Volume 56 — Washington Reports

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered January 14, 1909, in favor of the defendant, in an action to recover real property, upon condition subsequent, after a trial on the merits before the court without a jury.</p>

, entered December 18, 1908, upon findings in favor of the plaintiffs, in an action of ejectment, after a trial on the merits before the court without a jury.

, entered February 5, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for breach of promise.

<p>Appeal — Dismissal—Damases on Dismissal. Damages will not be granted because of the taking of an appeal for delay only, under Bal. Code, § 6522, upon confession of a motion to dismiss and failure to prosecute tbe appeal, where the record is not brought up and there is nothing further to show that the appeal was taken only for delay; it not being the practice to allow other than statutory costs or any special allowance for attendance.</p>

, entered March 5, 1909, upon findings in favor of the plaintiffs, in an action to recover property sold for taxes, after a trial before the court without a jury.

<p>Appeal from a judgment of the superior court for King county, Erater, J., entered April 17, 1909, dismissing an action for specific performance, after a‘trial on the merits before the court without a jury.</p>

, entered December 2, 1908, upon findings in favor of - the plaintiff, after- a trial before the court without a jury, in an action on contract.

<p>Appeal — Effect of Transfer and Stax — Jurisdiction of Lower Court — Temporary Injunction — Prohibition. After an appeal is taken from a judgment dismissing an action in wbicb a temporary injunction bad issued, and a supersedeas bond bad been given to stay proceedings, tbe superior court is without jurisdiction to bear a motion to modify tbe injunction, and prohibition lies to prevent such action.</p> <p>Appeal — Transfer—Supersedeas of Temporary Injunction — Corporations — Stockholders. Upon appeal and stay of proceedings, whereby a temporary injunction is kept in force, restraining tbe respondents from participating as stockholders in meetings of a corporation, tbe supreme court will not modify tbe injunction pending tbe appeal, and thereby cause appellants to lose tbe fruits of their appeal; but will deny tbe application without prejudice to an action by tbe respondents to restrain tbe other stockholders from bolding meetings until tbe appeal is determined.</p>

Higgins, Esq., judge pro tempore, entered July 7, 1908, upon findings in favor of the defendant, in an action for specific performance, after a trial on the merits before the court without a jury.

<p>Application for a writ of prohibition filed in the supreme court November 17, 1909, to restrain the superior court for King county from summoning a grand jury.</p>

Appeal. from an order of the superior court for King county, Gay, J., entered March 24, 1909, granting defendant’s motion for a new trial, in an action for slander of title, after a trial on the merits and the verdict of a jury rendered in favor of the plaintiff.

, entered May 21, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for legal services, after a trial on the merits.

, entered April 15, 1909, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by a bicyclist through an obstruction in a street.

, entered March 17, 1909, upon findings in favor of the plaintiff, in an action to foreclose a mortgage, after a trial on the merits before the court without a jury.

, entered April 13, 1909, upon findings in favor of the plaintiffs, in an action to quiet title, after a trial before the court without a jury.

<p>Appeal from an order of the superior court for King county, Yakey, J., entered March 16, 1909, refusing to vacate a judgment, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for Cowlitz county, McCredie, J., entered April 22, 1909, upon an agreed statement of facts, in an action in tort.</p>

, entered January 8, 1909, upon findings in favor of the plaintiff, in an action of ejectment, after a trial before the court without a jury.

, entered March 22, 1909, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action to restrain a trespass.

, entered February 6, 1909, upon findings in favor of the plaintiff, in an action in tort, after a trial before the court without a jury.

