the institution of such proceedings. The court, in effect, said: If the complainant were a private individual, the court would not hesitate to say that his laches were a bar, and the same rule holds good notwithstanding the application is by the attorney general on behalf of the state. The question involved is not one under the statute of limitations, but one of laches, which may be imputed to the state as well as to an individual. While time does not run against the state, time, together with other elements, may make up a species of fraud, and estop even sovereignty from exercising its legal rights, citing Willmott v. Barber, 15 Ch. Div. 105; Attorney General v. Johnson, 2 Wils. Ch. 102; Attorney General v. Railroad Co., 27 N. J. Eq. 1. The court, concluding, said: "The principles here maintained should be quite rigidly applied where, as in this case, the corporation has not merely been allowed, but has been compelled, by those chiefly interested and the real moving parties, to proceed at great expense, under the franchises sought to be annulled, for a considerable period of time, while the facts relied upon as grounds for forfeiture have been all well known."

This language might be appropriately applied to the facts in this case, and could as well be applied to the individual defendants here as to corporate defendants there; for these defendants have not only been allowed to possess these lots, but the title to them has been conveyed to them by the government of the United States after a compliance on their part with the requirements of the law in relation to pre-emption and homestead claims, and after, in addition to the expense and time necessarily involved in obtaining title under these acts from the government, the expenditure of many thousands of dollars in creating permanent improvements on these lands, and in paying many thousands of dollars' assessments for the improvement of streets, in addition to other taxes for the benefit of the government, with the knowledge and acquiescence, and in some cases the actual agreement, of the appellant. It is also held in Com. v. Turnpike Co., supra, that where a turnpike company is allowed, without objection, to expend a large amount of money in extending its road, under authority of and a decree of court, a commonwealth is estopped to question the regularity of the proceedings under which such authority was granted. There again the court said: "In England, from whence we derived the great body of common law, and most of our principles in equity, it is well settled that, while time will not run against the crown, yet time, together with other elements, may make up a species of fraud, and estop even sovereignty from exereising its legal rights,"-citing Attorney General v. Johnson, supra, where there was an attempt on behalf of the crown to restrain

a purpresture in the river Thames, and the court refused to entertain the bill because of the delay on the part of the attorney general in instituting the proceeding. Citing, also, Attorney General v. Gas-Consumers' Co., 3 De Gex, M. & G. 304. See, also, Attorney General v. Railroad Co., 27 N. J. Eq. 631.

As showing that the rule that the company cannot alienate any part of its right of way is not to be literally construed, it has been decided that a railroad company to which congress has granted a right of way across the public lands and sections of lands adjoining such right of way, in aid of the construction of its road, has power to dedicate to the public the right to cross its tracks and right of way. Northern Pac. R. Co. v. City of Spokane, 12 C. C. A. 246, 64 Fed. 506. On the proposition that, when a corporation has made contracts in violation of its powers, the validity of such contracts can be questioned only by the government, see Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188. No case is cited by the appellant which holds that a railway company may not lose a part of its right of way by adverse possession, by abandonment or estoppel, and we do not think that any case can be found which advances those propositions, but many courts have held the reverse. In Railway Co. v. Stickley (Ind. Sup.) 58 N. E. 192, it was held by the supreme court of Indiana that adverse possession, acquiesced in by the company for the statutory period, prevented a recovery, and we cannot do better than insert a portion of the opinion of the court in that case: "Appellant finally insists that land acquired by a railway company for right of way or station purposes cannot be taken from it by adverse possession, because a railroad is a public highway, and because the statute forbids interference with the company's exclusive use. A railway company owes certain duties to the public, but it holds and uses its property for the profit of its stockholders. The cases holding that the statute of limitations affords no defense to actions for encroachment upon streets and roads are inapplicable. A railroad is not a public highway in the sense that it belongs to the people. Railroad officers are not governmental agents whose laches create no bar. It is true that, for reasons of public policy, a judgment creditor will not be permitted to destroy a railroad by cutting it into parcels on execution sales, if the company resists. * If a company voluntarily disable itself to perform its duties to the public, its charter may be forfeited. But there is no reason why a railway company should not be permitted to dispose of land it does not need in fulfilling its public duties, or why, if it disposes of land it does need, it should not be compelled, if it wishes to avoid a forfeiture of its charter, to reacquire the land by purchase or condemnation. It is true that the statute entitles a

