Volume 44 — Washington Reports

, entered July 29, 1905, in favor of the defendants, upon sustaining a challenge to the evidence at the close of plaintiff’s case, dismissing an action for damages for the death of a railroad engineer killed in a collision.

, entered September 14, 1905, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action on a promissory note.

, entered December 22, 1905, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained by a motorman in a collision on a street railway.

, entered February 13, 1906, in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action for the assessment of damages and benefits to lands located within a drainage district.

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered November 4, 1905, in favor of the plaintiff, upon striking defendant’s answer upon failure to answer interrogatories, in an action to recover broker’s commissions.</p>

, entered December 1, 1905, in favor of the plaintiffs, upon default of the defendants for failure to answer interrogatories, in an action for specific performance.

, entered September 1, 1905, in favor of the defendant, upon granting a nonsuit at the close of plaintiffs’ case, dismissing an action to set aside an assessment for street improvements.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered July 6, 1906, after a trial on the merits, adjudging title, as between contesting defendants, to lands appropriated in condemnation proceedings.</p>

<p>Trial — Instructions—Assumption op Issue — Argumentative and Complicated. It is not error to refuse requested instructions of extreme length assuming in some places the issue in controversy, as proved, in other respects argumentative, and as a whole complicated and involved.</p> <p>Carriers — Negligence—Duty to Intoxicated Person — Instruction. In an action to recover damages from a street car company for the death of a passenger resulting from alleged negligence in permitting the deceased, while intoxicated, to alight at an unsafe place, it is error to instruct the Jury to the effect that the carrier owed no greater care to an intoxicated person than to one in a normal condition, if he knew where he wanted to get off and was able to do so without assistance, and unless he was “absolutely helpless”; since the rule is that the carrier owes to a passenger a duty commensurate with his condition, and it was for the jury to determine whether due care was exercised under all the circumstances.</p> <p>Appeal — Review—Pakty Entitled to Allege Error. The question of the insufficiency of the plaintiff’s evidence, cannot be reviewed at the instance of the defendant, on an appeal by the plaintiffs, in whose favor ruling thereon was made below.</p>

, entered December 6, 1905, after a hearing on the merits, overruling objections and confirming a special assessment against school property for widening and extending a street.

, entered November 27, 1905, in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to enforce a materialman’s lien.

<p>Appeal — Exceptions—Amendment of Pleadings. Error cannot be predicated upon the allowance of an amendment changing the nature of the action when no exceptions were taken thereto.</p> <p>Continuance — New Trial — Absence of Witness — Cumulative Testimony. It is not an abuse of discretion to refuse a motion for a continuance or grant a new trial, where it does not appear that the evidence sought from an absent witness was not cumulative, and opportunity was given to take his deposition.</p> <p>Jury — Challenges—Harmless Error. Error of the court in allowing a fourth peremptory challenge is harmless where it does not appear that the jury was rendered partial by the mistake, and the last juror was passed for cause.</p>

, entered January 10, 1905, in favor of the plaintiffs, after a trial on the merits before the court without a jury, enjoining the operation of an irrigation ditch across plaintiffs’ land.

, entered November 17, 1905, in favor of the plaintiff, a creditor, against the garnishee defendant, an assignee for the benefit of creditors.

<p>Appeal from a judgment of the superior court for Spokane county, Poindexter, J., entered February 10, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for the value of goods delivered to a storage company.</p>