<p>Indictment and Information — Embezzlement by Public Officer —Distinct Offenses — Certainty. An information charging a public officer with the embezzlement of fees collected in the sum of $165, charges but one offense, and is sufficiently direct and certain as regards the crime charged, although the sum represented different fees collected at different times.</p> <p>Criminal Law — Trial—Offense Under Different Statutes— Election. In a prosecution for embezzlement of fees by a county auditor, it is not error to refuse to require the prosecuting attorney to elect under which of several statutes providing different penalties he will proceed, the acts charged being punishable under any of them.</p> <p>Embezzlement — Of Pees by Salaried County Officers — Sufficiency. An information charging that the defendant is a county auditor who receives a salary and that he collected fees and refused to account for and embezzled the same, charges an offense under Bal. Code, § 1606, making it embezzlement for any salaried county officer to receive fees by virtue of his office and fail to pay the same to the county treasury.</p> <p>Same — Demand—Necessity. In a prosecution of a salaried county auditor for the embezzlement of fees which came into his hands by virtue of his office and which he failed to pay to the county treasurer, it is not necessary to show that any demand was made upon him for the payment of the fees.</p> <p>Same — Intent—Instructions. In a prosecution of a salaried county officer for the embezzlement of fees which he failed to pay into the county treasury, the proposition that a criminal intent is essential is sufficiently covered, where the jury were so instructed, and that they could not convict if the failure to pay was due to neglect or carelessness without an intent to defraud the county.</p> <p>Same — Evidence—Sufficiency. The evidence is sufficient to sustain a conviction of embezzlement by a salaried county auditor for failing to pay over $165 collected for hunting license fees, where there was no question over the defalcation, and no intricacy in the bookkeeping, and the defendant had stated that he knew of the shortage and exactly how much it amounted to; although the defendant after his term had expired, had expressed a willingness to make good the deficiency, the statute requiring monthly payments of such collections.</p>

Application filed in the supreme court, November 24, 1909, for a writ of prohibition to the superior court of Thurston county, Mitchell, J., to prevent the trial of a criminal prosecution, pending appeal from an order denying a release by habeas corpus.

, entered June 16, 1908, upon the verdict of a jury rendered in favor of the plaintiff, for damages for assault and battery, after a trial on the merits.

, entered March 17, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort, after a trial on the merits.

, entered June 9, 1909, upon findings in favor of the defendants, in an action on contract, after a trial before the court without a jury.

, entered December 28, 1908, upon findings in favor of the plaintiff, in an action on contract, after a trial before the court without a jury.

<p>Highways — Prescription—Permissive Use — Evidence — Sufficiency. A public road by prescriptive use is not shown where it appears that the road was constructed and used almost exclusively as a logging road under written leases, and no public money was spent on it.</p> <p>Same — Evidence—Issues and Proof. In an action to declare a road a public highway by prescriptive use, it is admissible, under a general denial, to show that the use was only permissive under a lease.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered June 9, 1909, upon findings in favor of the plaintiffs, in an action for specific performance, after a trial before the court without a jury.</p>

, entered August IT, 1909, upon findings in favor of the plaintiff, in an action upon a party wall agreement, after a trial before the court without a jury.

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered December 21, 1908, upon a trial and conviction of rape.</p>

<p>Partnership — Rights or Partners — Fraud. A copartnership raises a strong fiduciary relation, requiring the utmost good faith and rendering a partner liable for false representations or concealment in securing a partnership settlement.</p> <p>Partnership — Settlement—Fraud. A partnership settlement should be set aside for fraud where the parties to the action were brothers and partners, the plaintiff was in ill health and weak-minded and subject to the defendant’s influence, and the defendant, who had been in active charge of the partnership, the property of which was of the value of sixty thousand dollars, represented it as valueless and the business without profit and thereby, and by his influence over the plaintiff, who relied on the statements, fraudulently secured the settlement with the plaintiff for a small sum; as such statements are representations of material facts,. relied upon by the plaintiff to his injury.</p>

, entered March 6, 1909, in favor of the defendant, upon an agreed statement of facts, dismissing a proceeding in the nature of a quo warranto.

<p>Appeal from orders of the superior court for King county, Tallman, J., entered Eebruary 6, 1909, upon sustaining a demurrer, dismissing a petition to vacate a decree.</p>

, entered November 25, 1908, upon findings in favor of the defendant, after a trial before the court without a jury, in an action of ejectment.

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered June 2, 1909, upon findings in favor of the plaintiffs, in an action to quiet title and for damages.</p>

, entered August 13, 1909, upon findings in favor of the defendant, in an action to quiet title against a tax foreclosure.

, J., entered December 24, 1908, upon findings-in favor of the plaintiff, after a trial on the merits before the-court without a jury, in an action for a mandate to compel a. water company to furnish water to the inhabitants of a city..

