Volume 40 — Washington Reports

, entered December 24, 1904, in favor of the defendant, after a trial before the court without a jury, dismissing on the merits an action to recover a broker’s commission.

<p>Libel and Slander— Reference to. Dance Hall — Words Not Actionable Per Se — Pleading—Complaint—Evidence—Sufficiency. A complaint for libel in having charged the plaintiff with conducting an entertainment in a manner that “would he a disgrace to the Comique or the worst dance hall in the city” is not sufficient in the absence of inducement or explanation as to the character of the places referred to.</p>

<p>Costs — On Reversal in Criminal Case — Taxation Against State — Statutes—Construction-—Long Acquiescence in Practice. Under Bal. Code, §§ 1627, 5182, 6528, and 7009, the costs on appeal in a criminal case, where the appellant is successful, are taxable against the state, especially in view of the uniform construction that has been placed thereon for years, and acquiesced in hy the legislature.</p>

<p>Appeal — Review—Quashing Writ op Certiorari Not Reviewed on Subsequent Appeal From the Judgment. Error in refusing to quash a writ of certiorari from a justice’s court, appeal from which was taken hut not perfected, cannot he reviewed on a subsequent appeal from a conviction thereafter had in the superior court.</p> <p>Criminal Law — Appeal prom Justice’s Court — Trial de Novo After Sustaining Demurrer to Complaint in Justice’s Court. Upon appeal from a justice’s court in a criminal case, the superior court has jurisdiction of the cause for trial de novo, and after sustaining a demurrer to the complaint below, may direct a new complaint or information to he filed.</p> <p>Criminal Law — Plea oe Guilty — Withdrawal—Evidence as Admission of Defendant. A plea of guilty in a justice’s court that has been withdrawn is competent evidence as an admission upon the trial of the cause de novo in the superior court.</p> <p>Criminal Law — Evidence of Justice of Peace Before Whom Defendant Was Tried — Admissibility. A justice of the peace is a competent witness concerning the facts that occurred before him on a previous trial of the case.</p> <p>Criminal Law — Tampering with Witnesses — Evidence of Defendant’s Knowledge of Pendency of Suit. Upon a prosecution for tampering with a witness in a certain cause, the record in such cause is admissible where there was other evidence that the defendant knew that such cause was in progress at the time in question.</p> <p>Same — Record of Former Case — Indentification of Complaint— When Admissible Without Authentication. Upon a prosecution for tampering with a witness in a certain cause, a complaint, to which the defendant had pleaded guilty at a former trial, is admissible in evidence without authentication, when there is evidence that it had been read over to the accused at the former trial and was identified as the same complaint to which he had pleaded guilty.</p> <p>Same — Witness Tampered With Not Subpoenaed. Upon a prosecution for tampering with a witness, it is immaterial whether or not the witness had been subpoenaed.</p> <p>Evidence — Letters from Third Person — Inadmissible as Evidence of Facts Stated. Upon a prosecution for tampering with a witness, letters from her to the accused are inadmissible as original evidence of the facts recited in them.</p> <p>Appeal — Review—Immaterial Evidence. Error cannot be predicated on the rejection of immaterial evidence having no hearing on the case.</p> <p>Same — Instructions—Exceptions. Error cannot be predicated upon instructions not excepted to within the time prescribed by statute.</p> <p>Criminal Law — Tampering with Witness — -Persuasion—Threats —Evidence—Sufficiency. Upon a prosecution for tampering with a witness, the evidence is sufficient to sustain a conviction, where it appears that the accused, for the purpose of obstructing the course of justice, endeavored to persuade the witness not to testify, and resorted to threats to blacken her good name if she did so; and in such case the evidence does not warrant the giving of an instruction to acquit if the jury find that accused advised the witness to do her duty and tell the truth.</p>

<p>Fraud — False Representations of Private Banker to Secure Credit — Liability to Depositors — Pleading — Complaint — Sufficiency of Allegations of Fraud. Iu an action to recover of a private banker the amount of deposits fraudulently secured by the defendant, the complaint states a good cause of action for fraud, where it is alleged that he opened the hank without capital, fraudulently misrepresenting the same, and falsely representing that the hank was incorporated, thereby securing the deposits, and made a pretended sale of the hank to an incompetent person whose mismanagement resulted in the loss of the deposits.</p> <p>Banks and Banking — Liability of Private Banker to Depositors — Complaint—Sufficiency—Defenses—Transfer of Interest in Bank. A private banker is .personally liable to repay depositors, on demand, the amount of their deposits at the time of his transfer of the hank, or the amount they might thereafter deposit in ignorance of the transfer, if without negligence in failing to discover the transfer, and this right of action is assignable.</p> <p>Same — Defenses—Presentation of Claims to Receiver and Acceptance of Dividends — Original Debtor Not Discharged by Unsuccessful Efforts to Recover. A depositor’s right of action against a private banker is not discharged by the filing of a claim and acceptance of a dividend from a receiver of the banker’s assignee to whom the bank had been sold, and who had agreed to repay the deposits; since the promise to pay the deposits may be sued on by the depositors in their own names, and merely makes the original debtor a surety, and both debtors may be pursued, severally or jointly.</p> <p>Election of Remedies — Joint Debtors. Where two are severally liable to pay the same debt, an attempt to collect from one is not such an election of remedies as to bar an action against the other upon failing to collect the whole debt in the first action.</p> <p>Receivers — Judgment in Receivership Action When Not Res Judicata as to Several Liability of One Creditor to Other Creditors. An order for distribution in a receivership to the effect that the insolvent was indebted to a certain creditor, and fixing his pro rata share, is not res judicata of the several liability of such creditor to the other creditors, where he stood in the position of surety for the insolvent, when that issue was not raised in the pleadings or tried, and the other creditors did not seek to have his pro rata share paid over to them.</p>

, entered September 26, 1904, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained through an obstruction in a street.

<p>Appeal from a judgment of the superior court for Whitman county, Chadwick, J., entered July 2, 1903, upon granting a nonsuit at the close of plaintiffs’ testimony, after a trial before the court and a jury, in an action on contract.</p>

, entered August 1, 1904, upon the special verdict of a jury rendered in favor of the defendant, in an action of trespass.