railway company to take land in fee, and forbids interference with the company's exclusive use. But the right to the exclusive use (which is an incident to every unqualified ownership) must be asserted. If one occupies adversely for 20 years land owned by a railway company, the statute of limitations should raise the presumption of a grant; for the company holds its lands for private gain, as a private proprietor. The state confers the power of eminent domain to enable railway companies to perform efficiently their duties as common carriers. But it is not apparent why the state should be concerned in preventing investors in railway stocks from sustaining loss through the negligence of their agents,"-citing Railroad Co. v. Houghton, 126 Ill. 233, 18 N. E. 301, 1 L. R. A. 213; Same v. O'Connor, 154 III. 550, 39 N. E. 563; Same v. Moore, 160 Ill. 9, 43 N. E. 364; Donahue v. Railroad Co., 165 Ill. 640, 46 N. E. 714; Railroad Co. v. Wakefield, 173 Ill. 564, 50 N. E. 1002; Matthews v. Railway Co., 110 Mich. 170, 67 N. W. 1111; Bobbett v. Railway Co., 9 Q. B. Div. 424; Norton v. Railway Co., 13 Ch. Div. 268; Railway Co. v. Rousseau, 17 Ont. App. 483. In Matthews v. Railway Co., supra, it was held that, after a right to use land as part of its right of way had been granted to a railroad company, and such company fenced its right of way excluding such land, and thereafter the grantor conveyed the land to the plaintiff, who inclosed the same and used it for crops and pasturage, openly and continuously, without the assent of the company, for more than 15 years, the plaintiff acquired title by adverse possession. To the same effect are numerous other cases. fact, it seems to be the universal authority. The case of Investment Trust v. Enyard (Wash.) 64 Pac. 516, cited in appellant's reply brief in support of the position that possession for more than the statutory time on a railroad right of way was not adverse, but permissive, shows, on examination, that the circumstances surrounding it were altogether different from the circumstances surrounding the case at bar. Under the circumstances of that case it was held that the occupancy of a portion of the right of way of the railroad company by the owner of a servient estate was not inconsistent with the easement, the occupation there being for the purposes of farming the land embraced in the right of way. We do not desire to extend the rule enunciated in that case. But, whether or not the facts in that case warranted the conclusion reached by the court, certainly the circumstances shown by the record in this case will not justify the conclusion reached in that, that the occupancy of the defendants, taken in connection with the improvements and the use to which the improvements were put, was not inconsistent with the appellant's right to use the same for railroad purposes. In consideration of all the circumstances surrounding this case,

In

1. Plaintiff sued for an interest in real property, and the answer set up a judgment in a former action in which it was decreed that plaintiff had no interest in the property. Plaintiff replied that the judgment was void because no jurisdiction was obtained of him in the former action. Held, that the attack on the judgment was collateral.

2. Laws 1887-88, pp. 24, 25, § 1, provides that civil actions may be commenced by filing a complaint and issuing a summons; and section 4 declares that, if the suit is against a minor under 14 years of age, the summons shall be delivered to the minor personally, and also to his father, mother, or guardian. A summons substantially conforming to the statute was served on defendant, who was a minor under 14; and a similar summons, but running to D., as the minor's mother, was served on her. Held sufficient to give the court jurisdiction of the minor.

3. Where a decree recited that service was duly made, and that the property was the separate property of D., and that her minor son had no interest therein, the minor cannot attack the judgment collaterally by asserting that the court had no jurisdiction of him.

4. A judgment in an action to quiet title which recited that plaintiff had title in fee can not be collaterally attacked by an averment that the complaint did not state facts sufficient to constitute a cause of action.

5. Code 1881, § 2138, provides that the judges of the district courts may hear all actions at chambers which do not require a jury. Held, that the fact that a decree in an action to quiet title recited that the cause came on for hearing before the judge at chambers did not render it void.

6. A. sued for a one-half interest in real estate, and defendant answered, setting up a former judgment, in which title was decreed in him. The reply alleged that a pretended action was commenced, in which A., a minor, was defendant, and that the complaint did not state facts sufficient to constitute a cause of action, and that no legal summons was served on A., and that no notice of the time and place of trial was ever served on A.'s guardian ad litem. Held, that evidence that no notice of the time and place of trial was served on the guardian ad litem, and that the summons was defective, though admissible in a direct action to set aside the judgment, was properly excluded, as not competent to show that the judgment was void.

Appeal from superior court, Spokane county: Leander H. Prather, Judge.

Action by C. S. Kalb, as guardian of Herbert L. Dennis, a minor, against the German Savings & Loan Society and others. From

Gleeson & Stayt, for appellant. Happy & Hindman, for respondents.

