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Suit by F. S. Lewis, a taxpayer, against | indictment on the ground of failure to state le city of Port Angeles, to enjoin the is facts sufficient to constitute a crime. The ne of electric lighting bonds. Judgment for court sustained the demurrers, and dismissed efendant. Plaintiff appeals. Affirmed. the actions, whereupon the state, by the prosW. R. Gay, for appellant. Geo. O. Hatch,

ecuting attorney of said county, appealed.

Neither of the defendants entered an appearor respondent

ance in this court. When the causes were STILES, J. The only objection made to

called for trial the learned assistant attorhe issuance of tbe proposed bonds being

ney general, who appeared in behalf of the hat the ordinance adopting the system of

state, conceding that the demurrers were electric lighting for the respondent city re

properly sustained, declined to prosecute the .ited that it was passed in pursuance of the

appeals. This leaves nothing for this court act of March 26, 1890, as amended by the

to do but to afirm the judgment of the court act of March 9, 1891, when in fact, if pass

below, which is accordingly done. ed at all, it must have been passed in pur

DUNBAR, C. J., and HOYT, STILES, and suance of the act of February 10, 1893, the

SCOTT, JJ., concur. judgment is affirmed. The recital in the ordinance was surplusage, and the act of 1893 was, under the decision in Seymour v. City of Tacoma, 33 Pac. 1059, (decided June

DAVIS v. HINCHLIFFE, Sheriff, et al. 2, 1893,) a mere re-enactment of the former acts, with an immaterial amendment cover

(Supreme Court of Washington. Oct. 20, 1893.) ing the purchase of the existing light or wa.


1. In an action to restrain & chattel mort

gagee from foreclosing his mortgage, where the DUNBAR, C. J., and HOYT, ANDERS, and

complaint proceeds on the theory that the mort

gagee had accepted a deed of the mortgagor's SCOTT, JJ., concur.

land in full satisfaction of his debt, and had promised to discharge the mortgage, the mortgagor is not entitled to an accounting by the mortgagee as to the value of the land, or the pro

ceeds realized by him from its sale, since this STATE v. SMITH.

is not within the issues presented by his comSAME v. TUTTLE.


2. Though, in equity cases, if evidence is in(Supreme Court of Washington. Oct. 20, 1893.) troduced, without objection, entitling a party to

relief, the decision will be based on it, without CRIMINAL LAW-APPEAL-AFFIRMANCE.

regard to the pleadings, which are treated as A judgment sustaining a demurrer to an amended, yet it is the duty of the court to exindictment on the ground that it fails to state clude testimony which is wholly irrelevant, facts constituting a crime will be affirmed on when objection is made. appeal where the assistant attorney general, appearing in behalf of the state, concedes on the

Appeal from superior court, Spokane counargument that the demurrer was properly sus ty; James Z. Moore, Judge. tained, and declines to prosecute the appeal.

Action by Pauline J. Davis against E. H. Appeal from superior court, Klickitat coun Hinchliffe, sheriff, and the Aultman-Taylor ty; Solomon Smith, Judge.

Company, to restrain defendants from fore. Samuel H. Smith and A. G. Tuttle were closing a chattel mortgage on plaintiff's each indicted for willful neglect of official property. From a judgment for defendants, duty as officers of election. Demurrers to the plaintiff appeals. Affirmed. indictments were sustained, and the prosecu

Jones, Belt & Quinn, for appellant. Kintions dismissed. The state appeals. Afirm

naird & Happy, for respondents. ed. W. B. Presby, Pros. Atty., for the State. STILES, J. The husband of appellant had

executed a chattel mortgage upon the maANDERS, J. The defendants in these cases chine in question to the Aultman-Taylor -which involve the same question of law, Company in 1888, when it was located at bis and were submitted together-were separate place of residence, in Rice county, Minn.; ly indicted for willful neglect of official duty and at a later date, in order to obtain conas officers of election. The defendant Smith sent of the mortgagee to its removal to tbis was a judge, and the defendant Tuttle an in state, he and appellant gave additional sespector, of election in Luna precinct, Klickitat curity for the debt covered by the chattel county, at a general election there held on mortgage, in the shape of a second mortgage the 8th day of November, 1892. The partic on a farm in Minnesota. While the first ular malfeasance alleged in the Indictments mortgage on the farm was being foreclosed, was that the defendants unlawfully and will. in April, 1889, an agent of the mortgagee fully neglected to indorse the initials of their called upon Davis, in this state, and made respective names upon divers and numerous an arrangement whereby the legal title to official ballots which they delivered to electors the farm was conveyed to the mortgagee, who voted at said election, contrary to the in form, but subject to a memorandum conprovisions of section 384, 1 Hill's Code. In tract, from whicb, the actual arrangement each case a demurrer was interposed to the appears to have been that the mortgagee