<p>Municipal Corporations — Special Assessment Districts. Under Laws 1888, p. 16, a municipality of less than six thousand inhabitants has no power to create a special assessment district.</p> <p>Same — Special Assessment Districts. The general incorporation act of 1888 (Laws 1888, p. 224, § 23) empowers municipalities to create special assessment districts; and a contract by a city for a local improvement, agreeing to pay for the work as fast as the city collects and receives the special assessments, does not create a liability against the city.</p> <p>Same — Liability Where Special • Assessment Insufficient. Where a municipality, organized under the void act of 1888, contracted for street improvements payable with warrants on a special assessment fund was, after the completion of the work, reorganized under the act of 1890, and thereafter ratified the indebtedness for the street improvements aforesaid and declared it to be a town debt, warrants drawn on the general fund after the exhaustion of the special iund, in exchange for special assessment warrants, are without consideration and void; since the assessment district and not the city was liable therefor.</p> <p>Same — Indebtedness of Special Assessment District — Ratification. The balance due a contractor upon the indebtedness of a special assessment district for a local improvement, after the assessment is exhausted, is not such a moral obligation of the town as caD be ratified and made a legal debt of the town.</p> <p>Same — General Fund -Warrants — Consideration. Warrants on the general fund issued in exchange for special assessment warrants after the completion of improvements are without consideration where the city was not liable for the special warrants.</p>

<p>Appeal from a judgment of the superior court for Spofcane county, Kennan, J., entered September 22, 1905, upon confirming the commissioner’s report, establishing a lost Doundary.</p>

, entered June 15, 1906, after a hearing on the merits, adjudging a public use etc., and directing the assessment of damages for a railroad right of way.

, entered November 15, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a 'jury, in an action of replevin.

Motion to dismiss an appeal from an order of the superior court for King county, Frater, J., entered September 13, 1905, after a hearing upon affidavits, vacating an order appointing a trustee.

J., entered October 26, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

, entered October 12, 1905, upon the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits, in an action on a subscription agreement.

, entered December 22, 1905, in favor of the defendant, after a trial on the merits before the court without a jury, dismissing an action to set aside a special assessment foreclosure and to quiet title.

, entered September 16, 1905, in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action by a purchaser to enjoin the sale of property under a chattel mortgage.

<p>Motion to dismiss an appeal from a judgment of the superior court for Spokane county, Kennan, J., entered July 6, 1906.</p>

Application filed in the supreme court, June 23, 1906, for a writ of mandamus directed to the superior court for Okanogan county, Steiner, J., to compel the setting of a cause for trial.

, entered March 12, 1906, in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to quiet title.

, entered December 7, 1904, upon findings in favor of the plaintiff, after a hearing on the merits, reviving a judgment.

, entered January 18, 1906, upon findings in favor of the defendants, dismissing a garnishment proceeding, after a trial upon the defendants’ controversion of the answer of the garnishee.

Cross-appeals from a judgment of the superior court for King county, Morris, J., entered November 17, 1905, upon findings in favor of the plaintiff for possession, but in favor of the defendant on plaintiff’s claim for rent, after a trial on the merits before the court without a jury, in an action of ej ectment.

, entered January 5, 1906, in favor of the defendant, granting a new trial, after a verdict in favor of a child of tender years, for personal injuries sustained through the use of an exposed pulley wheel near a public street.

<p>Principal and Agent — Agency—Buying in Delinquent Property at Tax Sale — Refusal to Convey to Principal. A lessor and neighbor of the owner of property, who bids the same in at tax sale, acts as agent for the owner and is bound to reconvey upon tender of the taxes, where it appears that, after the owner’s removal to Alaska, such lessor, who was delinquent in rent, upon the owner’s request went to the county seat to investigate the taxes at different times, reported that they were delinquent, and later that the premises were about to be sold, and that he would attend the sale and bid in the property if the price was not too high, and that he bid in the property without notifying the owner that he was acting for himself.</p>

, entered January 25, 1906, upon findings in favor of the defendant, after a trial on the merits before the court without a jury in an action for breach of warranty.

, entered April 13, 1906, in favor of the defendants, after a trial on the merits before the court without a jury, in an action on a promissory note.

, entered December 9, 1905, in favor of the defendant for costs, upon failure of plaintiff to comply with the conditions of an order vacating a judgment of dismissal for want of prosecution.

