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It was furnishing to him surgical treatment, and that it is estopped from denying that such was the fact, does it follow, under the facts of this case, that it is liable for the mal. practice of the physician? We think it does not. This hospital was maintained, and the physician provided, for the sole purpose of relieving sick and injured employés without expense to them, and without any intention on the part of the company of making any profit out of the undertaking. It was, therefore, a charitable institution, and it was supported by the contributions of employés, and carried on in their interests; and if the company did employ the physician, as claimed by respondent, to look after and treat the sick and injured, it is not liable for his negligence, but is responsible only for want of ordinary care in selecting him. Mc. Donald v. Hospital, 120 Mass. 432; Van Tas. sell v. Hospital (Sup.) 15 N. Y. Supp. 620; Insurance Patrol v. Boyd, 120 Pa. St. 624, 15 Atl. 553; Laubheim v. Steamship Co., 107 N. Y. 228, 13 N. E. 781; Railway Co. v. Artist, 9 C. C. A. 14, 60 Fed. 36). And it is not shown that the company was derelict in that particular. In fact, it is not even alleged in the complaint that it did not exercise ordinary and reasonable care to select an ordinarily skillful physician. The action was not brought upon that theory, and the proof fails to support a finding of negligence on the part of the company, and the judgment must, therefore, be reversed. Reversed and remanded.

him, no attempt having been made to show in: correctness therein, that court will not be held not to have acquired jurisdiction, on the ground that the record thus transmitted gave it nothing of an official character to act upon.

4. Under Gen. St. $ 2172, giving the own. ers of the land abutting on tide lands the pref. erence right to purchase the latter, a judgment creditor who has purchased the abutting property at his own execution sale cannot, before expiration of the time allowed his debtor to re. deem, contest the application of one who has acquired possession thereof by mesne convey. ances from the judgment debtor.

5. The objection that an applicant for the purchase of tide lands is not qualified is a matter lying between him and the state, and can. not be raised by one who was not entitled to contest the application.

Appeal from superior court, Jefferson county; R. A. Ballinger, Judge.

This is a contest between W. F. Hays and others, as contestants, and the Merchants' Bank of Port Townsend, as contestee, for the right to purchase certain tide-lands. From a reversal by the superior court of an order of the state board of equalizatio: and appeal awarding the right of purchase to contestee, contestee appeals. Reversed.

A. R. Coleman and C. A. Burnett, for apperlant. W. F. Hays, for respondents.

STILES and HOYT, JJ., concur.

(10 Wash. 573)
HAYS et al. v. MERCHANTS' BANK OF

PORT TOWNSEND.
(Supreme Court of Washington. Jan. 11,

1895.) TIDE LANDS - COMPETENCY OF PURCHASER-W10

MAY CONTEST DECISION OF BOARD OF EQUALIZATION – APPEAL TO SUPERIOR COURT REQUISITES.

1. Gen. St. § 2170, giving the superior court jurisdiction of an appeal from the decision of the state board of equalization, making an award of right to purchase tide lands, and Code Proc. $ 49, which provides that when jurisdiction is conferred on a court all the means to carry it into effect are also given, that court may possess itself of the application, notice of contest, and record of the board's action.

2. The better proceedings, more consonant with the spirit of the Code, in the consideration by the superior court of an appeal from a deci. sion of the state board of equalization relative to the right to purchase tide lands, is to make an order, upon application by a contestant, directed to the board, requiring it to send up papers and records by copy; and the transcript sent up in cases arising before the act of 1893 should be authenticated by the secretary, and such a proceeding brings up the whole cause for retrial.

