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case, the court below committed no error we deem it wholly immaterial, The inin withdrawing its consideration from the dorsement in no sense changed the rights, jury.

interests, duties, or obligations of the parAs to the second defense above noticed, | ties; hence was and is immaterial. Derby appellant insists that the giving of the verbal v. Thrall, 44 Vt. 413; Herrick v. Baldwin, notice, coupled with the promise of plain- 17 Minn. 209 (Gil. 183). It cannot be contiff to bring suit, and the subsequent bring- sidered as an unqualified or definite agreeing of the suit, constituted a waiver on the ment to extend the time of payment of the part of the plaintiff of the “notice in writ- note, and was in no sense binding upon the ing' contemplated by section 756, supra, and parties. It was not an enforceable agreethat the subsequent dismissal of the suit by ment for the extension of time. We conthe plaintiff operated in law to discharge the clude that there was no evidence which appellant from his obligation as surety. We tended to show that appellant, as surety for think the position is not well taken.. While defendant Stegmier, was prejudiced by any we have no doubt that the "notice in writ- act of respondent, or that respondent omiting" may be waived, it seems to be well set- ted to perform any duty which he owed to tled that a mere oral request upon the part appellant by reason of such suretyship; and of the surety to sue, and a promise upon the the learned judge was right in directing a part of the creditor to comply with the re- verdict for the respondent, and the judgquest, will not, in general, or when unac- ment entered upon it is affirmed. companied by other declarations or circumstances, constitute such waiver. Chris- HOYT, C. J., and SCOTT, ANDERS, and

v. Tuttle, 59 Ind. 155; English v. DUNBAR, JJ., concur. Bourn, 7 Bush, 138. Nor does the fact that the plaintiff thereafter brought suit, and subsequently dismissed it, operate to exon

(11 Wash, 12) erate the surety under the circumstances of

WOODBURY V. HENNINGSEN. this case. The allegations of the answer in

(Supreme Court of Washington. Jan. 25, 1895.) this regard are too indefinite to enable us

SPECIAL APPEARANCE-WAIVER-CERTIORARI FROM to conclude that the suit was brought as a

Justice-WANT OF JURISDICTION. result of the notice. According to the an

1. A party who appears specially to object swer, the notice was given "between the to the jurisdiction of a court does not waive 19th day of June, 1892, and the 10th day of such objection by proceeding to trial. May, 1893, but suit was not brought until

2. Under Code Proc. $ 1621, providing that,

if any person shall conceive himself injured by May 10, 1893, and the only demand which

error in any judgment given by a justice of the the evidence tended at all to prove was peace, he may remove such judgment to the sumade in July, 1892, 10 months before suit

perior court, certiorari will lie to review the acwas brought; hence, neither under the al

tion of a justice of the peace in assuming juris

diction of an action. legations of his answer nor the proof submitted under it is the appellant in a posi

Appeal from superior court, Spokane countion to claim that the bringing of the suit

ty; Norman Buck, Judge. constituted a waiver by respondent of the

Action by William Woodbury against Henwritten notice. Nor can he be heard to

ry Henningsen. From a judgment of the urge that plaintiff's dismissal of the suit justice court for plaintiff, defendant sued without proceeding to judgment against

out a writ of certiorari to the superior court, Stegmier exonerated him, because he not

and from an order dismissing the writ de

fendant appeals. Reversed. only was in court at the time, defending as a surety, and had notice of plaintiff's appli- Plummer & Thayer, for appellant. Richcation, and made no objection to it, but we ardson & Gallagher, for respondent. think the dismissal was brought about by his own conduct upon the hearing, and that DUNBAR, J. This was an action of rehe must be deemed to have consented to it. plevin in a justice's court of Spokane county. If, after a surety has notified the creditor The action was attempted to be commenced to bring suit, he subsequently consents to by the service of notice and complaint, as the dismissal of the suit brought pursuant provided in sections 1454, 1455, Code Civ. to such notice, he will remain bound with- Proc. The notice and complaint were served out any new promise." Brandt, Sur. (20. upon the defendant by delivering a copy of Ed.) 8 609.

