a portion of the rent due, where there is a balance due which is not barred.</p> <p>TRIAL-DELAY IN REPLYING — DISCRETION OF COURT.</p> <p>The action of the court in permitting plaintiff to file a reply after defendant’s motion for judgment on the pleadings because of plaintiff’s failure to reply within five days aft'er answer filed, as required by rules of court, cannot be urged as error, when no abuse of the court’s discretion is shown.</p> <p>SPECIAL VERDICT-WAIVER OF IRREGULARITY.</p> <p>Where special interrogatories were submitted to the jury and a general verdict returned by them without returning the special verdict asked, and the court directed the jury to answer such interrogatories, which the foreman thereupon did in writing, in the presence of court, jury, and parties, without signing same, and no objection was raised at the time to the regularity of such proceedings, the appellants must be held- to have waived the irregularity.</p>

<p>BUILDING CONTRACTOR'S BOND-ACTION AGAINST SURETY- — EVIDENCE.</p> <p>Although a building contract may have- required written authority from the owner for deviations in the plans, yet where the owner orally directed changes made, which were acted upon by the contractor, both parties thereby waived the provisions of the contract requiring written evidence of alterations, and consequently they could be established by oral evidence in an action between the owner and the surety upon the ’contractor’s bond.</p> <p>SAME-EIGHT TO OFF-SET CLAIM FOE EXTEAS.</p> <p>In an action against the surety upon a building contractor’s bond to recover the amount' of unpaid bills for material the owner was compelled! to pay, the defendant is entitled to off-set the value of extra work performed by the contractor, and for this purpose may introduce evidence showing that there was a dispute between the owner and contractor as to the reasonable value of such extras and that the owner, though requested, refused to submit the matter to arbitrators, as by the contract required.</p> <p>SAME — RECOVERY OF ATTORNEY FEES INCURRED DEFENDING AGAINST LIENS.</p> <p>In an action against a surety to recover on account of the failure of its principal to comply with a building contract conditioned that the principal should furnish all materials and labor and construct certain buildings, the owner is entitled to recover the amount paid by him to secure a discharge of liens filed against his property on account of materials unpaid for by the contractor, and is also entitled to recover his reasonable expenses and attorney fees in defending against such liens, where the surety neglects to defend the suit after notice.</p> <p>SAME- — -LIABILITY-OF SURETY UNAFFECTED BY PRINCIPAL’S PARTNERSHIP.</p> <p>The fact that a contractor who entered into a building contract in his own name had a partner interested with him in the work would not relieve a surety upon such contractor’s bond from the obligation to indemnify the owner against a failure to perform the contract, where the work progressed after the discovery of the partnership, without objection thereto by either the owner or the surety.</p> <p>. SAME-COMPLIANCE WITH TERMS OF CONTRACT-EFFECT OF ADDITIONAL PRECAUTIONS.</p> <p>The fact that the owner required bills for labor and material to be O. K.’d by the foreman in charge of the work, while the building contract provided that all payments should be made upon receipted bills as payments became due, would not release the surety upon the contractor’s bond, when it does not appear that the owner paid before the amounts were due under the contract, nor that he refused to pay after they were due.</p> <p>INTERLINED WRITTEN CONTRACT-ADMISSIBILITY IN EVIDENCE.</p> <p>Where interlineations and corrections in a written contract involved in the action are shown to have been made before it was signed, it is properly admissible in evidence.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. Geobge W. Belt, Judge.</p>

<p>Appeal from Superior Court, King County. — Hon. William Hickman Mooee, Judge.</p>

<p>APPEAL — SUPERSEDEAS — EVICTION PENDING APPEAL — BIGHTS OE SURETY ON SUPERSEDEAS BOND.</p> <p>A respondent who disregards the stay of proceedings allowed upon an appeal from a judgment against appellant for damages and the restitution of premises, in that he evicts the appellant pending the appeal from free and full use of the premises hy shutting off his heat, light and water and by nailing up some of the entrances thereto, is not entitled, on an affirmance of his judgment, to judgment against the surety upon the supersedeas bond for anything more than the costs of his appeal, but is relegated to his action on the bond to recover further relief, where the inducement for the surety company to assume liability was its belief that appellant .would be able to make enough out of his business on the premises t'o save the surety harmless.</p>