3. Where, in an appeal from the award of the state board of equalization of a right to purchase tide lands, the secretary of that board voluntarily sent to the superior court what purported to be a record of the contest, attested by

STILES, J. This was an appeal from the decision of the state board of equalizatiou and appeal in a tide-land contest. The ac tion of the board was reversed by the superior court, and the first point made here by the appellant is that the court could not take cognizance of the appeal, because of the failure of the law to prescribe a method of procedure in such cases. We have had oc casion in State v. Forrest, 8 Wash. 610, 36 Pac. 686, 1120, and in McKenzie v. Woodin (Wash.) 37 Pac. 663, to comment upon some of the deficiencies and incongruities of the statute, but this is the first time that so seri ous an attack has been made upon its execu tion. To sustain the appellant upon this point would certainly bave the effect to invalidate the whole act for the sale of tide lands, at least where there were opposing claimants; since it was obviously not the intention to make the action of the board final in any case where there was contest of an application. But Gen. St. $ 2170, clearly gives the court jurisdiction to entertain appeals, and the power ought not to be permitted to fail if there is any reasonable means of sustaining it. Code Proc. $ 49, we think furnishes a way out of the ditficulty, It provides as follows:

“Sec. 49. When jurisdiction is, by the coustitution of this state, or by statute, con. ferred on a court or judicial officer all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding be not specifically point. ed out by statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code."

ute.

These provisions are very sweeping, and chase the lands in question at any time withthey certainly empower a superior court to in the period allowed for the filing of conpossess itself of everything necessary to en- tests. Prior to March 26, 1890, the Port able it to review the action of any inferior Townsend Foundry & Machine Company was court, board, or tribunal, where such au- the owner of the upland portion of lots 1, 2, thority is conferred upon it by statute. The 3, and 4, block 15, in the city of Port Townword used in the law to describe its author- send, and had thereon certain improvements. ity is “appeal," but we take it that the word On August 12, 1890, the above-named comis not used in any technical sense, but to pany conveyed this property to one Perkins; signify an authority to retry the questions and he, December 31, 1890, conveyed it to aparising before the board upon a contest. To pellant, which filed its application to purdo this, it ought to be possessed of the appli- chase May 20, 1892. Respondents filed their cations, notices of contest, and the record of application later, and in July, 1892, filed a the board's action, and the statute authorizes notice of contest of appellant's application. it to adopt such method of possessing itself Respondents' claim and contest were based of the case as may appear to be most con. upon a sheriff's certificate of sale made upon formable to the spirit of the Code of Pro- a judgment against the foundry and machine cedure. We are inclined to believe that it company, filed and recorded in the office of would be more consonant with the spirit of the auditor of the county June 24, 1890, and the Code were the superior court, in each of therefore a lien upon the real property of the these cases, upon application of a contestant, debtor company. The sale was made, and to make an order, directed to the board, re- the certificate of purchase executed, Januquiring it to send up the papers and record, ary 29, 1892, and the sale was confirmed by copy, and that the transcript sent up in April 28, 1892. When the hearing before the cases arising before the act of 1893 should board was had in March, 1893, the time for have been authenticated by the chairman of redemption from the execution sale had exthe board, rather than by the secretary, who pired, and respondents had received a sherwas an officer unknown to the former stat. iff's deed. These facts they made known to

