Volume 77 — Oregon Reports

From Union: John W. Knowles, Judge. Statement by Mr. Chief Justice Moore.

Prom Crook: William L. Bradshaw, Judge. Statement by Mr. Justice Harris. Alice McKay and Donald McKay were husband and wife, and Dorothy McKay, aged about 11 years, is their daughter. The plaintiff commenced a suit for a divorce. A trial resulted in a decree which grants a divorce to plaintiff, awards to her the custody of the child, and requires the father to pay to the clerk of the court the sum of $20 each month for the care and maintenance of the daughter.

<p>Pleading — Complaint—Sufficiency.</p> <p>1. When not attacked by demurrer or motion as not stating the cause of action, every reasonable intendment will be invoked to sustain the complaint after verdiet.</p> <p>Larceny — Offenses—What Constitutes.</p> <p>2. Consent of the owner, obtained by fraud, to the taking of his property does not prevent the taking from being lareeny.</p> <p>[As to what constitutes larceny, see notes in 57 Am. Dec. 271; 88 Am. St. Rep. 559.]</p> <p>Insurance — Theft Insurance — Complaint—Sufficiency.</p> <p>3. A policy was conditioned for protection against direct loss by-burglary, theft or lareeny of any property described in the schedule, occasioned by its felonious abstraction from the interior of the premises occupied by the insured. A complaint averred that while the policy was in force there was taken from insured’s apartment, without her consent, by one B., who surreptitiously and fraudulently obtained access to the apartment, jewelry of a value greater than $1,500, none of which had been recovered. It appeared that B. by misrepresentations acquired possession of the property, which he never returned. Held, that the complaint was sufficient to state a cause of action, there being under Section 799, L. O. L., a presumption of ownership from insured’s possession and the complaint charging lareeny, burglary or theft rather than the obtaining of the property under false pretenses.</p> <p>Evidence — Documentary Evidence — Parol Evidence to Vary.</p> <p>4. A statement of loss furnished to the insurer may be explained by parol evidence, where it was not one which was necessary to be in writing.</p> <p>Appeal and Error — Review—Harmless Error.</p> <p>5. The admission of corroborative evidence whieh had no substantial influence on the determination was harmless.</p> <p>Insurance — Theft Insurance — Actions—Evidence.</p> <p>6. In an action on a theft policy to recover the value of jewels whieh were obtained from plaintiff by fraud, evidence of her reason for surrendering possession of the jewels was admissible to show that the property was really stolen.</p>

From Columbia: James W. Campbell, Judge. Statement by Mr. Justice Burnett. This is an action by J. F. Marks against the Columbia County Lumber Company, a corporation.

From Klamath: Henry L. Benson, Judge. Statement by Mr. Justice McBride. This is an action by T. A. Barton against School District No. 2 in Klamath County, to recover for an alleged breach of contract of hiring.

From Clatsop: James A. Eakin, Judge. Statement by Mr. Justice McBeide. This is a proceeding to review tbe action of tbe County Court of Clatsop County in removing plaintiff as administrator of the estate of Dan Valchanoff, deceased, and appointing defendant, James Walton, Jr., in his place.

From Marion: Percy R. Kelly, Judge. Statement by Mr. Justice McBride. This is an action by James R. Neer against the City of Salem to recover the sum of $318.97, paid by plaintiff as a sewer assessment upon his property in Salem. The facts are as follows: In 1911, a sewer assessment was duly levied upon certain lots of plaintiff in North Salem. The general area of the proposed improvement included a large part of what is known as North Salem.

<p>From Lane: Lawrence T. Harris, Judge.</p>

<p>Master and Servant—Safety Devices—Statutory Requirements.</p> <p>1. Substitutes for safety appliances not within the substantial specification of the Employers’ Liability Act (Laws 1911, p. 16) do not take the place of devices specifically named, and devices or things required by a city ordinance will not serve as a substitute for those required by the act.</p> <p>Master and Servant—Safety Appliances—Statutory Requirements.</p> <p>2. Where it did not appear that “tie-in” ropes used to keep a staging from swaying could not be so arranged as not to injure the woodwork of the building, the fact that such woodwork is injured does not excuse noncomplianee with the statute requiring sueh “tie-in” ropes.</p> <p>Master and Servant—Independent Contractors—Who are.</p> <p>3. Where a contract provided that a construction company should be paid a commission as the owner’s agent in constructing a building according to plans and specifications, that the principal should pay for all material, but the agent might contract in the name of the principal for labor and material, such contracts to be submitted to the principal for approval, and that the owners had a right to employ a person to inspect any work or materials in the manner of construction, the construction company employed was not an independent contractor.</p> <p>[As to duty and liability of person furnishing appliances for use by servant of another for injury to such servant, see note in Ann. Cas. 1913C, 754.]</p> <p>Master and Servant — “Independent Contractors” — Who are.</p> <p>4. Under Employers’ Liability Act (Laws 1911, p. 17), Section 2, providing that the manager, superintendent or foreman, or other person in charge of the construction shall be held to be the agent of the employer in all suits for damages by an employee, where a contract for the construction of a building provided that the work should be overseen by a firm of architects, such architects were not independent contractors.</p> <p>Master and Servant — Safety Appliances — Statutory Requirements.</p> <p>5. The Employers’ Liability Act provides that, when any staging is used in the construction of a building at a certain height, it must be fastened with lash ropes to keep it from swaying, and the scaffold must also be provided with a guard-rail. While plaintiff was engaged at work upon a scaffold, the supporting ropes slipped, and he fell to the ground and was injured. The lash ropes which had previously been used were ordered taken off by defendant’s superintendent. Seld that, the furnishing of tie ropes being a nondelegable duty, defendants were liable.</p> <p>Master and Servant — Assumption of Risk — Employers’ Liability Act.</p> <p>6. Assumption of risk constitutes no defense under the Employers’ Liability Act.</p>

