cation, in the manner, and for the length of time, provided by the laws of California. Upon the facts found, concerning which there is no controversy, the court below entered judgment in favor of the respondent, and the question for our determination on this appeal is whether or not the court committed error in so doing.

It is contended by the appellant that the California court never obtained jurisdiction of the debt owing by the respondent to Knox, because the situs of the debt was either at the domicile of the creditor or at the domicile of the debtor, and in either event was not within the jurisdiction of the court; and the argument is that the claim of Knox against the insurance company is personal property, and as such follows the person of the owner, but that, if its situs was at the domicile of the debtor, still it was in this state, and not in California, for the reason that the policy of insurance was executed here, by a company doing business here, and whose domicile was therefore here, for all purposes connected therewith, and especially for the purpose of suit upon the contract. It is conceded by the respondent that by establishing agencies and doing business here, and appointing an agent upon whom service of process should be made, as required by our statute, it became amenable to all the laws of this state concerning foreign corporations, including the liability to be sued for the enforcement of its obligations; and it is not contended by the respondent that the proceedings in the California court are entitled to any faith or credit here, if that court had not jurisdiction of the respondent, and of the debt attempted to be garnished there. It is well settled that if a court has neither jurisdiction of the person of the defendant, nor of his property, it has nothing before it upon which it can adjudicate, and that any judgment it may render under such circumstances is of no validity whatPennoyer v. Neff, 95 U. S. 714. But it is not necessary, in order that a valid judg ment may be rendered, that both the person and the property of the defendant be within the territorial jurisdiction of the court. property is attached, and the defendant is not personally served, and does not appear, and publication of the summons is duly and regularly made, the court has jurisdiction to render a judgment personal in form, but which affects only what is attached. But such judgment will not authorize an execution against any other property, nor can it be made the basis of an action against the defendant. Drake, Attachm. (7th Ed.) § 5; Cooper v. Reynolds, 10 Wall. 308.

ever.

If

The first inquiry, therefore, is, was the property of Knox attached by the service of the writ and notice upon the respondent at San Francisco? And, there being no question as to the regularity of the garnishment proceedings, the answer must depend upon whether or not the respondent,

and the debt owing by it to the attachment defendant, were within the jurisdiction of the court. There is no question but what the money to pay the debt was in the possession of the respondent at San Francisco, although the particular sum required had not been set apart for that purpose prior to the service of the garnishment process. The laws of California provide that any credit or other personal property in the possession or under the control of any person, or debts owing to the defendant, may be attached in the manner therein prescribed. See Deer. Code Civil Proc. §§ 542-544. And under such a statute there is no doubt that a resident may be charged as garnishee in respect of a debt he owes to a nonresident. But a nonresident is not subject to garnishment, unless, when garnished, he have, in the state where the action is pending and the attachment is obtained, property of the defendant under his control, or he be bound to pay the defendant money, or to deliver to him goods, at some particular place in that state. Hawes, Juris. § 253; Drake, Attachm. (7th Ed.) § 474, and cases cited. But it is claimed by the learned counsel for the appellant that this rule is not applicable in this case, for the reason, as already stated, that the respondent cannot be deemed to have a domicile other than in this state, in respect of business transacted here, and for the further reason that the debt sought to be attached is, and always has been, at the domicile of the creditor in this state. As to the validity of the policy of insurance, if that were in issue, we should say that the contract should be interpreted by the laws of this state. 1 May, Ins. § 66; Whart. Confil. Laws, § 399; 3 Amer. & Eng. Enc. Law, 551. But we are not prepared to say that it can only be enforced in our own courts. On the contrary, we are of the opinion that the assured himself might have brought an action on his policy in California, or in any other state where the insurance company could be legally served with process. It is no part or ingredient

of the contract of insurance that it shall be enforced only in conformity to the law of the place where it is executed. Griswold v. Insurance Co., 3 Blatchf. 231. And as, in this instance, Knox could have collected his claim against the respondent in the courts of California, it follows that his creditors there had the same right to collect it by process of garnishment, and to apply the proceeds in satisfaction of their demands against him. In fact, garnishment, while in the nature of a proceeding in rem, is, in effect, an action by the defendant, in the plaintiff's name, against the garnishee, the purpose and the result of which are to subrogate the plaintiff to the rights of the defendant against the garnishee. Drake, Attachm. (7th Ed.) § 452. As to the liability of foreign corporations to garnishment, we think the law is correctly sum