<p>Homicide — Information-—Sufficiency. An information charging that the accused purposely and feloniously etc., did stab and mortally wound, etc., sufficiently alleges that he did the act purposely and feloniously.</p> <p>Criminal Law- — Verdict—Sufficiency. A verdict finding the accused guilty of murder in the first degree (for which the penalty is death) and recommending him to the mercy of the court, is not void and does not show doubt in the minds of the jury, the recommendation being ■ merely surplusage.</p> <p>Homicide — Trial—Instructions—Deliberation. Üpon a prosecution for murder in the first degree, it is error to instruct that there need be no appreciable space of time for deliberation and premeditation.</p>

, entered June 30, 1909, upon findings in favor of the plaintiffs, in an action to set aside a foreclosure sale and to quiet title, after a trial on the merits before the court without a jury.

<p>Appeal from a judgment of the superior court for San Juan county, Joiner, J., entered January 6, 1909, upon findings in favor of the plaintiff, in an action for partition and to quiet title, after a trial before the court without a jury.</p>

<p>Appeal from an order of the superior court for King county, Morris, J., entered December 18, 1908, for the payment of assets to a receiver, after a hearing upon an order to show cause.</p>

<p>Attachment — Wrongful Attachment — Action on Bond — Waiver by Redelivery. Defendant’s retaking of attached property upon a redelivery bond, without moving against the writ, waives the right of action for wrongful attachment upon the attachment bond (Parker and Dunbar, JJ., dissenting).</p>

<p>Appeal — Notice—Time fob Taking — Notice of Judgment. The time for taking an appeal from a final judgment runs from the date of the entry of the judgment, and appellant is chargeable with notice of the date.</p> <p>Appeal — Statement of Facts — Time fob Filing. The time for filing a proposed statement of facts runs from the entry of judgment.</p> <p>Tkial — Notice of Findings and Judgment — Exceptions—Time fob Taking. Notice of the findings and entry of judgment need not be given, as exceptions may be taken until five days after notice is received.</p> <p>Appeal — Review—Vacation of Decbee — Discbetion. The denial of a motion to vacate findings and a decree will not be reviewed where no abuse of discretion is shown.</p>

, entered April 8, 1909, upon findings in favor of the defendants, establishing claims against an estate, after a • hearing before the court without a jury.

, entered May 20, 1909, upon sustaining a demurrer to the complaint, dismissing an action to hold the officers of an insolvent corporation individually liable for its debts.

, entered November 2, 1909, declaring a public use and necessity in condemnation proceedings, after a hearing on the merits before the court without a jury.

, entered October 26, 1908, upon findings in favor of the defendant, in an action of ejectment tried before the court without a jury.

, entered October 26, 1908, upon the verdict of a jury rendered in favor of a passenger for damages by reason of insults by the conductor.

, entered February 11, 1909, dismissing an action to enjoin the city clerk from certifying to an elector’s petition for a recall, after sustaining demurrers to the complaint, and overruling a demurrer to a petition in intervention.

, entered' October 23, 1908, upon the verdict of a jury rendered in favor of the plaintiff, for' personal injuries sustained by an employee in a mill.

, entered May 3, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover for the loss of property agreed to be insured, after a trial on the merits.

<p>Certiorari to review an order of the superior court for Spokane county, Hinkle, J., entered September 20, 1909, adjudging a public use in condemnation proceedings, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered January 28, 1909, upon an agreed statement of facts, dismissing an action to foreclose a mechanics’ lien.</p>

, entered December 29, 1908, dismissing an action on contract, after a trial on the merits before the court without a jury.

, entered December 28, 1-908, upon findings in favor of the defendants, dismissing habeas corpus proceedings, after a trial on the merits.

, entered April 1, 1909, dismissing an action to cancel state deeds to oyster lands, upon sustaining objections to evidence offered.

, entered February 2, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struck by a street car.

<p>Certiorari — Application—Time. As the statute fixes no time within which to apply for. a writ of certiorari, by analogy, application for a writ must be made within the time for taking an appeal.</p> <p>Eminent Domain — Proceedings—Review. Appeal or writ of certiorari in condemnation proceedings must be taken within thirty days; and the pendency of an appeal is no excuse for failure to apply for a writ of certiorari.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered June 7, 1909, upon a trial and conviction of the crime of larceny by embezzlement.</p>

, entered November 7, 1908, upon findings in favor of the plaintiff, after a trial on the merits. before the court without a jury, in an action on contract.