<p>From Klamath: Henry L. Benson, Judge.</p> <p>Statement by Mr. Justice Harris.</p> <p>This is a proceeding by mandamus in which the Southern Pacific Company, a corporation, is plaintiff, and J. W. Siemens, as County Treasurer of Klamath County, Oregon, is defendant. The facts are as follows :</p> <p>The plaintiff owns in Klamath County a large amount of taxable property of which only a small part is personalty; the remainder being realty. The true amount of the taxes to be collected for the year 1912 on account of the personal property owned by the plaintiff was $179.95. In the preparation of the rolls for the sheriff and tax collector, the assessor had omitted a decimal point in the valuation of the personal property. The omission of the decimal point had the effect of increasing the taxes on the personalty approximately 100 times more than the correct amount. After the tax-rolls had been placed in the hands of the sheriff, who was then the tax collector, the plaintiff paid to that officer $17,454.99, being the full amount of the taxes appearing against the personal property of plaintiff, less a rebate of 3 per cent allowed by law.. The error made by the assessor was overlooked by the sheriff and was not discovered by the plaintiff until about a month after payment, whereupon demand was made for a return of the difference between $17,-454.99, the sum paid, and $179.95, the correct amount. Having expended the money, the proper authorities of Klamath County directed the issuance of warrants for the amount of the overpayment, and accordingly, on July 24, 1913, three county warrants for $5,000 each and one for $2,280.45 were issued to the plaintiff.</p> <p>For the purpose of enjoining the payment of the warrants held by the Southern Pacific Company and others, a suit in equity was commenced in the Circuit Court for Klamath County on November 17, 1913, by Henry Rabbes, as plaintiff, against C. C. Low, Sheriff, J. W. Siemens, Treasurer, the Southern Pacific Company, and others. The complaint filed by Henry Babbes avers that at all times since January 31, 1911, the outstanding voluntary indebtedness of Klamath County exceeded $5,000, in violation of Section 10 of Article XI of the state Constitution; that the warrants issued to the Southern Pacific Company represented a part of the unlawful indebtedness, and on that account are unconstitutional and void; and that the warrants will be paid, unless the county officers are enjoined.</p> <p>On March 2,1914, the Weyerhaeuser Land Company, a corporation, and others, commenced a suit in equity in the District Court of the United States for the District of Oregon against J. W. Siemens, as Treasurer of Klamath County, and others, for the purpose of preventing the payment of the warrants held by the Southern Pacific Company and others; it being alleged in the petition that the voluntary indebtedness exceeded $5,000,' in violation of the state Constitution, and that the warrants held by the Southern Pacific Company were a part of the prohibited indebtedness.</p> <p>The taxes levied against the entire property of the plaintiff for the year 1913 and payable in 1914 aggregated $23,193.14. On March 30, 19Í4, the plaintiff attempted to pay its taxes then due by tendering to the defendant J. W. Siemens, as County Treasurer of Klamath County, upon whom had been imposed the duties of tax collector (Laws 1913, e. 184), the sum of $12,793.24 in cash and two of the heretofore mentioned $5,000 warrants upon which $400 was due as interest, making a total tender of the full amount of the taxes. The offer was refused, and, upon the petition of plaintiff on March 31,1914, a writ of mandamus was directed to the defendant commanding him to accept the cash and warrants tendered or to show cause for his refusal. A demurrer to the writ having been overruled, the defendant filed a plea in abatement showing the pendency of the suit in equity wherein Henry Rabbes is plaintiff and J. W. Siemens, Treasurer, the Southern Pacific Company, and others, are defendants. The plea avers that the parties appearing in the writ of mandamus are also parties to the suit in equity; that the warrants held by the Southern Pacific Company are involved in both proceedings; and that a determination of the suit in equity would be decisive of the present controversy.</p> <p>A demurrer to the plea in abatement having been sustained, the defendant interposed an answer admitting the tender and refusal to accept the cash and warrants in payment of the taxes levied against the property of plaintiff and asserting three separate defenses, the first of which was based upon the claim that the warrants held and offered by the plaintiff were issued in an attempt to create a voluntary indebtedness in excess of the constitutional limitation; the pendency of the suit in equity commenced by Henry Rabbes in the Circuit Court of Klamath County is invoiced as a second defense; and the existence of the undetermined suit in the District Court of the United States for the District of Oregon is relied upon as the third defense. A demurrer to the answer was sustained, and, the defendant declining to plead further, a judgment was rendered commanding an acceptance of the cash and warrants by the county treasurer, who thereupon appealed.</p>

From Multnomah.: Thomas J. Cleeton, Judge. Statement by Mr. Justice Harris. The Eilers Music House, a private corporation, on June 27,1912, leased to D. V. Meagher a storeroom and room No. 616 in the Eilers Building, in Portland. At the time of the execution of the lease Meagher gave to the corporation $550 as security for the payment of the rent, and he now seeks to have $485.83 of the amount returned.

Prom Marion: William Galloway, Judge. Statement by Mr. Justice Benson. This is a suit by George L. Rose against the City of Salem, a municipal corporation, J. T. Welch, city marslial of Salem, and E. S. Budlong, street commissioner of said city, to restrain the enforcement of a municipal ordinance of the City of Salem, which reads as follows: “Section 1.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Chief Justice Moore. This is an action by Harry L. Kveset against W. E. Grace & Company, a corporation, and Fred Miller, to recover damages for personal injury.

Original proceeding in Supreme Court. This is a proceeding for the disbarment of Charles W. Garland, instituted by the State of Oregon, upon the relation of John McCourt, John H. McNary, O. P. Coshow, Loring K. Adams and Alfred Hampson, members of the Grievance Committee of the State Bar Association.

From Washington: James U. Campbell, Judge. Statement by Mr. Justice Bean. This is a suit by Theo. M. Barr against the World ICeepfresh Company to foreclose a mechanic’s lien on lots 5 and 6, block 8, Fair View Addition to the City of Hillsboro, Washington County, Oregon, together with the structure erected thereon.

From Yamhill: Webster Holmes, Judge. Statement by Mr. Justice Bean. This is a suit by Theo. M. Barr against the World Keepfresh Company, a corporation, in which the defendant appeals from a decree of the Circuit Court for Yamhill County in favor of plaintiff, foreclosing a mechanic’s lien on block 4, in Kershaw’s Addition to Willamina, Oregon, together with the buildings thereon.

<p>Vendor and Purchaser — Avoidance of Contract — Sufficiency of Evidence — Misrepresentation.</p> <p>1. In an action to foreclose a mortgage on residence property sold to defendants by the mortgagee, evidence held insufficient to show any misrepresentation by the mortgagee in respect to the removal of a barn and of animals in a park zoo near the premises:</p> <p>Vendor and Purchaser — Performance of Conditions — Acceptance.</p> <p>2. Under a contract for the sale of property, providing that the vendor at his own expense should improve all the streets with hard surface pavement, the purchaser, who demanded that a pavement should be put in a street up to a declivity, admitting that it was impossible to pave the remainder of the street, after such paving had been done to his satisfaction, could not insist that the vendor do an impracticable or impossible thing.</p> <p>[As to false statement by vendor of intention to make improvement affecting property sold as fraud sufficient to avoid contract of sale, see note in Ann. Cas. 1914B, 862.]</p> <p>Vendor and Purchaser — Remedies of Purchaser — Avoidance—Burden of Proof — Breach of Conditions.</p> <p>3. In an action to foreclose a mortgage on the property sold to defendants by the mortgagee, evidence for defendants held not to sustain the burden of proving the mortgagee’s failure to perform his contract undertaking to lay water-pipes and construct sewers, or his oral agreement to install gas service, or his oral promise of a street-car line to the property within one year from the contract.</p> <p>Evidence — Parol Evidence to Vary Writing.</p> <p>4. Where a contract for the sale of land has been reduced to writing and the mutual obligations of the parties specified, the purchaser cannot vary oi alter the written contract by showing contemporaneous parol agreements without alleging and proving that some fraud was practiced upon him to prevent such agreement from being inserted in the written contract.</p> <p>[As to supplementing contract for sale of realty by proof of collateral oral agreement, see note in Ann. Cas. 1914A, 456.]</p> <p>Vendor and Purchaser — Breach of Conditions — Waiver or Acquiescence.</p> <p>5. Where purchasers objected to paying interest on their mortgage note until a car line was built to their premises, and the vendor and mortgagee gave them a writing waiving interest until the line was in operation, the purchasers, who thereafter continued to treat the property as their own, would be held to have acquiesced in the settlement offered by the vendor.</p>