<p>MANDAMUS-WHEN LIES-ADEQUATE BEMEDY BY APPEAL.</p> <p>The action of the court in striking the petition of the state-contesting a will that had been admitted to probate and praying for the revocation thereof is appealable, under Bal. Code, § 6500, subd. 6, which grants an appeal “from any order affecting a substantial right in a civil action or proceeding, which either (1) in effect determines the action or proceeding and prevents a final judgment therein; or (2) discontinues the action,” and hence mandamus will not lie to compel the court to hear the-contest and permit the state to establish its rights in the estate.</p>

<p>CONTRACTS-RESCISSION BY SUBSTITUTION OF NEW AGREEMENT.</p> <p>The legal effect of a subsequent contract covering tbe same subject matter and made by tbe same parties as an earlier agreement between them, but containing terms inconsistent therewith, so that the two cannot stand together, is to rescind the earlier contract' by making the later one a substitute therefor.</p> <p>PLEADING-DENIALS.</p> <p>, Where defendant' has specifically denied the ultimate fact in issue that he had paid the sum of $8,750 upon an option in accordance with the terms thereof, his failure to deny a further allegation that $50,000 paid by him was paid in accordance witn the option would not constitute an admission of payment in accordance with the option contract inasmuch as the statement of the manner of payment was evidentiary matter, which it was unnecessary to deny.</p> <p>SAME-ISSUES-INTRODUCTION OF EVIDENCE WITHOUT OBJECTION - EFFECT.</p> <p>Where a plaintiff introduces evidence on the theory that the denials of defendant raise a particular issue, she cannot after-wards raise the objection that no issue was tendered, hut she is bound by the legal effect of the evidence introduced by her upon that issue.</p> <p>I'BAUD-MEANS OE KNOWLEDGE EQUIVALENT TO KNOWLEDGE.</p> <p>Under the rule which prevents one who has the means of knowledge before him, .and who refuses or neglects to avail himself thereof, from asserting that he was deceived or defrauded, a wife who, without reading it, signs a receipt in full for all demands, when told to sign by her husband, who was acting as her agent and had read the receipt, cannot afterwards claim that she was induced t'o sign through fraud, relying upon the representation of defendant’s agent that it was merely an order for the delivery of a deed held in escrow.</p>

<p>CONTRACT FOR SERVICES-CONDITIONAL PAYMENT-RIGHT OF RECOVERY.</p> <p>A mining expert is not' entitled to recover for his services in examining and reporting upon a mine, under a contract providing he should be paid a stipulated sum in case a sale should be effected “by and through the report” made by him on the property, when there is no evidence showing that the report aided in the sale of the property, other than the fact that it had been submitted along with other reports to the purchaser.</p>

<p>Appeal from Superior Court, King County. — Hon. Boyd J. Tallmam, Judge.</p>

<p>Appeal from Superior Court, Thurston County. — Hon. Mason Irwin, Judge.</p>

<p>Appeal from Superior Court, Snohomish County. — - Hon. John C. Denney, Judge.</p>

<p>Appeal from Superior Court, Chehalis County. — Hon. Mason Irwin, Judge.</p>

<p>Appeal' from Superior Court, Pierce County.- — Hon. William'O. Chapman, Judge.</p>