said notice and complaint to a child under Lastly, tbe appellant contends that the in- the age of 12 years; and the return of servdorsement on the back of said note in suit, ice on file shows that a copy of said notice viz. "with privilege of three months' exten- was delivered to defendant's daughter, a girl sion if security remains satisfactory," was of the age of 11 years. Upon the cause beplaced thereon after the note was signed by ing called for trial, defendant moved the the appellant, and without his knowledge or court to quash the return of service of the consent, and that the court erred in ad- notice and complaint, for the reason that no mitting the note bearing this indorsement notice of summons authorized by law had In evidence under the pleadings. Assuming ever been served upon the defendant, said the fact to be as claimed by the appellant, motion specifying that the appearance was for the purposes set forth therein, and for in chapter 15, entitled, “Of Appeals from no other purpose whatsoever. The motion Justices' Courts," section 1630 provides: was overruled, and the defendant excepted | "Any person considering himself aggrieved to the ruling. The complaint did not state by any judgment or decision of a justice of whether or not the property mentioned was the peace in a civil action or proceeding, may, then, or ever had been, in the county of in person or by his agent, appeal therefrom Spokane. The defendant demurred to the to the superior court," etc. And subsequent complaint, on the ground that it did not state sections provide the manner in which the facts sufficient to constitute a cause of ac- appeal shall be taken. It seems plain, theretion, and upon the further ground that the fore, that these remedies are intended by justice had no jurisdiction of the subject- statute to be concurrent remedies, and that, matter of the action. The justice overruled so far as the statutory right of certiorari said demurrer, to which ruling the defend- is concerned, all the requirement is that the ant excepted. No evidence was introduced person shall conceive himself injured by er. as to this point. Upon tbe hearing of the ror in

any process, proceeding, or judg. case, judgment was rendered against the de- ment, etc. Finding, then, that the court in fendant in favor of the plaintiff for $15, and this case had neither jurisdiction of the perfor $35.70 costs. A writ of certiorari was son nor the subject-matter of the suit, and sued out to the superior court, which result- that such want of jurisdiction was not waived in the dismissal of the writ, from which ed by the subsequent answer of the appelorder an appeal was taken to this court. It lant; and further finding that the writ of is conceded by respondent that the service certiorari was available to the appellant un. in the case was not sufficient to confer ju- der the statute, the judgment of the lower risdiction of the person on the justice, but court will be reversed, and the cause rethe contention is that the appellant waived manded, with instructions to proceed in acthat defect, submitted to and conferred ju- cordance with this opinion. risdiction of the person on the justice by continuing in the case, excepting to the rul

HOYT, C. J., and SCOTT, ANDERS, and ings of the justice thereafter, appearing gen

GORDON, JJ., concur. erally and answering, and going to trial after his objection, by way of special appearance, was overruled by the justice. The authori

(11 Wash. 63) ties upon this question are not uniform, STATE ex rel. SCHWABACHER BROS. & some courts holding that it is incumbent

CO. v. SUPERIOR COURT OF upon the party claiming a want of jurisdic

KING COUNTY et al. tion to stand upon his special motion, while (Supreme Court of Washington. Feb. 4, 1895.) others hold to the doctrine that, when the WRIT OF PROHIBITION -INJUNCTION TO RESTRAIN special motion is made and overruled, no