<p>From Coos: John S. Coke, Judge.</p> <p>Statement by Mr. Justice Eakin.</p> <p>The defendant, Fannie O’Donnell, was indicted for selling and disposing of intoxicating liquor on Sunday in violation of Section 2129, L. O. L., as amended by Laws of 1913, Chapter 74. The material portion of the statute as amended provides that:</p> <p>“No person shall keep open on the first day of the week, commonly called Sunday, any house or room in which intoxicating liquor is kept for sale, nor shall such person sell, give or otherwise dispose of any intoxicating liquors on that day.”</p> <p>Having entered, a plea of not guilty, the defendant was tried before a jury and convicted. The defendant appeals to this court.</p>

From Multnomah.: Robert G. Morrow, Judge. Statement by Mr. Justice Harris. This is a suit by W. E. Bobertson and Hannah B. Bobertson against the City of Portland, to restrain the paying of Cornell Street, and to prevent the levying of special assessments to pay for the improvement. In 1903 the legislature enacted a charter for the City of Portland: Sp. Laws 1903, p. 3.

<p>Municipal Corporations — Improvements — Charter Provisions — Ordinances.</p> <p>1. Under Portland City Charter of 1913, Section 284, which declared that the provisions of the former charter relating to public improvements by local assessments, including Sections 400 and 401 thereof, authorizing the adoption of a reassessing ordinance and providing for appeal from such reassessment, should remain in force as ordinances only, those sections remain in force by the terms of the charter, and are not void as no longer based on the authority contained in the charter.</p> <p>Municipal Corporations — Improvements—Charter Provisions — Reassessment of Benefit — Change in Charter.</p> <p>2. Reassessment proceedings under those sections, an appeal from which was pending in the Circuit Court when that charter was adopted, were not interrupted by the change from charter provisions to ordinances, and that appeal can thereafter be determined by the court the same as if the charter had contained an express authorization to enact such ordinances and they had been enacted by the council or voters.</p>

From Multnomah: Thomas J. Cleeton, Judge. Statement by Mr. Justice McBride. This is an action by Phillip M. Lang against the Camden Iron Works, a corporation, to recover for personal injuries.

From Crook: William L. Bradshaw, Judge. In Banc. Statement by Mr. Justice Eakin. The defendant, John M. McPherson, was jointly indicted with Jndd McPherson and Mace Newsham for the larceny of a mare on September 14, 1912, in Crook County, Oregon, and was tried before the other defendants were apprehended. On the trial there were a great many exceptions taken by the defendant, and after a verdict of guilty and judgment thereon, he appealed to this court.

From Clackamas: James U. Campbell, Judge. Statement by Mr. Justice Burnett. Tbis is a suit by Charles T. Tooze against tbe Willamette Valley Southern Railway Company, a corporation. The plaintiff says he is the owner of block 12 and lot 7 in block 11 in Oregon City, together with the tenements, hereditaments and appurtenances thereunto belonging.

From Multnomah.: Thomas J. Cleeton, Judge. Statement by Mb.. Justice Harris. This is a suit by Sarah L. McNiel against Edwin C. Holmes, in which the plaintiff seeks to annul two real estate transactions, and to recover the moneys paid on account of the lands. The properties involved are known as the Seror Park or Eockwood Tract and the Hnion Avenue lots. The discordant stories of the litigants are told in the pleadings.

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice Bean. This is an action by Anna Tompkins against the Portland Railway, Light & Power Company, a corporation, to recover damages on account of personal injuries alleged to have been sustained by plaintiff in attempting to board a street-car of the defendant at First and Morrison Streets in the City of Portland, Oregon, on July 15,1913.

From Marion: William Galloway, Judge. Statement by Mr. Chief Justice Moore. Tbis is a suit by tbe Ideal Tea Company, a corporation, and C. F. Henshaw against tbe City of Salem and others, to enjoin tbe enforcement of a municipal ordinance.

<p>From. Washington: James A. Eakin, Judge.</p> <p>Statement by Mr. Justice Harris.</p> <p>George F. Naylor was by indictment accused of lewd cohabitation with Eachel Watrous. Nineteen of the 27 witnesses called by the state were permitted, in despite of the objections interposed by defendant, to testify that the conduct and manner of living of George F. Naylor and Eachel Watrous caused talk in the community. The different witnesses described the talk variously. One designated it as “ some talk, ’ ’ and others characterized it as “a good deal,” or “some,” or “a great deal,” or “public,” or “public talk and public scandal,” or “general public gossip,” or “general talk.”</p> <p>Manche Langley, a witness for the state, testified over objection that she had heard “from a very great number of people that the children looked a very great deal like Mr. Naylor.” Mrs. Barber was asked by the state:</p> <p>“Do you mean to say that your husband was the only one you heard talk about this subject?”</p> <p>The court denied the motion of defendant to strike out the answer of the witness, who responded thus:</p> <p>“If I might explain, I have handled 66 girl cases within the last couple of years since I began this work, and about one out of every six has said to me: ‘Why do you pitch into us for? Why don’t you clean out the Naylors?’ ”</p>