It is true that neither was a chair- the board by a supplemental showing in the man, as such, spoken of in the act of 1890; contest. Thus, the appellant was the owner but, by the common custom of all boards of of the upland when its application was filed, this kind, they are organized with a chair- and at all times until more than six months man or president, who commonly represents after the filing of the counter application and the board by his signature. The proceeding contest by respondents; and the question is, thus suggested would be, in substance, a were the respondents competent contestants? certiorari, and would be similar, both in the We think not. The statute (Gen. St. $ 2172), practice and in the result, to certiorari to a gives to owners of the lands abutting on tide justice of the peace, which we have recently lands the preference right to purchase, and held takes up the whole case for retrial in it cannot be maintained that the respondents the superior court. McEneaney v. Dart (de- were owners of the land covered by their cided Nov. 2, 1894) 38 Pac. 764. In this case certificate at any time prior to their receiving the secretary of the board seems to have a deed. A judgment debtor, until after the voluntarily sent to the superior court of Jef- expiration of the time to redeem real estate ferson county what purported to be a record sold on execution, is the holder of the legal of the contest, attested by him, and objec- title, and must in all respects be treated as tion was made, and is here insisted upon, the owner of the land. Freem. Ex'ns, § 323; that the record thus transmitted gave the Dray v. Dray, 21 Or. 59, 27 Pac. 223; Mccourt nothing bearing an official character Millan v. Richards, 9 Cal. 365; Curtis v. Milto act upon. We confess to ditficulty in pass- lard, 14 Iowa, 128. True, under our statute, ing upon this point; but, inasmuch as all the purchaser is to be let into possession on the cases of this kind we have had before us demand; but whether, if respondents had were based upon the same sort of irregular been in possession, a different result would certification, we shall not now, after the de- follow, we do not decide, for there was no ficiencies of the old law have been some- such possession in this case. But for the in. what remedied by the designation of a per- terposition of the respondents, therefore, it manent chairman and the provision for a is altogether likely that, long before the exsecretary, disturb the course of things by piration of the time for redemption, appelholding the court to have been without ju- lant would have had its conveyance from the risdiction. We do not know how many of state; and it would be altogether unjust to althese tide-land titles would be overturned by low a contestant who has no present right to such a ruling. No attempt was made to contest to go into the land office and file a show, in this case, that the purported record claim based on no title in himself, and, after was incorrect in any particular.

months of delay beyond the time permitted But, upon the merits of the contest, we for the filing of contests, give him the land think it is imperative that the decision of the upon the basis of some after-acquired title. superior court be reversed, because the re- Moreover, we do not think it was the intenspondents here were not qualified to contest tion of the legislature that these applications the application of the appellant, or to pur- for purchase of tide lands, by shore owners,

If anything was said which warrants any other construction, it is hereby modified. The cause will be remanded for further proceedings, with leave to plaintiff to file an amended complaint, or if he elects to stand upon the old one, the defendant shall have the right to attack it by motion or special demurrer, should it desire so to do. With this modification of the original opinion, and of the judgment to be entered here upon reversal, there will be no necessity for a rehearing upon the grounds stated in the peti. tion therefor, and it will be denied.

DUNBAR, C. J., and STILES, J., concur.

should be based upon anything but legal title. The board is not a court of equity, and it is not constituted for the adjudication of either equitable or inchoate rights. It must be satisfied, of course, that ownership exists, but it takes things as they are at the time of application and within the time allowed for contest. It may well be that in the case before us the institution of respondents' contest was the very reason why their sale was not redeemed from, owing to the uncertainty that the appellant was in whether it would be awarded this land.

Respondents urge that appellant is not shown to be a qualified applicant, because it made no proof of facts showing it to be entitled to hold real property in this state. Tho point would be well taken if urged at the suit of a competent contestant. All that we know from the record is that the name of the appellant is Merchants' Bank of Port Townsend, but whether it be a foreign or a domestic corporation, or a corporation at all, or, if a corporation, whether its stock is so held that it can buy land in Washington, or whether its articles permit of its buying land anywhere, is not disclosed. Its application was made by “C. F. Seal, Cashier,” who says that he is entitled to purchase lands. The board seems to have treated this as an application of the bank, because it was signed, “Merchants' Bank of Port Townsend, by C. F. Seal, Cashier;" and the whole case before the board proceeded on the theory that the bank was the applicant, and there was a finding there that it was qualified to purchase, but whether upon any evidence the record does not disclose. But respondents can raise no question upon this. The whole matter lies between the state and the applicant.

The appellant raised other points, but they are too numerous to notice, and they are not necessary to a decision of the case. Judgment reversed, and cause remanded, for dismissal of the appeal and contest.

(10 Wash. 484) HARKER v. WOOLERY, Sheriff.1 (Supreme Court of Washington. Jan. 4, 1895.) CHATTEL MORTGAGES-AFFIDAVIT OF Good FAITI

--FORECLOSURE NOTICE. 1. Where a chattel mortgage would be val. id without the mortgagor's wife joining therein, the fact that she does not unite with him in the aflida vit of good faith required by 1 Hill's St. $ 1618, does not invalidate the mortgage, though she joins in its execution.