<p>Actions — Dismissal eor Failure to Prosecute — Laches. An action of ejectment is properly dismissed for laches of the plaintiffs in failing to prosecute it, where it appears that they waited until within eight days of ten years before bringing the action, took five years to bring it to an issue of fact, and then for fifteen years did nothing towards bringing the issue to trial, being all the time under no disability; especially where speculative interests are in control and the right doubtful and without moral support.</p>

<p>Pleadings — Variance — Injury to Passenger Alighting from Street Car — Allegation that Car Was Stopped and Negligently Started — Proof of Defect in Brakes Preventing Stopping of Car — ■ Admissibility. There is a fatal variance between allegations of a complaint that the plaintiff,' a passenger, was injured by the negligent starting of a street car without warning, after it had stopped for the purpose of permitting her to alight, and proof that the brakes and sand box were defective, whereby the motorman'was unable to bring the car to a stop, and that plaintiff was thrown from the car before it stopped by reason of sudden jerks due to such defects; and such proof is not admissible under a general allegation to the effect that the injury was caused by the negligence of the defendant, the same being in the nature of a conclusion from the specific allegations.</p>

, entered June 23, 1904, upon findings in favor of the plaintiff after a trial on the merits before the court without a jury, in an action to recover for damages to plaintiff’s lawn, caused by a horse kept by defendant in its fire department.

, entered December 19, 1904, upon findings in favor of the defendants, after a trial before the court without a jury, in an action to recover the possession of land.

<p>Mandamus — To County Commissioners — County when Prober Party. In a proceeding to compel tbe county commissioners to establish a ditch fund and levy a special assessment, to pay warrants issued in part payment of a ditch, the county is a proper party defendant, having at least an indirect interest in the property, and perhaps a direct interest in the costs.</p> <p>Counties — Mandamus to Compel Liquidation oe Ditch Warrants — Adjournment oe Board for Purposes of Delay — Failure to Act. Where the county commissioners are petitioned to establish a ditch fund and levy an assessment, by a creditor who has already waited eleven years, and they take no action on the petition except to postpone consideration until the next regular term, any valid reason for such continuance is matter of defense, and cannot be urged by the county upon a demurrer to a petition for a mandate to compel action, where the petition alleges that they do not intend to take any action in the matter or pay the indebtedness.</p> <p>Same — Completion oe Ditch — Abandonment oe Project — Failure of County to Levy Assessment or Acquire Title to Necessary Land. Where the county commissioners abandon proceedings for the construction of a ditch for a drainage district, and the property owners take no steps to compel action for six months, a creditor of the district, holding warrants issued in part payment of the ditch, may sue to require the establishment of a ditch fund and the levy of an assessment upon the property benefited or to be benefited, and it would be no defense that the ditch is not completed or that the title to necessary property had not been acquired.</p> <p>Same — Laches oe Warrant Holder — Suit Within Six Months of Abandonment oe Proceedings. The holder of warrants of a drainage district is not guilty of laches in enforcing an assessment where he commenced suit within six months after the abandonment of the project by the county.</p> <p>Same — Powers of Court. In a proceeding by a warrant holder to compel the levy of an assessment to pay warrants upon an abandoned ditch project, the court could direct the levy of an assessment without completion of the ditch, or could direct its completion and the acquisition of necessary property to be followed by an assessment.</p>

<p>Appeal from a judgment of tb© superior court, for King county, Hatch, J., entered October 12, 1904, upon granting a nonsuit at the close of plaintiff’s case, in an action for personal injuries sustained by a laborer in a sand pit.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered December 5, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on a contractor’s bond.</p>

<p>Application filed in the supreme, court April 18, 1905, for a writ of mandamus to compel the state auditor to issue a warrant on the permanent school fund of the state in payment for bonds accepted as an investment by the board of state land commissioners.</p>

, entered March 15, 1901, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a section hand riding on a push car attached to a train.

, entered April 15, 1904, upon the verdict of a jury rendered in favor of the plaintiff in an action against endorsers on promissory notes.

, entered December 17, 1904, denying defendants’ motion to vacate a judgment entered npon the pleadings on motion of the plaintiff.

<p>Appeal — Revtew-^-Divobce. Tlie findings in a divorce suit will not be disturbed on appeal if justified by tbe evidence.</p>

, entered October 1, 1904, after a bearing on affidavits, appointing a temporary receiver upon tbe application of tbe plaintiff.

<p>Appeal from a judgment of the superior court for Spo- „ kane county, Honorable A. G. Kellam, Judge pro tempore, entered June 30, 1904, upon findings in favor of the plaintiff after a trial on the merits before the court without a jury,- granting a divorce.</p>

<p>Divorce — Action to Modify Decree — Custody of Children — Welfare Paramount Consideration — Condition of Parents — School Advantages — Wishes of Children- — Evidence—Sufficiency. The custody of minor children being determined by considerations as to their welfare, rather than the claims of the parties, it is error to enforce a decree of divorce requiring the mother to relinquish to the father the custody of two hoys after they attain the age of ten years, where it appears that both parties have remarried, that the mother is permanently located near the best of schools, which they attend, has no other children and is able to and does give them the best of care and attention; while the father has no permannt location, is much away from home, has another child, and took no steps for several years to secure their custody when entitled thereto, and discontinued contributing to their support; especially where both children are attached to the mother and prefer to remain with her.</p> <p>Same — Conclusiveness of Decree in Absence of Appeal — Award Not Pinal — Change in Conditions. A decree of divorce unappealed from, awarding the custody of children to one of the parties, is not final, if the award was subject to the further order of the court; nor is it final where the conditions of both parties have been changed by remarriage and other conditions affecting the welfare of the children.</p>

<p>Appeal — Quieting Title — -Plaintiffs Out of Possession and Lands Not Vacant — Form of Action — Point First Raised in Supreme Court. In an action to quiet title to land, the objection that the plaintiffs are out of possession and that the lands are not vacant or unoccupied, and therefore the action cannot he maintained, goes merely to the. form of the action and cannot he raised for the first time in the supreme court.</p> <p>Deeds — Description — Construction — Erroneous Reference to Former Conveyances — Inconsistent Description of Water Rights— Intention of Parties. Where a deed excepted certain water rights previously carved out of the estate, describing the same in two ways: (1) hy reference to the water specifically describing the volume; and (2) hy reference to the deed in which the water right was originally granted, which, however, described a smaller volume of water, and which water deed was also erroneously referred to as recorded in vol. 5, page 9; and a purchase money mortgage is given hack to the grantors, also describing the reserved water in two ways, viz.; (1) hy reference to the water deed recorded in vol. 5, page 9, and (2) hy reference to the deed to the mortgagees, the mortgage expressly granting “the same premises” conveyed to the mortgagees; the intention of the parties, which must control as to the inconsistent descriptions, was to mortgage the identical property conveyed to the mortgagees reserving the water as therein described, and not as described in the water deed, with which the mortgagors and mortgagees were not familiar, as shown hy the erroneous reference to the record thereof; since of two inconsistent descriptions, the erroneous one will he rejected as surplusage.</p> <p>Same — Bona Fide Purchaser — Inconsistent Descriptions Both of Record — Constructive Notice. One claiming under a mortgage containing two inconsistent descriptions of the rights conveyed, one by reference to one deed and the other by reference to another deed, both of record, does not occupy any better position than the original mortgagee, and is not a T)ona fide purchaser, but takes with constructive notice of all the records.</p>

, entered March 10, 1904, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a brakeman, riding on the side of a car, and struck by a projecting holt in a railroad bridge.

