providing for the manner of its service, and for the filing of the copy of the complaint, the court acquires jurisdiction of defendant by the filing of the complaint and the service of summons as prescribed therein.

2. It being once ascertained, in a collateral attack upon certain proceedings, that the court had jurisdiction of the person and subject-matter, the presumption attaches that it continued.

3. The court having had jurisdiction of the person and subject-matter of an action, its judg ment rendered therein cannot be collaterally attacked where it is being contended that such judgment, by transcript to another county, became a lien prior to the mortgage sought to be foreclosed.

and incumbrance upon the property described in the plaintiff's complaint. The reply of the plaintiff denied the material allegations of the affirmative defense of defendants Surber and Eagan, and set up the fact that the action referred to in the defendants' answer was an action wherein Baer, Surber, Eagan, and others were partners doing business under the firm name of the Blaine Improvement Company; that said action was brought by plaintiffs upon a certain joint contract for the furnishing of materials for the construction of a wharf; that the plaintiffs in said action were

Action by Frank L. Baldwin against Milton L. Baer, W. H. Surber, Frank Eagan, and others to foreclose a mortgage executed by defendant Milton L. Baer. Defendants Surber and Eagan set up a judgment previously recovered against Milton L. Baer in the superior court of Whatcom county as a prior lien. From a judgment for plaintiff declaring the judgment set up as a prior lien void, defendants Surber and Eagan appeal. Reversed.

Burke, Shepard & Woods, for appellants. Greene & Turner, for respondent.

DUNBAR, C. J. This action was begun in September, 1893, in the superior court of King county, for the foreclosure of a mortgage given by defendant Baer to the respondent on the 1st day of June, 1892, the mortgage being duly recorded in the proper county. The defendant J. L. Howe and the appellants, W. H. Surber and Frank Eagan, were made parties defendant to the action, on the ground that they claimed some interest in the mortgaged premises, the complaint alleging that said interest was subsequent and subject to the plaintiff's mortgage. The appellants, Surber and Eagan, filed an answer denying any knowledge or information sufficient to form a belief as to most of the allegations of the complaint, and denying generally and specifically that their lien and interest in the premises described in the complaint was subsequent or inferior to the mortgage which the action was brought to foreclose. They also set up as an affirmative defense that in February, 1891, they recovered in the superior court of Whatcom county, in the state of Washington, a judgment against certain parties defendant, among whom was one of the defendants to this action, Milton L. Baer, for the sum of $2,855.25, with interest, and costs, setting forth a copy of such judgment in the answer; that after obtaining said judgment, viz. on the 13th day of April, 1891, a certified copy of the judgment of the superior court of Whatcom county was duly filed for record, and duly recorded, in the office of the auditor of King county; and alleged that the same became a lien upon the property in controversy upon which the plaintiff was seeking to foreclose his mortgage, and that the judgment of the appellants was a prior and superior lien

and Eagan in this action, and that the defendant M. L. Baer in said action was the same person as the defendant Milton L. Baer in this action, and that the defendant Milton L. Baer was never at any time served with any copy of the complaint in said action in the superior court of Whatcom county, but that, notwithstanding no complaint was served upon the said Baer, the superior court of Whatcom county attempted, by a certain illegal, unauthorized, and void entry, to enter and adjudge the default of said Baer in said action in Whatcom county, and that, in brief, judgment was entered against Baer without his ever having been served with a copy of the complaint. Upon these issues the cause went to trial, and the court found that the judgment entered by the superior court of Whatcom county was void, upon the ground that the said court had never obtained jurisdiction of the person of the defendant Baer. The main question to be determined, therefore, is, can the judgment of the Whatcom county court be collaterally attacked in King county? or, in other words, did the court in Whatcom county act without jurisdiction?

