Volume 33 — Washington Reports

, entered June 4, 1902, upon motion of the defendants at the close of the plaintiffs’ case, at a trial before the court without a jury, dismissing an action to quiet title and recover possession of premises sold for taxes.

<p>Injunction—Restraining Enforcement of Penal Ordinance. Injunction against the enforcement of a penal ordinance not a police regulation, which affects valuable property rights, may be maintained where otherwise resort to the criminal courts would be required to test the validity of the law.</p> <p>Municipal Corporations—Ordinances—Regulation of Platting Additions to City—Validity. The fact that a section of a municipal ordinance regulating the filing of plats of additions affects lands outside the city does not invalidate the remainder as to lands within the city.</p> <p>Same—Discretion of City Council—Ultra Vires. The Seattle municipal code of 1892, §§ 747-750, requiring plats of city additions to be approved by the city council if, upon report by the city engineer, the streets are found to coincide with other streets in the city, vests discretionary powers in the council, and does not absolutely require that they shall so coincide, and injunction will not lie to restrain the enforcement of the ordinance as ultra vires, or because the council may abuse its discretion, unless compliance is made impossible or unreasonable by the council’s construction thereof.</p> <p>Same—Regulations as to Payment of Taxes. An ordinance making the payment of city taxes a prerequisite to the filing of any plat as an addition to the city is not an unreasonable regulation.</p> <p>Same—Complaint—Sufficiency. A complaint to enjoin the enforcement of an ordinance regulating the filing of plats of additions to the city is insufficient when it fails to allege the necessary preliminary steps for approval of a plat, since it may be finally approved by the council.</p> <p>Same—Title of Ordinance. The objection that the title of an ordinance is not broad enough to include the penalty, will not be considered in a suit to enjoin its enforcement, when it does not affect other portions of the act.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J-, entered May 3, 1902, upon the verdict of a jury rendered in favor of the plaintiff by direction of the court.</p>

Appeal by John Sullivan, chief of police of Seattle, from a judgment of the superior court for King county, Griffin, J., entered September 8, 1902, discharging the applicant, 0. 0. Smith, from custody upon a writ of habeas corpus, and for costs, after a hearing upon the return to the writ shohwing a commitment from the police court of Seattle.

<p>Appeal from a judgment of tbe superior court for King county, Bell, J., entered December 8, 1902, upon tbe verdict of a jury rendered in favor of tbe defendant by direction of tbe court.</p>

, entered July 30, 1902, upon the verdict of a jury rendered in favor of the plaintiff hy direction of the court, after overruling defendant’s motions for a directed verdict or a nonsuit.

<p>Appeal—Conclusiveness op Statement op Facts—Notice op Findings. A duly certified statement of facts to which no amendments were proposed reciting that a party was present at the time findings were settled and that he argued upon the same, conclusively shows that such party had notice of the findings.</p> <p>Same—Failuke to Except to Findings. Where no exceptions to findings of fact are stated when the findings are signed in the presence of the party, and none are filed within five days thereafter, as required by Bal. Code, § 5052, the evidence will not be reviewed on appeal.</p> <p>Execution—Notice of Sale—Sale of Leasehold. Bal. Code, § 5274, regulating execution sales of real estate “or any interest therein,” governs the sale of the interest of a lessee of state lands, and such a sale made upon the notice provided for sales of personal property is void.</p>

<p>Appeal by O. 0. Moore, administrator of tbe estate of Fannie D. Field, deceased, from an order of tbe superior court for Spokane county, Belt, J., entered June 14, 1902, denying bis petition for an accounting, after a bearing upon tbe merits.</p>

Appeal by Edgar E. Barker et al., heirs at law of Oliver P. Barker, deceased, from an ex parte order of the superior court for King county, Tallman, J., entered October 7, 1902, vacating an order made June 13, 1902, denying a petition to sell real estate to pay debts.

, entered January 21, 1903, upon findings in favor of plaintiff, after a trial on the merits before the court without a jury.

, entered January 5, 1903, upon sustaining a demurrer to the complaint, dismissing an action for personal injuries caused by an explosion of a bottle of “champagne cider” manufactured by defendant.

<p>Appeal from a judgment of the superior court for King county, Bell, J., entered April 7, 1902, upon the verdict of a jury rendered in favor of the plaintiff by direction of the court.</p>

, entered February 11, 1903, upon the verdict of a jury rendered in favor of the plaintiff by direction of the court, upon defendants’ opening statement to the jury, and after overruling defendants’ motion for a nonsuit

Appeal by plaintiffs from a judgment of tbe superior court for Tburston county, Linn, J., entered January 5, 1903, upon tbe findings and decision of tbe court in favor of defendants, after a trial before tbe court without a jury, dismissing on tbe merits a complaint to reform a deed as a mortgage, and decreeing that tbe defendants are tbe owners in fee of tbe premises.