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered January 30, 1909, upon a trial and conviction of murder in the first degree.</p>

, entered November 6, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an. action for damages for the obstruction of a highway.

• Appeal from a judgment of the superior court for King county, Tallman, J., entered January 4, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

, entered May 3, 1909, upon findings in favor of the defendants, after a trial on the merits before the court, dismissing an action by the receiver of a corporation for an accounting and for damages.

, entered November 30, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on a promissory note.

, entered April 10, 1909, upon the verdict of a jury rendered in favor of the defendants, awarding damages in condemnation proceedings.

, entered April 27, 1909, 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.

, entered February 16, 1909, vacating a show cause order and dismissing a petition to return money withdrawn from the registry of the court after payment thereof on an award of damages in condemnation proceedings.

, entered January 7, 1909, upon findings 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 April 29, 1909, dismissing on the merits actions to establish a marriage and to contest a will, and to establish a resulting trust in real property.

court for Spokane county, Warren, J., entered December 10, 1908, dismissing an action for damages for fraud in the sale of real property.

<p>Appeal from an order of the superior court for Walla Walla county, Brents, J., entered March 17, 1909, denying a motion to vacate an order awarding the custody of a minor to her mother.</p>

<p>Application for a writ of certiorari to review an order of the superior court for Pierce county, Shackleford, J., entered April 17, 1909, vacating a default judgment.</p>

, entered December 80, 1908, in favor of the plaintiffs, enjoining the use and interference with the waters of a pond, after a hearing before the court.

, entered June 18, 1909, 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 mortgage.

<p>Appeal from a judgment of the superior court for Cowlitz county, McCredie, J., entered January 5, 1909, upon a trial and conviction of the crime of conducting a gambling game.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered May 22, 1909, upon a trial and conviction of rape.</p>

, entered July 15, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to quiet title.

, entered April 5, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action on an account.

Application filed in the supreme court November 12, 1909, for a writ of habeas corpus to release a person held in custody upon conviction of the crime of murder in the first degree.

Application filed in the supreme court November 19, 1909, for a writ of habeas corpus to release a prisoner held in custody pending trial for the crime of embezzlement.

, entered March 12, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for the death of a passenger permitted to alight from a street car at a dangerous place while in an intoxicated condition.

, entered September 21, 1908, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to recover possession of real property.

<p>Appeal from an order of the superior' court for Benton county, Canfield, J., entered July 13, 1909, denying a motion to dissolve an attachment, after a hearing before the court.</p>

, entered April 3, 1908, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to quiet title to water rights in a stream.

<p>Attachment — Dissolution—Affidavits-—Sufficiency. It is not error to dissolve an attachment issued on the ground that the defendant was about to convert certain real estate into money for the purpose of placing it beyond the reach of his creditors, where the affidavit for attachment was controverted by affidavit that the defendant at no time attempted to sell the property, but desired his creditors to receive the full amount to which they were entitled; as the same sufficiently denies that he was about to convert the same, etc.</p>

, entered November 12, 1908, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action on an insurance policy.

, entered January 12, 1909, 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 mortgage.

, entered January 5, 1909, in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose a mortgage upon real estate.