<p>Appeal from an order of the superior court for King county, Griffin, J., entered September 12, 1904, after a bearing on the merits confirming an assessment roll made by commissioners appointed to levy a special assessment upon property specially benefited by a municipal improvement.</p>

, entered September 12, 1904, upon findings in favor of the plaintiff after a trial before the court without a jury upon stipulated facts, in an action on a policy of insurance.

<p>Carriers — Livestock; — Duty to Unload for Rest, Food and Water — Confinement for 28 Consecutive Hours — Violation of Federal Statute — Negligence per se — Pleading—Complaint—Sufficiency. The confinement, by a common carrier, of livestock for more than twenty-eight consecutive hours without unloading for rest, food or water, in violation of the Federal statute, where the shipment is from one state to another, is negligence per se, and a complaint for damages therefor need only allege the violation of the statute and the resulting injury.</p> <p>Appeal and Error — Review—Harmless Error. Errors in ruling on the findings are harmless in actions triable de novo on appeal.</p> <p>Carriers —1 Livestock — Interstate Shipment — Contract — Exempting From Statutory Liability — Validity. A provision in a contract for the carriage of livestock, exempting the carrier from liability for loss sustained through the violation of a statutory duty, is void.</p> <p>Carriers — Livestock—Contract Requiring Shipper to Unload for Rest — Construction—Violation of Statutory Duty. A provision in a contract for the carriage of livestock requiring the shipper to load and unload the stock at his own expense at any place where the same may be unloaded, does not release the carrier from liability for damages by reason of its breach of duty to unload for rest, food and water, as required by the Federal statute.</p> <p>Carriers — Livestock—Delivery—Duty to Provide Suitable Inclosures. A carrier owes the duty to deliver stock to the consignee in or through inlosed lots or yards, and is liable for loss due to the scattering of stock unloaded without the usual and proper facilities.</p> <p>Same — Knowledge of Shipper — Contract—Construction. Where the shipper did not know that there were no proper facilities for unloading stock at the destination, the contract must he construed with reference to unloading where there were usual facilities.</p> <p>Same — Presenting Claim for Damages — When in Time — Provisions of .Shipping Contract. A claim for a loss on the shipment of livestock, required by the shipping contract to be made within ten days, is in due time, where, upon stating the claim within two days after the loss, the plaintiff was referred to other agents, who finally requested that he write a letter, which he did without delay, stating the claim as fully as it was then known, all within two weeks of the loss.</p> <p>Same. A statement in such claim that thirty-five head of cattle (which were turned loose and strayed at the plape of destination) are still lost, for which he had offered $2 per head, is sufficient on which to base a claim for depreciation in value by reason of the straying of the lost cattle.</p>

, entered- January 21, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for an accounting and dissolution of a copartnership^.

, entered October 4, 1904, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action by a trustee in bankruptcy to recover of a creditor the value of a stock of goods.

, entered October 26, 1904, after a hearing on the merits before the court without a jury, denying leave to cue a receiver.

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered February 16, 1904, after a hearing upon affidavits, dismissing an action for want of prosecution upon the motion of the defendants.</p>

<p>Appeal from a judgment of the superior court for Jefferson county, Hatch, J., entered December 10, 1901, dismissing an action to recover possession of real estate, upon sustaining a demurrer to the amended complaint.</p>

<p>Appeal — Review—Theory of Trial — Same as in Lower Court— Tort or Contract. When counsel state in the court below that the action is upon contract, it will he tried upon that theory on appeal.</p> <p>Contracts — Partly Written and Partly Oral — -Negotiations Culminating in Written Agreement. Oral statements of solicitors of the defendant are not part of a written contract of employment signed by the defendant’s president and manager, whereby plaintifí agreed to prospect in Siberia for more than one year; since the written contract is presumed to embody the terms of the agreement, and the solicitors had no power to bind the company by an oral agreement, not to be performed within one year.</p> <p>Same — Agents — Solicitors — Authority—Statements Preliminary to Execution of Written Contract by Officer of Company. An agent employed merely to solicit prospectors to engage in the service of the principal, has no authority to make or modify a contract of service for the principal.</p> <p>Contracts — To Prospect in Siberia — Transportation—Destination or Port of Delivery — Expulsion From Ship — Breach of Contract — Findings—Evidence—Sufficiency. Where the plaintiff engaged to prospect for the defendant in Siberia, and was transported to the Siberian coast in one of the defendant’s vessels, without specification as to the port where he should be landed, except that it was to be on the Siberian coast, it is not a breach of the contract that he was forcibly ejected at a point where the defendant had a station.</p>

, entered September 9, 1904, after a trial on the merits before the court without a jury, foreclosing a lien for labor performed in harvesting a crop of wheat.

<p>Judgments — Collateral Attack — Order oe Dismissal Vacating a Previous Order. An order of dismissal, which set aside and took the place of an order of dismissal entered the day before, is presumed regular, on collateral attack by respondent upon moving to dismiss an appeal therefrom because no appeal was taken from the first order, which latter is therefore functus officio and without vitality.</p> <p>Appeal — Final Orders. An order vacating a previous dismissal, and dismissing a will contest, is a final order affecting a substantial right, and is appealable, the first order being without further vitality.</p> <p>Wills — Contest—Pleading—Amendment oe Petition- — -Institution Within One Year. When a will contest is filed within time, and the petition is struck out for want of verification, with express leave to amend, the court is not without jurisdiction, and the proceeding is not barred, by reason of the fact that the amended petition was not filed within one year.</p> <p>Same — Time eor Filing Contest. When a decree admitting a will to probate is void, the time for filing a contest is not limited to one year.</p> <p>Same — Dismissal eor Want op Prosecution — Proceedings Stayed by Injunction op Federal Court — Excuse por Delay. It is error to dismiss a will contest for want of prosecution, when the proceedings were restrained by the order of the Federal court, although the proceeding in such court was instituted by the contestants of the will while the matter was still pending in the state courts.</p> <p>Wills — Probate—Citation—Service—Ten Days Notice — Order op Probate — Jurisdiction. The probate of a will is void for want of jurisdiction when no notice to the widow or next of kin was given under Bal. Code, § 4606, requiring a ten days’ notice of the time set for hearing.*</p> <p>Same — Burden op Proop. Upon a contest, the burden of proof is upon the proponent of a will, afthough a decree had been entered admitting the will to probate, where such decree was void for want of jurisdiction.</p> <p>Same — Offer of Proof of Nuncupative Will — Time for — Void Order of Probate — Reversal—Effect on Pendency of Proceeding. When proof of a nuncupative will was offered within six months, and a void order of prohate was entered thereon, it cannot he claimed, after a reversal of the order on appeal, that the proof was not “offered” in time, and that it is now too late to offer such proof upon the retrial of the contest.</p> <p>Appeal — Hearing — Questions Not Heard in Lower Court —■ Advisory Decisions. The supreme court will not decide matters never presented for hearing in the court belowj where its decision would only he advisory.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Heal, J., entered October 14, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, adjudging the defendant guilty of contempt of court.</p>

, entered November 28, 1904, upon findings in favor of tbe plaintiff, after a trial on tbe merits before tbe court without a jury, in an action for personal injuries.