<p>Appeal from Superior Court, Pierce County. — BDon. Thad Huston, Judge.</p>

<p>APPEAL-SUPPICTENCY OP BOND-OBLIGEES.</p> <p>An appeal bond is not nugatory because it runs to tbe sureties on plaintiffs cost bond as well as to the respondents, where it is conditioned to satisfy and perform the judgment on appeal, and is therefore ample to protect the rights of respondents.</p> <p>SAME-SURETY AS BOTH OBLIGEE AND OBLIGOR.</p> <p>The fact that an appeal bond was signed by one of the obligees named therein would not render it void, provided it had another and a sufficient surety thereon.</p> <p>DISMISSAL OP APPEAL-CESSATION OP CONTROVERSY.</p> <p>An appeal will not be dismissed on the ground of a cessation of the controversy, where the record merely shows that the controversy could have ceased, not that it has actually done so.</p>

<p> Original Application for Prohibition. </p>

<p>Appeal from Superior Court, Spokane County. — Hon. George W. Belt, Judge.</p>

<p>Appeal from Superior Court, Chehalis County. — Hon. Mason Irwin, Judge.</p>

<p>Appeal from Superior' Court, Lincoln County. — Hon. Charles H. Heal, Judge.</p>

<p> Original Application for Mandamus. </p>

<p>Appeal from Superior Court, Clarke County. — Hon. Abraham L. Miller, Judge:</p>

<p>Appeal from Superior Court, King County. — Hon. William Hickman Moore, Judge.</p>

<p>Appeal from Superior Court, Pierce. County. — Hon. William H. Snell, Judga</p>

<p>EMINENT DOMAIN-QUESTION OE PUBLIC USE-INADEQUACY OF REMEDY BY APPEAL-CERTIORARI.</p> <p>Under art. 4, § 4, of the state constitution giving the supreme court power to issue all writs necessary to the complete exercise of its appellate and revisory jurisdiction, and under art. 1, § 16, of the constitution, which declares that, in proceedings for the appropriation of private property for a use alleged to be public, the question of public use shall be a judicial one, the supreme court has power to issue the writ of certiorari for the purpose of bringing the determination of that question by the superior court before it for review, where the special statute governing appeals in condemnation cases restricts the supreme court to an inquiry into the “propriety and justness of the damages” awarded.</p> <p>SAME-APPROPRIATION OE EXISTING RIGHT OE WAY.</p> <p>Under the statute of this state authorizing the appropriation by corporations of “all land, real estate, or other property” necessary in the conduct of their business, provided it be for a public use, one railroad may condemn for right of way purposes that portion of the right of way of another road which is not in use for railroad purposes, or necessary for the exercise of the latter’s corporate franchises.</p> <p>SAME-SUFFICIENCY Off SHOWING MADE.</p> <p>In an action by one railroad company seeking to appropriate a portion of the right of way of another railroad company, a judgment of condemnation is warranted, where it appears that the right of way was one hundred feet wide; .that a width of sixty feet is sufficient for all trackage purposes contemplated by the owner; that the company seeking appropriation requires a strip but twenty-eight feet wide; that the operation of trains by the two railroads paralleling one another is practicable and reasonably safe; and that necessity exists for such appropriation in order to enable the appropriator to reach its terminal grounds.</p>

<p>FISHERIES-LOCATION OF POUND NETS-END PASSAGEWAY.</p> <p>Under Laws 1899, p. 194, governing the location of fishing appliances, which gives locators of pound net's a right to extend the length of such nets to 2,500 feet, but provides that there shall be an end passageway of at least 600 feet between all pound nets, the owner of one location has no right to extend his pound net' in the direction of a contiguous net, so as to shut off the space of 600 feet prescribed by law for end passageway, even though the combined length of the contiguous nets may be less than 2,500 feet.</p> <p>SAME-INJUNCTION-PLEADING-CERTAINTY OF MISCHIEF.</p> <p>In an action by the owner of pound net No. 29 to enjoin the construction of an extension of pound net No. 2565 so as to shut' off the end passageway of 600 feet between it and net No. 1766, owned by a third party, an allegation that plaintiff is informed and believes that the owner of No. 1766 will construct' and operate a trap upon that location during the coming fishing season does not show merely an apprehension of mischief for which an action would not lie, inasmuch as the nuisance complained of is not the probable operation of an unabandoned fishing location, but the unlawful encroachment by the owner of trap No. 2565 upon the end passageway between that net and net No. 1766, which would result in shutting off the run of fish to plaintiff’s trap.</p> <p>SAME-METHOD OF LOCATING TRAPS-CONSTRUCTION OF STATUTE.</p> <p>Laws 1899, p. 197, § 4, provides that “for the purpose of determining end passageway a line shall be drawn parallel to the general direction of the" shore line for one-half mile on either side of a proposed location, which parallel line shall intersect the outer end of any location theretofore made, and maintained as by law provided, and a new location shall be driven at least six hundred feet distant at right angles from such base line.” Held, that the words “outer end of any location theretofore made” refer to the end which is out toward the proposed new location, and that, where the subsequent location is inshore from the prior location, the line paralleling the shore line must be drawn through the inner instead of the outer end of the location theretofore made.</p>