<p>Mortgages — Foreclosure—Execution Sales — Method. Bal. Code, § 5288, providing that sales on execution shall be by the acre, is directory, and does not require land to be sold one acre at a time; one bid upon a tract of a certain number of acres will be construed as a bid at so much per acre, and is not a substantial irregularity.</p> <p>Same — Mode op Sale — Persons Entitled to Bid on Parcel. Laws 1899, p. 87, § 4, providing that real property shall be sold under execution separately when a portion is claimed by a.third person and requires it to be sold separately, refers to persons claiming adversely to the mortgagor or mortgagee, and not to persons acquiring an interest pendente lite with notice of the suit.</p> <p>Same — Waiver op Right. Persons attending a foreclosure sale, who had made a written request for the separate sale of portions of the mortgaged property, waive their right to a separate sale by remaining silent at the sale when the sheriff ashed “if there was any particular piece” desired to be sold separately; notwithstanding that the sheriff had replied to the written request in writing stating that he would sell as directed by the decree, as the same was not such a denial of the request as would excuse attendance and oral demand at the sale.</p> <p>Same — Method or Sale- — Determination by Court — Confirmation — Right to Object. Where a decree of foreclosure directed that the various tracts of land be sold in parcels as described in the mortgage, it must be presumed that the court determined that such method of sale would bring the highest price within Laws 1899, p. 87, § 4, directing a sale “separately or otherwise as is likely to bring the highest price”; and no objection being made to the judgment, objection cannot be made to confirmation by parties or privies because the sheriff did not sell in smaller tracts.</p> <p>Same — Separate Parcels — Appurtenances. Where a mortgage and decree described certain tracts of upland by metes and bounds, “together with the leases” of the harbor area fronting thereon, the leases are appurtenant to the upland, and may be sold as one tract, with the abutting upland.</p> <p>. Same — Discretion of Sheriff — Irregularities. Where no request is made for the sale of mortgage premises in separate tracts, and the decree ordered the property sold in parcels as described in the mortgage, it is not a substantial irregularity for the sheriff in his discretion to sell several of the tracts in one parcel.</p> <p>Same — Sales for Cash — Competition. Under Bal. Code, § 5291, requiring sales of real estate under execution to be sold to the “highest bidder who shall forthwith pay the bid to the officer” the announcement at a sale, advertised to be for cash, that the sheriff would not take checks or anything of that kind is not unfair as preventing competitive bids.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke,' J., entered July 10, 1908, upon a trial and conviction of the crime of rape.</p>

, entered July S, 1909, upon findings in favor of the plaintiffs, upon an agreed statement of facts, in an action for breach of covenant against incumbrances.

, entered October 13, 1908, upon findings in favor of the plaintiff, in an action to quiet title based upon a tax deed and sale.

, entered June 19, 1909, and June 21, 1909, upon sustaining a demurrer to the complaint, dismissing an action to recover a rebate on an assessment paid for a local improvement.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered May 26, 1909, upon findings in favor of the plaintiff, in an action for a divorce.</p>

, entered April 29, 1909, upon findings in favor of the defendant, in an action to recover a Broker’s commissions, after a trial before the court without .a jury.

<p>Appeal — Preservation op Grounds — Exceptions. One general exception to each and every one and every part of all the instructions is insufficient, under Bal. Code, % 5053, to secure a review of the instructions on appeal.</p>

<p>Intoxicating Liquors — Sale — Statutes — Construction. Bal. Code, § 7313, prohibiting the sale of “intoxicating or spirituous” liquors to minors, does not mean “intoxicating spirituous” liquors; and includes beer as an intoxicating though not a spirituous liquor.</p> <p>Same — Selling Liquor to Minors — Information—Duplicity. A complaint charging the sale of beer to four minors on a certain date is not duplicitous as charging four offenses, the reasonable inference being that the beer was sold jointly to all the parties named at one time and as one transaction.</p> <p>Criminal Law — Trial—Verdict—Form. A verdict finding the defendant guilty as charged in the “information” is not prejudicially erroneous from the fact that the trial was upon a “complaint,” where the two words were used interchangeably throughout the trial; the form prescribed by Bal. Code, § 6961 being only directory.</p> <p>Intoxicating Liquors — Sale to Minors — Evidence—Sufficiency. The evidence is sufficient to support a conviction for selling liquor to a minor, although the minor and bartender testified there was no sale, where the state’s witness testified that the sale was made in his presence and he knew that it was beer from its appearance and smell, the credibility of the witnesses and weight of the evidence being for the jury.</p> <p>Same — Consent of Pabent — Pbima Facie Case. In a prosecution for selling liquor to a minor without the “written permission of his parent,” evidence by the father that he had not consented is sufficient to make a prima facie case, without evidence as to his mother’s consent.</p> <p>Same — Consent of Pabent. The burden of proving parental consent as a justification for the sale of liquor to a minor “without the written permission” of the parents, in violation of Bal. Code, § 7313, is upon the defendant.</p> <p>Same — Issues and Pkoof — Insteucxions. Upon a complaint for the sale of liquor to four minors, where the state elected to proceed upon the sale to one only, an instruction authorizing a conviction upon the sale to any one of them, is error, but is without prejudice where immediately followed by an instruction confining the jury to the sale to the one as to whom the election was made, and the trial proceeded, and there was no evidence of any other sale.</p> <p>Same. A sale of intoxicating liquors to one minor, will warrant a conviction on an information for a sale to two or more.</p> <p>Same — Sale Made “Knowingly.” A sale of liquor to minors is made “knowingly,” within Bal. Code, § 7313, if the barkeeper making the sale knew, or by reasonable diligence should have known, that the purchaser was a minor.</p> <p>Witnesses — Cross-Examination—Impeachment. Upon a prosecution for selling liquors to a minor, in which the minor denied buying beer of the defendant on the day in question, it is proper impeachment to ask on cross-examination whether he had been drinking that evening.</p>