, entered Hovember 16, 1904, setting aside the verdict of a jury rendered in favor of the plaintiff, and granting a new trial, on motion of the defendant.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered December 22, 1904, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained in attempting to.re move slabs lodged near a saw.</p>

<p>Husband and Wife — Property—Real Estate Held by Wife in Trust foe Son — Action by Husband to Recover for Community — . Character of Property — Evidence—Sufficiency. Upon an issue as to the character of certain property claimed hy the wife as held in trust for her son, and by the husband as community property, findings in favor of the wife are warranted, where it appears that in 1871, $1,200 came into their possession for the son from his grandfather’s estate, that the property in question was -conveyed to the wife in 1876, and the wife’s claim that she held it in trust for the son was corroborated by evidence of the real estate agent who negotiated the sale, and of other creditable witnesses, to the effect that many years before she refused to mortgage the same for that reason, and her statements to the same effect made in the presence of witnesses were not disputed by the husband, and the property was often spoken of in the family as such individual estate.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Budkin, J\, entered April 1, 1903, upon the verdict of a jury rendered in favor of the defendant, after a trial on the merits, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered May 11, 1905, remanding a prisoner to the state penitentiary, after a hearing on the merits on his application fox a writ of habeas corpus.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered November 15, 1904, upon quashing a writ of certiorari to review the establishment of a new school district by the county commissioners on appeal from the superintendent of schools.</p>

<p>Taxation — Foreclosure oe Liens — Service by Publication — ■ Notice to Owners — Owners Described in Certificate. In an action of ejectment by the purchaser of lands sold on a foreclosure of an individual delinquency tax certificate, an answer of the owners claiming by adverse possession fails to state any valid ground for attack on the foreclosure judgment by alleging the fact that they were resident owners, well known to the plaintiff, and were not served with notice; since the summons and notice need only he given to the owner described in the certificate; and since the proceeding is in rem, and it is competent for the legislature to provide for foreclosure without service other than by publication.</p> <p>Same — Foreclosure Judgment — Conclusiveness — Collateral Attack. A tax foreclosure judgment is conclusive as to all defenses specified in Bal. Code, § 1767, as to parties not contesting the same, who are thereby estopped to collaterally attack the judgment on the ground specified.</p> <p>Same — Answer—Tender of Tax Prerequisite to Defense. In an action by a purchaser to recover the possession of lands sold for taxes, it is a prerequisite to a defense that the defendants shall allege and prove a tender of the taxes for which the land was sold.</p>

, entered December 29, 1904, upon the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits, in an action for a conversion.

<p>Appeal and Eeeor — Transcript—Index—Sufficiency. A statement of facts will not be struck out for failure of tbe appellant to index tbe same where an index bas been prepared by tbe clerk of tbe supreme court.</p> <p>Same — Statement of Facts — Elimination of Evidence Immaterial to Issues on Appeal. It is proper to eliminate from tbe statement of facts all evidence except sucb as is material to tbe issue triable in tbe supreme court.</p> <p>Same — Review—Necessity of Exceptions to Findings of Fact— Review of Errors on Reception of Evidence. A general exception to findings of facts is insufficient to secure a review of tbe evidence, but tbe statement will be retained to review errors upon tbe admission of evidence.</p> <p>Same — Evidence—Harmless Error Not Affecting Conceded Findings. Upon a trial before tbe court without a jury it is harmless error to exclude testimony which was not susceptible of influencing the findings.</p> <p>Same — Error on Refusing New Trial — Objections Controlled by Conceded Findings. Where the exceptions to findings are insufficient, a ruling upon a motion for a new trial for insufficiency of the evidence must be controlled by the findings of fact.</p> <p>Vendor and Purchaser — -Rescission by Vendee — Grounds Fob— Failure of Title — Bargain for Immediate Possession. Where a contract for the sale of a farm called for immediate delivery of possession of the premises in the month of August, which was desired by the vendees in order to make improvements and put in fall crops, there was a failure of consideration entitling the vendees to a rescission, when it appears that the vendors had no title or right of possession, and did not acquire the same until November, after the vendees had commenced the action for a rescission.</p>

A’ppeal from a judgment of the superior court for Pierce county, Chapman, J., entered December 27, 1904, upon findings in favor of the defendant, after a trial before the court without a jury, dismissing on the merits an action.to foreclose a purchase-money lien upon real estate.

<p>Judgments — Action in Equity to Set Aside — Grounds. An action to vacate a. judgment will not he entertained on the ground of the neglect of the attorney in failing to notify the client of the date of the trial, when it does not appear heyond a reasonable doubt that the trial court abused its discretion in refusing to vacate the judgment and grant a new trial.</p> <p>Same — Decree oe Divorce — Vacation. A decree of divorce will not he vacated except for the specific canses provided by law, proved and found by a court of undoubted jurisdiction over the subject-matter and the parties.</p> <p>New Trial — Denial—Failure to Appeal From Order — -Estoppel in Subsequent Proceeding. Where a motion for a new trial on the ground of the neglect of the attorney was presented by new attorneys, and denied, and no appeal was taken, it is proper to dismiss an action to vacate the judgment, based on the same grounds presented in the motion for a new trial.</p>

, entered November 22, 1902, upon the verdict of a jury rendered in favor of tbe plaintiff for $7,500 for personal injuries, sustained by a log deck man employed in defendant’s mill.

<p>Master and Servant — Negligence—Injury to Employee in Roller Crusher — Starting Machinery Without Warning — Verdict on Conflicting Evidence — Review. A verdict of a jury upon the question of the negligence of the defendant and the contributory negligence of the plaintiff, in a personal injury case, will not he disturbed where it appears that the plaintiff was injured in a roller crusher by the starting of machinery which he was oiling, by reason of the fact that no warning was given, and there was conflicting evidence upon the question as to whether the customary warning was given.</p> <p>Release and Discharge — Procured by Fraud — Verdict—Review. The release of a claim for personal injuries secured by fraud is no defense to an action for damages, and the appellate court will not weigh conflicting evidence as to such release where there was sufficient testimony of fraud, if uncontradicted, to sustain the verdict.</p> <p>Master and Servant — Negligence—Indemnity—Pact That Defendant Carries Accident Insurance — Interest of Witness — Misconduct of Counsel. It is prejudicial error in a personal injury case for the plaintiff’s counsel to continually ask questions with the evident intent to get before the jury the fact that the defendant carries accident insurance, and it is immaterial that the questions were asked for the purpose of impeaching the testimony of a witness.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered December 17, 1904, in favor of the defendant, dismissing an action on contract, upon sustaining a demurrer to the complaint.</p>