, entered October 20, 1902, upon findings in favor of the defendant, dismissing plaintiff’s complaint on the merits, after a trial before the court without a jury.

<p>Tide Lands Sales—Improvements—Appraisement—Railroads. A railroad across tide lands constructed on piles and trestle -work is not an improvement entitling the owner to have the same appraised before sale of the tide lands, within the meaning of Laws of 1897, p. 231, defining improvements to he “fills of a permanent character and all structures used for trade, business, commerce or residence, excepting capped piles and similar structures or fixtures,” since the statute contemplates structures which enhance the value of the land.</p> <p>Same—-Action to Annul Sale—-Eminent Domain. A state contract for the sale of tide lands made without appraisement of improvements will not be annulled at the suit of a common carrier, the owner of a railroad built on piles across the same, since the appraisement of the road as an improvement would compel the purchaser to pay its value without acquiring title to the materials composing it, and a right of way could subsequently be condemned upon paying the value of the land taken without regard to the value of the improvements thereon.</p>

Cross appeals from a judgment of the superior court for Chelan county, Heal, L, entered August- 23, 1902, after a trial on the merits before the court without a jury. Action to determine the priorities of right to the use of waters of a stream for purposes of irrigation. Two separate sets of findings were filed. The plaintiffs’ claim was cut down, and established-as first in time, and they appeal from that part of the decree making the reduction.

, entered August 21, 1902, upon the decision and findings of the court and an advisory verdict of a jury rendered in favor of the plaintiff, after a trial on the merits.

<p>Appeal by defendant from an order of tbe superior court for Skagit county, Joiner, J., entered September 15, 1902, appointing a temporary receiver upon tbe application of plaintiff in an action of ejectment, after a bearing on oral testimony and affidavits.</p>

<p>Public Lands—Homestead—Exemption from Debts—Heir’s Preference Right to Enter—Administrator's Sale—Validity. Where a settler upon unsurveyed public lands dies without heirs who are citizens of the United States, his administrator cannot sell the improvements and right of possession to pay debts and expenses of administration, but the land is again open to settlement, since heirs do not succeed by right of inheritance, but only by virtue of a preference as new homesteaders, if qualified, and the homestead is exempt from debts.</p> <p>Same—Settler on Unsurveyed Lands—Exemptions. The exemption from debts contracted prior to patent applies with equal force to improvements on unsurveyed land before entry, and after as well as before the death of the settler, and to administrators’ as well as execution sales.</p> <p>Administbatoe’s Sale—Rights oe Pubchaseb. The rule of caveat emptor applies to administrator’s sales.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered June 30, 1902, dismissing the action upon granting a motion for a nonsuit.</p>

<p>Appeal—Bond—Affidavit of Sureties. The fact that the principal in an appeal bond, as notary public, took the affidavits of the sureties does not affect the sufficiency of the bond.</p> <p>Administration—Priority—Who Entitled to—Disqualification of Husband. Under Bal. Code, § 6141, conferring the prior right to administration upon the surviving husband, or upon such person as he may request to be appointed, the husband, although convicted of a felony and himself disqualified to act, may designate the person entitled to the appointment.</p> <p>Same—Waiver of Right—Time for Asserting Preference. The neglect of the person entitled to letters of administration to petition therefor for more than forty days after the death of the intestate waives the right to priority, under Bal. Code, § 6141, and confers upon the court discretionary power to appoint any suitable person, and where two suitable persons subsequently apply, a selection made without reference to former priorities will not be disturbed on appeal.</p> <p>Same—Jurisdiction—Sufficiency of Application—Affidavit as to Heirs-—-Failure to File. The failure of the applicant for letters oí administration to file with. Ms petition an affidavit, stating tlie names and residences of the lieirs, is not a jurisdictional defect, since the same section requires the jurisdictional facts to he stated in the petition, and where this is done and the affidavit is filed at the time of the hearing the appointment is authorized.</p>