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should make all reasonable effort, for the have tbe company account for the proceda period of six months, to sell the equity in of the land, or its just value, before be the land for enough to pay off the chattel property could be sold; but her action va mortgage indebtedness, upon which the notes not brought to accomplish any such a and chattel mortgage were to be surren pose, and, although it was of an equitable dered, but, upon failure to so sell, the chat nature, the court below did not err in rejecttel mortgage was to remain in full force. ing testimony which was irrelevant to the Appellant brought this action, alleging that issues on trial. In equity cases, if evidena the conveyance of the land, in which she is introduced, without objection, which joined, was intended to be, and was repre would entitle a party to relief, the decision sented to her to be, in satisfaction of the will be based upon it, without regard to the chattel mortgage debt, and that she had pleadings, which are treated as amended thereafter become the owner of tbe machine But in equity cases, no less than in a by purchase from her husband for a valu tions at law, it is the duty of the court to able consideration. Respondent Hinchliffe exclude testimony which is wholly irrele was the sheriff of Spokane county, in whose vant to the pleadings, when objection is hands the chattel mortgage was placed for made. Thus the action complained of. Fiz foreclosure by notice, and this suit was that the court rejected offers to sbof the brought to restrain & proposed sale. The value of the land, and the sum for which it evidence showed that the deed and accom was sold, was not error, because, under the panying contract were forwarded to the pleadings, no question involving those maiAultman-Taylor Company, at Mansfield, ters could arise. If the land had been cooOhio, the home of the corporation. The veyed in consideration of a promised dis deed was delivered in Spokane county April charge of the chattel mortgage, it would 11, 1889, and it was claimed for the re have made no difference to the appellat: spondent company that the whole transac what the land was worth, or what it sold tion was repudiated by it as soon as it be for. To have made those questions relevant came aware of its terms; it being at liberty

the complaint must bave been amended 56 to do so, because its agent had no authority as to completely alter the theory of the to enter into any such engagement, or do case. Judgment affirmed. anything but collect money. May 11, 1889, another agent, having general powers, in

DUNBAR, C. J., and ANDERS, SCOTT. duced Davis to indorse a cancellation upon

and HOYT, JJ., concur. the special contract, but retained the contract in his possession, and caused the deed, which he claimed to have offered to return, to be recorded in Rice county, Minn., in June following. Subsequently, the land was

CADEAU et al. v. ELLIOTT et al. bought in by the Aultman-Taylor Company (Supreme Court of Washington. Oct. 24, 1858) at the foreclosure sale under the first mort

BOUNDARIES-CONFLICT BETWEEN FIELD Notas gage, and a resale was made of it to third

AND MONUMENTS. parties. Whether the deed of Davis and

While the corners of a survey as actua! wife, which was on record, assisted in the ly established and marked on the ground bs cbe final disposition of the full title, is not clear, Únited States government surveyors control the and is not material.

designation of such corners in the plats or field

notes, yet the presumption is that the corner Appellant maintains, upon the case pre

have been established at the places indicated by sented, that she should have had judgment, such field notes; and the proof that the actual under the rule that a purchaser of the equity

establishment was different must be clear and in mortgaged land, who takes subject to

convincing, where the actual location as claimed

does not accord with the section lines in adthe mortgage, cannot recover against the joining sections, and will establish the claim is mortgagors the debt for which the land was an irregular shape. pledged. Investment Co. v. Nordin, (Minn.)

Appeal from superior court, Wabkjalın 52 N. W. 899; Dickason v. Williams, 129

county; Edward F. Hunter, Judge. Mass. 184; Tice v. Annin, 2 Johns. Ch. 127.