It is a well-settled rule of law that, jurisdiction having once attached in the original case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, unless impeached for fraud. Cornett v. Williams, 20 Wall. 226. Appellants cite a great many authorities in support of the proposition that mere errors or irregularities of the court must be taken advantage of by appeal, and cannot be attacked collaterally. This doctrine is so well settled that it is not necessary to discuss it here; in fact, it is frankly conceded by respondent. His contention, however, is that it was necessary to serve the de fendant with a copy of the complaint, to give the court jurisdiction of the person of the defendant, and, the jurisdiction never having attached, all subsequent proceedings were absolutely void. Section 59 of the Code of 1881 provides that: "Civil actions in the several district courts in this territory shall be commenced by the filing of a complaint with the Iclerk of the court in which the action is brought, and the issuing of a summons thereon." And section 62 provides that the summons shall be served by the sheriff, or his

deputy, and when so served it shall be returned, with the certificate or affidavit of the officer of its service, and of the service of the copy of the complaint, to the office of the clerk from which the summons issued. However, the legislature (Laws 1887-88, pp. 24-28) passed a new law providing for the commencement of civil actions, providing 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, giving the form of summons, providing for the manner of serving the summons, and making other provisions for filing a copy of the complaint. So that it seems plain to us that under the provisions of this law the court obtained jurisdiction of the person of the defendant by the service upon him of the summons prescribed in the act.

If such was the case, the court having jurisdiction of the person and of the subject-matter, any subsequent error committed by the court in rendering the judgment-providing, of course, the judgment rendered was such a judgment as it had power to render under the pleadings-was a mere irregularity, which could not be collaterally attacked in this action. It appeared in this case that the judgment was entered by default, but the record shows that the witnesses were duly examined, and testimony taken on behalf of the plaintiffs therein, Surber and Eagan; that findings of fact and conclusions of law were duly filed, and upon such testimony and such findings the judgment was awarded. It is difficult to base an argument upon the bare construction of a statute, but it seems to us that it is plain that it was the intention of the lawmakers, in the act of 1888, to establish the jurisdiction of the court over the person of the defendant when the complaint was filed and the summons prescribed by law served. This seems to have been the logic of the decision of this court in Spokane Falls v. Curry, 2 Wash. St. 541, -27 Pac. 477, and our conclusion would be borne out by the language used in that case, even were it conceded that the law of 1881 governed this action, instead of the law of 1888. It seems to us, also, that the judgment rendered in this action was such a judgment as was warranted by the pleadings in the case, or, at least, it was a judgment that the court would have been authorized to enter under the proofs which might have been introduced in that case. And the presumption being that the court acted within its jurisdiction, unless it clearly appears to the contrary, it will be presumed that, even though the pleadings as they were filed would not support the judgment rendered, the court may have considered the pleadings amended to correspond with the proof offered, and have entered a judgment in pursuance of such amendment. It being once ascertained that the court had jurisdiction of the person and of the subject-matter, the presumption will attach and continue,

1. Code Proc. § 756 et seq., giving a surety a right to call on the creditor to sue the principal, and entitling the surety to a discharge if the creditor refuses to do so, affords an additional remedy, and does not deprive a surety of any right which he had before its enactment. 2. Where an action is brought against a principal and surety, and the principal, because of his nonresidence, is not served, the fact that a judgment was rendered against the surety, and no judgment was rendered against the principal, is not conclusive, as against the principal's liability to the surety.

3. Where an action is commenced against a principal and surety, and the former, by reason of nonresidence, is not served, and, after a defense, judgment is rendered against the surety, such judgment is admissible in evidence in an action by the surety against the principal to recover the amount paid thereon, and is, prima facie, sufficient to authorize the surety to recover such amount.

4. It is no defense to an action by executors to recover a debt due the estate that they had rendered a final accounting, where they had not been finally discharged, nor their bondsmen released.

5. The fact that a nonresident has property in the state will not affect the suspension of the statute of limitations during his nonresidence.

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

Action by A. A. Denny and F. X. Prefontaine, executors, against William P. Sayward. From a judgment for plaintiffs, defendant appeals. Affirmed.

Battle & Shipley, for appellant. Bausman, Kelleher & Emory, for respondents.

HOYT, J. Plaintiffs brought this action to recover money alleged to have been paid by them in part satisfaction of a judgment against their decedent. Such judgment was recovered in a suit brought upon a contract which was in substantially the following language: "This agreement, made and entered into this 3d day of September, 1880, by and between George A. Meigs and William P. Sayward, by his attorney in fact and managing agent, George A. Meigs, and James Crawford and William A. Harrington, partners, doing business under the firm name of Craw