, entered January 5, 1909, upon the verdict of a jury rendered in favor of the plaintiff, for $1,000, in an action on contract.

<p>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered February 18, 1908, upon findings against a receiver, upon a hearing on his final report, requiring the payment by the receiver of moneys, for which he had not accounted.</p>

<p>Appeal from a judgment of the superior court for Whitman county, Chadwick, J., entered March 81, 1908, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action on contract.</p>

, entered January 2, 1909, upon findings in favor of the plaintiff, granting a writ of mandamus, after a hearing on the merits.

, entered May 23, 1907, upon the verdict of a jury rendered in favor of the defendant by direction of the coui’t, in an action upon a logging contract-

, entered April 26, 1909, upon findings in favor of the plaintiff, in an action upon the bond of a contractor upon public work, after a trial before the court without a jury.

<p>Appeal from a judgment of the superior court for Spokane county, Hinkle, J., entered December 31, 1909, upon a trial and conviction of murder in the first degree.</p>

, entered July 3, 1908, dismissing, on the merits, an action to set aside a mortgage foreclosure sale, as a fraud upon creditors, after a trial before the court without a jury.

, entered January 19, 1909, upon the verdict of a jury rendered in favor of the defendant by direction of the court, in an action for personal injuries.

<p>Evidence — Contracts—Parol Evidence to Vary Writing. Where a written subcontract for railroad construction fixed a price of 90 cents per cubic yard for “solid rock excavation,” evidence of a contemporaneous oral agreement to the effect that solid rock excavation was to be classified according to the principal contract not then at band, and solid rock excavation “under three feet” to be paid .for at a rate of three cents less than the rate of the principal contract, or $1.22 per cubic yard, is inadmissible as varying the terms of the writing.</p> <p>Same. Parol evidence is inadmissible to show that a written contract is not complete by reason of a collateral oral agreement that part was intentionally omitted from the written contract and was to be incorporated later, where the written contract, by the voluntary act of the parties, included a complete contract on the subject-matter.</p>

, entered February 29, 1908, granting a nonsuit, after a trial before the court without a jury, in an action on contract.

, entered January £, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in all action for personal injuries sustained by a lineman in a fall from a telephone pole.

, entered March-1/5, 1909, after an examination before the court upon proceedings supplemental to-execution, ordering the payment of money to the plaintiff.

<p>Appeal from a judgment of the superior court for Spokane county, Hinkle, J., entered February 27, 1909, upon a trial and conviction of forgery.</p>

, entered January 30, 1909, upon findings in favor of the defendant, in an action on contract, after a trial before the court without a jury.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered March 14, 1908, upon granting a nonsuit, in an action on contract, after a trial before the court and a jury.</p>

, entered March 2, 1909, upon the-verdict of a jury rendered in favor of the plaintiff for $6,750,. for personal injuries sustained by a passenger in alighting from a street car.

<p>Appeal from a judgment of the superior court for Douglas county, Steiner, J., entered February 8, 1909, upon a trial and conviction of arson.</p>

, entered June 1, 1909, in favor of the defendant, upon an agreed statement of facts, dismissing an action to enjoin the seizure and sale of personal property to satisfy a tax.

, entered November 17, 1908, and January 2, 1909, denying motions to vacate a decree for alimony etc., and to grant a rehearing.

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered February 20, 1909, upon findings in favor of the defendant, dismissing an action for an injunction.</p>

, entered February 1, 1909, upon findings in favor of the plaintiff, in an action for a divorce, after a trial on the merits.

, entered January 26, 1909, 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 lien on a vessel, her tackle, apparel, etc.

, entered November 25, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for slander, after a trial on the merits.