marized in 8 Amer. & Eng. Enc. Law, p. 1131, as follows: "Except, therefore, in those states where it is held that corporations are in no event subject to garnishment, a foreign corporation may be charged as garnishee in all cases where an original action might be maintained against it for the recovery of the property or credit in respect to which the garnishment is served." Although the situs of intangible personal property may be at the domicile of the creditor for the purpose of taxation or distribution, yet for the purpose of collection a debt is ambulatory, and accompanies the person of the debtor. We think this debt was properly attached in California; and, that being so, the attachment proceedings there Embree constitute a defense to this action.

v. Hanna, 5 Johns. 101; Wheeler v. Raymond, 8 Cow. 315, note a; Andrews v. Herriot, 4 Cow. 521; Dittenhoefer v. Clothing Co., 4 Wash. St. 519, 30 Pac. Rep. 661. In the case last above cited, this court held that where a foreign corporation does business in this state, under the laws prescribed by our legislature, and has an attorney appointed, upon whom service in any proceedings in the courts in this state may be made, it thereby becomes subject to garnishment here. We have no doubt of the correctness of that decision, and are therefore bound to recognize the doctrine therein enunciated, when affirmed by courts in other states, which, like California, have statutes substantially like our own.

The further point is made by the appellant that the plaintiffs in the attachment suits, by filing their claims with the assignee, (appellant,) thereby abandoned any rights they may have had under the attachments. If the objection is at all available, it is certainly not applicable to the action of Isadore Leviere, in which the amount sued for was $2,439.21, and was made up of various assigned claims, only one of which was filed with the assignee in this state, and that only for the sum of $279.92. maining attaching creditors cannot be affected by the action of those who filed their claims, and, as the amount claimed is largely in excess of the debt attached, the result would be the same to the appellant, even if we should adopt the rule of law contended for by him. The judgment of the court below is affirmed.

The re

Hoyt, J., dissenting.

STILES, J. We see no reason for not adhering to the conclusion arrived at in this case when it was here before. Alger v. Hill, 2 Wash. St. 344, 27 Pac. Rep. 922. Upon the trial of the case the learned judge of the superior court seems to have proceeded upon the theory that our decision upon the former appeal was based solely on the action of the land officers in concluding that Minnick had knowledge that his land was within the corporate limits of the city of Seattle, because he was marshal of that town; and as, at the trial, the production of the secretary's decision showed that there were other facts before him, which tended very strongly to show that Minnick did know that the boundaries of the city, as fixed by the territorial statute of 1869, included his land, the judgment of the court was in respondent's favor. But it was the intention of this court to express in the former de cision that in its view the act of 1877 did not depend upon the knowledge of the entryman, but upon the ascertainment that the land was within corporate limits by the land officers. That part of the opinion found on pages 350, 351, 2 Wash. St., and page 924, 27 Pac. Rep., was devoted to that subject, and terminated in what would seem to be a clear statement: "To the entryman no knowledge of the law or the fact was imputed under this act; and, tried by this interpretation, Minnick was entitled to have the benefit of its provision." The history of the case, as appears from the record, is as follows: Minnick made his final proof, and was allowed to enter the land, May 4, 1875, and, for all that appeared in the land office, he would have received a patent in the due course of business. But at some subsequent date the city of Seattle sought to have this land and other similarly situated lands patented to it. and to clear the record of the entries of Min