EXECUTIOX. waiver will be imputed by proceeding to

Prohibition will not lie, at the instance

of an execution creditor, to restrain a trial try the case upon its merits. We think the

court from enjoining the execution sale, and latter position is the better one, and there- from turning the debtor's property over to a refore hold that the justice court did not ob- ceiver appointei: by it for the benefit of all credtain jurisdiction by the general appearance

itors. Hoyt, C. J., dissenting. entered by the defendant after his motion

Application for writ of prohibition upon had been overruled. In support of the con

relation of Schwabacher Bros. & Co., a cortention that the court did not have juris- poration, against the superior court of the diction of the subject-matter, we cite sec

state of Washington in and for King county, tions 22, 27, Code Proc.

and others, to enjoin the court from issuing This leaves but one other question in the

an order restraining it from an execution case, viz.: Will a writ of certiorari lie from sale of property of an insolvent, and turning the justice's court in a case of this kind? it over to a receiver to be sold, the proceeds The general doctrine of the common law was

to be paid into court. Writ denied. that a writ of certiorari will lie where a Donworth & Howe, for relator. Allen & court is acting without jurisdiction, and Powell, for respondents. under our statute it seems plain that the writ of certiorari lies from a justice's court. SCOTT, J. This was an application for a Section 1621, Code Proc., provides: “If any writ of prohibition. The Abrams Grocery person shall conceive himself injured by er- Company was a corporation organized and ror in any process, proceeding, judgment, or doing business under the laws of this state. order given by any justice of the peace with- The relator, Schwabacher Bros. & Co., in this state, it shall be lawful for such per- claimed a lien upon its property, which con

to remove such process, proceeding, sisted of a stock of groceries, by virtue of an judgment, or order to the superior court, as execution levy issued upon a judgment which hereinafter provided.” And subsequent sec- had been confessed by the Abrams Grocery tions provide for the suing out and issuance Company. The respondent Wesley Comp. of the writ of certiorari. In fact, these pro- ton had been appointed receiver of said visions are under a chapter entitled, “Of Cer- company in a suit instituted by one of its tiorari, and Proceedings Thereon." Now, creditors. Thereafter, and prior to a sale

son

of the property aforesaid under said execu- by the receiver are determined in his favor, tion levy, said receiver instituted an action the creditors of the Abrams Grocery Comagainst the relator and certain other cred- pany clearly have a right, under the deciitors of said company, alleging that the judg- sions of this court, to have its property prement aforesaid was invalid, and was an at- served and equitably distributed among them tempted fraudulent preference of a creditor; in payment of their respective clailus, rethat certain other of the creditors claimed gardless of the rights of the insoivent corcertain interests in the property or liens by poration or what it could do in the matter. virtue of attachineut levies; and that said The court was satisfied, upon the proof subproperty so levied upon was all the property mitted, to grant the order restraining the owned and possessed by the Abrams Gro- sale, and this is the substantial matter comcery Company; and asked that the sale plained of, although the matters with reaforesaid be restrained, and the property spect to turning the property over and its turned over to said receiver; and said cred- conversion into money were substantially initors were cited to show cause why such sale volved therein; and upon finding that the should not be restrained, and the property sale should be restrained, and that the propturued over to the receiver. Of the creditors erty was of a perishable nature, the court cited, the relators were the only ones who had authority to direct the same to be turned appeared to contest the same. A hearing over to the receiver, to be converted as aforewas had thereon, whereupon the court or- said, for the purpose of preserving the same. dered that the sale aforesaid be restrained, This case differs essentially from the two and that the property be turned over to the preceding cases cited, in that the Abrams receiver; and the court, having found that Grocery Company was shown to be an insolsaid property was of a perishable nature, vent corporation, and that the relator claimed further ordered that the receiver convert the right and was proceeding to sell the enthe same into money, and pay the same into tire property to satisfy its judgment, and the court, to await the trial and determination relator and the other creditors were parties of the issues raised in the suit aforesaid to the suit wherein such action was taken, brought by the receiver. The formal order and their respective liens were not lost or was not signed at that time, but a written interfered with in such suit or proceeding memorandum thereof was entered upon the further than to restrain the sale pending a minutes of the court, and the court directed trial of the issues raised. We clearly would a formal order to be prepared, which was not probibit the action of the court in redone, and submitted to the court, and signed straining a sale of the property, and as the on the succeeding day. At the time the form- claimed lien of the relator is not lost, but al order was presenteå for the signature is clearly preserved by the order aforesaid, of the judge, the relator again appeared and and as the order directing a transfer of the objected thereto, and further represented to property from the sheriff to the receiver was the court that it had a further lien upon said simply a transfer from the possession of one property by virtue of an attachment levy officer of the court to another, whereby it thereon, wbich point, it appears by the affi- might be better preserved to answer the davits submitted by said relator at the hear- claims of the creditors, and as the relator ing, and by the return of the court, had not can lose none of its rights in the premises been raised at the time of the hearing, or