*

MOUNT, J. William and Sarah Dennis were married on July 2, 1878. In 1879 a son, Herbert, was born to them. In 1882 J. M. Glover and wife, who were the owners of the west half of lot 3 in block 17 of the Resurvey and Addition to Spokane Falls, Wash., sold the said property to said Sarah Dennis. In 1884 William Dennis died intestate, leaving his widow and son, Herbert, as only heirs. In 1884, after the death of her husband, Sarah Dennis, a widow, sold the said realty to Henry French. In 1889 said French brought an action in the superior court of Spokane county to quiet his title against the claim of said minor, Herbert Dennis. Service of summons was had upon said Herbert and his mother. Thereafter a guardian ad litem was appointed and appeared in said action, but did not in his answer set forth the interest of said minor, but submitted "his rights and interests * to the tender consideration of this honorable court, and prays strict proof of the matters alleged in plaintiff's complaint." The court upon the trial found that said Herbert had no interest in the said property, and that Sarah Dennis, at the time she sold said property, had title in fee in her own separate right, and entered a decree accordingly quieting title in said French. The respondents on this appeal are the successors in interest of said French. This action was brought in the lower court by C.. S. Kalb, as general guardian of Herbert Dennis, against the respondents, claiming to be a tenant in common of said property, and praying to be so decreed. Upon a trial the court found for defendants, and that the judgment above referred to in French against Dennis was and is a valid judgment and decree, unreversed and in full force and effect, and entered judgment for defendants. Plaintiff appeals.

It will be readily observed that this is not an action to set aside the judgment in French against Dennis, but one seeking to have Herbert Dennis, the defendant in that action, declared to have an interest in said property, notwithstanding a judgment declaring he has no interest. It is well, therefore, to determine at the outset whether this action is a direct or collateral attack upon that judgment. No mention of the judg ment in French against Dennis is made in the complaint herein. The answer, after denying all the allegations in the complaint, sets up the judgment as a bar to plaintiff's right of recovery, even if he ever had any interest in the property. The reply, after denying the allegations of the answer, sets out facts which plaintiff claims invalidated the said judgment. Van Fleet, in his work on Collateral Attack, at section 3. says: "A collateral attack on a judicial proceeding is an

ог

eject

deny its force and effect, in some manner not provided by law. * When a judicial order, judgment, or proceeding is offered in evidence in another proceeding, an objection thereto on account of judicial errors is a collateral attack. Familiar instances are where a person relies on a judgment as a justification for a trespass, to show his right or title in * ment, trespass to try title, or suit to quiet title. That the objection to the judgment for judicial errors in such cases is a collateral attack, the cases all agree." Black, Judgm. § 252; Morrill v. Morrill, 20 Or. 96, 25 Pac. 362, 11 L. R. A. 155; Finley v. Houser, 22 Or. 562, 30 Pac. 494; Kizer v. Caufield, 17 Wash. 417, 49 Pac. 1064. Under all. the authorities, this action is, and must of necessity be, a collateral attack upon the judgment in French against Dennis, and must be so treated. It is so treated by appellant, because his whole argument on this appeal is directed to show that the court erred in admitting the judgment in French against Dennis in evidence in this case, upon the ground that said judgment is void. With this point determined, we proceed to examine errors alleged.

It is contended on the part of appellant that the court rendering judgment in French against Dennis had no jurisdiction of the person of defendant who was a minor. The law in reference to commencing civil actions in force in 1889-the time that action was commenced-was as follows:

"Section 1. That civil actions in the several district courts of this territory may be commenced by filing a complaint and issuing summons signed by the clerk of the court and under the seal of the court substantially as follows: "Territory of Washington, County of -SS.: (Here insert the names of parties plaintiff and defendant.) To the AboveNamed Defendant: You are hereby requested to appear in the district court of the

judicial district, holding terms at within twenty days after the service of this summons, exclusive of the day of service, if served in the above county, if not served in said county, but in said district, in thirty days, if served in any other judicial district in the territory in forty days, and answer the complaint, of the above named plaintiff now on file in the office of the clerk of said court, and unless you so appear and answer, the same will be taken as confessed and the prayer thereof granted. Witness my hand and the seal of said court this day of Clerk of Said Court.''

18-.

"Sec. 4. The summons shall be served by delivering a copy thereof, as follows:

If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother, guardian, or if there are none within this territory, then to any person having the care or control of such minor,

or with whom he resides, or in whose service he is employed, if such there be." Laws 1887-88, pp. 24, 25.