<p>Negligence—Bridges-—-Lack of Guardrails—Death by Wrongful Act—Proof of Cause of Death—Failure of Proof—Verdict not Sustained When Based on Conjecture. In an action for the death of a person alleged to have fallen from a bridge negligently maintained without any guardrails, there is a total failure of proof as to the cause of the death, and a verdict for plaintiffs is not warranted where it appears that the deceased left his team standing in the road the evening before to return some distance for a whiffl'etree, that the team wandered from the road down the stream without crossing the bridge, that deceased’s body was found partly underneath the bridge up-the stream, and the whiffletree four feet further up the stream, that deceased was familiar with the bridge, and that a person could approach the stream above the bridge and walk in the ravine beneath the same; since it is equally plausible and consistent with the testimony that he met his death other than by falling from the bridge, and the same cannot be left to conjecture or speculation.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Prather, J., entered December 26, 1902, upon finding’s in favor of plaintiff after a trial on the merits by the court, a jury being waived, in an action upon contract for a balance due for lumber sold and delivered.</p>

Appeal by tbe civil service commission of Seattle from a judgment of tbe superior court for King county, Tail-man, J., entered April 1U, 19023 upon findings of fact and conclusions of law made by tbe court after a hearing upon a writ of review, reversing tbe decision of said commission and reinstating tbe respondent, Samuel G. Corbett, as a member of tbe police force of said city.

<p>Appeal—Dismissal—-Bond—Justification of Sureties. An appeal will not be dismissed because tbe justification of tbe sureties states they are worth $200 in property not subject to execution, where no exception to their sufficiency was taken below, as the use of the word “not” was evidently a clerical error.</p> <p>Statement of Pacts—Time for Piling. A statement of facts not served within thirty days from the rendition of the judgment, where no extention was obtained will be struck out, as § 5062, Bal. Code, is mandatory.</p> <p>Briefs—Rules of Court. A brief will not be struck out for failure to page the exhibits, where no material injury resulted from the non-observance of rule 8.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Chadwick, J., entered February 6, 1902, upon findings in favor of plaintiff after a trial on the merits before the court without a jury, perpetually restraining the sale of lands of an estate to pay debts.</p>

, entered LTovember 24, 1902, upon findings in favor of the defendants, confirming the report of commissioners establishing a boundary line, after a trial on the merits before the court without a jury.

<p>Appeal from a judgment of the superior court for Whitman county, Chadwick, J., entered May 24, 1902, upon findings in favor of the defendants, after a trial on the merits before the court without a jury.</p>

L. Miller, J., entered April 21, 1902, upon findings in favor of plaintiff, after a trial upon the merits before the court without a jury.

Appeal by defendant from a judgment of the superior court for King county, Bell, J., entered October 15, 1902, upon the verdict of a jury rendered in favor of the plaintiff for the sum of $240 damages for conversion.

, entered October 11, 1902, upon sustaining a demurrer to the complaint, dismissing an action for the infringement of a trade-mark.

Appeal by defendants from an order of tbe superior court for Obelan county, Rudkin, J., entered September 4, 1902, setting aside tbe verdict of a jury rendered in favor of defendants July 11, 1902,-and granting a new trial.

Application to the supreme court, filed Uovember 11, 1903, for a writ of mandamus directing Henry L. Kennan, as judge of the superior court for Spokane county, to issue an attachment to compel a nonresident witness to attend and give his deposition.

, entered October 7, 1902, after a trial and conviction of the crime of manslaughter; also, from orders over ruling motions for a new trial and in arrest of judgment.

Appeal froDi a judgment of the superior court for King county, Albertson, J., entered May 14, 1903, upon the verdict of a jury rendered in favor of the defendant, in an action in the nature of rescission to recover money paid on representations respecting a mining claim. •

Appeal by Christian Anderson, assignee of a judgment, from an order of the superior court for Pierce county, Chapman, J., entered May, 6, 1903, upon motion of defendant, quashing a writ of execution issued upon the judgment.

<p>Appeal from a judgment of the superior court for Douglas county, Martin, J., entered May 1, 1903, after a trial and conviction of the crime of incest.</p>

<p>Appeal from a judgment of the superior court for "Whitman county, Chadwick, J., entered July 19, 1902, after a trial and conviction of the crime of larceny.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered April 11, 1903, upon the verdict of a jury rendered in favor of the plaintiffs.</p>

, entered April 18, 1903, upon the verdict of a jury rendered in favor of plaintiff for $5,500 damages for personal injuries sustained while operating a ten-block shingle machine, after overruling defendant’s motions for a nonsuit, for judgment notwithstanding the verdict, and for a new trial.

<p>Appeal by defendant from an order of the superior court for' Pierce county, Chapman, J., entered March 25, 1903, after a hearing upon affidavits, denying the motion of a nonresident defendant to vacate a default judgment for irregularities in the publication of the summons in a tax lien foreclosure.</p>

, entered February 18, 1903, after a trial and conviction of the crime of attempting to obtain money by false pretenses.