<p>Municipal Corporations—Charter Amendments—Initiative—Election.</p> <p>1. Article IV, Section la, of the Constitution, authorizing cities to provide for the manner of exercising the initiative and referendum powers as to municipal legislation, authorizes a city by ordinance to prescribe the manner in which an election to amend the charter by initiative shall be held.</p> <p>Municipal Corporations—Amendments of Charters—Elections—Compliance With Ordinance.</p> <p>2. An ordinance of a city, prescribing the manner for the holding of elections on initiative measures, requires the recorder to give notice of the election, stating therein the measure to be voted on, and requires the council to appoint judges and' clerks of election, and to designate voting places, and that on failure so to do, the clerk shall designate the polling places, and the electors present at the time for opening the polls shall elect the judges and clerks. The council, in ordering an election on an initiative charter amendment, did not appoint judges and clerks, nor designate the polling places, but the clerk in the notice of election designated the polling places, and stated that the qualified electors, at the time for opening the polls, would elect judges and clerks. The notice of election was in conformity with the ordinance, and was published as required thereby. Held, that the ordinance was complied with and the election valid.</p> <p>[As to when change in municipal charter is to be regarded as creating new charter instead of amendment, see note in Ann. Cas. 1914D, 1171.]</p> <p>Municipal Corporations — Initiative Measures — Elections—Validity.</p> <p>3. Where there was nothing to show that, at a special initiative election in a city to adopt a charter amendment authorizing the creation of indebtedness, any voter not a taxpayer was denied the right to vote, and the evidence showed that 643 votes were cast for the amendment while 78 were cast against it, out of an electorate of over 2,000, the eourt in determining the validity of the election, would not consider whether Special Laws of 1905, page 36, Section 14, limiting the right to vote to owners of property within the city limits, was in conflict with Article H, Section 2, of the Constitution.</p> <p>Municipal Corporations — Initiative and Referendum — Statutes—Validity.</p> <p>4. So much of Laws of 1915, page 187, as attempts to restrict the powers of cities and towns to levy taxes is violative of Article XI, Section 2, of the Constitution giving to cities and towns the power to enact and amend their charters, subject only to the Constitution and criminal laws of the state, for the Constitution prevents legislative interference with purely local and municipal matters, sueh as city taxation, and extends to the voters of municipalities full power to regulate these subjects.</p> <p>Municipal Corporations — Public Improvements — Construction of Railroads — Description of Terminus of Railroad.</p> <p>5. An amendment to the charter of a city, which grants to the council thereof power to contract for the construction of a railroad from the city to a point on the “North Umpqua River at its intersection with the western boundary of the Cascade Range forest reserve,” and to issue bonds therefor, sufficiently designates the terminus of the road, though the Cascade Range forest reserve has been, by act of Congress, divided, and that part intersected by the river mentioned is now known as the Umpqua National forest.</p> <p>Municipal Corporations — Powers and Punctions — Contracts—Judicial Supervision.</p> <p>6. The eourt, in a suit by a taxpayer of a eity to enjoin it from entering into a contract for the construction of a railroad as authorized by the city charter, will not consider whether the contract is a good business proposition.</p> <p>Appeal and Error — Moot Cases.</p> <p>7. The power of the eourt on appeal to dismiss a ease as fictitious should not be exercised except where the fictitious character appears either from the pleadings or from satisfactory evidence, especially where persons, claiming that the suit is fictitious, fail to appear and make the objection and avail themselves of the point in the trial court.</p> <p>Action — Moot Cases.</p> <p>8. A suit by a taxpayer to pnjoin a city from contracting for the construction and operation of a railroad, as authorized by the charter, and from issuing bonds for the construction thereof, will not be dismissed as fictitious merely because the suit is a friendly one, pursued without rancor, and with the understanding that unnecessary delays will not be permitted.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>This is an action by F. F. Williams against the Pacific Surety Company, a corporation, in which judgment was rendered in favor of plaintiff, and defendant appeals. Respondent files motion to dismiss appeal.</p>

<p>From Hood River: William L. Bradshaw, Judge.</p> <p>Statement by Mr. Justice Benson.</p> <p>This is an action by Joel Niemi, administrator of the estate of Oscar Laine, deceased, against the Stanley Smith Lumber Company, a corporation, for damages for personal injuries causing the death of Oscar Laine the plaintiff being the administrator of decedent’s estate. The circumstances surrounding the accident, so far as they are of value here, are as follows: Defendant is a corporation engaged in the manufacture of lumber in Hood Diver County. In this occupation it maintains a number of logging camps in whose vicinity the trees are felled and prepared for the sawmill, to which they are subsequently transported. Among other equipment for this purpose defendant had a large aerial wire cable attached at each end to a standing tree, about 60 feet from the ground, so as to permit the logs to be hoisted and carried along said cable, and down out of the mountains. The upper one of these trees, which will be called, for the purposes of this discussion, “the gin tree,” had the aerial cable attached thereto by a heavy iron band, or collar, to which were also attached five guy wires, which radiated from the collar to stumps used as anchors, which wires varied in length from 100 to possibly 125 feet. The aerial cable and guy wires were tightly stretched for staying the gin tree.</p> <p>On the 12th of September, 1913, decedent, as an employee of defendant, with another, was engaged in felling trees in the vicinity of the gin tree above mentioned. They had been so employed until about 5 o’clock in the afternoon, when they cut down a tree, which in falling struck a guy wire near the stump to which it was anchored, and the shock of the impact was so great as to break the gin tree in two at a point about 22 feet below tbe collar to which the cable and guy-wires were attached. As the gin tree broke, one of the falling branches struck the decedent, causing injuries from which he subsequently died, and this action followed. From a judgment for plaintiff, defendant appeals.</p>

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Chief Justice Moore. This is an action by James 0. Haynes, a minor, by O. S. Haynes, his father and guardian ad litem, against the Oregon-Washington Bailroad & Navigation Company, a corporation, to recover damages for a personal injury.

From Multnomah: Thomas J. Cleeton, Judge. Statement by Mr. Justice Burnett. This is an action by Eva Holmberg against Fred A. Jacobs. Tbe plaintiff was in tbe service of tbe defendant as a cook from July 11 to 13, 1913. Sbe says be furnished a gas stove to be used in her employment.

Prom Tillamook: Webster Holmes, Judge. Statement by Mr. Justice McBride. Tbis is a suit brought in tbe first instance by W. G. Dwight against Giebisch & Joplin and G. W. Kiger to enjoin them from taking stone from a quarry in Tillamook County, and to compel an accounting for stone already taken and timber destroyed on the premises in controversy.

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Chief Justice Moore. This action was instituted by William R. Kelly against A. W. Weaver and Albert Weaver to recover damages for a personal injury.

From Coos: John S. Coke, Judge. This is an action by Eino Raiha against the Coos Bay Coal & Fuel Company, a corporation, wherein judgment was rendered in favor of defendant, and plaintiff appeals. Respondent files motion to dismiss the appeal.

From Marion: William Galloway, Judge. Statement by Mr. Justice Harris. Tbe plaintiff, M. L. Jones, was tbe record owner of two tracts of land in Marion County, one of wbicb embraced about 746 acres and tbe other about 500 acres. For tbe sake of convenience tbe 746-acre tract will be designated as tbe Durbin farm and tbe 500-acre tract will be called tbe Fairfield farm.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Chief Justice Moore. This is an action by Mabel B. Hartman, the mother of 'William B. Hartman, deceased, against the Oregon Electric Railway Company, to recover damages resulting from his death, which is alleged to have been caused by the defendant’s negligence.

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Chiee Justice Moore. This is an action by Josie Pullen against tbe City of Eugene, a municipal corporation, to recover damages for a personal injury.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Eakin. This is an action by Patrick H. Loughran against S. B. Barker and another. The plaintiff alleges in his complaint that he is an attorney practicing before the Interior Department, at Washington, and that the defendants employed him to perform certain services before said Department in the procurement of a patent, which he obtained, and promised to pay him $200 therefor in case he was successful.

