covenants of a lease, the measure of damages | formity with his findings of fact and con is the difference between the value of the term and the rent reserved. clusions of law made in a case pending in that court, wherein S. J. Lutz and A. V. There is further evidence that the books did Watts are plaintiffs, and this relator, Sandnot evidence the true condition of the firm ford C. Rose, and Harry C. Bishop, as sheror of respondent's business. He admits that iff of Clallam county, are defendants; and he had deposited something like $53,000 of particularly preventing the judge of that his own money in the bank with the intent court from rendering any judgment setting and for the purpose of creating a false stand-aside and decreeing void a certain execution ard of credit; his purpose being to so es- sale of a printing plant, which execution tablish himself, that he might have less diffi- sale was made by Bishop as sheriff at the culty in obtaining sufficient credit to eventu- instance of Rose, as judgment creditor. ally engage in the wholesale trade. Reversed and remanded for a new trial. lishing Company has been a corporation, ex ELLIS, C. J., and HOLCOMB, MOUNT, FULLERTON, MAIN, WEBSTER, and PARKER, JJ., concur. (102 Wash. 268) STATE ex rel. ROSE v. RALSTON, Judge of In a suit against a judgment creditor and the sheriff to restrain an execution sale, the commissioner without notice entered a restrain [1] At all times in question the Bee Pub isting under the laws of the state of Washington, and the owner of the printing plant in question, except as it may have been divested of title thereto by the proceedings here involved. On October 3, 1916, Rose commenced an action in the superior court for Clallam county seeking recovery of damages from the Bee Publishing Company on account of an alleged libelous article published by that company in its newspaper in that county, of and concerning him. The trial of that action upon its merits resulted in a judgment rendered on November 5, 1917, in favor of Rose and against the Bee Pubing order, and directed them to appear before lishing Company, in the sum of $1,000. On the court on a named day to show cause why December 12, 1917, Rose caused execution to they should not be enjoined from proceeding be issued thereon and placed in the hands with the sale. No formal injunction was issued of the sheriff of that county, in pursuance upon the return day, but the parties then agreed of which the sheriff levied upon the printing to proceed to try the case upon the merits, which was done at later hearings. At the con- plant of the Bee Publishing Company, and clusion of the trial, but before the making of gave notice of sale thereof to take place on findings of fact or conclusions of law or the December 22, 1917. Prior thereto, and while rendering of final decision, the sheriff sold the property to the judgment creditor. The making the action for damages was pending, the Bee of the sale was called to the attention of the Publishing Company conveyed its printing court, and counsel for plaintiffs asked leave to plant to A. V. Watts, which conveyance it is make proof of the sale, so that the court in claimed by Rose was with knowledge on the rendering its final judgment in the injunction suit might make such order as would protect part of Watts that the action for damages their rights. The request was granted over the was then pending, and with intent on his objection of the judgment creditor, and the part to hinder, delay, and defraud Rose, as court made formal findings and conclusions, deciding, among other things, that the execution a creditor of the Bee Publishing Company. should be set aside. Held, that prohibition At all times here in question S. J. Lutz has would not lie to prevent the judge from enter- been the holder of a chattel mortgage upon ing judgment in conformity with his findings and conclusions, since he had jurisdiction, and his decision at most would be erroneous. 2. PROHIBITION 3 (2) - ERRONEOUS COURT DECISION. Prohibition will not lie from Supreme Court to review and correct mere errors committed or threatened to be committed by superior court. the printing plant of the Bee Publishing Company to secure a debt of $2,500. On December 21, 1917, Lutz and Watts commenced in the superior court for Clallam county an action against Rose and the sheriff, seeking to enjoin the execution sale which was noticed by the sheriff to occur on the following day, and upon an emergency showing then made by them to the commission of the superior court for Clallam county, without notice, the commissioner entered an order restraining Rose and the sheriff from T. F. Trumbull, of Port Angeles, for appel-proceeding with the sale, and directing them lant. Nelson R. Anderson, of Seattle, for to appear before the superior court of that respondent. En Banc. Application for writ of prohibition by the State, on the relation of Sandford C. Rose, against John M. Ralston, Judge of the Superior Court for Clallam County. Writ denied. county on January 25, 1918, aud show cause why they should not be enjoined from so PARKER, J. The relator seeks