<p>Municipal Corporations — Local Assessments ■ — ■ Foreclosure — Defenses — Tender of Amount Due. In an action to restrain the foreclosure of a special assessment lien, in which the complaint alleges a tender of the amount due, the complaint states a cause upon which an unconditional judgment may be rendered, although it is not shown that the tender was kept good by bringing the money due into court, in the absence of a demand therefor at the time of entry of judgment or any request for a conditional judgment.</p> <p>Same — Actions •— Parties Plaintiff — Joinder—Equity—Multiplicity of Suits. In order to avoid a multiplicity of suits, an action in equity against a municipality to restrain the enforcement of liens may be brought jointly by many plaintiffs owning separate parcels, but who are similarly affected by the threatened wrong.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Iíuneke, J., entered February 13, 1905, upon the verdict of a jury rendered in favor of the defendant, in an action for libel.</p>

, entered March 12, 1904, upon conclusions of law in favor of the defendant, after finding the facts on a trial on the merits before the court without a jury, dismissing an action to- enjoin the construction of a boom.

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered May 4, 1904, upon sustaining a demurrer to a complaint and quashing a writ of attachment, dismissing an action upon open account.</p>

<p>Corporations — Insolvency—Receivers—Judgment Against Stockholders — Rights oe Creditors Named in Judgment. A judgment in the receivership of an insolvent corporation, entered against the stockholders, in which proceedings the creditors interpleaded, is a judgment in favor of the creditors, where the language clearly and explicitly gives the creditors named a judgment against the stockholders in sums specified, and directed to be paid to the creditors in proportion to the amount due each, although the receiver is directed and authorized to collect the amount; hence the creditors are proper parties plaintiff to an action on the judgment.</p> <p>Same — Finality oe Judgment. A judgment against the stockholders of an insolvent corporation is a final judgment, where the amount due was definitely determined, and collection directed by execution or suit as may be necessary, although no costs are specified.</p> <p>Same — Receiver to Collect Judgment — Party to Suit. A receiver of an insolvent corporation who is directed by a judgment in favor of the creditors to collect and enforce the same against the stockholders, is a proper party plaintiff in an action upon the judgment, although he may not be a necessary party and is not beneficially interested.</p> <p>Same — Foreign Judgment Against Stockholders — Enforcement in Another State. Where, in a receivership proceeding in Minnesota, all the creditors of the insolvent corporation unite and recover judgment against the stockholders on personal service in that state, they may, together with the receiver, enforce the judgment by an action in this state, against a stockholder who has since removed to this state.</p> <p>Same — Judgments—Joint oe Several. A judgment against several stockholders in favor of the creditors of an insolvent corporation is not a joint judgment where it appears upon its face to be against each stockholder in a certain sum.</p> <p>Judgments — Action Against One Joint Debtor. An action upon a joint judgment may be maintained against one of the joint debtors alone.</p> <p>Corporations — Receivers—Stockholders—Interlocutory Decree —Effect—Limitations. The fact that in a receivership proceeding, an interlocutory judgment was rendered against stockholders of an insolvent corporation, determining who were stockholders and retaining jurisdiction for the purpose of entering judgment, would not deprive the court of jurisdiction to enter a personal judgment, nor would the lapse of six years between the dates of such judgments vacate the jurisdiction of the court.</p> <p>Limitation of Actions — Foreign Judgment. An action upon the judgment of the state of Minnesota entered in 1903 is not barred by the statute of limitations in this state in the year 1905.</p>

<p>Public Lands — Lands Below High Tide — Grants—Validity— Power of Congress. The United States had the power to grant to a railroad corporation, for some purposes at least, lands below high water mark of tide waters of the territory of Washington; and such a grant, not being void, should be upheld when no facts are shown to render it voidable.</p> <p>Same — Constitutional Disclaimer — Application to Subsequent Patent — Construction. The constitutional disclaimer of the state in and to all tide lands patented by the United States, applies to lands below high water mark and within the meander line of the government surveys of land granted by the United States to a railroad corporation prior to the admission of the state into the Union, although the patent therefor did not issue until thereafter, where the railroad company had, by the filing of its map of definite location, and completing its road, become entitled to the patent prior to the adoption of the constitution (Mount, C. J., Rudkin and Fullerton, JJ., dissenting) .</p> <p>Same — Official Surveys — Collateral Attack. The official surveys of the government are not open to collateral attack in an action at law between private parties, and the patent must be held to be made with reference to such surveys.</p> <p>Same — Presumption—Surveys—Mistake as to Meanders. Where the meander line of the government survey was run years before the adoption of the constitution, and included tide lands below high water mark, it must be presumed that the constitutional disclaimer of title to tide lands patented by the government, had reference to the meander lines run, as establishing the line of high water mark, and not that the tide lands were included within the patent by mistake (Mount, C. J., Rudkin, and Fullerton, JJ., dissenting).</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered May 23, 1904, upon the verdict of a jury rendered in favor of the plaintiff for injuries sustained by a seaman during a gale at sea.</p>

<p>Specific Performance — Injunction—Contracts—Electric Power for Railroad — Public Interest — Evidence. In an action for an injunction to compel a power company to perform its contract to furnish power to a street railroad company, the evidence sufficiently shows the necessity where it appears that the facilities of the street railroad company for generating power were not sufficient to create any reserve force, which is necessary to furnish power for continuous use.</p> <p>Same — Contracts — Violating Franchises — Enforcement. A court of equity will compel the performance of a contract of a power company to furnish power to a street railroad company, for a reasonable time to enable the company to obtain a supply from other sources, where the public interests are involved and require it, notwithstanding the contract was not enforcihle between the parties owing to a clause therein violating the franchise of the power company.</p>

, entered July 9, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, foreclosing a lien for taxes.

, entered September 5, 1905, upon findings in favor of the defendant, after a trial before the court without a jury, dismissing on the merits a petition to condemn a railway right of way across land appropriated by another railway for terminal purposes.

, entered October 7, 1904, on, motion of the plaintiff, upon tbe pleadings and a stipulation, in an action to cancel a road property tax certificate and recover tbe money refunded thereon.

,. entered January 23, 1'905, upon the certification of a judgment of a justice’s court convicting a minor of the offense of disturbing a school, after an examination before the court without a jury, committing the defendant to the reform school.

, entered March 7, 1905, upon the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits, in an action to recover damages for property destroyed by fire started by defendant’s locomotive.

Application filed in the supreme court October 11, 1905, for a writ of mandate to compel the superior court for Chehalis county, Irwin, J., to fix the amount of a supersedeas bond, upon an appeal from an order dissolving a temporary restraining order.