and has the right to appeal in that cause, prior to the announcement of the order and we are satisfied that the issuance of a writ minute thereof as aforesaid. We do not re- of probibition would be an unwarranted ingard it as material whether relator had an terference with the proceedings of the lower attachment lien in addition to the execution court, not necessary to preserve the rights lien, except that it was not in issue in the of the relator in any manner.

There can be suit brought by the receiver, having arisen no technical right existing in the relator, unsubsequent thereto. But, not having been der the circumstances of this case, to have presented in time, it was not entitled to con- the property remain in the custody of any sideration. If it had been so presented, the particular officer of the court; and the court complaint could have been amended to in- having found that the property could best clude it, and an issue raised thereon for the be preserved by transferring it to the recourt to determine in the matter then be- ceiver, and having the same converted into fore it. It is contended that the writ should money, its judgment should be respected, issue on the authority of State v. Superior

and the parties interested made to litigate Court of Snobomish Co., 7 Wash. 77, 34 Pac.

their rights in said action. Writ denied. 430, and State v. Superior Court of Chehalis Co., 8 Wash. 210, 35 Pac. 1087. Many cases

DUNBAR, ANDERS, and GORDON, JJ., were there considered by the court, to which we think it unnecessary to again refer. But the facts presented here do not bring this HOYT, C. J. (dissenting). I think that the case within the authority of either of the rule announced in the cases cited requires & two cases mentioned, nor do we think tbe different conclusion from the one announced rule should be extended to include a case in the foregoing opinion, and for that reason like the present one. If the matters alleged am compelled to dissent

concur.

(10 Wash, 520)

him and all idea of hardship to him is elimHIILLS V. SEATTLE & M. RY. CO.1 inated, and the court is free to act without (Supreme Court of Washington. Jan. 8, 1895.) | such consideration. The appellant here has CONDITION SUBSEQUENT-Deed to Railway Com.

all along been urging the theory of a condiPANY-COVENANT TO MAINTAIN DITCH. tion subsequent, and has, by its answer, of

A deed to a railway company of a right fered to pay the just value of the land taken of way, "to have and to hold

* subject

by it, and damages to land of the respondent to the following condition, which is made a part of the consideration of the foregoing trans- i

not taken. But upon the merits of the case fer," the condition being that the railway com

as set forth in the complaint, we think this a pany would maintain an irrigation ditch, cre- case of condition subsequent, without regard ates a condition subsequent, and does not give

to the position of the appellant. The lanthe grantor a right to sue for damages for failure to maintain the ditch.

guage of the habendum: "To have and to Appeal from superior court, Skagit county;

hold the said premises, with appurtenances,

unto the said party of the second part, and Henry McBride, Judge.

to its successors and assigns forever, subject Action by F. D. C. Mills against the Seattle & Montana Railway Company. From an

to the following conditions, which are made

a part of the consideration of the foregoing order overruling a demurrer to the complaint

transfer,”-tends to support this view. The and judgment thereupon for plaintiff, defend

consideration is to cover not only the conant appeals. Reversed.

struction of the ditch, but the perpetual mainBurke, Shepard & Woods, for appellant. tenance of it; so that if, at any time, the Million & Houser, for respondent.