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered March 26, 1906, 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 tax lien.</p>

<p>Appeal from a judgment' of the superior court for Lewis county, Rice, J., entered April 7, 1906, upon the trial and conviction of the defendants jointly charged with the crime of robbery.</p>

, entered July 18, 1906, upon overruling a demurrer to the defendants’ answer, dismissing an application for a mandamus to compel a city to levy taxes for the payment of bonds.

, entered September 12, 1906, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to enjoin the performance of a contract.

, entered June 8, 1906, upon overruling a demurrer to the complaint, in an action to recover earnest money on a contract to convey land.

, entered September 16, 1905, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon a mutual benefit certificate.

, entered September 14, 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 possession of real property and to quiet title.

Application filed in the supreme court September 17, 1906, for a writ of mandate to compel the commissioner of public lands to deliver a deed to tide lands, after confirmation of sale.

, entered April 16, 1906, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to annul a local improvement assessment.

<p>Municipal Corporations — Diversion of Funds — Limitation of Actions. An action against a city for the wrongful diversion of local improvement funds by the payment of warrants out of their order, is not barred until three years after the holders of warrants discover the diversion; and the holder is not bound to take notice of city records showing such diversion, where the city treasurer is required, and failed, to give notice when funds were in his hands; especially within the time that the city might collect such funds.</p> <p>Same — Notice—Evidence—Sufficiency. There is sufficient evidence that the holder of warrants had no notice of the city’s misappropriation of a special fund by the payment of warrants out of order, where the manager’s positive statement is that he did not examine the warrant register and had no notice of payment out of order, although it appears by his letter that some of the city records were examined, upon an attempt by him to obtain a partial payment which was refused for want of funds.</p>

, entered April 10, 1906, in favor of the plaintiff, upon sustaining a demurrer to the affirmative defense in the answer, in an action to quiet title.

, entered March 6, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for breach of contract.

, entered February 1, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to quiet title to land.

<p>Tenancy in Common — Contract to Purchase Land — Expiration of Time Limit — Forfeiture—Notice to Cotenant. Where two parties enter into an agreement to purchase certain land, each to furnish one-half of the purchase price, their rights must he determined under the rules relating to joint owners or tenants in common; and one party cannot, upon failure of the other to furnish his part of the purchase price within the required time, demand payment and declare a forfeiture and claim full title upon paying the whole sum due on the unpaid purchase price.</p> <p>Same — Quieting Title — Tender of Amount Due — Action Against Cotenant. In such a case the party in default is not entitled to a decree quieting title and declaring him to he the owner of a one-half interest, without first tendering his share of the purchase price, for which sum the other party has a lien upon the land.</p>

, entered July 7, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action by a county to foreclose tax liens.

<p>Execution — Sale—Confirmation—Invalid Judgment. Where a judgment purporting to foreclose a mortgage lien is void, in so far as it authorizes a sale of premises, the court may refuse to confirm the sale, upon the objection of the defendant who defaulted, and in such proceeding may determine whether the judgment must be set aside.</p> <p>Judgments — Vacation—Notice. Vacation of a judgment cannot be objected to for want of notice, where the record shows service of notice of motion and an appearance by the party to contest the motion.</p> <p>Same — Modification for Irregularity. A judgment irregularly obtained is properly modified upon motion.</p> <p>Same — Invalidity. A void judgment may be set aside upon motion.</p> <p>Same — Vacation of Default — Irregularity. A default judgment beyond the purport and scope of the pleadings is irregularly obtained, rather than erroneous, and may be set aside on motion.</p> <p>Contracts — Construction—Agreement for Payment of Money or Mortgage. A contract to purchase fruit trees reciting that the purchaser is the owner of certain lands and that he “binds himself, his heirs, assigns and grantees” of said lands, cannot be treated as a mortgage of the premises, but is a simple contract for the payment of money.</p>