<p>Appeal from a judgment of the superior court for Kittitas county, Budkin, J., entered January 27, 1903, upon the verdict of a jury rendered in favor of plaintiff.</p>

<p>Appeal from a judgment of the superior court for King county, Bell, J., entered June 6, 1903, after a trial and conviction of the crime of murder in the first degree.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered January 21, 1903, upon a verdict of a jury rendered in favor of the plaintiff for $479 damages for conversion.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered November 6, 1902, upon the verdict of a jury rendered for the defendant by direction of the court at the close of plaintiff’s case, dismissing an action for personal injuries sustained in falling from an unguarded second story platform.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Linn, J., entered December 4, 1902, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, decreeing the foreclosure of a mortgage.</p>

<p>Municipal Corporations—Contracts por Street Improvements—Construction—City Engineer—Liability op City por Negligence op Agent. A contract between a city and two contractors whereby one was to pay the other for the removal of gravel from certain streets a specified sum per yard for “5000 cubic yards, more or less as may be designated by the city engineer,” plainly refers to the amount and not to the location of the gravel, and a complaint for the unskilfulness of the city engineer in measuring said gravel, pursuant to such contract, relates to his official duties and sufficiently states the liability of the city for the negligent act of its agent.</p> <p>Same. A city is liable for the negligence and unskii fulness of its city engineer in estimating the amount of gravel moved by a contractor under a street grading contract, when thereby another contractor was, under the terms of a contract with the city, forced to pay a sum largely in excess of the amount due for such work.</p> <p>Same—Contract op City—Consideration—Liability por Neglect op City .Engineer. Where the city and two separate contractors on street improvements enter into a contract whereby one contractor is to pay the other 20 cents per cubic yard for all gravel placed in a certain street, the amount to be determined by the city engineer, and which contract was made for the purpose of enabling the contractors to complete their contracts, sufficient consideration on the part of the city, making it liable on the contract for the neglect of the. city engineer, is shown by the fact that the value of removing the gravel was 35 cents per yard, 15 cents of which was to be paid by the city, and that thereby the city was relieved from the payment of 20 cents of such charge.</p>

<p>Application to the supreme court for a writ of mandamus, filed June 32, 1903, to which the defendant demurred.</p>

, entered February 24, 1903, upon sustaining a demurrer to the complaint, dismissing an action for damages for plaintiff’s arrest and prosecution under a void city ordinance.

<p>Ckiminal Law—Labceny by Embezzlement—Continuing Offense—Infobmation—Duplicity. An information charging a bank president with larceny by embezzlement “on the 15th day of August, 1900, and on divers dates and days from thence continuously to the 10th day of January, 1901,” of certain moneys and funds, amounting in the aggregate to a specified sum, is not demurrable for duplicity, but charges one continuing crime.</p> <p>Same—Bill op Particulars—Duplicity. A bill of particulars is not part of the information and even if it shows an intent to prove more than1' one crime, it does not render the information demurrable.</p> <p>Same. A bill of particulars showing that on various dates, specific sums were intrusted to the president of a bank, and that on a certain date thereafter he failed to account for the respective sums or any part thereof, doe$ not indicate that more than one offense was intended to be proved under an information charging the embezzlement of the aggregate amount on divers days and dates continuously during the period specified.</p> <p>Embezzlement—Conspiracy Between Officers op Bank—Sufficiency of Proof. Where letters, books and declarations of the accused’s associates are received under a promise to prove a conspiracy to embezzle the funds of a bank, there is sufficient prima facie evidence of the conspiracy to make the testimony admissible where it appears that none of the parties had any means, that the banks purchased by them were insolvent to the knowledge of all, that they used the deposits of one to pay the debts contracted for the purchase of the others, and solicited deposits representing that the banks were solvent, that the money was taken by defendant with the knowledge of his associates, and the funds were embezzled when the opportunity arose, and accused’s associates were in communication with him while he was a fugitive from justice.</p> <p>Same—Evidence of Insolvency of the Bank. In a prosecution against a bank president for the embezzlement of the funds of the bank, evidence of the receipt of deposits after the accused left the state, and of the closing of the bank without paying any of the depositors, is properly admitted as tending to show the insolvency of the bank at the time the money was taken, and the deceit practiced upon the depositors.</p>

, entered June 30, 1903, upon sustaining a demurrer to the complaint, dismissing an action for damages for a death caused by negligently throwing a timber from the roof of a building into the street.