The summons served upon Herbert Dennis, who was then a minor under the age of 14 years, with the return thereto, was as follows:

"Territory of Washington, County of Spokane-ss.: In the District Court of the Territory of Washington in and for the Fourth Judicial District Thereof, Holding Terms at Spokane Falls, Spokane County, in Said Territory. Henry French, Plaintiff, v. Herbert L. Dennis, Defendant. To the Above-Named Defendant: You are hereby requested to appear in the district court of the Fourth judicial district, holding terms at Spokane Falls, within twenty days after the service of this summons, exclusive of day of service if served in the above county; if not served in the above county, but in said district, in thirty days; if served in any other judicial district of said territory, in forty days,-and answer the complaint of the above-named plaintiff, now on file in the office of the clerk of said court; and, unless you so appear and answer, the same will be taken as confessed, and the prayer thereof granted. Witness my hand and the seal of this court this 28th day of May, 1889. Harry A. Clark, Clerk of Said Court, by A. S. Johnston, Deputy. [Seal.] A. K. McBroom, Attorney for Plaintiff.

"Territory of Washington, County of Spokane-ss.: I, E. H. Hinchliff, sheriff of Spokane county, Washington Territory, do hereby certify that I served the within summons on the within-named defendant, Herbert L. Dennis, in Spokane county, Washington Territory, on the 6th day of June, A. D. 1889, by then and there delivering to said defendant personally a copy of said summons. E. H. Hinchliff, Sheriff of Spokane County, W. T., by F. K. Pugh, Deputy."

The summons served upon Sarah Dennis, mother of said defendant, is as follows:

"Territory of Washington, County of Spokane ss.: In the District Court of the Territory of Washington, in and for the Fourth Judicial District Thereof, Holding Terms at Spokane Falls, Spokane County, in Said Territory. Henry French, Plaintiff, v. Herbert L. Dennis, Defendant. To Sarah Dennis, Mother of Herbert L. Dennis: You are hereby requested to appear in the district court of the Fourth judicial district, holding terms at Spokane Falls, within twenty days after the service of this summons, exclusive of day of service, if served in the above county; if not served in the above county, but in said district, in thirty days; if served in any other judicial district of said territory, in forty days,-and answer the complaint of the above-named plaintiff, now on file in the office of the clerk of said court; and, unless you so appear and answer, the same will be taken as confessed, and the prayer thereof granted. Witness my hand and the seal of

65 P.-36

Har

this court this 28th day of May, 1889. ry A. Clark, Clerk of Said Court, by A. S. Johnston, Deputy. [Seal.] A. K. McBroom, Attorney for Plaintiff.

"Territory of Washington, County of Spokane ss.: I, E. H. Hinchliff, sheriff of Spokane county, Washington Territory, do hereby certify that I served the within summons on the within-named Sarah Dennis, mother of Herbert L. Dennis, in Spokane county, Washington Territory, on the 6th day of June, A. D. 1889, by then and there delivering to said Sarah Dennis personally a copy of said summons. E. H. Hinchliff, Sheriff of Spokane County, W. T., by F. K. Pugh, Deputy."

It will be noticed that the only difference between the copy served on the minor and the one served on his mother is that the former runs, "To the Above-Named Defendant," while the latter runs, "To Sarah Dennis, Mother of Herbert L. Dennis." The statute did not provide a form of summons which must have been followed absolutely. but the form provided should have been substantially followed. It was evidently the intention of the statute that, when a minor was being sued, his parent, guardian, or other person having him in care, should have notice of that fact, so that the interests of the minor might be protected; and the statute makes it imperative that both the infant and the parent or his guardian shall be served, before jurisdiction of the person can be acquired. This summons contained the title and locus of the court. It named the plaintiff and the defendant. It notified the mother that a complaint was on file, that her son was being sued, and that she must appear therein, and that unless she appeared within a certain time the prayer of the complaint would be granted. We certainly think this summons was sufficient to notify the person served therewith what was meant, and that she must see that her infant appeared in said action and protected his rights, or that she must do so for him. The summons substantially followed the law, was served strictly in accordance with the provisions of the statute upon both the minor and his mother, and was therefore sufficient.