<p>Robbery — Force and Putting in Fear — Impersonating Officers. There is sufficient element of force and putting in fear to constitute the crime of robbery, where the prosecuting witness, while drunk, was forcibly conducted to a saloon under the pretext that he was under arrest and must be searched, and that the defendants were officers, who were about to lock him up, and who thereupon forcibly took his money when no one else was present, under commands to keep silent.</p> <p>Same — Instructions as to Degree of Force. Upon a prosecution for robbery it is proper to instruct that the degree of force is immaterial if it was sufficient to compel the prosecuting witness to part with his money.</p> <p>Criminal Law — Trial—Instructions as to Lesser Degrees— Requests. Error cannot be predicated upon the failure of the court to instruct the jury as to lesser offenses included in the charge, in the absence of specific requests therefor.</p>

<p>Process — Summons—Proof of Service — Affidavit—Sufficiency. Proof of service of summons by affidavit must show that the person making the service was twenty-one years of age at the time the service was made, and proof that he was of age when the affidavit was made is insufficient.</p> <p>Appearance — Special to Object to Service — Objections Waived. Want of service of process, objected to by special appearance, is cured by a subsequent appearance to move to vacate a default judgment and for leave to answer on the merits.</p> <p>Judgments — Default—Vacation—Direct Attack — Effect of Recitals as to Due Service. The recitals of due service contained in a default judgment is not conclusive upon a direct attack by appeal from the judgment, on overruling an objection to the jurisdiction and motion to vacate the default.</p> <p>Receivers — Appointment—Want of Jurisdiction. The appointment of a receiver based upon a judgment entered without jurisdiction is also without jurisdiction.</p>

, entered March 16, 1906, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained by an employee in coupling cars.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered March 5, 1906, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action for a broker’s commission for the sale of real estate.</p>

<p>Appeal from an order of the superior court for King county, Albertson, J., entered February 10, 1906, granting a new trial upon motion of the defendant, in an action upon a policy of life insurance.</p>

, entered February 27, 1906, upon the verdict of a jury rendered in favor of the plaintiffs for $1,000, in an action for damages for ejecting a passenger from a railway train.

, entered April' 7, 1906, after a trial on the merits before the court without a jury, decreeing the specific performance of a contract to convey real estate.

, entered February 27, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained in the collapse of a bridge.

Cross-appeals from a judgment of the superior court for Pierce county, Huston, J., entered March 19,1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to recover the amount due from the sale of land.

<p>Appeal from an order of the superior court for King county, Yakey, J., entered April 18, 1906, granting to defendants a new trial for errors in the admission of testimony.</p>

, entered June 9, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for the specific performance of a contract to convey real property.

<p>Appeal from a judgment of the superior court for Thurs-ton county, Linn, J., entered August 8, 1906, upon sustaining a demurrer to the complaint, dismissing an action for the collection of road poll taxes.</p>

Application filed in the supreme court October 16, 1906, for a writ of injunction to restrain interference with a passageway leading to respondent’s premises, pending an appeal from a judgment granting an injunction against the applicant herein.

<p>Appeal — Assignment op Error — Sufficiency. A brief on appeal sufficiently assigns as error that the verdict was excessive where that was one of the grounds of a motion for a new trial, and the brief assigned as error the overruling of such motion, although the excessiveness of the verdict was not argued in the brief.</p> <p>Same — Briefs. Argument in a brief against the correctness of admitting testimony or errors tending to excite the jury to passion and prejudice, and to bring in a large verdict, sufficiently points out error assigned as to the excessiveness of the verdict.</p> <p>Appeal — Review—Decision—Verdicts—Reduction. The supreme court may order a new trial, conditional upon the reduction of an excessive verdict, regardless of whether the jury were influenced by passion or prejudice.</p> <p>Appeal — Decision—Reasons for Reversal. It cannot be objected that a judgment of reversal does not adopt all the contentions of appellant, and the supreme court may deny a request for an absolute reversal, and grant it on condition of refusal to accept a reduction of an excessive verdict.</p> <p>Appeal — Review — Verdicts — Reduction ■— Decision. Where a judgment is clearly excessive and substantial justice will be done by granting a new trial on condition that a reduction of the judgment is not accepted, the judgment should not be upheld through a technical construction of a rule of court or an unfair construction of an admission by counsel in oral argument.</p> <p>Dunbar, J., dissenting.</p>