a writ of proceeding. No formal temporary injuncprohibition from this court to prevent the tion was issued upon the return day of the judge of the superior court for Clallam coun- restraining order, but the parties then agreed ty from entering a final judgment in con- to proceed to try the case upon the merits, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes which was done at later hearings. After the conclusion of the trial of the case, as counsel for Rose viewed the situation, but before the making of any findings of fact or conclusions of law, or the rendering of any final decision by the court, the sheriff at the instance of Rose proceeded to sell the printing plant under the execution, which sale was made to Rose. This was done evidently on the theory that since the return day of the restraining order had passed, and since no formal temporary injunction further restraining the sale had been issued, that it might be lawfully had. The making of this execution sale being called to the court's attention, and the court having made no final decision in the injunction case, counsel for Lutz and Watts asked leave to produce proof of the making of the execution sale to Rose, to the end that in rendering its final judgment in the injunction case, the court might make such order with reference thereto as would protect their rights should the court finally decide the injunction case in their favor upon the merits This was but the asking for the opening of the case to admit further proof before it was finally decided by the court, and was granted by the court over the objections of counsel for Rose. Thereafter, on February 26, 1918, the trial judge made formal findings and conclusions in the injunction case, deciding, among other things, in effect, that the execution sale to Rose should be set aside and held for naught. These facts we gather largely from the findings and conclusions made by the trial court in the injunction case, which findings and conclusions are made a part of the record before us. We think these facts are controlling of the rights of the parties in this proceeding, regardless of other facts appearing in the record before us. We do not, however, state these facts as being conclusive upon any of the parties, upon a review of the judgment which the trial court may ultimately render in the injunction case upon these or other findings which it may make therein, when such judgment is properly before us for review. [2] It seems to us that this is but an attempt to have us prohibit the trial court from rendering a decision which, at most, will only be erroneous. It has become the settled law of this state that prohibition will not lie from this court to review and correct mere errors committed or threatened to be committed by a superior court, and thus take the place of appeal or review. State ex rel. Miller v. Superior Court, 40 Wash. 555, 82 Pac. 877, 2 L. R. A. (N. S.) 395, 111 Am. St. Rep. 925; State ex rel. Griffith v. Superior Court, 71 Wash. 386, 128 Pac. 644; State ex rel. Grant Realty Co. v. Superior Court, 76 Wash. 376, 136 Pac. 144; State ex rel. Calhoun v. Superior Court, 86 Wash. 492, 150 Pac. 1168. The contentions of relator's counsel here made to prevent the rendering of the threatened judgment are in substance: (1) That the restraining order had expired when the execution sale was made, and therefore did not stand in the way of such sale, the trial court holding that the restraining order had become in effect a temporary injunction restraining the sale pending the action; and (2) that the trial court had no right to entertain the question of the setting aside of the execution sale because of the close of the trial before the making of the sale. It seems clear to us that the question of whether the restraining order had become in effect a temporary injunction was a question the trial court had jurisdiction to decide at any time before final judgment. It seems equally clear to us that the question of whether the trial court would open the injunction case to enable Lutz and Watts to show that the execution sale had taken place, and to make such a showing to the end that in rendering its final judgment the court might make such order, with reference to the sale as would protect their rights, should the court finally decide the case in whole or in part in their favor, was a question the trial court had jurisdiction to decide at any time before final judgment. The making of the sale had created a condition calling for something more than a mere prohibitory injunction to prevent it being made, and Rose, the purchaser at the sale, was a party to the injunction action. We are of the opinion that the contentions here made in relator's behalf, so far as this record discloses, have to do only with possible errors which the trial court might commit in the rendering of its final judgment in the injunction case. at the instance of a member thereof, for the banks voting for the rule, three against, and violation of a contract will not be restrained one not voting. After the rule became operwhen such a holding would directly or nega-ative two