maintenance should be discontinued, it might

be said that the consideration had failed; STILES, J. This was an action for dam- or, if this result did not follow, there would ages, brought by the respondent upon sub- be frequent actions for damages, or proceedstantially the same state of facts, and upon ings to compel specific performance, which the terms of a similar deed, as were presented would be impracticable. Again, the obvious in Moorman v. Railway Co., 8 Wash. 98, 35 purpose, and the only reasonable purpose Pac. 596. But in this case the damages imaginable, for the construction of this proved and recovered related wholly to the ditch was, and must have been (and the eviincreased value of her land which respondent dence in the case confirms this), to provide a alleged she would have realized had the ditch means by which respondent's land might be been constructed as provided for in the deed, more effectually drained, and become more and to the loss suffered by her in consequence easily cultivated and more productive. But, of the failure of the appellant to so construct if the ditch had been constructed in the most and maintain the ditch. There was some- efficient manner known to human skill, and thing additional concerning fences and a no such results had been obtained, the mere crossing, but it was immaterial. The re- existence of the ditch would have been of no covery was had upon the theory that the value to the respondent. But, further, the stipulations in the deed constituted a prom- respondent was the recipient of some of the issory covenant, which the appellant was neighborhood notes, intended to pay for the bound to perform, and that, upon its fail- rights of way, and she has pleaded the form ure, damages were the proper remedy. The of them in her complaint. This form conappellant contended that the stipulations tains the following clause: "If the railroad should be construed as a condition subse- fails or neglects to dig the ditches in the quent, and it addressed its demurrer, and manner specified in its deeds for right of many objections made upon the trial, to way, or shall forfeit its right to lands deeded that point. We shall consider the demurrer for said right of way, then this note to be only. It is a proposition too well under- void, and the maker hereof released from all stood to require argument or citation that obligations hereunder;" showing her undercourts do not favor forfeitures, and that for standing to be that there might be a forfeithat reason they go very far in construing ture, when, in lieu of the note, she could fall the provisions of a deed poll against the back upon the right to regain her land, or grantor, to the end that the estate granted have from the appellant its just value. These may not be defeated, since the almost univer- ; considerations, and the fact that the grantee sal effect of sustaining a stipulation in such in the deed is itself content with the forfeian instrument as a condition subsequent is ture, should have caused the demurrer to be to work great hardship upon the grantee. ' sustained. Nor will the respondent suffer by But wherever the terms of the instrument this result. Presumably the cost of the ditch are plain and unambiguous, there is no hesi- was in the eyes of both parties the equivalent tation in enforcing the actual contract made of the damages for land to be taken and inby the parties. Where, however, the rare jured, and the respondent can now employ instance occurs, as it does here, that the the money which she will receive in accomgrantee is found insisting upon the construc- plishing the same result herself. We do tion of a condition subsequent, and that for- not think damages of the kind here sued for feiture shall take place, all consideration for

ever in the contemplation of either

party. No force is added to the complaint 1 Rehearing pending.

by the allegations that the county commis

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sioners were about to build a ditch, but were and costs, from which order and judgment stopped by the appellant's proposals. The this appeal is prosecuted. law under which the commissioners were The sole question for our determination in acting has been declared void and inopera- this case is whether a national bank has a tive, and nothing but failure would have right, in this state, to charge or receive a followed their attempt. County of Skagit v. higher rate of interest upon money loaned Stiles (decided Dec. 26, 1894) 39 Pac. 116. than 7 per cent. per annum. For a deterCases more like the case at bar than any mination of this question it is necessary to. that we have observed are Blanchard v. consider sections 5197 and 5198 of the ReRailway Co., 31 Mich. 42, and Hammond v. vised Statutes of the United States, which Railroad Co., 15 S. C. 10. In the former, are as follows: specific performance of a condition requiring “Sec. 5197. Any association may take, rethe erection of a depot building, and the ceive, reserve, and charge on any loan or stopping of trains on land conveyed, was discount made, or upon any note, bill of exrefused, the defendant taking the position change, or other evidences of debt, interest that the stipulations constituted a condition at the rate allowed by the laws of the state, subsequent, and not a covenant; in the latter territory or district where the bank is lothe grantor successfully contended that a cated, and no more, except that where by the provision for the maintenance of drainage | laws of any state a different rate is limited ditches was a condition, and not a covenant. for banks of issue organized under state Judgment reversed, and cause remanded, laws, the rate so limited shall be allowed for with directions to sustain the demurrer and associations organized or existing in any such dismiss.