Conceding, however, that the form of the summons was defective, it does not follow that the said judgment was void, because the court was a court of general jurisdiction, and every fact not negatived by the record must be presumed to support the decree. Belles v. Miller, 10 Wash. 259, 38 Pac. 1050; 1 Freem. Judgm. § 126; 1 Black, Judgm. §§ 223, 263, 170. The decree recited that service was duly made, and that the property described was the separate property of Sarah Dennis. It must be presumed, in the absence of the record to the contrary, that these facts appeared to the court by competent proof. There is a wide distinction between cases where defective service is had, and where no service at all is had, or where the

wrong person is served. The case of Hatch v. Ferguson (C. C.) 57 Fed. 966, cited and relied upon by appellant, is of the latter class. There the court found as a fact that one Ferguson, who had been nominated guardian of the infant heirs, without bond, "was not the legal guardian of the complainants. Service of the summons in the partition suit upon him was not sufficient to bring them within the jurisdiction of the superior court for Snohomish county, and they are not bound by his appearance as their representative. The sale of their land pursuant to the order of that court is therefore void." In the case before us there is no question that the proper persons were served, but only that the service was void or so defective as to amount to a nullity.

Appellant urges that the complaint in French against Dennis did not state facts sufficient to give the court jurisdiction of the subject-matter. After alleging possession, the said complaint further alleges "that the plaintiff claims title in fee to the said premises, and that the said defendant claims an estate or interest therein adverse to the said plaintiff." That action was brought under section 551 of the Code of 1881. Under that section it was sufficient, but, if not sufficient under that section, after judgment reciting proofs that plaintiff holds title in fee, it could not be attacked in this collateral way. 1 Black, Judgm. § 100; Van Fleet, Coll. Attack, $$ 61, 256.

Appellant urges that the decree is void because it recites that the cause came on for hearing before the judge at chambers. There is no merit in this contention. There was no limitation in the organic act, or in any act of congress upon jurisdiction of territorial courts or the judges thereof, which prevented such court or judge from holding court at any time in his district. See section 1865, Organic Act (page 21, Code 1881); section 1874, Organic Act (page 23, Code 1881); section 1917, Organic Act (page 27, Code 1881). Nor was there any limitation upon the authority of the legislature which rendered invalid section 2138 of the Code of 1881, which reads as follows: "The several judges of the district courts in this territory, and each of them in their respective districts, may, at chambers, in vacation, entertain, try, hear and determine, all actions, causes, motions, demurrers and other matters not requiring a trial by jury; and all rulings, orders, judgments and decrees, made or rendered by a judge of the district court at chambers, may be entered of record in vacation, and shall have like force and effect as though made or rendered at a regular term of the district court." The obvious intention of the legislature in the passage of that section of the law was, as stated in Murne v. Schwabacher, 2 Wash. T. 130,

3 Pac. 899, "to have all the courts in each district open at all times for the transaction of certain specified business."

Appellant urges that the court erred in refusing to allow evidence in support of the reply. The reply alleges, in substance, that in May, 1889, a pretended action was commenced in the district court of Washington Territory, wherein Henry French was plaintiff, and Herbert L. Dennis, a minor, was defendant; that said complaint filed therein did not state facts sufficient to constitute a cause of action, and that no legal service of summons was ever had in said action, but subsequently the court, without having jurisdiction of the subject-matter of the action, or of the person of the said defendant, pretended to appoint a guardian ad litem in said action for said defendant; that subsequently the judge of said court pretended to determine said cause at chambers, and rendered a pretended decree against defendant; that no notice of the time and place of said hearing was given to said guardian, and said guardian had no notice thereof and was not present, and said cause was not tried upon the merits; that said defendant had a good and valid defense to said action, which defense was unknown to said guardian, and was not set forth in said action; that at the time of said action said defendant was the owner in fee of an undivided one-half of said property; that defendant was and still is a minor; and that defendants in this action had full knowledge of all the facts herein before set forth. Conceding that plaintiff in this action could introduce evidence dehors the record in the said cause of French against Den nis to show want of jurisdiction of the subject-matter of the action and of the person of the defendant, no such evidence was offered, other than that hereinbefore considered. Plaintiff, however, did offer to show that after service, and after the appointment of a guardian ad litem, and after answer of the said guardian, no notice of the time or place of trial was given to the said guardian. While this evidence, if true, might be considered as proof of irregularity or proof of fraud practiced by the successful party, and therefore admissible in a direct attack upon the judgment to set it aside under the statute, it would not be competent to oust a court of jurisdiction once acquired, and would not be evidence of a void judgment, and was therefore properly excluded. 1 Black, Judgm. § 245; 1 Freem. Judgm. § 135; Belles v. Miller, supra. No error appearing in the record, the judgment of the lower court will be affirmed.

REAVIS, C. J., and DUNBAR, FULLERTON, ANDERS, WHITE, and HADLEY, JJ., concur.