, entered March 30, 1905, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, enjoining the diversion of waters and the nse of a dam by an irrigation company, and directing the commencement of proceedings to condemn plaintiffs’ littoral rights within sixty days.

, entered April 26, 1905, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action of ejectment.

, entered July 8, 1904, .upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, enjoining the removal of a boom across a stream, and dismissing a cross-complaint for an injunction restraining the obstruction of the stream.

Motion, to dismiss an appeal from a judgment of the superior court for King count)'', Griffin, J., entered March 17, 1905, upon a conviction of murder, and an application to the supreme court, upon the hearing of such motion, for a writ of mandamus to compel the superior court to extend the time for taking an appeal, and to direct the preparation of a statement of facts at public expense.

<p>Appeal — Statement of Facts — Notice of Filing — Statute — Construction. Under Bal. Code, § 5058, upon service of a proposed statement of facts upon the adverse party, notice of the filing also is not necessary, except upon the other parties appearing.</p> <p>Process — Summons—Personal Service — By Mail — Validity. Bal. Code, § 4893, inferentially forbids service of summons by mail, and a service upon the statutory agent of a foreign corporation by mail is insufficient.</p> <p>Same — Foreign Insurance Company — Service Upon — Insurance Commissioner Statutory Agent — Power to Admit Service. Under Laws 1901, p. 360, requiring foreign benefit insurance associations to appoint the state insurance commissioner its attorney in fact, upon whom service of process may be made with the same legal effect as if made upon the association, such an appointment does not authorize the commissioner to admit or waive service, where no legal service has in fact been made.</p> <p>Same — Deputy Insurance Commissioner — Service Upon — Validity. An appointment of the insurance commissioner and his successors in office as the statutory agent of a foreign corporation for the purpose of service of process, pursuant to Laws 1901, p. 360, does not authorize the deputy insurance commissioner to receive service, as the power is derived from the appointment and does not pertain to the office.</p> <p>Same — Invalid Service — Actual Notice of Action — Sufficiency. A court cannot acquire jurisdiction of the person of a defendant who was not served with process, and made no appearance, by reason of his having actual knowledge of the suit.</p> <p>Appearance — General—By Motion to Vacate Void Judgment— Effect — Jurisdiction—Waiver. A general appearance in support of a motion to set aside a void judgment, does not validate the judgment or waive the question of jurisdiction.</p> <p>Judgment — Vacation — Meritorious Defense. An affidavit of merits is not necessary upon a motion by defendant to set aside a void default judgment.</p>

Application filed in the supreme court, September 6, 1905, for a writ of mandamus to compel the secretary of state to file articles of incorporation.

Application filed in the supreme court June 20, 1905, for a writ of mandamus to compel the superior court for Spokane county, Huneke, J., to proceed with the trial in a garnishment proceeding, after granting a change of venue on motion of the garnishees.

Motion to dismiss appeals from an order of the superior court for King county, Morris, J., entered May 31, 1905, confirming an assessment roll; also, motion for separate attorney’s fees.

<p>Costs — In Supreme Court — Attorney Pee — Original Proceeding— Statute — Repeal by Implication — Construction. Under subdivision 5 of the Code of 1881 (2 Hill’s Code, § 829), providing for an attorney’s fee of $15 in all actions where judgment is rendered in the supreme court, such fee may be taxed in an original proceeding for a writ of review; and said section was not impliedly repealed by the act of 1893 (Bal. Code, § 6528), which is applicable only to cases appealed to the supreme court.</p> <p>Costs — In What Actions Taxable — Certiorari. An application for a writ of certiorari under Bal. Code, § 4793, is an “action,” within the meaning of the statute relating to the taxation of costs.</p>

<p>Statutes — Amendment—Setting Forth in Full. Const., art. 2, § 37, does not require, upon tbe amendment of a statute, tbat tbe entire act as amended shall be set forth in full, but only the amended sections.</p> <p>Physicians and Surgeons — Practicing Without License — Prosecution- — Proof of License — Records. Upon a prosecution for practicing medicine without a license, there is sufficient prima facie evidence of the fact that the accused had no license where it was shown (1) that the secretary of the board of examiners had never issued him a license, (2) that he had filed no license with the county clerk, and (3) that his name did not appear on the records of the county auditor as a licensed physician.</p> <p>Criminad Law — Evidence—Burden of Proof — Constitutionaiitx of Statute. The statute malting certain records prima facie evidence of the existence or nonexistence of a license to practice medicine, is not unconstitutional as imposing the burden of proof upon the accused.</p>

<p>Divorce — Decree—Proceeding to Vacate After Death of Party — ■ Substitution of Executors — No Subject of Litigation. An action for a divorce is purely personal, and upon tbe death of either party, the subject-matter of the action is eliminated and a judgment for divorce cannot be thereafter vacated for want of jurisdiction to render it.</p> <p>Same — Consent of Executors. After the death of a party to a decree of divorce, his executors cannot consent to the vacation of the decree or be substituted as parties for the purpose of service of notice.</p> <p>Judgment — Jurisdiction to Vacate — Notice. The inherent jurisdiction of a court to set aside a decree void for want of jurisdiction, is no more potent than jurisdiction conferred by statute, and such a judgment cannot be vacated without notice, even for the purpose of clearing the record.</p>

, entered February 24, 1905, after a hearing on the merits before the court without a jury, enjoining the sheriff of Pierce county from selling community property under a judgment against the husband on appeal and supersedeas bonds.

, entered April 12, 1905, upon stipulated facts, acquitting the defendant of the violation of a municipal ordinance respecting fire escapes, upon an appeal from a conviction in a justice’s court.

, entered August 29, 1904, denying on the merits an application for a writ of mandamus to compel a justice of the peace, to grant a change of venue.

, entered March 22, 1905, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to recover for goods consigned to a factor to be sold.

<p>Appeal from a judgment of the superior court for Ohehalis county, Irwin, J., entered December 21, 1904, upon a Dial and conviction of the crime of assault with intent to commit murder.</p>

, entered February 17, 1904, in favor of the defendants, upon motion for judgment on the pleadings, after striking a complaint in intervention, in an action of forcible entry and detainer; also, from the order striking the complaint in intervention aforesaid.

, entered May 2, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to recover money fraudulently obtained.

, entered May 10, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for conversion.

, entered March 28, 1905, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to set aside a mortgage foreclosure sale.

, entered. April 5, 1905, upon findings in favor of the plaintiffs, after a trial on the merits before- the court 'without a jury, in an action to concel deeds and rescind a sale of land.