<p>Appeal from. Superior Court, Lincoln County. — Horn Stephen J. Chadwick, Judge.</p>

<p>Appeal from- Superior Court, King County. — lion. William R. Bell, Judge.</p>

<p>PLEADING-BILL OE PARTICULARS — IMPROPER JOINDER OE CAUSES.</p> <p>Tbe objection that a bill of particulars filed by plaintiff amplifies tbe claim set up in his complaint' into two causes of action improperly united, would not render tbe complaint itself demurrable on tbe ground of improper joinder, since a bill of particulars is not a pleading and is not a part of tbe complaint except to tbe extent' of restricting tbe proof to tbe matters therein specified.</p> <p>SAME — DEPARTURE.</p> <p>The fact that a b: 11 of particulars presents a case different from tbe complaint' does not constitute a departure in pleading.</p> <p>SAME-JOINDER OE CAUSES OE ACTION.</p> <p>Under Bal. Code, § 4942, which permits several causes of action to be united when they all arise out of contract, an action on a contract for services and one upon a guaranty may be united in tbe same action.</p> <p>PAROL EVIDENCE-PROOF OF GUARANTY.</p> <p>Where a guaranty to answer for tbe debt of another bad been executed, parol evidence was admissible to prove tbe existence of tbe contract.</p> <p>ACTION ON CONTRACT FOR SERVICES-PROOF OF GUARANTY — VARIANCE.</p> <p>Where a complaint alleged tbe indebtedness of defendants to plaintiff in a certain sum for services rendered, proof that some of tbe defendants guarantied tbe pre-existing indebtedness of another defendant, which they promised to pay, together with additional compensation, if plaintiff would continue in tbe employ of all tbe defendants for a stipulated period, constitutes at most but an immaterial variance, in tbe absence of a showing that the adverse party was misled thereby.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. George W. Belt, Judge.</p>

<p>TRUSTEE-LIABILITY FOR TORTS OF EMPLOYEE.</p> <p>One who purchased the property, plant, franchise and assets of a light and power company at a judicial sale as the agent and trustee for a committee of the bondholders procuring such sale, paying therefor with the money and bonds of such committee and by a written agreement covenanting to hold said property as the agent of, and in trust for said committee, to manage and operate according to the orders and instructions of said committee without other compensation than his salary as bookkeeper, and to transfer and relinquish the possession of said property immediately upon the written request of said committee, occupied i:he relation of trustee instead of agent, and was therefore liable as trustee for the tortious acts of an employee, from which he would not be relieved by his subsequent transfer of the property pursuant to the directions of the cestui que trust.</p> <p>APPEAL-SUFFICIENCY OF COMPLAINT-ERROR NOT URGED BELOW.</p> <p>On an appeal by the plaintiff in a personal injury case, the respondent is entitled to urge, although the objection was not raised in the lower court, that the complaint does not state a cause of action, for the reason that it shows contributory negligence on the part of the plaintiff.</p>

