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"To have charged that the larceny was com- Appeal from superior court, King county; mitted by stealing ten dollars, of the value J. W. Langley, Judge. of ten dollars, would have been tautology." Action by William Cochrane against Gust And the information in that case was based Gunderson and another. Judgment for de upon a statute quite similar to our own. fendants, and plaintiff appeals. Appeal disSee, also, Gady v. State (Ala.) 3 South. 429, missed and State V. Anderson, 25 Minn. 66. The James Hamilton, Lewis & Stratton, and objections to the information should have | Lewis & Gilman, for appellants. Williambeen overruled.

son & Franklin, for respondents. Counsel for the appellant criticises the action of the court in permitting the defendant

DUNBAR, J. The judgment in this case to raise the question of the sufficiency of

was rendered December 23, 1893, in the suthe information by a motion to exclude testi- | perior court of King county, and filed Decemmony instead of by demurrer. We see no

ber 28, 1893. The amended notice of appeal warrant in the statute for such a practice,

was served February 14, 1894. The respond. but, if it is allowable at all, the defendant

ents move to dismiss this appeal, for a ffirmshould first ask leave to withdraw his plea

ance of judgment, and for costs and damages, of not guilty. The statute prescribes the

for the reasons that the same has not been mode of procedure in criminal cases, as well

taken according to law, and that the appeal as civil, and provides that the information

was taken for delay only. may be attacked by motion to set it aside,

Section 14 of chapter 61 of the Laws of by demurrer, or by motion in arrest of

1893 provides that, within four months after judgment. No provision is made for a de- an appeal shall have been taken, the clerk murrer, or for any motion in the nature of

of the superior court shall prepare and certia demurrer, pending the plea of not guilty, ty, and send up to this court, at the expense save the motion in arrest of judgment. The

of appellant, a bill of exceptions or state statute seems to imply that motions to quash

ment of facts, and a copy of so much of the and demurrers should be interposed prior to

record and files as the appellant shall deem the joinder of issue of fact by plea. Code

material to a review of the matters em. Proc. $ 1274. But, even conceding that the braced within the appeal. In this case the objection that the information does not

record fails to show that the appellant has charge an offense may be taken advantage

ever complied, in any particular, with the reof during the trial, still it would seem to be

quirements of this law. The original pathe better practice not to entertain such ob

pers in this case were filed in this court in Jection until the plea is withdrawn. In civil

September last, by the respondents, in supcases the statute provides that the objection

port of a motion to dismiss, instead of the that the complaint does not state a cause of

record which the law required in such case. action may be interposed at any stage of the

These papers were then returned by this proceedings; but, as we have before said,

court to the superior court, where they bewe find no such provision in the Criminal

longed. Afterwards, the respondents brought Code, and it may be questionable whether

a short record here, upon which the motion such an objection as that now under con

now under consideration is based.

The apsideration should be considered by the court,

pellant introduces an affidavit of the clerk especially in view of the statutory provi

of the superior court in aid of his contention sion that “all the forms of pleading in crim

that the appeal should not be dismissed, but, inal actions heretofore existing are abolish

even on the supposition that this affidavit ed; and hereafter the forms of pleading, and

could be considered by the court, it not hav. the rules by which the sufficiency of pleading been served on the respondents or their ings is to be determined, are those prescrib

counsel until the morning of the argument ed herein." But it is not necessary at this

of the motion, and no showing having been time to definitely pass upon that question,

made why it was not sooner served, it does and we refrain from doing so.

not disclose any excuse whatever for the The judgment is reversed, and the cause

lack of diligence on the part of the appellant remanded for further proceedings.

in prosecuting his appeal; nor is there an in

timation in said affidavit that the appellant, HOYT, C. J., and SCOTT and DUNBAR,

within the time prescribed by law, or even JJ., concur.

up to the present time, has ever authorized the sending of the transcript to this court,

or paid for the same. (11 Wash. 141)