<p>Appeal—Time fob Taking—Motion to Vacate Judgment. Where a motion is made to vacate an irregularly entered judgment dismissing an action, the time for taking an appeal from the judgment begins to run from the date of the order denying the motion, in as much as the motion involves the judgment. (State ex rel. Hennessy v. Huston, 32 Wash. 154, followed.)</p> <p>Appeal—Dismissal—Cessation of Contbovebsy—Dismissal of Subsequent Suit—When not a Bab. Where, pending an appeal from a judgment of dismissal, a like suit is commenced in the federal court and also dismissed, the dismissal of the second case by the federal court is not res judicata of the former suit, operating to work a dismissal of the appeal for want of any actual controversy, where the judgment of the federal court is expressly limited to the question whether the complainants are entitled to any relief in equity by reason of facts occurring since the date of the original decree from which the appeal is taken.</p> <p>Judgment—Res Judicata-—Appeal Pending. A Judgment of the federal court dismissing an action is not res judicata of like matters involved in a prior suit in the state court, when it appears that the federal cause has been appealed to the United States circuit court of appeals, and that no mandate has been received or filed in the clerk’s office.</p> <p>Judgment—Pbematubely Entebed Without Heabing. A judgment entered on the court’s own motion after issue joined, without any hearing, trial, or opportunity for hearing, is premature and irregular, and will he reversed on appeal. (State ex rel. Hennessy v. Huston, supra, followed.)</p>

<p>Insurance—Guaranty—Authority or Agents—Power oe Attorney—Construction. A letter of attorney authorizing an insurance agent to execute as attorneys in fact all bonds guaranteeing the fidelity of persons “and the performance of contracts other than insurance policies,” is sufficiently broad to authorize a contract guaranteeing the repayment of money loaned by a bank for the purpose of completing the construction of a vessel, Laws of 1897, pp. 332, 333, recognizing such indemnity obligations.</p> <p>Same—Evidence oe Authority. The charter of the company reciting the same powers is also properly received in evidence to show the agents authority.</p> <p>Same—Principal and Agent—Local Agent Representing Both Parties—Bond to Agent as Principal—Approval and Representations by General Agent. The bond of a surety company guaranteeing the repayment of a loan made to S as trustee for ship builders, for the purpose of completing the construction of a ship, which provided that it should not be valid until signed on the part of the company by S, who was its district agent, and which bond is signed by S, trustee, as principal in the bond, and also as district agent for the company, is not on that account void on the theory that S acted as agent for both principal and surety, where it further appears that it was executed and delivered in the presence of the general agents, who secured the loan by representations as to the surety company’s interest in the construction of the ship, and the bond was also signed by them, and S, who was a subordinate agent, signed as district agent at their request, the clause requiring such district agent to sign having been inserted by the general agents without being required by the company.</p> <p>Same—Knowledge—Ratification. Such signing by the district agent must be held to have been with the knowledge and consent of the company, the general agents having acted within the scope of their authority, and in good faith, and there being no evidence that the agent was secretly acting for both parties.</p> <p>Same — Clause in Bond Requiring Signature by District Agent—Execution by General Agents. Where general agents of a surety company appoint a district agent, and, without the company’s requirement, insert a clause that the bond shall not be valid until signed by the district agent, a bond signed by the general agents, under a letter of attorney empowering them to sign all bonds, does not require the signature of the district agent as such, where he is the principal in the bond.</p> <p>Same—Consideration—Prepayment of Premium. An indemnity bond guaranteeing the repayment of money advanced is valid without the payment of any premium, when it contains no condition making such payment a prerequisite, and the advance was secured by representations of the company’s general agents showing an interest of the company in the advance, which was to save a loss on other bonds issued by the company.</p> <p>Trial—Directed Verdict. When the evidence authorized judgment for the plaintiff, and defendant offers no evidence, there is no disputed evidence on material points, and it is proper to direct a verdict for the plaintiff.</p>

<p>Homicide—Manslaughter Excluded by Extradition on Charge of Murder—Instructions Defining Crime. Where the accused was extradited on the charge of murder, and so could be tried only for that offense, it is not error to refuse an instruction defining the crime of manslaughter and instructing that under the extradition laws he can not be tried therefor, and to aquit if guilty thereof, when the court properly defines murder in the first and second degrees, purposely, deliberation, premeditation, and malice, and instructs the jury to acquit if not guilty of either of the crimes defined, since the object of the requested instruction to obviate confusion between manslaughter and murder was fully met by the explicit instructions given.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Richardson, J., entered March 16, 1903, upon a trial and conviction of the crime of involuntary homicide.</p>