<p>MUNICIPAL CORPORATIONS-LIABILITY FOR DEFECTIVE BICYCLE PATH.</p> <p>Where a city, although not required so to do, exercises the privilege of constructing a bicycle path, the same rule in regard to the reasonable safety of such path for ordinary use applies to the method and care in the construction and maintenance as where there is a duty imposed by law.</p> <p>SAME — DUTY TO MAINTAIN SAFE HIGHWAYS.</p> <p>Where a city has exclusive control and management of its streets, a ministerial, rather than a governmental, duty is imposed upon it to keep the same reasonably safe for the ordinary modes of travel; hence if a bicycle path constructed by a city is unsafe for ordinary travel thereon, by reason of its being constructed with a sharp turn on the outer edge of which there was an elevated curb, the city is liable to one who, without negligence on his part, is injured while using it in the ordinary way.</p> <p>SAME.</p> <p>The fact that other parts of a street were safe for bicycles and other vehicles would not relieve a city from liability, where it had constructed a bicycle path and thereby constructively invited that particular kind of vehicle to go upon this particular way.</p> <p>SAME-NEGLIGENCE IN MAINTENANCE OF BICYCLE PATH.</p> <p>Where a city maintains a bicycle • path which is unsafe by reason of a sharp turn at a point about four feet distant from a gutter eight inches deep, bordered by a wooden sidewalk twelve inches high, without the maintenance by the city of lights or barriers at such point, and with knowledge on the city’s part of the dangerous character of such turn in the path, the city is liable to a bicycle rider injured while traveling on such path and using ordinary care.</p> <p>SAME — LIABILITY FOB DEFECTS OUTSIDE OF HIGHWAY.</p> <p>The want of a sufficient barrier and protection to prevent travelers upon a highway from running into a dangerous construction without the limits of the road, but in the general direction of the travel thereon, may properly be alleged as a defect in the highway itself.</p>

<p>WAIVER OE SPECIAL APPEARANCE — WHAT CONSTITUTES.</p> <p>Where a defendant who has entered a special appearance in an action afterwards answers to the merit's without preserving his special appearance, he thereby waives any rights thereunder, and renders his appearance general, under Bal. Code, § 4886; and the fact that the court had ordered a default entered unless he asked further time to plead would not excuse his subsequent answer to the merits, when the appearance and answer were voluntarily made under an agreement to do so in case certain proceedings were had, which were done accordingly.</p>

<p>DECEIT-REPRESENTATIONS-SCIENTER-PLEADING.</p> <p>In an action to recover damages for false representations as to tbe solvency of a third person, the complaint is demurrable, when it avers that plaintiff was induced to make sale of a steamship upon positive representations by defendants of the solvency of the purchaser, that plaintiff had no other knowledge than that obtained from such representations, that the representations were false and the plaintiff injured thereby, but no averment is. made that the defendants had knowledge of the falsity of their representations, nor that the statements were made recklessly, without knowledge of their truth or falsity, nor specific facts stated from which fraudulent intent could be inferred.</p>

<p>Appeal from Superior Court, Chehalis County. — Hon. Charles W. Hodgdon, Judge.</p>

<p>Appeal from Superior Court, King County.- — Hon. William R. Bell, Judge.</p>

<p>NEGLIGENCE-INJURY TO CHILD-ACT OE PARENT NOT IMPUTED TO CHILD.</p> <p>The negligence of the parent cannot be imputed to tbe child in an action brought for the benefit of the child and not for the benefit of the parent.</p> <p>SAME — PROXIMATE CAUSE.</p> <p>Where, owing to the defective construction of a .highway maintained by a city, and upon which a railroad was operated, an opening was permitted between the rails and the planking, in which a boy’s foot caught, on his stepping in between standing cars, and could not be extricated in time to avoid his being run over by the moving of the cars by an engine, the city is liable under the rule that the intervention of a third person, or of other and new direct causes, does not preclude a recovery, if the injury was the natural or probable result of the original wrong, even if the boy had been directed by his father to get into the place where he was injured, and even if the railway company had been negligent in moving its train without proper warning.</p>