nick and others initiated a contest the purpose of which was to show that its corporate limits included all the tracts then in question. This contest was successful, for, although the right of the city to have patent was denied, it was in the course of the proceeding ascertained by the commissioner that Minnick's tract was within the limits of the city of Seattle, under its charter of 1869, and therefore not subject to entry, and his entry was ordered canceled January 12, 1877. Sixty days were allowed for an appeal, and an appeal was duly taken; but before the expiration of the time for appeal even, and on March 3, 1877, the act of that date became operative. Upon the appeal to the secretary, his attention was called to the new act, and he was asked to order the patent, upon the ground that the tract applied for included only vacant, unoccupied lands of the United States, not settled upon or used for municipal purposes, nor devoted to any public use of a town. The facts found by the commissioner, and reiterated by the secretary, showed the land to be of the character intended by the act; and the refusal of the latter officer was in the following language: "With reference to the entry of Minnick, it will be observed that the section above quoted (section 2, Act March 3, 1877) confirms such entries only as have been allowed for land 'afterwards ascertained' to be with. in the corporate limits of a town. The testi mony in this case shows that during most of the period of Minnick's alleged residence on the land he was the marshal of the city of Seattle; that he voted in the city election in 1874, and exercised all of the rights and privileges claimed and exercised by other citizens of the city. His authority as marshal was confined to the corporate limits of the city, and it was impossible for him not to have known as a matter of fact that the land claimed by him was within the city limits. This section was not intended to confirm entries made within the corporate limits of a city by a person who had full knowledge of the fact that the lands were so situated at the time the entries were made, and said entry does not fall within the remedial provisions of the section and is not confirmed." Considering what an incorporated town is, we think it may well be doubted whether any man ever proceeded so far with an application for patent for government land as the making of his final proof and the allowance of entry without finding out to a legal and moral certainty whether or not he was within corporate limits.

To pre

sume such cases would be to convict the land locators of this country of a degree of ignorance and stupidity which the facts do not warrant. And to assume that congress was legislating for such people alone as neither knew nor could learn anything about the relations of the land they lived on to their nearest town, would doubtless startle that body by the novelty of the proposition.

Yet the act of 1877 was intended to benefit somebody, and to confirm some entry canceled because afterwards ascertained to be embraced within corporate limits; and if there could be a case for the operation of that law where the entryman was a man of any degree of intelligence, the case at bar must be one. We hold that the land was "ascertained" to be within the corporate limits of Seattle by the commissioner's decision of January 9, 1877, long after the entry; and that, inasmuch as the entry was conceded to have been in all other respects regular, it was the duty of the secretary to order a patent to issue to Minnick when the case came before him. The fact that a cancellation had been ordered by the commissioner cuts no figure. In every case of entries made upon land afterwards ascertained to be not subject to entry the necessary result is a cancellation of the entry; but this act passed over all cancellations and confirmed the entries wherever there were no intervening rights, and the lands were of the class provided for. Judgment reversed, and remanded for a new trial in accordance with this opinion.

DUNBAR, C. J., and ANDERS and SCOTT, JJ., concur.

HOYT, J. I dissent. The proofs show clearly that the secretary of the interior found as a fact that Minnick had full knowledge that the land was within the corporate limits of the city of Seattle at the time he made entry thereof, and, this being so, for the reasons given by me when the case was here before, I think that he was not entitled to any of the benefits of the curative statute of March 3, 1877, and that the action of the land department in refusing to allow his entry was correct, and he should be allowed to assert no rights by virtue thereof against the patent under which the respondent holds.

(6 Wash. 424)

BERNHARD v. REEVES. (Supreme Court of Washington. May 31, 1893.) LANDLORD AND TENANT INJURY TO TENANT PLEADING AND PROOF-NEW TRIAL. 1. In an action by a tenant against his landlord for damage to goods caused by leakage of a water-closet, the complaint alleged that the closet was out of repair, and inferentially asserted that it was originally not defective by stating that connections with water pipes were made in the usual manner. Held, that it was not admissible to show that the closet was not of the proper make, or that it was originally defective.

2. Even if there were any issue made by the pleadings in such case as to the original condition of such closet, is was error to charge that, unless the best kind of closet known at the time was placed in the building, the jury might from such fact alone find defendant guilty of negligence.

3. Evidence in such case that such closet was out of repair and leaked at certain times does not tend to prove negligence by defendant,

in the absence of a showing that he did not give it such attention as was reasonable under the circumstances at the time, or that he knowingly permitted it to remain a moment out of repair.