<p>Counties — Salé oe Property — Teems—Minutes oe County Board. As tbe minutes of tbe proceedings of tbe board of county commissioners do not constitute tbe exclusive evidence of tbeir official action, evidence of tbe members is competent to sbow that a sale of county property mentioned in the minutes was to be made subject to the approval of tbe board.</p> <p>Same — County Commissioners — Powers—Ordering Sale Subject to Approval. Tbe board of county commissioners, as tbe business managers of tbe county, have tbe power, in ordering sales of county property, to require that tbe sales shall be subject to tbeir approval, under Laws 1903, p. 73, providing that they may fix tbe terms of sale.</p>

, entered January Y, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, foreclosing a chattel mortgage.

<p>Insurance — Proofs of Loss — Certificate of Magistrate No Part —Accrual of Action. Under a fire insurance policy providing tbat suit shall not be commenced until sixty days after the proofs of loss are furnished, and that a certificate of a magistrate that the loss was honestly sustained shall be furnished “if required,” the certificate is no part of the proofs of loss, and suit commenced sixty days after furnishing proofs is not premature, although less than sixty days had elapsed since the furnishing of the certificate; and the company could not by demanding the certificate, delay the bringing of the action.</p>

<p>Injunctions — Jurisdiction—To Enjoin Election on Annexation of Territory to City — Appeal—Decision—Law of Case. Where it has been determined on appeal that the superior court had jurisdiction of a proceeding to enjoin a city election, the question is concluded and cannot be again urged upon a proceeding for a contempt in the violation of an order issued therein.</p> <p>Same — Commencement of Action — Summons—Jurisdiction Acquired Upon Piling Complaint. As an action may, under Bal. Code, § 4869, be commenced by the filing of the complaint, to be followed by service of summons within sixty days, the court acquires jurisdiction to grant a temporary restraining order upon the filing of the complaint, and before service of a summons.</p> <p>Municipal Corporations — Officers—Enjoined from Holding Special Election — Election Already Called. Where a restraining order has been served upon the city officers, enjoining the holding of an election, it is their duty to stop the election, and they cannot avoid punishment for contempt hy showing that the election had already been called and the election officers appointed.</p> <p>Same — Courts—Jurisdiction — Granting Injunction Without Notice on the Day Before Election — Propriety—Discretion. While the propriety of enjoining a municipal election upon the eve of the election, without giving notice of the application, is questionable, the matter is within the discretion of the trial court, and objection thereto does not go to the jurisdiction of the court to make the order.</p> <p>Contempt — Violation of Order — Parties—Joinder—Sufficiency of Affidavit. Where an affidavit in contempt proceedings against the mayor and' council of a city alleges the violation by such officers Of an order of court, after advising with the city attorney and upon the hearing the city attorney admits that he advised the violation of the order, the court has jurisdiction to order the city attorney made a party defendant, and to proceed against him as an original party to the proceedings without the filing of a new affidavit, although the statute provides that contempts not committed in the presence of the court can be prosecuted only upon affidavit stating the facts (Crow and Fullerton, JJ., dissenting).</p> <p>Appeal — Review—Judgment of Contempt — Discretion. Contempt proceedings are summary, and so fa'r as questions of law are concerned, the extent of the hearing is within the discretion of the court, which will not he reviewed when the conclusion arrived at is correct.</p>

, entered February 15, 1905, upon findings in favor of tbe plaintiff, after a trial on tbe merits before tbe court witbout a jury, in a garnishment proceeding.

<p>Appeal — Jurisdiction—Amount in Controversy — Equitable Action. Tbe supreme court bas jurisdiction of an appeal from a judgment in an equitable action to cancel fraudulent certificates of a building and loan association, and to recover the money paid thereon, regardless of the amount in controversy.</p> <p>Same — Bonds—Supersedeas—Decree Annuling Contracts and Awarding Money Judgment. Upon appeal from a judgment in an equitable case cancelling certain certificates and awarding a personal judgment for $82.50, an appeal bond in double the money judgment and $200 additional is sufficient, although the trial court assumed to fix the supersedeas on appeal in the sum of $750; since the money judgment is the only part of the judgment that can be stayed, the other part being self-executing.</p> <p>Same — Notice—Sueeiciency. A notice of appeal sufficiently describes the judgment as the final judgment in the cause without referring to its date, where it was the only judgment in the cause to which the notice could apply.</p> <p>Same — Review—Exceptions—Sueeiciency—Striking Statement. One general exception to thé findings of fact is insufficient to authorize a review of the testimony, and is ground for striking the statement of facts.</p> <p>Corporations — Foreign Building and Loan Association — Failure to Comply With Statute — Eeeect on Contracts. Contracts made by a foreign building and loan association without complying with certain statutory requirements whereby it is authorized to transact business in this state, are not void, where the law prescribes a penalty for so doing without declaring that the contracts made shall he void.</p>

<p>Municipal Corporations — Defective Sidewalk — Claim and Notice of Injury — Definiteness as to Place — Sufficiency. A notice of claim for injuries, Sustained upon a city sidewalk, which describes the place as on the east side of J street between 41st and 42d streets, is a sufficient compliance with a charter requirement that it shall describe the place, although the accident occurred between 41st and 43d streets, there being no 42d street intersecting J street; since there was evident a bona fide effort to comply with the law and no intention to mislead, and a description sufficient to identify the place and enable one to find it.</p> <p>Same — Pleading—Complaint—Mistake as to Date of Presentation of Claim — Amendment Upon Reversal. Where a demurrer to a complaint against a city for personal injuries was interposed on the ground that the notice of claim did not sufficiently identify the place, and was at variance with the complaint, a claim cannot he first made in the supreme court that the notice appears by its date to have been filed one day too late, where the plaintiff claims the date to he a clerical error, and especially where the complaint alleges that it was filed within time.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered May 27, 1905, in favor of the defendants, on the pleadings, dismissing an application for a writ of mandamus to compel a town to grant a permit for the extension of a water system.</p>

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered April 5, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose a material-man’s lien.</p>

Application filed in the supreme court November 10, 1905, for a writ of prohibition to restrain the superior court for Spokane county, Kennan, J., from further proceeding in a cause after having denied an application for a change of venue.

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered March 27, 1905, dismissing on the merits a petition for a writ of certiorari to review a judgment of a justice of the peaces forfeiting bail money deposited in lieu of a bail bond in extradition proceedings, upon failure of the accused to appear.</p>

<p>Judgments — Setting Aside Default — Discretion. The vacation of a default judgment will not be reversed on appeal except for abuse of discretion.</p> <p>Fraudulent Conveyances — Sales—Stock of Goods in Bulk— Livery Stable — Statute—Construction. The sales in bulk act requiring the purchaser of any stock of goods, wares or merchandise in bulk to demand a list of the vendor’s creditors and see to the application of the proceeds of the sale, does not apply to the sale of the horses, harness, carriages, and all the property in a livery stable; since the act applies only to goods kept for sale.</p>

, entered May 19, 1905, upon the verdict of a jury rendered in favor of the defendant by direction of the court, ■ after a trial on the merits, in an action against the holder to recover possession of a certificate of stock placed in escrow.