<p>Appeal and Error — Transfer of Cause — Notice of Appeal — “Signed by Himself or Attorney.”</p> <p>1. Under Section 550, L. O. L., providing that where notice of appeal is not given in open court, it must be in writing, “signed by himself or attorney,” the appellant, with the approval of his attorney, or the attorney himself, may authorize another person to sign the attorney’s name to a notice of appeal.</p> <p>Appeal and Error — Notice of Appeal — Sufficiency of Service.</p> <p>2. In view of Section 539, L. O. L., providing that notices may be personally served upon an attorney, or may be served during his absence by leaving notice at his office between 6 A. m. and 9 p. m. in a conspicuous place, returns of personal service of a notice of appeal on respondent’s attorney, and of a service by leaving a copy thereof in a conspicuous place in his office between 6 and 9, when there was no person in the office, showed proper service.</p> <p>Appeal and Error — Notice of Appeal — Order of Court.</p> <p>3. An order entered of record, purporting to state certain faets as to the signing of a notice of appeal and the service thereof, and directed to be attached to the return of service of such notice, of which the appellant was not notified, and as to whieh neither party appeared, was void for want of jurisdiction to make it, and could not be considered for any purpose in passing on motions to dismiss for want of proper notice of appeal.</p>

From Jackson: Robert G. Morrow, Judge. Statement by Mr. Justice Eakin. Tbis is an action by S. T. Howard, Jr., and George A. Morse against tbe Horticultural Fire Relief of Oregon. The facts are as follows: On or about December 10, 1912, a fruit cannery located near Medford, Oregon, together with its equipment and contents, was destroyed by fire.

From Jackson: Robert G. Morrow, Judge. This is an action hy S. T. Howard and George A. Morse against the German-American Insurance Company of New York. From a judgment for plaintiffs, defendant appeals. Reversed and rendered as to plaintiff Howard and affirmed as to plaintiff Morse.

From Jackson: Bobert G. Morrow, Judge. This is an action by S. T. Howard and George A. Morse against the Hartford Fire Insurance Company of Hartford, Connecticut. From a judgment for plaintiffs, defendant appeals. Beversed and rendered for defendant as to Howard and affirmed as to the judgment for Morse.

From Malheur: Dalton Biggs, Judge. This is a suit by the Union Credit Association, a corporation, against J. M. P. Corson and John W. Corson, and others. From a decree in favor of plaintiff, the named defendants appeal.

<p>Appeal and Error — Findings—Conclusiveiiess.</p> <p>1. Findings are conclusive on appeal, unless the court finds that there is no evidence to support them.</p> <p>Judgment — Conclusiveness—Former Adjudication.</p> <p>2. A defendant in an action in a court of a sister state procured from a surety company a bond for the release of property attached by plaintiff therein. A third person executed to the surety company an indemnity bond conditioned on saving it harmless against all suits, actions, debts, damages, charges and expenses. Plaintiff in the action recovered judgment subsequent to his agreement to dismiss, in consideration of a payment in full settlement by defendant who had no knowledge of the trial. The third person had notiee of the trial and participated therein. Held that, under the full faith and credit clause of the Constitution, the judgment was conclusive against the third person on his bond to indemnify the surety company satisfying the judgment, though the third person sought to show that under the laws of the sister state a new trial could be had against a judgment obtained by fraud or surprise, and that the surety company refused to take any action to obtain a new trial.</p> <p>Payment — Receipt—Effect.</p> <p>3. A receipt is only grima fame evidence of its statements.</p> <p>Evidence — Parol Evidence — Contracts—Consideration.</p> <p>4. Under Section 798, subdivision 3, L. O. L., providing that the truth of facts recited in a written instrument is conclusively proved as between the parties thereto, hut this rule does not apply to the recital of a consideration, a consideration expressed in a writing may he inquired into.</p> <p>[As to when and how consideration must be expressed, see note in 60 Am. St. Rep. 432.]</p> <p>Judgment — Foreign Judgment — Conclusiveness.</p> <p>5. Under the full faith and credit clause of the federal Constitution and Section 761, L. O. L., providing that the effect of a judicial record of a sister state is the same in this state as in the sister state, the court may inquire whether a court of a sister state rendering a judgment relied on had jurisdiction of the parties and of the subject matter, but beyond that it cannot go.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>The plaintiffs, J. A. Aitken and Maggie Aitken, bring this action against John Bjerkvig and Jacob J. Bjerkvig, to recover damages • for an alleged fraud said to have been practiced upon them by the defendants in exchange of residence property in Portland, Oregon, for acreage owned by the defendants in Lincoln County, Oregon. After describing the Portland realty and alleging that the defendant John Bjerkvig was acting for himself and the other defendant, the complaint avers, in substance, that the defendants represented the Lincoln County land to consist of 60 acres of open timber and 30 acres of cleared land, which had theretofore been under cultivation, and that the tract had on it a stream of water valuable for water-power purposes, the stream being wholly within the premises; that the plaintiffs were ignorant of farming land and agricultural processes and strangers to the real estate and the locality where it was situated. The primary pleading then contains this allegation:</p> <p>“That, upon arriving at what the said defendant John Bjerkvig represented to be the tract in question, he pointed out to the plaintiff a tract of land which he stated was part of the 30 acres above referred to as fit for cultivation. That said tract was covered with a rank growth of ferns and weeds, but otherwise appeared to be clear. That the said defendant so pointed the same out to the plaintiff from near the vehicle which had conveyed the parties to the land. Thereupon the plaintiff proposed to walk into the ferns and weeds and examine the land more closely, but the defendant John Bjerkvig told him it was not necessary for him to do so, saying that the land was all clear and ready for the plow; that plaintiff could take his word for that; that all of the 30 acres was like what the parties saw near where they were standing on the edge of the tract; and that in that locality land which had not been cultivated for some years always grew up to ferns and other weeds in the manner in which said tract appeared to be grown up. That the plaintiff, because of his ignorance of all agricultural matters, and because of his confidence in the honesty and good faith of the defendant, was persuaded by the defendant not to examine said tract otherwise than as aforesaid, and returned with the defendant to Portland, Oregon, and closed the deal; the plaintiffs deeding their dwelling-house, as aforesaid, to said Jacob J. Bjerkvig.”</p> <p>The plaintiffs charge that closer inspection made by them after the exchange was finally effected revealed that 23 acres of the 30-acre tract represented by the defendants to be clear and fit for cultivation in fact had never been cultivated or cleared and was covered with dead and down timber, logs, stumps and roots of trees, all of which were concealed by the ferns and weeds to such an extent as to be wholly invisible from the place where the defendant pointed out the land to the plaintiff. The usual allegations that the defendants knew the true conditions of the tract, and that the plaintiffs were ignorant of the same, and relied upon the representations made by the defendants, appear also in the complaint.</p> <p>After a general demurrer to the pleading had been overruled, defendants filed an answer admitting the exchange of properties, that plaintiffs inspected the Lincoln County land, and that John Bjerkvig acted for Jacob, his son, in making the exchange, but otherwise traversing the complaint and averring new matter not necessary to be here considered. The trial resulted in a judgment for the plaintiffs, from which the defendants appeal.</p>