, entered January 9, 1909, in favor of the plaintiff, upon overruling demurrers to the complaint, in an action to enjoin the erection of a garage upon certain premises.

<p>Elections — Contest t— Notice — Jubisdiction — Statutes. Bal. Code, § 1433, requiring the issuance of a citation to defendant in an election contest to appear on a day fixed by the court, is not mandatory in the sense of requiring an order on the day the contest is filed or within any specified time thereafter, and a futile attempt to fix a day for the hearing, without the issuance of jurisdictional process, does not affect the jurisdiction of the court to fix another day and cause a citation to issue thereon.</p> <p>Same — Time fob Giving Notice — Jubisdiction. The statute not requiring the court to give a notice and fix a date for hearing an election contest on the day the contest is filed, a delay from November 23 to December 9th in so doing does not deprive the court of jurisdiction.</p> <p>Same — Date of Heabing — Time. Bal. Code, § 1433, requiring the court to fix a date for hearing an election contest, and to give a notice thereof of not less than ten nor more than twenty days from the date of the notice, does not require the fixing of a date within twenty days from the date of filing of the contest.</p> <p>Same — Pboceedings—Notice—Heabing—Time foe. Under Bal. Code, § 1430 requiring an election contest to be filed within ten days after canvass of the votes, and § 1433, requiring the judge to fix a date for hearing and to give a notice thereof not less than ten nor more than twenty days from the date of the notice, the proceedings are timely and regular where the canvass was made November 23, the contest filed November 25, and the order made’ December 9th fixing December 22 as the date of hearing.</p> <p>Same — Notice of Contest — By Whom Given — Citation. Under Bal. Code, § 1433, providing that the judge may give notice and order a session of the court on a day fixed for the hearing of an election contest, and § 1434, providing thát the clerk shall also at the time issue a citation to the defendant to appear at the time and place specified in said notice, and providing the manner of service of the citation, the judge may cause notice to be given by the issuance of the citation.</p> <p>Appeal — Review—Moot Questions — Elections—Contest. The question of the jurisdiction of the trial court to hear and determine an election contest does not become a “moot” question by reason of the fact of the expiration of the six months after which certain officers are required to burn the ballots which are assumed to constitute the evidence to determine the contest; as the supreme court cannot, in advance of the trial of the contest, consider the existence of the evidence by which plaintiff intends to support his case.</p>

<p>Appeal from an order of the superior court for King county, Ronald, J., entered April IS, 1909, refusing to vacate a judgment.</p>

, entered March 27, 1909, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by an apprentice in a machine shop through a defective appliance.

<p>Appeal from a judgment of the superior court for Yakima county, Kauffman, J., entered June 20, 1908, upon the verdict of a jury rendered in favor of the plaintiffs, by direction of the court.</p>

, entered June 18, 1909, dismissing a prosecution for conducting gambling at a gambling resort, upon sustaining a demurrer to the information.

<p>Bills and Notes — Accommodation Makers — Statutes—Construction. The negotiable instruments act was intended to change the law with reference to the liability of accommodation parties who-signed as joint makers of a promissory note.</p> <p>Same — Defenses—Statutes—Construction. Section 58 of the-negotiable instruments act (Laws 1899, p. 351), providing that a note in the hands of any holder other than a holder in due course is subject to the same defenses as if it were nonnegotiable, must be construed in connection with other sections of the act restricting the-defenses, and refers only to such defenses as are permitted by the act itself, or such as do not deny the tenor of the bill.</p> <p>Bills and Notes — Accommodation Maker — Discharge—Extension of Time of Debtor. Under the negotiable instruments act, Laws 1899, p. 346, § 29, defining an accommodation party as one who signed as maker and who is made liable notwithstanding notice to a holder for value, and § 60, providing that the maker engages to pay it according to its tenor, and § 192 defining a person “primarily” liable as one who is absolutely required to pay, an accommodation maker of a note is not discharged by an extension of time to the-principal debtor, and therefore cannot show by parol that he signed only as surety.</p> <p>Same — Holders for Value and in Due Course. Under the negotiable instruments act, a holder for value and a holder in due course-are in the same position to challenge any defense based upon a. collateral agreement or upon equities existing between the makers-by holding up the instrument itself.</p> <p>Judgment — Bar—Parties Concluded — Joint Debtor Beyond Jurisdiction. An unsatisfied judgment in another state against one of two joint makers of a note does not bar another action on the note in this state against the other maker who was beyond the jurisdiction and not a party to the other suit.</p> <p>Mortgages — Bills and Notes — Security—Application. Under-the negotiable instruments act, a holder for value of notes secured by mortgage can apply the proceeds of foreclosure to the payment, of any one or all of the notes without observing the equities existing between joint makers who were all primarily liable thereon.</p>

, entered May 18, 1908, in favor of the plaintiff, by direction of the court, after a trial before the court and a jury, in an action to recover mining claims.