4. The use of water for such purposes in a building is not of such dangerous nature that negligence of the landlord will be presumed from the fact of injury thereby.

5. Where a defendant is entitled to have a verdict directed in his favor at the close of the evidence, and the case is reversed on his appeal, a new trial will not be granted, though he waived his motion for nonsuit, made at the close of plaintiff's case, by proceeding with his defense.

anything to do with the character or kind of closet placed in the building.

Appellant, however, is not content to take simply a judgment of reversal. He claims that, under all the proof in the case, he was entitled to have the jury instructed to find a verdict for the defendant, and that even if it be held that, when he went into his defense, he waived his motion for a nonsuit, made at the termination of the plaintiff's case, still he is entitled to the benefit thereof if, when the evidence was closed, the proof, taken as a whole, did not make a

Action by Jacob Bernhard against Charles S. Reeves to recover damages to goods while contained in defendant's building, of which plaintiff and his assignor were tenants, and caused by defendant's negligence in permitting a water-closet to become out of repair. From a judgment entered on the verdict of a jury in favor of plaintiff, defendant appeals. Reversed.

Best & Munn, for appellant. Doolittle & Fogg, for respondent.

HOYT, J. During the progress of the trial of this case a wide range of testimony was allowed to be introduced, and in the instructions given to the jury the court attempted to cover the questions of law properly to be submitted to the jury upon the testimony thus introduced, without in any way limiting such instructions to the issues made by the pleadings. Under such pleadings there was no question whatever raised as to the manner in which the plumbing had been originally done, nor as to the make or construction of the water-closet. The only allegation in plaintiff's complaint in regard thereto was that such closet was out of repair. Not only was there no attempt to allege any fault in the original construction, but, inferentially, there was an assertion that it was originally what it should have been, by the statement in the complaint that connections with the water pipes were made in the usual manner. This allegation, in connection with the further one that the closet was out of repair, certainly could not furnish any foundation for proof that the closet was not of the proper make, or was in any manner in its original construction defective. The court, however, instructed the jury that, unless the best kind of closet known at the time was placed in the building by the defendant, the jury might from that fact alone find him guilty of negligence. This instruction would have been too broad if within the issues made by the pleadings, and, as the jury may have founded their verdict upon this particular instruction, the appellant would have been entitled to a reversal; and for the greater reason was the giving of such instruction prejudicial error when we take into consideration the fact that, under the pleadings, neither court nor jury had

with this contention, and it therefore becomes necessary for us to consider whether or not there was sufficient proof of any fact which would have constituted negligence on the part of the defendant to have entitled the determination of such fact to be submitted to the jury. We have carefully examined all the proof offered, and are unable to find any sufficient proof of the negligence of the defendant to establish a prima facie case. There is substantially no proof of anything tending in the most remote degree to show negligence on the part of the defendant, excepting the fact that on the occasion which formed the foundation of the complaint, and upon two other occasions, there had been a leakage from this closet. But we are unable to see how these facts alone tended to show negligence on the part of the defendant, when the fact is assumed, as it must be, under these pleadings, that the closet was of an approved make, and properly placed in the building. Such proof, at most, could only show that at these particular times the closet was out of repair; and, in view of the evidence as to how these leakages may occur, it is doubtful whether the simple fact of such leakages was sufficient to show that fact. But, assuming that it was, there is nothing whatever to show that the defendant did not give it such attention and care as was reasonable under all the circumstances of the case, or that he knowingly allowed it to be out of repair for a single moment. We are not prepared to hold, as suggested by the respondent, that, in the ordinary use for domestic purposes of such a necessity as water, such use is of such a dangerous nature that, if injury is occasioned thereby, it will be presumed to have been occasioned by the negligence of the user. On the contrary, we think that a common and ordinary usage of such a necessary element is a strictly lawful one, and the usual rule as to such matters will obtain, and the negligence resulting from injury have to be proven as a part of the plaintiff's case when he seeks to recover damages therefor. But, even if such rule was applied to the facts in this case, it is doubtful whether or not the evidence was such that there was any question to submit to the jury. Taking all the testimony together, it appears that the defendant was not