state under this title. When no rate is fixed

by the laws of the state, or territory, or disHOYT and ANDERS, JJ., concur. DUN trict, the bank may take, receive, reserve or BAR, C. J., dissents.

charge a rate not exceeding seven per cen. tum, and such interest may be taken in ad

vance, reckoning the days for which the note, (11 Wash. 94)

bill or other evidence of debt has to run.

And the purchase, discount or sale of a bona. WOLVERTON v. EXCHANGE NAT. BANK OF SPOKANE.

fide bill of exchange, payable at another (No. 1,619.)

place than the place of such purchase, dis

count or sale, at not more than the current (Supreme Court of Washington. Feb. 7, 1895.)

rate of exchange for sight-drafts in addition INTEREST ALLOWED NATIONAL BANKS. to the interest, shall not be considered as

Rev. St. U. S. 8 5197, authorizes national taking or receiving a greater rate of interest. banks to take interest at the rate allowed in the “Sec. 5198. The taking, receiving, reservstate where the bank is located, and, when no rate is fixed by the laws of such state, they are

ing, or charging a rate of interest greater authorized to take interest at a rate not exceed- than is allowed by the preceding section, ing 7 per cent. Held, that since 1 Hill's Code, 8 when knowingly done, shall be deemed a 2796, and Sess. Laws 1893, p. 29, allow individ

forfeiture of the entire interest which the uals and state banks to take any rate of interest agreed to in writing by the parties to the con

note, bill or other evidence of debt carries tract, national banks have the same privilege. with it, or which has been agreed to be paid

thereon. Appeal from superior court, Spokane coun

In case the greater rate of interest ty; James Z. Moore, Judge.

has been paid, the person by whom it has Action by W. M. Wolverton against the

been paid, or his legal representatives, may Exchange National Bank of Spokane. From

recover back, in an action in the nature of an order overruling a demurrer to the com

an action of debt, twice the amount of the plaint and judgment thereupon for plaintiff, interest thus paid from the association takdefendant appeals. Reversed.

ing or receiving the same; provided such

action is commenced within two years from Jones, Voorhees & Stephens, for appellant. the time the usurious transaction occurred. Jones, Belt & Quinn, for respondent.

(That suits, actions, and proceedings against

any association under this title may be had GORDON, J. This action is based upon in any circuit, district or territorial court of sections 5197 and 5198 of the Revised Stat- the United States held within the district utes of the United States, and is brought by in which such association may be established, the respondent against the appellant, a na- or in any state, county or municipal court tional bank, organized and incorporated un- in the county or city in which said associader the laws of congress, to recover double tion is located having jurisdiction in similar the amount of interest paid by respondent cases.)” to appellant in excess of 7 per cent., within Prior to June 7, 1893, and for a portion of two years prior to the commencement of the the time embraced within the complaint in action. To the complaint the appellant en- this action, sections 2795 and 2796 of voltered a general demurrer, which being over- ume 1 of Hill's Code were in force, which ruled below, he excepted, and, electing to sections read as follows: stand thereon, judgment was rendered in “Sec. 2795. The legal rate of interest shall favor of respondent for the sum of $2,568 | be ten per centum per annum

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