<p>Landlord and Tenant — Action for Rent — Reasonable Rent.</p> <p>1. A complaint in an action for rent, which alleges that plaintifE leased to defendant for a season a 63-acre tract, that defendant agreed to farm the tract and pay as rental $4 per acre for 45 acres of tillable land and the customary rental for 11.5 acres of hops, and that the customary rental of hop-yards was half of the proceeds of the sale of the hops after a specified deduction for the cost of raising and baling, and which sets forth the amount of hops produced, states a cause of action for the reasonable rent of the hop tract, and not for the amount of rent shown to be due by custom, and a charge authorizing a recovery only on proof of a eustom as to rentals was erroneous.</p> <p>Landlord and Tenant — Action for Rent — Estoppel.</p> <p>2. Where a widow leased land assigned to her as dower, though subsequently the assignment was declared illegal, the tenant was estopped to deny that the widow had title to the premises or the right to rent the same; the tenant not being ousted from the premises nor compelled to pay rent to any other person.</p> <p>Landlord and Tenant — Action for Rent — Complaint—Evidence— “Usual” — “Customary”—“Reasonable.”</p> <p>3. A complaint, in an action for rent, which alleges that plaintifE let to defendant a specified tract and that defendant agreed to pay as rental $4 per acre for a part of the land and the customary rental for a hop tract, justifies evidence of the reasonable rental value of the hop traet, as against the objection that plaintiff sought a recovery for rental as fixed by custom; there being a close relation between the words “customary,” “usual,” and “reasonable.”</p> <p>Appeal and Error — Questions Reviewable — Disposition of Case on Appeal — Constitutional Provisions.</p> <p>4. The Supreme Court, on appeal from a judgment for defendant in an action for rent, must, under Article YII, Section 3, of the Constitution, as amended in 1919 (see Laws 1911, p. 7)¿ find the reasonable rental value of the land from all the evidence in the record, where the complaint seeks a recovery for the reasonable rental value.</p> <p>Landlord and Tenant — Title of Landlord — Right of Tenant to Question.</p> <p>5. One who holds as tenant of another, by treating with her and trying to settle with her attorney in fact when the time came to make a settlement, is, under Section 798, subd. 5, L. O. L., precluded from questioning the landlord’s title.</p> <p>[Estoppel of tenant to deny landlord’s title, see notes in 15 Am. Dec. 49; 89 Am. St. Rep. 62.]</p> <p>Dower — Action for Rent — Inability of Tenant.</p> <p>6. Section 7297, L. O. L., entitles a widow to dower in lands of which her husband died seised, and authorizes her to continue to occupy the lands or receive half of the rents so long as the heirs or others interested do not obiect, without having dower assigned. Dower was assigned to a widow, who leased the property assigned to a tenant. Subsequently the assignment was set aside, and new commissioners were appointed to make a new admeasurement, which was confirmed nearly a year later. No one objected to the widow’s receiving the rent of the land first assigned to her, but all acquiesced therein. The executor testified that the estate did not claim or collect any of the rent. Seld, that the widow was entitled to collect the rent.</p>

From Lane: .Robert Gr. Morrow, Judge. Statement by Mr. Justice Burnett. Leigb E. Nicholls was convicted of violating the Sunday law in Justice’s Court, and he appealed to the Circuit Court, where a demurrer to the complaint was sustained.

From Coos: John S. Coke, Judge. Statement by Mr. Justice Harris. Tbe defendant, W. W. Gage, as sheriff of Coos County, Oregon, attempted to appeal from a judgment for tbe plaintiff. On December 22, 1914, tbis court dismissed tbe appeal for tbe reason that tbe transcript bad not been filed witbin tbe time required by law. A motion to reinstate tbe appeal was submitted and argued in connection with a bearing of tbe cause on tbe merits. Tbe judgment was obtained on May 28, 1914.

From Marion: Perot E. Kellt, Judge. Statement by Mr. Justice Benson. This is an action by the Hotel Marion Company, a corporation, against George E. Waters, to recover rent pursuant to the terms of a written lease.

From Marion: William Galloway, Judge. Statement by Mr. Justice Benson. A suit was brought in tbe Circuit Court for Marion County by J. G. Lais, J. M. Brown, E. J. Brown, M. Small, J. H. Brewer, A. F. Blackerby and Sopbia Blackerby, to enjoin the City of Silverton from letting contracts and assessing plaintiff’s property for certain street improvements.

<p>From YamMll: Webster Holmes, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is an action brought by plaintiff, John T. Davis, against the Carlton Lumber Company and the Carlton Fir Lumber Company to recover damages for an injury received by tbe plaintiff on April 21, 1914, while employed by the defendants as a teamster.</p> <p>According to the complaint, the plaintiff, while so employed, was descending one of the companies ’ docks from the main luinber-yard to the planer and driving a team attached to a two-wheeled truck loaded with lumber, when the truck swung around, causing him to be knocked off the dock and producing the injury. The lumber-yard is located upon a dock or platform, no part of which is more than 10 or 12 feet above the ground. In order to get from the main part of the yard to the planing-mill, it is necessary to pass over the dock or slip, which is 150 feet in length and declines something like 8 or 9 feet. The platform upon which Davis was driving was about 16 feet in width. Two timbers 12 inches wide were placed thereon, about 8 feet apart, leaving a driveway of that distance, with 3 feet on each side of the timbers, so that the driver had a 3-foot space upon which to walk and drive the team of horses down the incline. At the particular place of the injury it was necessary for the teamster to make a sharp turn and drive down the incline with the left wheel of the truck rubbing against the guard-rail at the left side of the driveway. The wheel, pressing against this rail, tended to brake or hold back the truck. At this place the load, as frequently happened, turned while rounding the curve from the dock to the driveway, so that the front of it swung over the walkway, striking Davis and knocking him off the walk to the ground beneath, which was covered with sticks and timber. Davis was required to drive at the front of the load with his right hand pressing against it, thereby attempting to guide it so that the load would not swing out over the walkway; but it was so heavy and swung so quickly that he could not hold nor guide it. Customarily one or two men accompanied each truck load down the incline, and were required to be at the rear end of the load of lumber to keep it from losing its balance. Because of the absence of a brake on the truck, the defendants adopted a way of braking or checking the truck, aside from driving so that the left wheel would press against the guard-rail, by requiring another laborer to place a stick or a 4x4 in such a position in relation to the right wheel that the truck would be checked and prevented from running away down the incline.</p> <p>The specific charges of negligence are as follows: (a) The dock was constructed with sharp turns and angles, .(b) The footpath is dangerous and unsafe, in that it is too narrow to allow the driver to work in safety, and to escape being hit by the swinging load of lumber and thrown therefrom, (c) The defendants negligently permitted debris, pieces of lumber, and waste material to accumulate on the pathway, (d) The pathway could have been of a width sufficient to enable the driver to work in safety without interfering with the efficiency of the work, (e) One of the horses in the team was fractious and unsafe, (f) The truck had no controlling instrumentality to keep it from swaying or being thrown around violently, and could have been provided with an appliance which would have prevented the same from swinging without interfering with its use. At the time of the accident the plaintiff had been at work for the defendants about 7 hours. The court refused to instruct the jury, as requested by defendants, that assumed risk and negligence of the plaintiff were defenses. On the contrary, it instructed that the case came within the purview of the Employers’ Liability Act, and that such defenses could not be maintained. A verdict for $1,000 was rendered by the jury, and from a judgment thereon defendants appeal.</p>

From Tamhill: Webster Holmes, Judge. Statement by Mr. Justice Bean. This is an action brought by the plaintiff, M. A. McGee, against the defendants, the Carlton Lumber Company and the Carlton Fir Lumber Company, to recover damages for a personal injury he received on April 28,1914, while in their employ. McGee was employed as a teamster by the defendants, and was injured by coming in contact with a mono-rail transfer while driving a wood wagon upon one of their docks.