<p>Forcible Entry and Detainer—Summons—When Returnable. Bal. Code, § 5532 providing that a summons in forcible entry shall be returnable at a date designated therein, which shall not be less than six nor more than- twelve days from its date, the date referred to applies to the date of the service of the summons, and not to the date of its issuance endorsed theron; hence a summons issued February 2, returnable February 18, and served February 9, is sufficient.</p> <p>Appearance-—Special or General. After the overruling of a motion to quash the service of a summons, an answer filed without any mention of the previous special appearance, is a general appearance in the case, under Bal. Code, § 4886.</p> <p>Forcible Entry and Detainer—Holding Over After Expiration of Term—Eminent Domain—Pendency of Condemnation Proceedings as a Defensei In an action for unlawful detainer, a defendant corporation holding over after expiration of a lease can not justify its possession, or ask a suspension of the judgment, by setting up the institution of proceedings for the appropriation of the land which are still pending, and by the offer to give security until the same is determined.</p> <p>Same—Notice to Quit. In forcible entry and detainer, where the answer does not deny that a lease for a definite term had expired, notice to quit is not required under Bal. Code, § 5527.</p> <p>Same—-Due Process of Daw. The forcible entry and detainer act does not violate the fourteenth amendment to the constitution of the United States, prohibiting the states from depriving a person of property without due process of law.</p> <p>Pleadings—Motion for Judgment. Where the complaint is sufficient and the answer contains no legal defense, judgment on the pleadings is properly entered for the plaintiff.</p>

<p>Pleadings—Amendment—Limitation of Actions—Statute Not Unconscionable Defense—Setting up in Amended Pleading. The statute of limitations' is not an unconscionable defense, and the allowance of an amended pleading for the purpose of setting it up is not to be discriminated against, but should be treated as any other defense.</p> <p>Same. Great latitude is allowed in the amendment of pleadings, and it is not error to allow a trial amendment pleading the statute of limitations to a note, where the defendant was not surprised and made no application for a continuance.</p>

, entered November 15,1902, dismissing an action of ejectment, upon a trial before the court without a jury of equitable issues raised by tbe answer.

, entered April 7, 1903, upon the findings and decision of the court in favor of the plaintiff, decreeing the priority and foreclosure of plaintiff’s mortgages.

, entered March 30, 1903, upon the verdict of a jury rendered in favor of the plaintiff for $7,633 damages for personal injuries sustained through a fall caused by a projecting trap door in the sidewalk.

<p>Appeal from a judgment of the superior, court for King county, Albertson, J., entered April 9, 1903, upon sustaining a demurrer to the complaint, dismissing an action brought to condemn a right of way for a logging road and waterway.</p>

<p>Actions—Bab by Peevious Suit—Dismissal—Geounds or Motion—Phohibited Litigation. Where the superior court has once litigated the question of the death of a party, and has been prohibited by the supreme court from relitigating the same, it is justified in granting a motion to dismiss an action brought to relitigate the question, as “impertinent, vexatious, and contemptuous,” since any sufficient ground may be stated.</p>

<p>Dedication — Intention — Plats — Streets not Designated — Presumption. An. intention to dedicate a street below the line of high tide at the west side of a plat will not be presumed from the fact that the streets at right angles thereto are not closed at this point,' and are closed on another part of the plat, when a blank space is left and no street is designated there by name, or the boundaries marked, while the other streets are designated both by name and boundaries, and on the east side a street is so designated; especially in view of the law of Oregon territory in force at the time requiring the width and boundaries of streets to be designated on the plat, and since an intent to dedicate is not presumed and must clearly appear.</p> <p>Streets—Prescription—Use of Public not Inconsistent with Private Use—Access to Private Wharf and Depot. Where a railroad company constructed and maintained piles and planking upon its land immediately adjoining its railway tracks and depot and maintained a roadway to its private wharf, the use thereof by the public for twenty years, for the purpose of gaining access to the tracks, depot, and wharf, was not inconsistent with private ownership and did not establish a public street by adverse usage.</p> <p>Same—Railroads—Application for Franchise—Admissions. In such a case, an application for a franchise to build its railroad within the city including the land in dispute is not an admission that it is not the owner of the land.</p> <p>Deed—Construction—Adverse Possession—Color of Title. A deed conveying all the grantor’s land “in, upon or about” a certain townsite laid out by the grantor, is sufficiently broad and definite to constitute color of title to a strip of land thirteen feet in width immediately adjoining the west side of said plat within the patent line of the grantors donation claim.</p>

, entered May 9, 1903, upon sustaining a demurrer to the complaint, dismissing an action for the death of a brakeman caused by a defective coupling and pin.

Application to the supreme court, filed September 16, 1903, for a writ of mandamus compelling the respondent, as judge of the superior court for Whatcom county, to set a cause for trial before a jury.

, in favor of the Rorthport Smelting & Refining Company, entered July 13, 1903, upon a trial before the court and an assessment of damages by a jury, appropriating a right of way across the lands of the relator.