<p>Appearance — Special or General — Process • — ■ Service ■— Waiver. A special appearance to object to the jurisdiction for want of service of process is rendered general by asking for the dismissal of the action for reasons relating to the merits, and waives the question ■of due service.</p> <p>Appeal — Decision—Admission or Parties — Judgment—Vacation. The supreme court may, on remanding a case, direct that a default judgment be vacated where respondents are willing that the case be ■opened and tried on its merits.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered December 11, 1905, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to foreclose a mechanics5 lien.</p>

, entered December 23, 1905, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to recover on an insurance policy.

, entered December 4, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action upon a promissory note.

<p>Appeal from a judgment of the superior court for What-com county, Neterer, J., entered June 26, 1906, after a trial and conviction of the violation of a municipal ordinance regulating the speed of automobiles.</p>

<p>Appeal from a judgment of the superior court for PierGe county, Chapman, J., entered March 3, 1906, upon sustaining a demurrer to plaintiff’s complaint, dismissing an action to quiet title.</p>

<p>Appeal from a judgment of the superior court for King county, Hatch,-J., entered November 13, 1905, upon the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits, in an action for personal injuries sustained by a passenger in the negligent starting of a street car.</p>

, entered February 19, 1906, upon find-' ings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on a contract of employment.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered April 28, 1906, upon the verdiet of a jury rendered in favor of the plaintiff, after a trial on the merits, in an action for personal injuries sustained by a car repairer.</p>

<p>Conversion — Damages—Outraged Feelings. In an action for the conversion of goods, damages by reason of the outraging of feelings cannot be recovered.</p> <p>Carriers — Of Goods — Recovery of Goods — Tender of Charges. Where a carrier charges an excessive amount and refuses to deliver the goods until such charge is paid, the owner may maintain an action for conversion without first tendering the proper charge that was due for carriage.</p> <p>Conversion — Damages—Trial—Instructions. In an action for the conversion of goods and alleged damage to business by reason of the detention, it is reversible error to instruct the jury that they may bring in a verdict for damages in excess of the value of the property when there was no evidence of any other damages.</p>

, entered April 10, 1906, in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to quiet title to lots sold for street assessments.

Appeal by plaintiff from a portion of a judgment of the superior court for Douglas county, Steiner, J., entered August 28, 1905, making a division of property rights, upon awarding defendant a divorce, after a trial on the merits before the court without a jury.

Application filed in the supreme court October 8, 1906, for a writ of mandate to compel the state auditor to audit a claim for the salary of an expert employed by the railway commission.

, entered December 9, 1905, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained by a fireman through defective appliances in a shingle mill.

Cross-appeals from a judgment of the superior court for King county, Honorable Walter A. McClure, judge pro tempore, entered February 24, 1906, in favor of the defendant, after sustaining a demurrer to the complaint, in an action to recover upon promissory notes after the improper disposition of the assets of a corporation.

<p>Appeal from a judgment of the superior court for Kitsap county, Yakey, J., entered February 17, 1906, upon a trial and conviction of the crime of cattle stealing.</p>

, entered January 29, 1906, upon overruling a demurrer to the complaint, dismissing an action'to enjoin the collection of taxes.