<p>Appeal — Decisions Reviewable — Garnishment. A garnishment, while ancillary to the main cause, is a “proceeding” within the meaning of the statute regulating appeals to the supreme court.</p> <p>Same — Order Quashing Summons. An order quashing the service of a summons is appealable, when it in effect determines the action and prevents a final judgment.</p> <p>Same — Garnishment—Quashing Service op Writ. As a garnishment proceeding only affects the indebtedness due from the garnishee at the time of the service of the writ, an order quashing the service of a writ of garnishment releases all such indebtedness and effects, and in effect determines that particular proceeding and prevents any judgment whatever therein, since a second writ is an independent proceeding attaching to a different subject-matter; hence an order quashing a writ of garnishment is appealable as a final determination of the proceeding.</p> <p>Appeal — Notice—Second Appeal. The pendency of an appeal, ineffectual because of the failure to file a bond, is not a bar to a second appeal in the same cause.</p>

, entered October 27, 1904, upon the verdict of a jury rendered in favor of the defendants, after a trial on the merits, in an action of ejectment.

, entered January Y, 1905, upon findings in favor of the defendant, after a trial on the merits, quieting its title to certain streets and alleys.

, entered May 16, 1905, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action of replevin.

<p>Injunction — Parties—Action to Enjoin Payment of Warrants. In an action to restrain the payment of county warrants, there is a defect of parties defendant and the court has no jurisdiction of either the subject-matter or the parties, where it appears from the complaint that the warrants had been transferred to unknown holders whose presence cannot be secured.</p> <p>Same — Holders Unknown — Difficulty as to Service. The difficulty of service of process is no excuse for failure to join necessary parties defendant.</p>

<p>Venue — Change—Prejudice of Judge — Relationship to Prosecuting Witness — Abuse of Discretion. The fact that the trial judge is a brother of the prosecuting witness is not alone sufficient to sustain a charge of prejudice, and a denial of a motion for a change of venue based on such fact will not be reviewed except for abuse of discretion.</p> <p>Same — Prejudice of Judge — Erroneous Rulings. Erroneous rulings of a judge during the trial, after the denial of a motion for a change of venue, do not convict him of prejudice entitling the accused to the change.</p> <p>Criminal Law — Cattle Stealing — Justification Under Agreement — Cross-Examination—Mistake as to Cattle Referred To. Upon a prosecution for the larceny of four head of cattle running on the range, the taking of which is admitted and justified under an alleged agreement with the owner that the accused could take up and sell four steers of the same brand, not gathered by the owner the winter before, the accused has the right, after the prosecuting witness has testified that he did not authorize the accused to take up and sell the cattle described in the information, to show on cross-examination the aforesaid agreement, without confining the inquiry to the cattle specified in the information; since the cross-examination is directly connected with the testimony in chief, and the taking of any cattle in good faith under the agreement would be a complete defense to the accusation.</p> <p>Criminal Law — Evidence as to Previous Charges Against Accused. Upon a prosecution for larceny it is unnecessary, and prejudicial error, for the state, in order to lay a foundation for introducing the testimony of the accused on former trials, to show that the accused had twice before been charged with and put on trial for similar offenses.</p> <p>Same — Laying Foundation. Such evidence is not justified in the state’s case in chief, as a foundation for the evidence on the former trial, since it is only when desired for impeachment that it is necessary to lay a foundation by showing the time, place, and circumstances of the statement.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Rudkin, J., entered December 21, 1904, upon a trial and conviction of the crime of robbery.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Rudkin, J., entered December 23, 1901, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

, entered January 17, 1905, upon findings in favor of the plaintiffs, after a trial on the merits, in an action for an accounting.

<p>Actions — Commencement — Filing of Complaint — Mistake of Clerk. Although the clerk of court by mistake failed, to indorse or enter a complaint when tendered for filing, the tender would seem to be a sufficient filing to sustain the jurisdiction of the court.</p> <p>Judgment — Jurisdiction—Failure to File Complaint. A judgment is not void for want of jurisdiction because of the failure to file the complaint.</p> <p>Judgment — Vacation — Fraud of Counsel — Evidence — Sufficiency. An attorney is not shown to he guilty of fraud in making a defense for the purchaser under a void tax lien foreclosure, by reason of failure to assert a claim for the value of improvements made after the sale, where it appears that the matter was discussed with his client and dropped because of the small value of the improvements.</p> <p>Judgment — Vacation—Errors of Law. A judgment should not he vacated for mere errors of law after the expiration of the time for an appeal.</p>

Appéal from a judgment of the superior court for Cheihalis county, Irwin, J., entered June 5, 1905, upon a trial and conviction of the offense of placing a wife in a house of prostitution.

, entered December 29, 1904, upon the verdict of a jury rendered in favor of the defendant after a trial on the merits, in an action for personal injuries sustained by a mill employee through the falling of a pile of lumber.

, entered December 27, 1904, upon the verdict of a jury rendered in favor of the defendants, after a trial on the merits, in an action for injuries sustained by a traveler crossing railroad tracks.

<p>Appeal — Dismissal—Record Showing Insufficient Bond — Supplemental Transcript. Upon a petition for a rehearing, after the dismissal of an appeal for insufficiency of the ■ bond, the supreme court will, in order to support its jurisdiction, allow a supplemental transcript to be filed showing an error by the clerk of the superior court in entering the order fixing the amount of the supersedeas bond on appeal, from which it appears that the bond was sufficient; and on such showing the appeal will be reinstated.</p>

, entered March 18, 1905, upon the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits in an action of deceit.

, entered March 23, 1905, after a hearing before the court on the merits, denying a petition to modify a decree of divorce.

, entered January 16, 1905, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger in jumping from a street car to avoid danger from an exploding controller.

, entered March 25, 1905, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action against a wife for medical and hospital services to- the husband.

, entered April 18, 1905, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action for the rescission of a sale of mining stock.

, entered May 19, 1905, after a hearing on the merits, granting a writ of mandate directing the issuance of warrants in payment of a judgment against a city.

, entered March 20, 1905, in favor of the plaintiffs, after a trial on the merits before the court 'without a jury, in an action to vacate a judgment.

, entered June 29, 1905, upon findings in favor of the plaintiff, after a trial on tke merits before tlie court without a jury, in an action of ejectment.

, entered March 9, 1905, upon motion of the defendant at the close of plaintiffs’ case, dismissing an application for a writ of mandamus to compel reinstate^ ment in a fraternal insurance society.

, entered January 9, 1905, upon findings in favor of tbe plaintiffs, after a trial on the merits before the court without a jury, in an action to reform a deed.

<p>Appeal from a judgment of the superior court for Yakima county, Rudkin, J., entered December 21, 1904, upon a trial and conviction of the crime of robbery.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Rudkin, J., entered December 21, 1904, upon a trial and conviction of the crime of robbery.</p>