Action by Pacific and Rosette Cadeau But, whether we concede the special con

against R. C. A. and Chloris Elliott to estract to have been set aside or not, it re

tablish a boundary line between the north mains that the title was not, in this case,

and south halves of the Laban Stillwell doconveyed subject to any mortgage, either

nation land claim, owned by plaintiffs and first or second. The deed contained nothing

defendants, respectively. From a judgment upon the subject; and, if the recording of

for defendants, plaintiffs appeal. Afirmel. the deed after Davis had written his cancellation of the special contract were to be

J. Bruce Polwarth and John H. Smith, far taken as sufficient to keep the arrangement appellants. Thos. N. Strong, for respondents in force, the terms of the latter instrument were not such as to sustain the appellant's DUNBAR, C. J. This was an action claim that the chattel mortgage was to be brought by plaintiffs to establish a boundary forthwith canceled. Under proper plead line between the north and south balres of ings, it may be that she would be entitled to the Laban Stillwell donation claim, in Tabs

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kiakum county, owned by plaintiffs and de affirmed. The respondent will recover costs fendants, respectively. There are really no in this court. questions of law to be decided in this case, for the proposition contended for by appel ANDERS, STILES, HOYT, and SCOTT, lants, viz. that the true corner is where the JJ., concur. United States surveyor established it, notwithstanding its location may not be such as designated in the plat or field notes, is elementary, and in fact is conceded by the

BELL V. WAUDBY et al. respondents; and it is also undoubtedly true (Supreme Court of Washington. Oct. 24, 1893.) that, thougb neither course, distance, or com APPEAL-JUDGMENT FOR Costs—CORRECTION. puted contents agree with the monument,

When the supreme court has entered get the monument must prevail. But this

judgment and allowed plaintiff his costs in both

courts against all the defendants as prima facie presumes the fact that the monument or

parties to the record, the supreme court will vaactually established corner is definitely as cate the judgment as to persons who, though certained. If any credit at all is to be given entitled defendants, have never been served the plats and field notes, the presumption

with process or appeared, and will recall its

remittitur, and correct its judgment accordingly. must attach that the corners have been established at the places indicated by such

Motion by certain defendants to vacate as field notes; so that the burden is upon him

to them the judgment for costs entered un

Mowho disputes their correctness. But where,

der the opinion reported in 31 Pac. 18. as in this case, the establishment of the cor

tion granted. ner as claimed by the appellants does not accord with the field notes of the govern

HOYT, J. By this proceeding petitioners ment surveyor, and does not accord with the sought to have modified the judgment herecection lines in adjoining sections, and will

tofore entered in the cause. In the original establish the claim in an irregular shape, the opinion the court directed that the plaintiff proof of such actual establishment must be

should recover the costs of both courts, and clear and convincing. We have examined

as it prima facie appeared from the record all the testimony in the case, including the

that the defendants, including the petition. report of the commissioner, and the testi

ers, had appeared in the action, the judgmony of appellant's witnesses submitted in

ment for costs in accordance with said opincourt after the filing of the report, and

ion went against all of such defendants. In from such testimony are unable to conclude

the petition filed herein it is alleged that that appellants have established the fact

none of these petitioners were served with that the stake which they claim to be

process in said action, and that none of & monument a monument made by them had ever appeared in said action in the government surveyor; and, under all person, or authorized any attorney to appear the circumstances as shown by the testi

for them. The allegations of the petition, mony, we are inclined to adopt the view

and the mode of its verification, are not as of the commissioner that the crab apple

satisfactory as they might be, but, in the stake which was testified to was placed absence of any denial on the part of the there, and the bearing or witness trees were

plaintiff, who appeared in answer to such pemarked, by some subsequent surveyor. Oon

tition, and in view of the fact that a careful sequently we will not disturb the judgment examination of the record in the light of the of the court below on questions of fact. We

allegations of the petition tends strongly think, however, that this case falls plainly to confirm such allegations, we think it is under the provisions of chapter 8, Code Proc., made sufficiently to appear that in fact such and that an equitable apportionment of the petitioners were never served with process, costs in this case would have been an equal

and never appeared in any way in said acdivision, and, as the proposition is now before

tion. Such facts being established, it is evius for adjustment, the judgment of this court

dent that the judgment, so far as it purwill be that the judgment of the lower court ported to be against them, was absolutely will be modified to the extent of taxing the

void, and could be attacked by them in any costs equally between the appellants and the

proper manner; and, in our opinion, this respondents, and, as so modified, it will be proceeding was one of the ways in which it

could be thus attacked. It was suggested * Hill's Code, 8 670, provides as follows: "The

at the argument on the part of the plainproceedings (to establish boundaries) shall be

tiff that the attack should be made in the conducted as other civil actions, and the court, superior court, but, as the judgment was enon final decree, shall apportion the costs of the tered here, and the records remitted to the proceedings equitably, and the costs so apportioned shall be a lien upon the said lands, sev.

superior court only for the purpose of haverally, as against any transfer or encumbrance ing such judgment carried into effect, we made of or attaching to said lands, from the think that this is the court which must mod. time of the filing of the complaint; provided, a potice of lis pendens is filed in the auditor's of

ify such judgment, if it is to be modified. fice of the proper county, in accordance with