2. The fact that a notice of foreclosure describes the property as 208 sacks of wheat, while the mortgage itself described it as a certain number of acres of wheat, is not such a variance as will vitiate the foreclosure, where it appears that the notice referred to the mort. gage, and that in all other respect the description was the sam.: as in the mortgage.

Appeal from superior court, King county: R. Osborn, Judge.

Action of claim and delivery by A. Harker against James H. Woolery, sheriff, for 172 sacks of wheat taken from plaintiff by de fendant under a notice of foreclosure of a chattel mortgage executed by Robert Brown and Margaret Brown, his wife, to H. Flower. From a judgment for defendant, plaintiff ap. peals. Affirmed.

G. D. Farwell, for appellant. R. J. Huston and E. P. Dole, for respondent.

HOYT and SCOTT, JJ., concur. DUN. BAR, C. J., and ANDERS, J., not sitting.

(10 Wash. 280)

HOWARD V. SEATTLE NAT. BANK. (Supreme Court of Washington. Jan. 12,

1895.) Petition for rehearing. Depied. For original opinion, see 38 Pac. 1010.

SCOTT, J. This was an action to recover a certain quantity of wheat, in sacks, which had been taken possession of by the defendant, as sheriff, under a notice of foreclosure of a chattel mortgage purporting to have been given by Robert Brown and Margaret Brown, his wife, to one H. Flower. Judgment was entered for the defendant, and plaintiff appeals.

The first point raised is that the court erred in overruling an objection to the following question asked one of the plaintiff's witnesses: "Do you remember telling me at that time that Mr. Robertson agreed at one time, when Brown was there, that you were to handle this wheat?" It is contended that this was improper cross-examination. The record shows that the question was answered before the objection was made, and there was

HOYT, J. In its petition for rehearing, respondent claims that there are expressions in the opinion which might prevent a full presentation of the case in the superior court. It was not the intention to hold more than that such facts were alleged in the complaint that it was error to sustain a general demurrer thereto, and thus prevent a trial upon the merits. There was no intention to restrict the further proceedings in the cause.

1 Rehearing denied.

no motion to strike it. But, regardless of trap in the Columbia river, in violation of this, the witness' answer was that he did not Act Feb. 10, 1893, and he appeals. Reversed. remember. Consequently, the matter is so

John H. & A. M. Smith, for appellant. utterly immaterial as not to require any fur

Marion D. Egbert and L. E. Ginn, for the ther notice.

State. It is next contended that the mortgage was invalid because Margaret Brown did not join in making the affidavit of good faith, the

SCOTT, J. The defendant was arrested same having been made by Robert Brown upon a complaint made before a justice of alone. It is strenuously contended that the

the peace, the charging part of which is as mortgage should have been excluded from

follows: "Frank Huffman, being by me first evidence for this reason; and authorities are

duly sworn, on oath complains in writing, cited to show that under statutes relating to

and charges one Bert Tabell, the above-namverification, similar to ours, 1 parties making ed defendant, with having unlawfully cona mortgage must all join in the affidavit in

structed and placed within the waters of question. Whatever the rule may be gener

the Columbia river, in Pacific county, state ally, we think the mortgage here was suffi

of Washington, one certain fish trap; that cient, because a valid lien upon the chattels

said fish trap was so constructed and placed in question could have been created by the

by said Bert Tabell between the 12th day of mortgage of Robert Brown, without his wife,

February, 1893, and the 15th day of May, it being the community property of the par