ford & Harrington, the parties of the first part, and Granville O. Haller and Donald Dingwall, by their attorney in fact and agent, G. Morris Haller, the parties of the second part, witnesseth: That the parties of the first part agree to and have purchased from and of the parties of the second part, and the said parties of the second part agree to and have sold to the said parties of the first part, all the saw logs belonging to the said Donald Dingwall, and which the said Granville O. Haller has a mortgage upon, now situate, lying, or being in the Samish river and the sloughs adjacent thereto in Whatcom county, W. T., and estimated to be about three and one-half million feet, more or less, upon the terms and conditions following, to wit, that is to say: Whereas the Meigs Lumber and Ship Building Company is indebted to Granville O. Haller in the sum of three thousand five hundred and ninety-six and 75/100 ($3,596.75) dol'ars, with interest thereon from May 20, 1879, until paid, at the rate of ten per cent, per annum, besides costs, upon a judgment entered in the district court of the 3d judicial district of Washington Territory, holding terms at Port Townsend, on the 22d day of May, 1879, and wholly unpaid: Now, therefore, the said logs are sold at Samish river, and are to be scaled by Edward McTaggert, the government surveyor of logs at said place, before removal therefrom, said surveyor to scale the same according to the laws of Washington Territory now in force, and is to exclude from said scale the damaged sap upon said logs, and also such logs as are not merchantable. The said parties of the first part shall furnish to said parties of the second part such additional boom chains as shall be necessary for booming said logs, and shall begin taking said logs at once, and shall continue taking said logs at the rate of at least five hundred thousand feet per month if the said Dingwall shall have them boomed that fast, and shall have all said logs turned away by the first day of March, 1881, and shall pay for the same to G. Morris Haller, or his order, at the rate of five dollars per thousand feet for each and every thousand feet so scaled, according to the certificate of said Edward McTaggert; and, for every thousand feet so paid for, said parties of the second part shall credit one dollar upon the said judgment, said payments to be made by said Crawford and Harrington at the bank of Dexter, Horton & Co., in Seattle, sixty days from the date of the removal of each boom of said logs from said Samish river, and shall be of the full price of the logs so removed; and, in case said logs are not removed as fast as five hundred thousand feet per month, still the said logs shall be paid for sixty days from the date that notice is given to said Crawford and Harrington that such amount is ready for removal, the same as if they had been taken and removed on the date of said notice. And

if the said logs are not all removed by the 1st day of March, 18881, still the balance remaining shall be paid for as aforesaid, sixty days from said time, the same as if said logs were removed on said day; and said parties of the first part also agree to pay as aforesaid, at the time the last payment of said logs is due as aforesaid, whatever balance remains due upon said judg ment, together with the costs therein. In witness whereof, the parties hereto have hereunto set their hands and seals, this 8th day of September, 1880. [Signed] G. A. Meigs. [Seal.] W. P. Sayward, [Seal.] by His Attorney in Fact, G. A. Meigs. [Seal.] James Crawford. [Seal.] Wm. A. Harrington. [Seal.] Crawford & Harrington. [Seal.] Granville O. Haller, by His Attorney in Fact, G. Morris Haller. [Seal.] Donald Dingwall, by His Attorney in Fact, G. Morris Haller, [Seal.]"

The ground upon which the recovery was sought in this action was that James Crawford and William A. Harrington, against whom the judgment was rendered which plaintiffs had been required to pay, were, though named as principals in said contract, in fact only sureties for the defendant. Upon the trial the following facts were sufficiently proven to require their submission to the jury for determination: That, prior to 1880, George A. Meigs, or the Meigs Lumber & Ship Building Company, was the owner and operator of certain sawmills known as the "Port Madison Mills," together with a large amount of timber land and other property usually owned in connection with the operation of such mills; that thereafter, and before the execution of the contract above referred to, these mills and the property owned in connection therewith were sold to the defendant; that he entered into the possession thereof, and continued to operate said mills as they had been before operated; that for the purposes of the operation of such mills defendant constituted George A. Meigs his agent, with full power to transact all business necessary to or usual in connection with such operation, including the purchasing of logs for the use of the mills and the sale of their products; that said Meigs, as such agent, had been so operating these mills for some time before the contract in question was entered into, and, as incident to such operation, had, in the name of said defendant, purchased large amounts of saw logs for cash and upon credit; that his action in so doing was known to the defendant, and had been fully ratified and confirmed by him; that the said Meigs, as such agent, desired to purchase for the use of said mills a lot of saw logs, consisting of about 3,500,000 feet, owned by one Donald Dingwall, and situated in the Samish slough, upon which logs Granville O. Haller had a mortgage, so that they could not be sold without his consent; that he desired to purchase the same upon credit; that the owner and said Haller refused to