It follows that the remittitur heretofore set law."

down must be recalled, and the judgment


heretofore entered so modified as not to be in whether or not the sureties, as such, bei form against the petitioners herein, and the proper notice of the motion for this secret cause then again remanded to the superior judgment, but it is not necessary for 13 27 court as before

to decide that question, for, even if they 4

have proper notice, only such a judga DUNBAR, C. J., and STILES, SCOTT, and could have been properly entered as a ANDERS, JJ., concur.

terms of the bond, which was its foundatics authorized; and, if they did not have such notice, there is nothing in the showing :

would justify this court in setting aside soi SEARS et al. v. SEATTLE CONSOLIDAT judgment, if in fact it was authorized by the ED ST. RY. CO.

terms of the bond. To state it differeces. (Supreme Court of Washington. Nov. 18, 1893.)

Such showing does not, in any way, attack the

regularity or binding force of such bond, 20% APPEAL-JODGMENT ON BOND-CORRECTION.

for that reason the court is not called apost 1. The supreme court will not set aside a judgment entered on a supersedeas bond mere

grant any relief, even against a judgment is ly because the sureties, as such, were not prop

regularly entered, so long as it conforms to erly notified of the motion for judgment there. the terms and conditions thereof. The per on, no ground for substantial relief being shown. ciple that courts will not set aside a jote

2. Judgment cannot be entered against the sureties on a supersedeas bond for a larger sum

ment, however irregularly entered, unless to than the penalty named therein, though such party moving therefor shows prima facie tb penalty was smaller than the statute required right to substantial relief in the event of se to effect the supersedeas.

judgment being set aside, is well establisha! 3. The supreme court, having inadvertently entered too large a judgment against the sure

Courts will never set aside judgments of this ties on the supersedeas bond, has jurisdiction to class when, so far as the showing of the recall its remittitur, and correct the judgment. moving party is concerned, its only duty stBell v. Waudby, (Wash.) 34 Pac. 917, followed.

er doing so will be to enter another judgment Motion by suretles on supersedeas bond to equally as burdensome as the one set aside . correct judgment entered against them on It follows from what we have said that the said bond. Motion granted.

relief granted upon motion of the suretler For principal report of the case, see 33 Pac. must be confined to the excess of the fuig 389, 1081.

ment, if any, beyond that authorized by the

terms of the bond. If in fact it was more HOYT, J. The question of jurisdiction rais burdensome upon these sureties than the ed by the respondents has been substantially bond authorized, we have no doubt of our decided adversely to their contention in an duty to correct it upon our own motion opinion just filed in the case of Bell v. Waud. even if our attention was called to tbe fact. by, 34 Pac. 917, and upon the authority of The motion for judgment against such sure that case we must overrule such plea, and ties must be held to have included therein decide the motion on its merits. At the time the bond, and the judgment rendered by the the first judgment was rendered in this court court could only properly be rendered in se on motion of the respondents it was so ren cordance with the terms thereof; and, if such dered upon the transcript of the bond, which bond showed upon its face that judgment was then a part of the record, and, of course, only in a certain amount was authorized was rendered against the appellant and the thereby, the judgment actually rendered by sureties named in such bond. The fact that the court must be held to have been only in the motion for such judgment recited others that amount, and anything beyond must be as sureties, in addition to those thus named, held to have been inadvertently included in could in no manner authorize this court to said judgment. enter a judgment against persons not shown This brings us to a consideration of the by the transcript to be sureties. It follows question as to what judgment was author that such judgment was regularly entered, ized by this bond. It was given to supersje so far as the action of this court and its clerk a judgment in the sum of $15,000 besides was concerned. Subsequently, on motion of costs. It was, however, in the penal sum of respondent, and upon the suggestion that the only $16,000, instead of in the sum, required transcript did not contain all of the record, by the statute, of at least double the amount and the bringing here of a certified copy of of the judgment. It is doubtful whether or another bond, which, though a part of the not such a bond, even though approred by record in the court below, had not before the court, did in fact supersede such juds been brought here, such judgment was set ment; but that question is not now before aside, and a new judgment against the ap us. It was given by the principal for that pellant and the sureties named in said second purpose, and it cannot take advantage of any bond duly entered. This second judgment is imperfections appearing therein, nor can the the one which it is now sought by the sure sureties, in so far as they are bound by the ties named therein to have set aside for vari- | terms thereof. We are, however, unable to ous reasons assigned in their motion, which agree with the contention of the respondents is supported by the affidavits of several of that the sureties in this regard stand in the the sureties. There is some question as to i same situation as the principal; for while It