<p>Master and Servant — Injury to Saw Filer by Starting Saw— Contributory Negligence — When Question fob Jury. A saw filer, who had a right to rely upon a signal for the starting of a mill, is not guilty of contributory negligence, as a matter of law, but the question is for the jury, where he was injured by the starting of the mill without warning, and the evidence is conflicting as to whether he assumed a dangerous position in doing the work or should have released the belt tightener before commencing work.</p> <p>Same — Fellow Servants — Warning of Starting Machinery'. An engineer whose duty it is to give a warning by two blasts of the whistle before starting the machinery in a mill, so that employees may get out of danger, is not a fellow servant of a saw filer engaged in filing saws during the noon hour; since the giving of such warning was one of the nondelegable duties of the master.</p> <p>Damages — Excessive Verdict — Appeal—Review—Reduction. A verdict for $2,500, reduced by the trial court to $1,500, is still excessive and will be further reduced by the supreme court to the sum of $1,000, where the plaintiff was not permanently injured, was in the hospital but two weeks, suffered for a short time thereafter, and within a short time was at work earning an advance of $2 per day over his previous employment.</p>

, entered June 29, 1906, adjudging a public use and ordering an assessment of damages, after a trial on the merits in a condemnation proceeding.

, entered February 15, 1906, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to restrain a city from enforcing an assessment for local improvements.

<p>Appeal from a judgment of the superior court for Klickitat county, McCredie, J., entered January 18, 1906, upon a trial and conviction of the crime of bigamy.</p>

, entered November 21, 1905, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover damages for the breach of a contract of marriage.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered February 10, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action by a minor for injuries to herself and for the death of her mother, sustained by contracting a contagious disease while on a railway train.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered April 5, 1906, after a trial on the merits before the court without a jury, dismissing an action upon a judgment.</p>

<p>Appeal from a judgment of the superior court for Pierce . county, Huston, J., entered May 2, 1906, after a trial on the merits before the court without a jury, dismissing an action to foreclose a mechanics’ lien.</p>

, entered August 23, 1906, denying a motion to dissolve a temporary injunction enjoining the purchase of a school building site.

<p>Application filed in the supreme court October 8, 1906, for a writ of prohibition.</p>

<p>Insurance — Loss by Fire — Conditions of Policy — Proofs of Loss — Sufficiency. Where a policy of fire insurance limited the liability to three-fourths of the cash value of the property at the time of the loss, and provided, as a condition precedent to action, that the proofs of loss should state the actual cash value of the property at the time of the loss, proofs of loss, stating only the estimated cost value of the material at the time of the construction of the building, are insufficient to sustain an action, where the specific objection to the proofs was pointed out to the assured, who fully understood the same, and persisted in refusing to give the actual value, which had been overstated in his application for insurance.</p>

, entered May 8, 1906, upon sustaining a demurrer to the complaint, dismissing an action to decree an absolute deed a mortgage and for the restoration of plaintiffs’ rights thereunder.

<p>Mandamus — Parties Plaintiff — Joinder. Two persons who have heen elected to a town council may join as plaintiffs in a proceeding to compel the canvass of the election returns.</p> <p>Same — Parties Defendant — Joinder. In a proceeding to compel the canvass of -election returns by the town board of canvassers, there is no defect of parties defendant, where the writ runs against the council and the mayor, who is a member of the board, and was served on him and on a majority of the council, although members of the council not recognized were not joined or served.</p> <p>Same — Elections—Canvass of Returns — Remedies. Mandamus is the proper remedy to secure a canvass of the returns of a town election, where the canvassing hoard refuses" to act, whether the act is ministerial or there is a refusal to exercise a discretion in a quasi judicial capacity. .</p> <p>Same — Costs. Mandamus,is a civil remedy in which the costs may he awarded against the defendants.</p>

<p>Appeal — Record—Statement oe Pacts. Where amendments have been proposed to a statement oí facts, the court is without jurisdiction to certify the statement when no notice of settlement has be'en given, and a statement so certified will be stricken.</p> <p>Judgment — Res Adjudioata. A judgment against the vendor of personal property denying his right to recover possession, in an action brought on the theory that the transaction was a conditional sale, is res adjudicata and a bar to a subsequent action of replevin brought by the plaintiff against the same vendees on the theory of rescission of the sale for fraudulent representations of the vendees inducing the sale.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Rigg, J., entered November 8, 1905, upon a trial and conviction of the crime of rape.</p>