sell the logs on credit, unless security in writing for the performance of the contract of purchase were furnished by said Meigs, as agent for the defendant; that it was agreed between said Meigs, as such agent, and said Dingwall and Haller, that they would make the sale upon credit if James Crawford and William A. Harrington would become sureties for the performance of the terms thereof by the defendant; that for the purpose of evidencing such sale, and the agreement of suretyship upon the part of said James Crawford and William A. Harrington, the contract above set out was entered into; that, for convenience, the said Crawford and Harrington and the said Meigs were joined with defendant as principals, but that in fact they only signed and became liable upon the contract as sureties for said defendant; that thereafter, and upon alleged noncompliance with the terms of the contract, an action was brought by Granville O. Haller, who had succeeded to the rights of said Donald Dingwall, against said George A. Meigs, the defendant, James Crawford, and William A. Harrington; that in such suit no service was had upon the defendant; that the defendants Crawford and Harrington appeared and defended the action; that the said George A. Meigs also defended; that the cause, as against the defendants who were served, was tried upon its merits, and resulted in a judgment of $15,000, or more, against them; that thereafter said Crawford died, leaving a last will and testament, of which the plaintiffs were duly appointed and qualified as executors; that, as such executors, they were called upon to and did pay seven or eight thousand dollars of the judgment so recovered; that said defendant, at the time of the execution of said contract was, and ever since has been, a nonresident of the state of Washington, residing in the province of British Columbia. Other facts necessary for an understanding of the points decided will appear in the course of the opinion. The trial resulted in favor of the plaintiffs, and from the judgment against him the defendant has appealed. He here attacks the proceedings in a voluminous brief, prepared with care and ability. The numerous questions presented by the record are fully discussed, and it seems to us the best possible showing for the reversal of the judgment has been made. Such brief is so voluminous, and the points, when considered separately, are so numerous, that we shall not attempt such consideration, but shall follow the grouping under principal points of the appellant's brief, without attempting a detailed discussion of the several subpoints under each principal one.

The first error assigned is in the overruling of defendant's demurrer to the complaint. The principal reason suggested why the complaint is insufficient is that the plaintiffs' decedent, as a surety, should have protected himself in the original action, under the pro

visions of section 756 et seq., Code Proc.,1 and that, having failed to do so, he is without remedy. In our opinion, this statute in no way limited the rights of sureties as they existed before its enactment. The object of the statute was to afford an additional and more complete remedy than existed, and not to deprive a surety of rights which he had before its enactment. See Harker v. Glidewell, 23 Ind. 219; Brandt, Sur. § 214.

The next objection upon the trial was as to the introduction of any testimony on the part of the plaintiffs, and, as reasons for such objection, it was contended that since the defendant was a party to the former action, and no judgment was taken against him, it was res adjudicata in his favor. Such might be the rule as between the original plaintiff and the defendant, but could not be as between the latter and a codefendant in that action; especially where, as in this case, the defendant was a nonresident of the state, and never appeared in the action. See Snider v. Greathouse, 16 Ark. 72; Peters v. Barnhill, 1 Hill (S. C.) 234.

Upon the trial the court allowed answers of the defendant to certain interrogatories propounded to him by the plaintiffs to be put in evidence, and it is alleged that this was error. No authorities are cited to sustain this allegation of error, and no reason satisfactory to our minds has been suggested why such answers could not be shown as admissions against interest. Besides, the statute seems to contemplate that the answers shall be put in evidence, and, when in, shall be subject to contradiction. See sections 1660-1665, Code Proc.

The fourth objection grows out of the terms of the contract above set out. It is claimed that it appears from its terms that it was entered into, in part at least, to secure the payment of the debt of the agent, George A. Meigs, or of the Meigs Lumber & Ship Building Company, of which he was the manager, and that for that reason it was not in the power of said Meigs, as agent, to bind the defendant, as his principal, to its performance. If the primary object of the execution of the contract had been to secure the payment of this debt, there would be force in this objection; but an examination of all the language used fails to satisfy us that such was the object. On the contrary, it sufficiently appears that the object sought was to secure for the defendant a large quantity of logs, at a sum per thousand which it is not claimed was in excess of the market price. And, this being so, we think its execution was within the power of said Meigs, as agent for the defendant. It was within the scope of his authority in conducting the mill business, a part of which was the securing of logs for its use.