1893, without leaving an end passage way of ties. Said parties were designated in the

at least 30 feet, and a side passage way of mortgage as husband and wife, and the pre

at least 900 feet, between said fish trap so sumption was, of course, that the property

constructed and the fish trap next in posiwas community property. It being personal

tion thereto; that said fish trap so constructproperty, the absolute disposition of it was in

ed by the said Bert Tabell, and placed withthe husband; consequently, all parties had

in the waters of the Columbia river, Pacific notice of the capacity in which Margaret

county, state of Washington, was not so conBrown acted, and were bound to take notice

structed and placed there prior to the 10th that she was an unnecessary party to the

day of February, 1893, nor fished, numbered, mortgage.

or operated during the year 1892." Upon It is next contended that the description of

being brought before the justice, defendant the property in the notice of foreclosure was

moved against the complaint, upon the insufficient. The notice contained the same

ground that it did not state facts sufficient description as that in the mortgage, and it re- to charge a crime. The justice held the comferred to the mortgage, so that all parties

plaint sufficient, and the defendant was tried might obtain as full information with regard

and convicted. He then appealed the cause to the property as could be given; it being a

to the superior court of Pacific county. On certain quantity of wheat raised upon a cer

a retrial there, the complaint was again held tain place, and described in the mortgage as

good, and defendant appealed to this court. so many acres of wheat, etc., and in the no- The complaint was presumably intended to tice as 208 sacks.

be brought under the provisions of "An act A number of questions are raised as to the

to regulate and license the catching of instructions given by the court to the jury.

salmon," approved February 10, 1893 (Sess. After an examination of the same, we think Laws, 1893, p. 15); but it nowhere alleges the cause vas fairly submitted, and that there

that the fish trap in question was designed was no material error therein. The judg

for catching salmon, or was suited to that ment of the court will be affirmed.

purpose.

For this reason we think it was

fatally defective, and it should have been DUNBAR, C. J., and STILES and HOYT, quashed when attention was first called thereJJ., concur.

to. Judgment reversed.

DUNBAR, C. J., and STILES and HOYT, JJ., concur.

(10 Wash. 498)

STATE v. TABELL. (Supreme Court of Washington. Jan. 8, 1895.)

SALMON FISHING-COMPLAINT.

A complaint for placing a fish trap in the Columbia river, in violation of Act Feb. 10, 1893 (Sess. Laws, p. 15), regulating and licensing the catching of salmon, is fatally defective if it does not allege that the trap in question was designed for catching salmon, or was suited for that purpose.

Appeal from superior court, Pacific county; W. W. Langhorne, Judge.

Bert Tabell was convicted of placing a fish

(9 Wash. 495) CURRY et al. v. CATLIN et al. (Supreme Court of Washington. Aug. 7, 1894.)

For majority opinion, see 37 Pac. 678.

HOYT, J. (concurring). I agree with the conclusion of the majority as to the merits of the controversy, but cannot assent to that part of the opinion in which it is stated that the complaint of Catlin, by which be sought to have an adjudication that his debt was one which could be enforced against com

11 Hill's Ann. St. § 1648.

munity property, did not state a cause of Appeal from superior court, Jefferson coun: action; for while it is true that the presump- ty. tion is that it could be so enforced, yet the Action by H. L. Tibbals, Sr., against John fact that such presumption is only a prima Illland. From a judgment for defendant, facie one might largely affect the price which plaintiff appeals. Ailirmed. would be realized upon a sale of the com

Smith & Felger and Trumbull & Trumbull, munity property to satisfy the judgment.

for appellant. Carroll & Rohde and R. W. The plaintiff should have the right to have the status of his judgment conclusively es

Jennings, for respondent. tablished before the sale of community property thereunder. Such an adjudication is ANDERS, J. On June 15, 1889, the appelnot only in the interest of the plaintiff, but lant, by an instrument in writing duly exeof the defendant as well; and it is to the in- cuted, leased to one Herman Trapeur a certerest of the public that property offered for tain storeroom in the city of Port Townsend sale upon execution should bring the highest for the period of five years from the 1st day price. In my opinion, the judgment should of March, 1890, for the sum of $100 per be in all things affirmed.

month, payable in advance on the 1st day of each and erery month, which sum the said