Prom Marion: Percy E. Kelly, Judge. Statement by Mr. Justice Eakin. Tbe defendant, Joe Perry, was indicted and convicted of furnishing intoxicating liquors to a convict sentenced to serve a term in tbe Oregon state penitentiary. It was conceded on tbe trial that David Snyder, tbe person to whom tbe liquor was supplied, bad been sentenced to tbe penitentiary, but at tbe time tbe liquor was furnished was out under parole and doing business for himself in tbe City of Salem.

Prom Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Benson. On April 1,1914, S. C. Mann began an action against the W. A. Gordon Company, a corporation, for the recovery of $2,097.20, and on the same day a writ of attachment was issued therein. On April 10th the writ and a notice of garnishment were served upon R. L. Sabin, who was supposed to have in his possession certain funds belonging to the defendant corporation.

From Multnomah: George N. Davis, Judge. Statement by Mr. Justice Harris. Louie Hing was indicted for murder in the second degree on account of the killing of Lum Fong. A trial resulted in a verdict finding the defendant guilty of manslaughter.

From Multnomah: George N. Davis, Judge. Statement by Mr,. Justice Benson. Edwin Hollinshead was indicted for the violation of Section 2095, L. O. L., as amended by the legislature in 1913: Laws 1913, p. 496. The title of the original enactment is as follows: “An act to prohibit the advertising of treatment or cure of venereal or other diseases, declaring the same a misdemeanor and prescribing a penalty therefor”: Laws 1909, p. 229.

From Douglas: James W. Hamilton, Judge. Statement by Mr. Justice Burnett. Tbis is a suit by Henry Landers for bimself and on bebalf of sixteen others similarly situated, and Ollie F. Castle against L. M. Van Aukin, T. Gr.

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Justice Bean. On October 23, 1914, Jobn A. Locke, tbe defendant, was indicted for tbe crime of polygamy.

From Multnomah: Thomas J. Cleeton, Judge. This is a suit by F. C. Bolin against R. F. Walters. From a decree in favor of defendant, plaintiff appeals. The facts are set forth in the opinion of the court.

From Jackson: Bobert G. Morrow, Judge. Statement by Mr. Justice Benson. This is a suit by Victor E. Beno against T. O. Norris, Nettie B. Norris and B. H. Harris. The facts are as follows: On February 4,1908, plaintiff entered into a contract with E. E. Miner and wife for the purchase of a tract of land in Jackson County, containing 206 acres.

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Justice McBbide. This is an action by John R. Fitzhngh against Andrew Nirschl to recover damages because of fraudulent cancealment by defendant of the fact that certain cattle sold by him to plaintiff were diseased.

From Columbia: James A. Eakin, Judge. Statement by Mr. Justice McBride. This was an appeal from an order of tbe Circuit Court of Columbia County adjudging defendant in contempt for disobedience to an order of the court made in certain divorce proceedings which required defendant, A. R. Eastman, to pay to the clerk of tbe court for tbe support of relator, Mary Eastman, and her minor children tbe sum of $20 per month.

<p>Prom Multnomah: Henry E. McGinn, Judge.</p> <p>Statement by Mr. Justice Benson.</p> <p>This is a suit by George C. Held against J. B. Kennedy and Kalph Ackley to rescind a contract whereby plaintiff and defendant Kennedy exchanged certain real properties. Plaintiff’s property consisted of a dwelling-house and lot in Albina, and defendant’s property was a 32-acre tract of farm land near Wood-burn in Marion County. The complaint alleges that plaintiff’s Albina property was worth $5,000; that the tract of farm land for which he exchanged is what is known as “white land,” unproductive, and of little or no value for agricultural purposes; that he was induced to trade by reason of the positive assurance given him by defendant that there was no white land on the tract, that it had ample natural drainage, and that no artificial drainage was necessary; and that these representations were false. There were a number of other allegations charging that defendant, also made false representations as to the probable value of crops which might in the future be grown upon the land; but, since we regard these as mere “puffing,” they are of no importance in the consideration of the case. The answer denies the allegations of fraud and denies that plaintiff relied upon any such representations. From a decree in favor of plaintiff, this appeal is brought.</p>

From Multnomah: Henry E. McGinn, Judge. This is an action by Eoy Fisher, a minor, by Andrew J. Crafton, his guardian ad litem, against the Portland Eailway, Light & Power Company, a corporation. From an order granting plaintiff a new trial, defendant appeals. Eespondent files motion to dismiss appeal.

From Multnomah.: William N. G-atens, Judge. Statement by Mr. Chief Justice Moore. This is a suit by B. H. Miller and Edith E. Miller against Julius Fisher, Harry Fisher, Augusta Fisher and Mary Fisher, to enjoin the maintenance of an action at law.

Prom Marion: William Galloway, Judge. Statement by Mr. Justice Harris. This is a suit by Grace Howell, Katie Howell Uhrig and Guy N. Howell against Fiducia F. Howell and Amy N. Howell. The facts are as follows: Joseph H. Howell and the defendant Fiducia F. Howell were husband and wife, and John M. Howell was their only child. The plaintiffs Grace Howell, Katie Howell Uhrig and Guy N. Howell are the chil-' dren of John M. Howell and the defendant Amy N. Howell.

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice McBbide. This is a suit brought by Allan B. Joy against Mabel Palethorpe to enjoin defendant from repeated trespass upon certain property described in the complaint and to quiet plaintiff’s title thereto.

From Multnomah: Robert Gr. Morrow, Judge. Statement by Mr. Justice Harris. Alfred O. Temple and 62 other property owners commenced this suit for the purpose of enjoining the authorities of the City of Portland from levying or collecting assessments to pay for a street improvement.