<p>Appeal from a judgment of the superior court for King county, Tallm'an, J., entered May 19, 1903, upon the decision and findings of the court in favor of the plaintiff, granting a permanent injunction against the city council’s award of the. official printing of the city of Seattle.</p>

, entered March 29, 1902, upon findings made by the court in favor of defendants after discharging the jury, dismissing an action to recover the possession of real estate and to quiet title.

<p>Public Lands—County Peopeety—Sale by County Commissionees—Notice—Eeeoneous Descbiption. Bal. Code, § 306, providing that notice of sale of county lands by order of the county commissioners shall particularly describe the property, must be strictly complied with, and when the body of the notice designates the wrong block the sale is invalid, although the caption of the notice correctly states the block, since the caption is no part of the notice, and it is impossible to say that no one was misled by the error.</p> <p>Same—Error in Description—Attempt of Officers to Correct at Time of Saxe. In such a case the sale can not be rendered valid by any act of the officers at the time of making the sale, or by an agreement with the purchaser that the notice was erroneous and that a different tract was intended and sold.</p>

Griffin, J., entered April 14, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court, a jury being waived.

, entered February 7, 1903, upon tbe findings and decision of tbe court, dismissing a cross complaint for a lien against a ship after a trial on tbe merits; and also from an order entered February 9, 1903, discharging tbe receiver of tbe vessel.

<p>Boundaries—Government Meander—Lake Shore—Title of Upland Owner. Lands lying between the government meander line of a navigable lake and the line of ordinary high water is the property of the upland owner, the meander being only for the purpose of ascertaining the area.</p> <p>Ejectment—Defenses—Adverse Possession—When Continuous—Evidence of Abandonment—Sufficiency. Where in ejectment it appears that defendant, a squatter, who claimed by adverse possession for ten years, had attempted to enter the land in dispute as a homestead, and that, after the land department rejected his entry, he sold his improvements and went away for several months, there was sufficient evidence of abandonment to support a verdict for the plaintiff upon the theory that his possession had not been continuous, although it appeared that he afterwards returned and resumed possession, built a house, and commenced to pay taxes.</p>

, entered March 20, 1903, upon granting a motion for a nonsuit, dismissing an action founded upon employer’s liability, no employment by defendant being shown.

, entered May 11, 1903, dismissing an action for personal injuries to a passenger upon a street car, upon withdrawing the case from the jury at the close of the testimony.

<p>Rape—Prosecutrix Under Age of Consent—Evidence of Other Offenses. In a prosecution for rape where the prosecutrix is under the age of consent, testimony of carnal intercourse between the parties at times other than the one charged is admissible.</p> <p>Same—Information—Force. Such rule is not changed by the charge of force in the information, as that is surplusage and does not change the nature of the proof required where the prosecutrix is under the age of consent.</p> <p>Same—Age of Consent—Alleging Age—Sufficiency. Charging the offense of rape upon a prosecutrix “of the age of sixteen years” sufficiently alleges that she was under the age of consent, eighteen years, as against objection first made after verdict.</p> <p>Venue—Sufficiency of Evidence—Judicial Notice of Location of City. Proof that the offense of rape was committed in a house at a certain street and number in the city of Seattle is sufficient proof of the venue, as the courts take judicial notice that Seattle is in King county, Washington.</p> <p>Rape—Proof of Miscarriage—Competency—Corroboration. In prosecution for rape of one under the age of consent, proof that the prosecutrix suffered a miscarriage within the period of gestation is competent to show that the crime had been committed, and as corroborative of the evidence of the prosecutrix that the defendant was the guilty party.</p> <p>Same—Corroboration. The jury may convict for rape upon the uncorroborated testimony of the prosecutrix, when she testifies directly and positively to all the essential elements of the offense.</p> <p>Evidence—Impeaching—Stenographer’s Testimony as to Statements at Former Trial—Weight. Where witnesses have denied making certain statements at a former trial, testimony of the stenographer that they made the statements ascribed to them is competent in rebuttal, and its weight is for the jury.</p>

, entered June 12, 1903, upon findings in favor of the plaintiff after a trial before the court without a jury, decreeing the foreclosure of a mortgage and denying the priority of defendant’s judgment lien.

, entered June 18, 1903, denying a petition-of collateral heirs to vacate and set aside a final order of distribution in favor of the widow of deceased, after a trial upon the merits before the court without a jury.