Trapeur agreed to pay in accordance with (10 Wash. 451)

the terms of said lease. On April 6, 1890, TIBBALS v. IFFLAND.1

the said lessee assigned all his right, title, (Supreme Court of Washington. Jan. 3, 1895.)

and interest in and to said lease to one

Whittlesey, who on October 22, 1891, asACTION FOR RENT-EVIDENCE-WRITTEN ASSIGN

MENT OF LEASE-PAROL EVIDENCE OF CONTENTS signed the same to the respondent, ItHand. -VALIDITY-RECORDING – ASSIGNMENT BY LES- The respondent, about the 1st day of NovemSEE'S ASSIGNEE-EFFECT.

ber, 1891, went into possession of the prem1. In an action by a lessor against the as

ises, and paid the rent to appellant, accordsignee of the lessee, for rent, in which defendant pleads that he assigned his interest and

ing to the provisions of the lease, for three surrendered possession to another before such months thereafter, and then failed and rerent accrued, defendant may state what he did fused to make further payments. This acwith the lease and the premises described in it, as a preliminary to proof of the assignment.

tion (originally two actions, which were con2. Where, in such action. proper founda- solidated and tried as one) was instituted to tion is laid for secondary evidence of the con- recover the rent alleged to be due for six tents of the assignment, it is not error to permit

successive months, beginning with March, defendant's witness, who has testified to the assignment of a lease and its contents, to state

1892. The respondent set up as defenses to what lease the assignment purported to assign. the action: (1) That on the 15th day of

3. In such case, evidence as to how defend- January, 1892, he, by an instrument of writant came to get the lease, and his object in getting it, is immaterial.

ing duly acknowledged, assigned, for value, 4. It is not prejudicial to plaintiff, in such

all his right, title, and interest in and to the case, to refuse to permit a witness who wrote lease alleged in the complaint, and the premthe assignment to state whether the assignment

ises therein described, to one John Barnett, was not a scheme of his to get defendant "rid of the lease."

and surrendered the possession of said prem5. There was uncontradicted evidence that ises to said Barnett, and put him in possesdefendant assigned the lease in writing, and sion of the same; and (2) an adjudication that he delivered the assignment and possession of the premises to the assignee; and defend

in his favor in a justice court in an action ant testified that the assignee soon after left

for the rent for the month of February, 1892. the place for P., and that he (defendant) search- Most, if not all, of the testimony offered as ed the hotels and boarding houses at P. to get to this latter defense was rejected by the the assignment; that he had addressed letters to the assignee at P. and V., the only places he

court, and the case went to the jury upon had any reason to believe he might be found, the questions raised by the first affirmative and received no reply;, and that he did not defense pleaded; and there was a verdict know such assignee's whereabouts. Hell, that

and judgment for the defendant. secondary evidence of the contents of the assignment was admissible.

It is alleged that the court erred in admit6. Though the statute provides that the ting in evidence certain testimony over the county auditor shall, on payment of his fees,

objection of the appellant, in rejecting cerrecord leases which hare been acknowledged and proved (1 Hill's Code. $ 199), a failure to

tain other testimony offered by appellant, record an assignment of a lease does not render and in giving certain instructions to the it invalid.

jury. The court permitted the respondent, 7. A lessee's assignee may assign his inter

over appellant's objection, to answer the inest in the lease, and rid himself of liability to pay rent, though the lessor has no notice of

terrogatory, “What, if anything, did you do such assignment.

with that lease, and the premises described 8. The interest conferred by a lease for any in that lease," It is admitted by the pleadterm of years, on the lessee or his assignee, is a chattel interest, which he can dispose of with

ings that the respondent acquired whatever out his wife's consent.

interest he had in the premises by virtue of 9. Evidence of diligence of a party, as a written assignment of the original lease, ground for the introduction of secondary evi

and this question was preliminary, merely, dence of the contents of a written instrument, is for the court, and should not be considered by

to the proof of assignment, subsequently subthe jury.

mitted, and was therefore admissible. After Rehearing pending.

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