<p>Application for a writ of certiorari to review a judgment of the superior court for Pierce county, Snell, J., entered October 3, 1906, upon the verdict of a jury awarding damages in a condemnation proceeding, after a trial on the merits.</p>

, entered May 16, 1906, in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose a mechanics’ lien.

<p>Continuance — Absence or Party — Discretion or Court. It cannot be said that the trial court abused its discretion in refusing a continuance on the ground of the absence of one of the defendants, who for some time had been ill in another state, where the action had been pending a long time, the trial had been continued two or three times, and the plaintiff admitted that the absent defendant would testify as claimed in the affidavit for a continuance.</p> <p>Appeal — Review—Incompetent Evidence — Harmless Error. The-admission of incompetent evidence is not ground for reversal in an action tried without a jury where there is a trial de novo on appeal.</p> <p>Appeal — Right to Appeal — Cessation or Controversy. Where a. tender was made by defendants and paid into court, the receipt of the same by plaintiff to be applied on the.judgment after appeal and supersedeas is not a waiver of the judgment determining the action.</p>

, entered April 14, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for causing the death of a minor child employed on a gravel train, and knocked off a trestle by the starting of the train without warning.

, entered May 14, 1906, upon findings in favor of the contestant of a will, after a trial on the merits before the court without a jury.

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered March IS, 1906, upon sustaining a demurrer to the amended and supplemental complaints, dismissing an action to quiet title.</p>

, entered December 14, 1905, in favor of the defendant, upon the pleadings and a stipulated statement of •the plaintiff’s case, dismissing an action to recover for the death of plaintiffs’ husband and father, killed at a railroad crossing.

<p>Appeal from an order of the superior court for Snohomish county, Black, J., entered May 10, 1906, granting the plaintiff a new trial, after first granting the defendant’s motion for a nonsuit, in an action by an employee for personal injuries sustained by the splitting of a log in a sawmill.</p>

, entered May 14, 1906, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to quiet title.

<p>Forcible Entry and Detainer — Statutes—Amendment—Construction. The amendatory- act of 1905, p. 173, is not a re-enactment of the forcible entry and detainer act of 1891, p. 179, § 1, in view of the fact that different pleadings are provided for, no writ of restitution is authorized until final judgment, and different results follow failure to prove the entry, demand and refusal to surrender the premises.</p> <p>Forcible Entry and Detainer — Grounds of Action — Rights of Plaintiff. In an action for forcible entry and detainer in which the complaint alleges causes of action under the general act, as amended by the Laws of 1905, in which the forcible entry or unlawful detainer must be proved, and under the act of 1891, under which the superior title prevails, the plaintiff must lie held to have elected to proceed under the general act, where he sued out a writ of restitution and failed to set out an abstract of title, the abstract being required and the writ not authorized under the act of 1891.</p> <p>Forcible Entry and Detainer — Statutes—Change oe Remedy. A defendant, guilty of forcible entry and detainer prior to the amendatory act of 1906, cannot claim that such act does not apply, since the act was only a change of remedies, affecting no vested right.</p> <p>i1 orcible Entry and Detainer — Remedy—Ejectment. The general forcible entry and detainer act applies in many cases where ejectment was the remedy under former laws.</p> <p>Same — Evidence—Prima Facie Case. Proof of plaintiff’s title, that the defendant entered without permission or color of title, that noiice to remove was given, and surrender refused, makes out a prima facie case of forcible entry and detainer under the act of 1905, precluding the granting of a nonsuit.</p>

, entered January 2, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, granting a divorce and awarding property to the wife.