of the banks, the appellant and one tively compel the performance of duties the specific performance of which would not be other, refused to observe it, and continued to decreed if suit were in that form. pay interest at the rate of 4 per cent. per annum upon savings deposits. This caused further discussion, and finally resulted in a res olution being passed for the dissolution of tion had been the effecting, at one place, of the the association. The object of the associa Department 1. Appeal from Superior Court, King County; Everett Smith, Judge. Action by the People's Savings Bank against the First National Bank and others. Judgment for defendants, and plaintiff ap-daily exchanges between the members, the espeals. Affirmed. Piles & Halverstadt and Clyde Merchant, all of Seattle, for appellant. Peters & Powell, Donworth & Todd, and Hartman & Hartman, all of Seattle, for respondents. MAIN, J. This action was brought for the purpose of restraining the dissolution of the Seattle Clearing House Association. At the institution of the action a temporary restraining order was issued. The trial resulted in a judgment denying an injunction and dismissing the action. From this judgment the plaintiff appeals. The controlling facts may be stated as follows: The Seattle Clearing House is a voluntary association. The members thereof are 16 banks in the city of Seattle. All the members of the association, including the appellant, were engaged in taking two kinds of deposits, known as commercial deposits and savings deposits, except that one bank did not take commercial deposits. The association was organized many years ago for the mutual convenience of its members. The appellant had been a member of the association since the year 1900. The association was governed by what is referred to as the articles of the Seattle Clearing House Association. These articles provided, among other things, for the promulgation of rules and regulations. One of the rules which had been made in pursuance of the articles is referred to as rule 4, which provided that the members of the association should not pay interest at a greater rate than 4 per cent. per annum upon savings deposits. This rule was assented to by all the members of the association, and had been in existence for a number of years prior to the year 1916. During the latter part of the year 1915 there was discussed by the respective officers of the various members of the association the question whether business conditions and sound banking did not require a reduction in the maximum rate of interest that should be paid upon savings deposits. Without following the details of this discussion, it may be said that on January 14, 1916, a meeting of the association was held at which all the member banks were present, and a rule was there adopted, over the protest of the appellant bank and two other banks, fixing the maximum rate of interest on savings accounts at not to exceed 3 per cent. per annum, to be effective July 1, 1916, twelve of the member tablishing of rules and regulations in matters of common interest and in matters arising from or affecting the relations with banks in other localities, and the fostering of sound and conservative methods of banking. In the conduct of the banking business each bank daily received a number of checks drawn on other banks in the city of Seattle, which the receiving banks must present to the respective banks on which they were drawn, for the purpose of collecting the amounts thereof. Without the aid of some central association, or the meeting of representatives of the various banks in the city of Seattle at some point at a designated time, at which all banks were represented, it would be necessary for each bank to present for payment such checks on each of the other banks on which they were drawn. For the purpose of avoiding this difficulty the Seattle Clearing House Association was organized at which each of the banks, parties thereto, daily on banking days attended at designated hours for the purpose of clearing their respective checks. For the purpose of paying balances the members of the Clearing House Association each deposited with the association, subject to the control of its executive committee, a certain amount of gold coin, for which the depositors received what are known as clearing house certificates. When the daily balances were struck in the clearing house they were covered by these certificates rather than by actual cash. [1] The appellant claims that the attempt to dissolve the clearing house was not made in good faith, and that a new clearing house association would be formed, to which no member would be admitted which did not agree to the rate of interest to be paid upon savings deposits fixed by the association. It is also claimed that the changing of the rate of interest in rule 4 from 4 per cent. to 3 per cent. was the result of a conspiracy on the part of the Seattle banks and banks of certain other cities, and that the fixing of the maximum rate of interest to be paid upon saving deposits at 3 per cent. per annum was an unlawful interference with competition, as it