s doubtless true that when enough appears Appeal from superior court, Kittitass counin such a bond to show the object for which ty; Carroll G. Graves, Judge. It was given, they, as well as the principal, Action by Nels Nelson Holm against W. C. will be estopped from denying that such was Prater for the possession of land, and for

the object. Beyond that we cannot go, and damages and mesne profits. From a judge hold that a surety who signs a penal bond in ment for defendant, plaintiff appeals. Af

a certain definite amount, which in no man. firmed. Der upon its face discloses anything which The land formed a part of the state's

must increase such amount, is thereby es school land, and plaintiff claimed as lessee e topped from asking that his liability shall be from the state, while defendant claimed as *limited to the amount named. A surety may purchaser. : well look only to the penal sum in which he Act March 28, 1890, § 3, which is section

acknowledges himself indebted, and in which 2142 of Hill's Code, provides as follows: camount, upon the failure of compliance with "It is hereby made the duty of the county

the conditions of the bond, he agrees to be commissioners of each county in the state, mebeld liable. He is not called upon to inves as soon as may be practicable after this

tigate records or facts outside of the face of chapter becomes a law, to personally inspect is the bond, but is justified in relying upon the each and every section of land (or so much a terms thereof. Applying these rules to the thereof as may be sold or leased within five

case at bar, we are unable to find anything in years) in their respective counties, granted the conditions of this bond which in any to the state for the support of the common y manner establishes a liability on the part schools, to note the character of the same,

of the sureties named therein beyond the whether chiefly valuable for timber, stone, $16,000, in which sum they acknowledged mineral, or agricultural purposes, or as grazthemselves indebted. The conditions having ing land, and any other fact or facts necesbeen violated, the bond in that amount is in sary to an understanding of its character full force as against them, but there is nothing and value, and prospective value, and whethto show in any manner why they should be er the same be wholly or partially (and if held liable for a greater amount. It follows partially, to what extent) in or within two

that the judgment rendered on said bond miles of the corporate limits of any in**** should have been limited to the $16,000 nam

corporated city, town, or village, and also ed therein, and that when this court granted to appraise, according to their best judgthe motion of respondents for judgment ment, each quarter-section of such land at its thereon the judgment which it really reu true and full market value." Section 7 of dered was one against the principal and sure this act, which is section 2147 of Hill's Code, ties for $16,000, and no more; and that, so provides as follows: "The appraisers shall far as the judgment entry was for a greater also appraise all improvements found upon amount, it was simply an inadvertent entry. school lands, and shall also appraise all damSuch judgment must therefore be set aside, ages and waste to the premises by cutting and a new one entered against the appel- timber, or the removal of timber, stone, or lant and the sureties named in said bond, as other materials from the premises by the of the same date, for the said sum of $16,000. person claiming the improvements, or by

Let this be done, and the cause then again his consent, and the balance, after deduct3:1 remitted to the lower court for the carry. ing damages and waste, appraised as afore

ing into execution of the judgment so en said, shall be set down as the value of the tered.

improvements upon the lands so appraised;

provided, that this section shall not be conDUNBAR, C. J., and SCOTT, ANDERS, strued to affect the right of the state to the et i and STILES, JJ., concur.

value of such lands appraised; provided fur. ther, if the purchaser be not the owner of the improvements, he shall pay to the said

owner in cash the appraised value thereof HOLM 7. PRATER.

at the time of sale, within thirty days from

the day of sale." (Supreme Court of Washington. Oct. 24, 1893.) SCHOOL LANDS-APPRAISEMENT OF IMPROVEMENT.

Ralph Kauffman, for appellant. H. J. Act March 28, 1890, (Laws 1889-90, p.

Snively, for respondent. 438,) $ 3, which makes it the duty of the county commissioners to inspect and appraise all school HOYT, J. Only one question is presentlands which may be sold or leased within five years from the date of the act, contemplates but

ed by this appeal which it is necessary for one appraisement within the five years; and us to decide: Is an occupant of school lands, where the county commissioners have also ap which have been regularly appraised by the praised the value of improvements made there on by an occupant, as required by section 7, the

board of county commissioners within two occupant is not entitled to another appraisement

years from the date of the sale thereof, by on the sale of the land within the five years, virtue of the provisions of an act entitled though the proviso to section 7 requires the pur

"An act to provide for the sale and leasing chaser to pay the owner of the improvements the appraised value thereof “at the time of

of school lands, and declaring an emergensale," within 30 days from the date thereof. cy," approved March 28, 1890, whose improve

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