<p>Insurance — Loss by Fire — Conveyance of Insured Property— Purchase-Money Mortgage by Vendee — Conditions and Provisions of Policy — Construction. A policy of fire insurance providing that any change in interest title or possession of the property insured shall work a forfeiture, unless agreed to, is rendered void by an absolute sale of the property, with a purchase-money mortgage back to the insured to secure part of the price, without notice to the company; since the terms of the policy are unambiguous, and the mortgage back was a mere security retaining no title in the insured.</p>

, entered December 19, 1905, discharging the defendants, upon sustaining a motion in arrest of judgment after verdict, jn a prosecution for the crime of malicious trespass.

<p>Appeal from a judgment of the superior court for Pacific county, Rice, J., entered March 28, 1906, upon a trial and conviction of the crime of seduction.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered March 17, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action brought by a stockholder of a corporation to set aside a resolution cancelling a stock certificate and to compel the reissuance of the stock.</p>

<p>Appeal from a judgment of the superior court for Okanogan county, Honorable Frank H. Foster, court commissioner, entered July 16, 1906, upon a plea of guilty to an information charging the crime of horse stealing.</p>

<p>Lis Pendens — Notice—Effect on Prior Unrecorded Interest. The filing of a lis pendens, in an action to foreclose a street assessment lien, and the subsequent judgment and sale, cuts off any interest of the parties to the action, and also of one claiming under a party by an unrecorded assignment of a sheriff’s certificate of sale, whether the purchaser at the foreclosure sale had notice of such assignment or not, when such assignment was inferior to the lien foreclosed; hence a quitclaim deed from such party or assignee, made after judgment, conveys no title.</p> <p>Ejectment — Plaintiff’s Title — Title in Third Person. In ejectment it is of no avail for plaintiffs, on failure to prove title in themselves, to claim that defendant’s title by foreclosure is defective for failure to join a necessary party, a third person, who accordingly held the title.</p> <p>Taxation. Parties claiming adversely many strengthen their titles by obtaining a tax or street assessment deed:</p>

, entered May 10, 1906, upon the verdict of a jury, rendered in favor of the plaintiff, in an action for personal injuries sustained through a defective sidewalk.

, entered May 19, 1906, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, enjoining the obstruction of a navigable stream and the interference of plaintiffs’ rights as riparian owners thereon.

, entered April 9, 1906, in favor of the defendants, upon sustaining a demurrer to the amended complaint, dismissing an action to set aside a deed.

Appeal by plaintiff from a judgment of the superior court for Whatcom county, Neterer, J., entered January 16, 1906, upon the verdict of a jury, for damages in the sum of $600, in an action for personal injuries sustained by a passenger in a street car collision.

, entered January 29, 1906, granting defendant’s motion for a new trial, after a judgment entered upon findings in favor of the plaintiffs, in an action of forcible entry and detainer.

, entered July 9, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action of replevin to recover possession of a diamond ring pawned with the defendant.

, entered July 26, 1906, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to quiet title.

, entered March 10, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for personal injuries sustained through contact with a live electric wire.

, entered February 27, 1906, granting a writ of mandate to compel the cancellation of city tax liens and assessments, upon sustaining a demurrer to an affirmative defense in mandamus.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered October 23, 1905, in favor of the defendant, dismissing an action for damages by reason of an assault, upon granting a nonsuit, after a trial on the merits before the court and a jury.</p>

, entered August 25, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover an agent’s commissions.

<p>Appeal from a judgment of the superior court for Yakima county, Rudkin, J., entered January 10, 1905.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered March 26, 1906.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered April 9, 1906.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered February 8, 1906.</p>

<p>Appeal from an order of the superior court for King county, Morris, X, entered February 17, 1906.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Chapman, J., entered May 19, 1906.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Chapman, J., entered May 19, 1906.</p>

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered February 14, 1906, upon findings in favor of the plaintiff.</p>