<p>Appeal—Review—Exceptions—Sufficiency. Under one general exception to “each and all” of several findings separately-stated and numbered, the court will not review the evidence, since that is equivalent to no exception.</p> <p>Same. Under a general exception findings will not be reviewed unless it appears that all are erroneous.</p> <p>Same—Statement of Pacts. If there are no sufficient exceptions to findings, the statement of facts will be struck out.</p> <p>Adjoining Land Owners—Surface Waters—Drainage—Damages from Plow—Pleading—Counterclaim for Removing Lateral Support—Sufficiency. In an action between adjoining land owners brought to enjoin the flow of surface waters and drainage collected on the defendant’s premises, a counterclaim alleging that plaintiff had removed the defendant’s lateral support, causing a slide and damage to buildings, and destroyed the natural surface of the ground, causing damage in the sum of $1,000, is not demurrable for failure to state a ground for recovery, and the same is connected with the subject-matter of the 'action stated in the complaint, and is proper matter for counterclaim under Bal. Code, §§ 4913, 4913a.</p>

, entered December 2, 1902, upon findings in favor of the plaintiff, after a trial before the court without a jury, granting plaintiff a life estate in the premises in controversy.

Appeal front a judgment of the superior court for Pierce county, Snell, J., entered June 3, 1903, upon findings in favor of the plaintiff after a trial before the court without a jury, dismissing intervenor’s complaint interposed as a creditor to secure a distribution of the proceeds of a sale of merchandise in bulk.

, entered June 9, 1903, restraining the defendants from foreclosing a chattel mortgage, after a hearing upon affidavits of plaintiff’s application for an injunction.

, entered December 6, 1902, upon the verdict of a jury rendered in favor of the plaintiff for the sum of $9,000 for personal injuries.

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered March 13, 1903, upon the verdict of a jury rendered in favor of the plaintiff in an action upon a life policy in a mutual benefit society.</p>

<p>Municipal Coepobations—Chabtee—Amendments—Clekical Ebboe in Notice. An amendment to a section of a city charter relating to the filing of claims against the city is not invalidated by a clerical error in referring to the same as § 29, art. 8, in the resolution and notice submitting the same to a vote of the people, when it clearly appears from the section set out in full that § 29, art. 4, was intended.</p> <p>Same—Submission of Amendments—Resolution of City Council—Legislative Act. A city council may submit amendments to the city charter to a vote of the people by a resolution, when the charter provision relating thereto simply provides that the amendments shall be “proposed” in the city council, since such resolution is temporary and ministerial in its nature, and is not a legislative act within the requirement of the charter that all legislative acts shall be by ordinance.</p> <p>Municipal Corporations—Actions—Presenting Claims—Excuse for Failure to Present in Time. Where a claim was presented on the 31st day after the injury, a sufficient excuse for failure to present the claim within 30 days, as required by the charter, is shown by an allegation in the complaint that plaintiff was disabled by the injury from attending to any business for more than thirty days and that he presented the claim as soon as he was able to determine the extent of his injuries; and sustaining a demurrer to such a complaint is error, since plaintiff’s incapacity is a question of fact for the jury.</p>

<p>Negligence — Damages — Physician’s Services — Failure to Prove Amount Paid—Instructions. In an action for personal injuries where no specific sum is claimed as damages on account of the employment of certain physicians, who treated plaintiff for serious injuries, and no evidence was introduced as to the value of such services extending over a considerable period, an instruction that the jury are not to consider any damages of this character, “unless there is evidence in the case . . . that such damages were sustained . . . and had a reasonable value,” is not erroneous as assuming that there was any such evidence, or as an instruction upon evidence not in the case.</p> <p>Same—Instructions—Whether any Evidence in Support oe an Issue—Submission to Jury. Where there is no evidence tending to prove an issue, the court may properly so instruct the jury, hut it is not error to fail to do so, where no request therefore is made.</p>

Application to substitute Peter A. Berg, successor in interest of the respondent, upon an appeal from an order of the superior court for Bierce county, Chapman, J., entered February 24, 1903, temporarily restraining a public nuisance specially injurious to certain lots owned by the plaintiff, and transferred to said Berg pending the appeal.

, entered January 22, 1903, upon findings in favor of the plaintiff, after a trial upon the merits before the court without a jury, foreclosing a mechanics’ lien.

<p>Appeal from a judgment of the superior court for King county, Bell, J., entered December 26, 1902, dismissing the action upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered March 23, 1903, dismissing an action to foreclose a mechanic’s lien upon sustaining a demurrer to the complaint.</p>

<p>Appeal by plaintiff from a judgment of the superior court for Snohomish county, Denney, J., entered February 18, 1903, upon the verdict of a jury rendered by direction of the court for the amount admitted by defendant to be due.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Chadwick, J.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Martin, J.</p>

<p>Appeal from a judgment of the superior court for Ferry county, Neal, J.</p>