<p>Appeal from Superior Court, King County. — Hon. Boyd J. Tollman, Judge.</p>

<p>Appeal from Superior' Court, King County. — Hon. Arthur E. Griffin, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. G-bokge W. Belt, Judge.</p>

<p>SURFACE WATER — ARTIFICAL DIVERSION OVER LANDS OF ADJOINING OWNER.</p> <p>Au owner of land upon wbieb there is a natural accumulation of water into a swamp or lake, has no right to improve his land by draining such waters from one portion of his land through a natural barrier to another portion, whence it would escape over the lower lands of an adjoining proprietor; and the fact that the latter had the right to protect himself against such waters by diking or ditching would not cause the act t'o fall under the rule of damnum dbsoue injuria. (Cass v. Dicks, 14 Wash. 75, distinguished.)</p>

<p>EQUITABLE ACTION'S PLEADING — BELIEF UNDER FACTS ALLEGED.</p> <p>Plaintiff being entitled in an action of equitable cognizance, under the prayer for general relief, to such relief as the pleadings and evidence warrant, a complaint will not be treated as uncertain and ambiguous because it states facts which might justify an accounting, injunctive relief, quieting title, or the declaration of a trust, inasmuch as the court would be authorized in granting relief on any theory that was sustained by the facts alleged.</p> <p>SAME-ELECTION OF CAUSE OF ACTION.</p> <p>In an action by plaintiff to quiet title to a mining claim which had been relocated by a tenant in common in his own interest, or have the relocation declared in trust for the tenants in common, it was not error to refuse to compel plaintiff to elect between his allegation that sufficient assessment work had been done to render relocation invalid, or if such work had not been performed it was by reason of the fraud of the defendant who was charged with that work, since more than one state of facts might establish the wrong and justify the relief demanded.</p> <p>MINES AND MINERALS-ASSESSMENT WORK.</p> <p>Where the necessary amount of assessment work was done on a mining claim during a certain year, the presumption would be that it was done by the co-owners, or some of them, in the absence of proof to the contrary, although the evidence may not clearly establish by whom the work was done.</p> <p>SAME •— DISCOVERY OP MINERAL-RELOCATION •— ESTOPPEL OP SUBSEQUENT LOCATOR.</p> <p>A subsequent locator of a mining claim who has never been thereon, hut located it by an agent, is estopped from claiming that the first locators made no discovery of mineral on the claim, when his agent was one of the owners under the prior location and such agent admits in his answer to an action by one of the former owners that there had been a discovery of mineral under the prior location.</p> <p>SAME-TENANTS IN COMMON •— FRAUD AGAINST CO-TENANTS.</p> <p>Where the evidence shows that a co-tenant in a mining claim, who was charged by the other co-tenants with the performance of the assessment work thereon, relocated the claim on the ground of failure of assessment work, in the name of his brother, who had never been thereon, hut who had knowledge of all the facts, the court was warranted in finding that such a co-tenant' had entered into a conspiracy with such subsequent locator for the purpose of defrauding the real owners of the claims.</p> <p>SAME-RELOCATION BY CO-TENANT-EFFECT.</p> <p>A relocation of a mining claim by one of the co-tenants therein constitutes an entry in behalf of ail his co-tenants.</p> <p>SAME.</p> <p>Where a co-tenant relocates a mining claim in the name and interest of other parties than the original owners, all work done on the claim and discoveries made therein under the relocation inure t'o the benefit of his co-tenants.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. William E. Richardson, Judge.</p>

<p>Appeal from Superior Court, Iling County. — Hon. T3oyd J. Tallman, Judge.</p>

<p>Appeal from. Superior Court, Clallam County. — Hon. George O. Hatch, Judge.</p>

<p>Appeal from, Superior Court, King County. — Hon. Tiiad Hustoh, Judge:</p>

<p>Appeal from Superior Court, Pierce County. — Hon. William H. Snell, Judge.</p>