related to the price to be paid for savings deposits. If the fixing of the rate of interest at 3 per cent. was unlawful, it must necessarily follow that the rule as it previously read, fixing it at 4 per cent., was likewise unlawful. The appellant was a party to the 4 per cent. rule, and, if that rule was an unlawful interference with the competitive price that should be paid for the use of money, the appellant was a party thereto. It would seem plain that the appellant cannot come into court seeking to set aside the 3 per cent. rate as unlawful, when, if this were set aside, it would give the appellant the advantage of a previous 4 per cent. rate, which was likewise unlawful. It may be argued, however, that if the 4 per cent. rule were unlawful as a restraint upon competition, this should be eliminated, and the articles and rules enforced subject to this elimination. If this were done, the court would be making a new agreement for the parties, as one of the terms of the agreement under which they had been previously operating provided for the 4 per cent. rate. The court could not well eliminate the 4 per cent. rule and then say that the members should be bound by the other terms of their agreement, as this would be enforcing an arrangement between the parties which they had not themselves made. It must be remembered that this was a voluntary association, and that neither the articles nor the rules prescribed that it should be continued for any specified length of time. The courts will not interfere to prevent the expulsion of a member from a voluntary association unless, "pecuniary and property rights are involved." State ex rel. Cicoria v. Corgiat, 50 Wash. 95, 96 Pac. 689; 5 C. J. p. 1357. dissolved by any party thereto, it would seem that a voluntary association would at least be equally as subject to dissolution ai the will of the majority of the members thereof. [3] There is another reason why the judgment in this case should be affirmed. The Clearing House Association was the agent and fiduciary representative of all the banks forming the association. Yardley v. Philler, 167 U. S. 344, 17 Sup. Ct. 835, 42 L. Ed. 192. The duties of such agent to the member banks were continuous. They involved the exercise of skilled knowledge and cultivated judgment concerning the business transacted. Such contracts will not be specifically enforced by the courts. Texas, etc., Railway Co. v. Marshall, 136 U. S. 393, 10 Sup. Ct. 846, 34 L. Ed. 385; Marble Co. v. Ripley, 10 Wall. (77 U. S.) 339, 19 L. Ed. 955. While the present action was in form one for an injunction, it was in effect an action for specific performance. A holding that the dissolution of the Clearing House Association be restrained would be equivalent to a holding requiring its continuous operation with the usual service to its members. The violation of a contract will not be restrained when such holding would indirectly or negatively compel the performance of duties the specific performance of which would not be decreed if the action were brought in that form. Arthur v. Oakes, 63 Fed. 310, 11 C. [2] In the case of a contract of partner- C. A. 209, 25 L. R. A. 414. The briefs in ship containing no stipulation as to the time this case devote much space to the question during which it shall continue it exists no whether the rule fixing the maximum rate longer than the parties thereto may mutually of interest to be paid upon savings deposits consent, and may be dissolved by either at 3 per cent. per annum was an unlawful party at his own will at any time; even restraint of competition; but we have found when the partnership articles fix a certain it unnecessary to discuss or decide this quesperiod of time, it may be dissolved at any tion, because, as above pointed out, the aptime at the will of one partner so as to put pellant is not in a position to invoke the aid an end to the partnership, in the latter of the court when, if successful, it would case there being a right of action for dam-result in another rate which the appellant was a party to, which would likewise be unages for breach of the contract; but where lawful. no time is fixed in the articles of partnership there exists no such right. Karrick v. Hannaman, 168 U. S. 328, 18 Sup. Ct. 135, 42 L. Ed. 484. If a partnership may be thus The judgment will be affirmed. ELLIS, C. J., and WEBSTER, FULLERTON, and PARKER, JJ., concur. (Wyo. 491) ALLEN. (No. 883.) * (Supreme Court of Wyoming. May 28, 1918.) 