1 Code Proc. § 756 et seq. gives a surety a right to call on the creditor to sue the principal, and entitles the surety to a discharge if the creditor refuses to do in.

The next contention grows out of the action of the court in admitting in evidence a copy of the judgment upon which the money sought to be recovered had been paid by plaintiffs. The reason for objecting to the introduction of this copy was that the defendant had not been served with process in the action, and could not be affected by the judgment. Authorities have been cited to establish the doctrine that one not served with process in an action is not bound by a judgment rendered therein; but they are none of them in point, under the circumstances of this case. A judgment against the sureties, rendered without their consent, and especially after a defense made in good faith by them, is at least prima facie sufficient to authorize them to recover of their principal the amount which they have been called upon to pay thereon; and if the principal had knowledge of the pendency of the action, even though he was not served with process therein, the judgment rendered against the sureties, without fault on their part, would be conclusive in an action by them to recover money which they had paid on account of such judgment. The effect of this judgment upon the defendant was in issue in the case of Dexter v. Sayward, 66 Fed. 265; and the conclusion reached by the learned judge who tried the case was in accord with the above suggestions. See, also, Williams v. Greer, 4 Hayw. (Tenn.) 235; Bone v. Torry, 16 Ark. 83; Lewis v. Fort, 75 N. C. 251; Hare v. Grant, 77 N. C. 203.

The next objection grows out of an alleged variance between the judgment proven and the judgment introduced in evidence.

There

may be some question as to whether or not the former judgment was against James Crawford and William A. Harrington as individuals or as members of the partnership of Crawford & Harrington; but it does not so clearly appear that the defendant was injured by any questions growing out of this variance, if variance it was. as to justify a reversal. Defendant objects to the judgment upon the ground that it does not show that it was ever entered in the journals of the court in which it was rendered. We have examined the transcript of the judgment, together with Its authentication, and are unable to see anything which would authorize its rejection for the reason suggested.

The next objection is not, in our opinion, warranted by the proofs. We are unable to find from the record that the payment upon the judgment was other than compulsory on the part of the plaintiffs.

The foundation of the next allegation of error is stated by the appellant as follows: "In a suit by surety for subrogation, principal entitled to use every legal defense." This is not an exact statement of the principle which it is claimed was negatived by the court upon the trial. The plaintiffs did not seek a technical subrogation to the rights of the plaintiff in the original action; they

sought an independent recovery of money which they had paid on account of the defendant, and introduced the judgment only for the purpose of showing that such payment was not a voluntary one. As stated before, the weight of authority is to the effect that a judgment like the one sought to be introduced in the case at bar is at least prima facie evidence as against the principal; and that it is conclusive unless some collusion or fraud upon the part of the surety is shown. The testimony offered by the defendant did not tend to show any such fraud or collusion, and, if it did, it was not competent under the pleadings. There was no sufficient allegation of fraud or collusion on the part of the sureties in the answer. Besides, we think the evidence disclosed a state of facts from which it could be fairly presumed that defendant had notice of the pendency of the former suit.

It is next claimed that the contract, for the violation of which the original action was prosecuted, was so ambiguous that evidence dehors the instrument was admissible to show the intention of the parties. But an examination of the language of the contract fails to show us any such ambiguity as would warrant evidence of that kind.

Defendant claims that he should have been allowed to prove that administration of the partnership of Crawford & Harrington was pending. But what we have said in reference to the question of variance between the judgment pleaded and the one proven is sufficient answer to the contention in that regard.

It is next contended that the estate of James Crawford, under his will, had been completely settled, and that, for that reason, the executors had no authority to maintain the action. It appeared from the testimony that administration of the estate had so far progressed that there had been a final account rendered, and an order of distribution made and carried into effect. It is possible that these acts would, for certain purposes, warrant the presumption that administration of the estate had been closed. But this presumption cannot be invoked by the defendant for the purposes sought. When the interests of the estate require the exercise of authority by an executor, his right to act should be upheld, if he has not received his final discharge, unless his bondsmen have been released.

The defendant invokes the aid of the statute of limitations. It appears that, from the time the right of action accrued until the suit thereon was commenced, the defendant had been a nonresident of the state, and absent therefrom. This, it is conceded, would prevent the running of the statute were it not for the fact that defendant had property in the state liable to attachments. But it is argued that since the plaintiffs could, by suing out a writ of attachment, have prosecuted their action without personal service upon