<p>JUDGMENTS —- DIRECT ATTACK BY CROSS COMPLAINT.</p> <p>When a defendant flies a cross-complaint and seeks affirmative relief, it is in tbe nature of an original action, and an attack on a judgment made in such cross-complaint is a direct, not a collateral, attack.</p> <p>SUMMONS-AFFIDAVIT OF SERVICE-OVERCOMING PRESUMPTION FROM SHERIFF’S RETURN.</p> <p>The sheriff in bis return to a summons set forth that defendant could not be found in tbe county and that to tbe best of his information be resided in New York city; an alias summons was issued and served by a private individual, who made affidavit that be served said defendant at tbe bouse of bis usual abode in Spokane by leaving with bis wife, then residing there, a copy of tbe summons and complaint. Held, that due service on defendant was shown, since tbe sheriff’s return of non-residence was not conclusive, but only presumptive evidence, inasmuch as the statute does not require such return to set forth tbe defendant’s residence, and any presumption arising from such return was overcome by tbe affidavit of personal service.</p> <p>SAME-SUFFICIENCY OF SERVICE — PRESUMPTIONS.</p> <p>Where an affidavit of service of summons by a private individual merely recited conclusions of affiant as to such service, instead of setting forth necessary facts, it was sufficient t'o raise a presumption of proper service, and where such proof was not attacked in tbe original proceeding, but the court found that personal service had been made, a court of equity will sustain the judgment in a subsequent attack made on' account of such irregularity.</p> <p>SAME-RETURN OE SERVICE-USUAL ABODE.</p> <p>The return of service of a summons showing that it was left at the house of defendant’s “usual abode in the city of Spokane” does not import that defendant had another residence elsewhere.</p> <p>SAME-EVIDENCE OE EUJTS RECITED.</p> <p>The return of service of process, either by a sheriff or by a disinterested person authorized by law to make it, is prima facie evidence of the facts recited therein, and a court of equity should not set aside a judgment on the ground of lack of service except upon clear, satisfactory and convincing proof.</p> <p>SAME — ’DEFENDANT'S USUAL ABODE-PROOF OE CHANGE.</p> <p>In an action to set aside a judgment for lack of service, the fact that a defendant made statements on .leaving the state to intimate friends or to his wife that he expected to locate elsewhere and not return would not be sufficient to establish that he had changed his residence, when his wife and family continued to reside in his usual place of residence, and he had been absent hut a short time, engaged on a pleasure trip, and had not taken up any definite abode, at the date service was made by leaving a copy of the summons and complaint for him with his wife at their usual place of abode.</p> <p>SAME-BURDEN OE PRODE.</p> <p>An abode once acquired is presumed to continue until it is shown to have been changed by acquiring another permanent abode, and the burden of proof rests upon the person asserting the change.</p> <p>SAME.</p> <p>In the case of a married man, the house of his usual abode is the house wherein his wife and family reside.</p>

<p>Appeal from Superior Court, Klickitat County. — Hon. Abraham L. Miller, Judge.</p>

<p>Appeal from Superior Court,' Skagit County. — Hon. Jeremiah Heterer, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. Geokge W. Belt, Judge.</p>

<p>APPEAL-EEROBS ASSIGNED-INSUFFICIENCY OE KEOORD FOR REVIEW.</p> <p>Where a judgment of nonsuit recites that is is based upon the pleadings and on the opening statement of counsel for plaintiffs, an appeal will he dismissed where the record does not contain such opening statement, for the reason that, because of its absence, the supreme court would he unable to pass intelligently upon the error alleged in granting the nonsuit.</p>

<p>Appeal from Superior Court, King County. — Hon. Boyd J. Tallman, Judge.</p>

<p>Appeal from Superior Court, Chehalis County. — Hon. Mason Irwin, Judge.</p>

<p>Appeal from Superior Court, Lincoln County. — Hon. Charles H. Neal, Judge.</p>

<p>Appeal from Superior Court, Lincoln County. — Hon. Charles H. Neal, Judge.</p>