1. TAXATION 701-REDEMPTION FROM TAX SALE-NOTICE TO REDEEM. Under Laws 1893, c. 5, § 1, providing that a notice of purchase at a tax sale shall be served upon the occupant or person in possesston of the land purchased, the right of redemption is not extinguished where such notice is Lot given, or where notice is void because it incorrectly states date of expiration of time for tition are that the lot was sold at tax sale BURNS, County Treasurer, v. STATE ex rel. July 1, 1911, for the taxes of 1910, and was purchased at said sale by one Huffield, who prior to July 1, 1914, assigned the certificate of purchase to Allen; that at the expiration of the period of redemption Allen was, and ever since has been, in the actual possession and occupancy of the lot, but during none of said time could L. D. Borden, in whose name the lot was taxed in the year 1910, be, upon diligent inquiry, found in said county; that, after the expiration of the period of redemption aforesaid, he (Allen) duly published notice according to law that he would, on November 1, 1914, make application to the treasurer for a tax deed to said lot; that on said date he submitted to the treasurer a copy of said notice, with due proof of publication, and tendered the fee for a deed, and demanded the same; that the treasurer wrongfully refused to issue and deliver such deed to him. redemption. 2. TAXATION 699-NOTICE TO REDEEM STATUTE. Laws 1893, c. 5, § 1, as amended by Laws 1901, c. 16, giving purchaser at tax sale or his assignee, two years after expiration of time for redemption in which to serve notice of such purchase, construed to extend the time for redemption so that person entitled to redeem could do so at or any time before time set in notice. 3. TAXATION 703 NOTICE TO REDEEM SERVICE UPON OCCUPANT-STATUTE. Although under Laws 1893, c. 5, § 1, providing for service of notice of purchase at tax sale upon occupant of premises purchased, the occupant is deemed the agent of the owner, the statute contemplates occupancy adverse to purchaser, and service upon purchaser, where be himself is occupant, is not compliance there with. In such case the property must be regarded as unoccupied for purposes of such notice. 5. TAXATION 699-TIME FOR REDEMPTION: Where the purchaser at tax sale has served no notice of purchase at expiration of period of redemption, he himself being occupant of the property purchased, but shortly after expiration of time of redemption, having been unable to End the owner, he publishes such notice, the owner can redeem any time until date set in notice. Error to District Court, Fremont County; Charles E. Winter, Judge. Mandamus by the State, on the relation of Ralph E. Allen, against Earl Burns, as Treasurer of Fremont County, Wyo. Writ issued, and respondent brings error. Reversed. The answer admitted the allegations of the petition, with the exception of the allegation that the refusal to issue the deed was wrongful, and alleged that he rightfully refused to do so for the reason that on August 8, 1914, after the first publication of said notice, the said L. D. Borden, the owner of said lot, paid to him the full amount necessary to redeem said lot from said tax sale, which sum he received and accepted, and thereby said lot was redeemed from said sale. The only question in the case is whether, in the circumstances, the owner of the lot had the right to redeem from the sale after the expiration of three years from and after the date of the tax sale. Prior to 1893 real estate sold for taxes could be redeemed at any time before the expiration of two years from and after the date of sale; and if not redeemed the treasurer was required, immediately after the P. B. Coolidge, of Lander, for plaintiff in expiration of said two years, to make out and error. O. N. Gibson, of Riverton, for defendant in error. T. S. Taliaferro, Jr., of Rock Springs, amicus curia. BEARD, J. In this case the defendant in error, Allen, applied to the district court of Fremont county for a writ of mandamus to be directed to the plaintiff in error, as treasurer of said county, requiring and commanding him to issue and deliver to said Allen a tax deed to a certain lot in the town of Riverton, in said county. An alternative writ was issued and served, and plaintiff in error answered, to which answer a general demurrer was interposed. The demurrer was sustained, and the treasurer electing to stand upon his answer, a peremptory writ was issued and judgment rendered against him for costs. He brings error. deliver to the purchaser, upon the return of the certificate of purchase, a tax deed. Sections 3829, 3831, Rev. Stat. 1887. By chapter 14, S. L. 1897, the time for redemption was extended to three years after the date of sale. By chapter 5, S. L. 1893, it was provided: "Section 1. Hereafter no purchaser, or assignee of such purchaser, of any land, town or city lot, at any sale of lands, or lots, for taxes or special assessments due, either to the state, or any county or any incorporated town or city within the same, or at any sale for taxes or levies authorized by the laws of this state, shall be entitled to a deed for the lands or lots so purchased until the following conditions have been complied with, to wit: Such purchaser, or written or printed, or partly written and partly assignee, shall serve, or cause to be served, a printed, notice of such purchase on every person in actual possession or occupancy of such land or lot, and also the person in whose name the same was taxed or specially assessed, if upon diligent inquiry he can be found in the counBriefly stated, the facts alleged in the pe- ty, at least three months before the expiration of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes For opinion on petition for rehearing, see 173 Pac. 785. |