<p>Appeal and Error — Stay of Proceedings — Counter Undertaking — “Suit upon a Contract.”</p> <p>1. A suit to foreclose a mechanic's lien is not “a suit upon a contract,” within Section 553, L. O. L., providing for the enforcement of a judgment or decree in such a suit, notwithstanding an appeal and undertaking for the stay of proceedings, upon the giving of a counter undertaking.</p> <p>Appeal and Error- — Stay of Proceedings — Temporary Injunction.</p> <p>2. The Supreme Court has power to issue a temporary injunction to preserve the status quo of property pending an appeal.</p> <p>ON THE MERITS.</p> <p>Mechanics’ Liens — Actions—Evidence.</p> <p>3. In a suit to establish a mechanic’s lien, evidence held to show that the laths furnished were of the proper quality.</p> <p>Mechanics’ Liens — Foreclosure—Evidence.</p> <p>4. In a suit to foreclose a mechanic’s lien, evidence held to show that the plaster furnished was of proper quality.</p> <p>Mechanics’ Liens — Foreclosure—Quality.</p> <p>5. In a suit to foreclose a mechanic’s lien for materials ordered by a carpenter, evidence held to show that the owners authorized the orders.</p> <p>Mechanics’ Liens — Foreclosure—Description.</p> <p>6. Where householders owned several adjoining lots, a lien statement which correctly gave the number of the house and the description of the block and street is sufficient, under section 7420, L. O. L., though the lot number given was not the lot on which the house was located, for the description would be sufficient, if the lot number was disregarded as surplusage.</p> <p>[As to when mechanic’s lien may include property in addition to that upon which work was performed, see note in 65 Am. St. Rep. 165.]</p> <p>Mechanics’ Liens — Foreclosure—Burden of Proof.</p> <p>7. One seeking to foreclose a mechanic’s lien is not bound to show that the materials went into the building; but defendants, desirous of showing that the materials were not used, have the burden of proving that fact.</p>

From Clatsop: James A. Eakin, Judge. Statement by Mr. Chief Justice Moore. This is a suit for divorce by Ella Burnside against D. W. Burnside on the ground of desertion, and for the custody of a son two years old when this canse was tried. The answer denies the material averments of the complaint, and alleges facts designed to show that the hnsband is entitled to the decree.

<p>ON MOTION TO DISMISS.</p> <p>Appeal and Error — Notice—Service—“Adverse Parties.”</p> <p>1. Parties who were debtors on a note and against whom a personal judgment was rendered for the amount thereof were not “adverse parties” upon whom a notice must be served of an appeal from such judgment.</p> <p>Time — Notice of Appeal — Time for Filing — Excluding First or Last Day.</p> <p>2. Under Section 550, L. O. L., as amended by Laws of 1913, page 617, requiring notice of appeal to be filed within 60 days from the entry of the decree, a notice of appeal from a decree rendered on April 30th, which was filed on June 30-th, was filed in time, since the first day, which is to be excluded from the computation under Seetion 531, was not the day on which the decree was rendered, but the day following.</p> <p>ON THE MERITS.</p> <p>Appeal and Error — Omissions from Record — Scope of Review.</p> <p>3. Where the evidence received at the trial does not accompany the transcript, the only question to be considered is whether the pleadings are sufficient to uphold the decree.</p> <p>Appeal and Error — Defect of Parties — Waiver.</p> <p>4. In a suit' to foreclose mortgages which had been assigned by the mortgagee, in which defendants pleaded a cancellation of the conveyance by the mortgagee constituting the consideration for one of the mortgages, it could not be objected that the mortgagee was not a party, where no litigant objected to the defect of parties by the filing of a demurrer, or affirmatively pleaded the necessity or propriety of making him a party; his presence not being indispensable.</p>

<p>Highways — Road Districts — Statutes—Amendment—Setting Out Provision.</p> <p>1. Laws of 1915, page 133, chapter 127, Section 1, amended Section 6313, L. O. L., and made imperative the Constitution of every incorporated city and town as a separate road district. Laws of 1915, page 255, chapter 194, subsequently enacted, without mention of Chapter 127, amended the same statute in other respects, but left such action discretionary, and set out the statute after the words “so as to read as follows.” Held, that it was an entire obliteration of the former statute, Chapter 127 being repealed whether in conflict with Chapter 194 or not, so that action under Chapter 127 could not be enforced, as the omitted provisions could not be revived by judicial interpretation, since to so add an omitted provision would violate Article IV, Section 22, of the Constitution, requiring the amended law to be set forth at length.</p>

From Marion: Percy B. Kelly, Judged Statement by Mr. Justice Bean. This is an action by E. O. Moll against tbe Botb Company, as indorser upon a promissory note. The trial court granted a judgment of nonsuit and plaintiff appeals.

From Columbia; Jambs U. Campbell, Judge. Statement by Mr. Justice Eakin. This is an action by the Farmers ’ State Bank, a corporation, against Burt West to recover upon a promissory note, of which the following’ is a copy: “$250.00.

From Multnomah; William N. G-atens, Judge. Statement by Mr. Justice Burnett. Tbe plaintiff, Charles Rapp, was employed, by Multnomah County in repairing the approach to a ferry maintained by the county across the Willamette River at Sellwood.

From Lincoln; Lawrence T. Harris, Judge. Statement by Mr. Justice Benson. This is an action by William Mackay against tbe Commission of the Port of Toledo, a corporation for damages for personal injuries.

From Lake: Henry L. Benson, Judge. Statement by Mr. Chief Justice Moore. This is an action by Richard Willis and E. R. Willis, partners as Willis Furniture Company, against the Horticultural Fire Relief of Oregon, to recover upon two insurance policies $6,000 for the loss of and the damage to a stock of furniture, etc., by fire which occurred at Lakeview, Oregon, February 5, 1912.

From Yamhill: Webster Holmes, Judge. This is an action by Harry Ingram against the Carlton Lumber Company and others, to recover for personal injuries. From a judgment in favor of plaintiff, defendants appeal. The facts in the case are set forth in the opinion of the court.

<p>Appeal and Error — Review—Findings.</p> <p>1. A finding of the trial court supported by a preponderance of evidence must be upheld on appeal.</p>

From Multnomah: Heney E. McGinn, Judge. This is a suit by the East Side Mill & Lumber Company and the Portland Hardwood Floor Company, a corporation, against Ernest Feldman and Poldi Feldman, his wife, Frank Holten, ‘W. B. Starr, J. H. Fonner, the Laurelhurst Company, a corporation, to foreclose a lien. Respondent moves to dismiss the appeal. The facts are stated in the opinion of the court.

Prom Polk: Harry H. Belt, Judge. Statement by Mr. Justice Eakin. This is a suit by Theodore Lengele against Mrs. B. McN. Moore, J. M. Hanslimair, Geo. O. Sloan and Daisy A. Sloan, in which the respondent files motion to dismiss the appeal. In this case the court finds that by stipulation the appellants and respondent consented to the decree as entered. The notice of appeal was served the first day of July, 1915.

From Multnomah: George N. Davis, Judge. Statement by Mr. Justice Burnett. This is an action by H. H. Davies and George A. Kelly against Don P. Rea and L. Y. Keady.