, entered September 19, 1908, in favor of the defendant, by direction of the court, after a trial before the court and a jury, in an action for injuries sustained by a conductor of a street car in a collision.

<p>Appeal — Decision—Effect of Reversal — Judgment—Res Judication. Where there were no findings of fact or bill of exceptions and no trial de novo, and judgment against the defendant was reversed for error in awarding plaintiff relief outside the issues, the cause stands for retrial and the decision is not res judicata.</p> <p>Husband and Wife — Community or Separate Property. Property acquired by the husband prior to his marriage, and to which neither the plaintiff nor the community contributed, is the separate property of the husband.</p>

<p>Certiorari to review an order of the superior court for King county, Shackleford, J., entered November 20, 1909, for the inspection of records.</p>

<p>Appeal from a judgment of the superior court for Clallam county, Still, J., entered April 16, 1909, dismissing a quo warranto proceeding, upon sustaining a demurrer to the information.</p>

, entered May 12, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger alighting from a train.

<p>Appeal from a judgment of the superior court for Whitman county, Sullivan, J., entered October 1, 1908, upon granting a nonsuit, after a trial before the court and a jury, in an action of tort.</p>

<p>Criminal Law — Trial—Witnesses—Indorsement. In the absence of any showing of prejudice, it is not reversible error to allow at the trial the indorsement of the name of a witness upon the information and permit him to testify.</p> <p>Criminal Law — Continuance — Indorsement oe Witness at Trial. The defendant is not entitled to a continuance, as a matter of right, upon allowing the state to indorse the name of a witness on the information at the trial, where no showing is made of prejudice to defendant’s rights.</p>

<p>Burglary — Entry—Time—Evidence—Sufficiency. The evidence is insufficient to warrant a conviction for entering a ship in the nighttime with intent to commit a misdemeanor, where no breaking was alleged and it devolved upon the state to prove entry in the nighttime, and from the evidence the property was not missed until more than two hours after daylight.</p> <p>Evidence — Judicial Notice. The courts take judicial notice that in this latitude in August it is daylight in the morning at 5:30-o’clock.</p>

<p>Appeal — Review—Trial De Novo — Ebboe Aíleged by Respondents. In an equity case tried de novo on appeal, the respondent, having taken exception to findings, is entitled, without having taken a cross-appeal, to have the erroneous findings reviewed and corrected, and the judgment affirmed, if supported by the evidence or right on any ground, although based upon erroneous findings.</p> <p>Insanity — Evidence—Sufficiency. The evidence is insufficient to show that one who had been an inmate of an insane asylum for a few months, and at times somewhat deranged, was insane, where it appears that for over three years before the commencement of the action, she had held a responsible position of trust as a housekeeper, and witnesses testified to her complete sanity during such time.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, Yakey, J., entered May 5, 1909, upon findings in favor of the plaintiffs, after a trial before the court without a jury, in an action on a fire insurance policy.</p>

, entered June 2, 1908, upon findings in favor of the intervening receiver of an insolvent corporation, in an action to foreclose a mortgage, after a trial on the merits.

, entered January 16, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in a sawmill.

<p>Application filed in the supreme court August 20, 1909, for a writ of mandamus to the secretary of state.</p>

<p>Appeal from an order of the superior court for King county, Yakey, J., entered March 11, 1909, refusing to vacate a Judgment, after a hearing before the court.</p>

<p>Application for a writ of certiorari to review an order of the-superior court for Thurston county, Linn, J., entered May 4, 1908, in condemnation proceedings.</p>

, entered April 2, 1909, upon findings in favor of the plaintiff, in an action upon the bond of a contractor upon public work, after a trial before the court without a jury.