It is earnestly contended by the respondCOCHRANE V. GUNDERSON et al. ents that they should be awarded damages (Supreme Court of Washington. Feb. 8, 1895.) provided for by the statute in certain cases, DISMISSAL OF APPEAL-FAILURE TO FILE RECORD.

but we are inclined to think that we wouid Where appellant fails to file a certified not be authorized, under the showing in this bill of exceptions or a statement of facts, as case, to grant any further damages than the required by Laws 1893, c. 61, § 14, to be filed within four months after the appeal is taken,

interest on the judgment. For the failure to and no excuse for such failure is shown, the ap

comply with the law in regard to prosecut peal will be dismissed.

ing appeals, mentioned above, the motion to

dismiss will be sustained, and the judgment in controversy, and upon such levy and proaffirmed, with costs in favor of the respond. ceedings had thereunder defendants' title is ents.

based. The sheriff's deed was issued to G.

G. Turner after his death. The defendant HOYT, C. J., and SCOTT, ANDERS, and Fidélia B. Turner claims title by virtue of a GORDON, JJ., concur.

will conveying G. G. Turner's property to her." The facts thus stated are supplement

ed by others shown by the record, and re(11 Wash. 189)

ferred to in the brief of the respondents, DIAMOND v. TURNER et al.

which are relied upon by them to sustain (Supreme Court of Washington. Feb. 14,

their title if it is necessary to invoke their 1895.)

aid. Upon such facts many questions have COMMUNITY PROPERTY SALE UNDER JUDGMENT

been elaborately argued, but the conclusion AGAINST HUSBAND'S FIRM-COLLATERAL ATTACK to which we have come as to the rights of -DEED TO DECEASED PURCHASER-EFFECT.

the parties upon the facts stated in appel1. A judgment for costs against a firm in lant's brief makes it unnecessary for us to an action to reform a lease of land to such'firm may be enforced against the community land of

say anything as to these questions. It will a member of the firm and his wife, in the ab- be seen by a reference to such statement, sence of a snowing that the firm's business was

and the argument of appellant founded not for the benefit of the community, and that it has sufficient available property to satisfy

thereon, that the important question to be the judgment.

decided is as to whether or not the judgment 2. Where a judgment against a firm is sat- under which the sale was made was of such isfied by sale of the community land of one of

a nature that it could be satisfied out of the the partners and his wife, the title of the purchaser cannot be collaterally attacked on the

community property of the defendant J. C. ground that there was property of the firm out

McFadden and his wife. of which the judgment could have been satis- We held in the case of Improvement Co. fied. 3. The fact that a sheriff's deed made pur

V. Sagmeister, 4 Wash. 710, 30 Pac. 1058, suant to an execution sale is executed to the that a liability incurred by a husband in purchaser after the latter's death does not ren- the prosecution of any business the profits der the title of those claiming under him void,

of which would belong to the community though the deed itself is void.

could be enforced against the community Appeal from superior court, Thurston

property, and that it would be presumed county; Mason Irwin, Judge.

that any business in which the husband Action by Lydia S. Diamond against Fi

might be engaged was for the benefit of the delia B. Turner and others to recover certain

community until the contrary was shown. real estate. From a judgment for defend

It must follow that, if the husband alone ants, plaintiff appeals. Affirmed.

had entered into the lease which was the W. I. Agnew and Phil Skillman, for ap- foundation of the action in which the judgpellant. John R. Mitchell, for respondents. ment in question was rendered, such judg.

ment would have been enforceable against HOYT, C. J. In the brief of appellant community property. The judgment would will be found the following statement of the have been rendered upon a liability incurred material facts, in the light of which the in the prosecution of a business which rights of the parties must be determined: would be presumed to have been conducted “The plaintiff, Lydia S. Diamond, and one for the benefit of the community. of the defendants, J. C. McFadden, were Does the fact that the business in furthermarried at Olympia, on the 9th day of De- ance of which the lease was made was to be cember, 1892, and continued as husband and prosecuted by the husband in connection wife until June 6, 1888. The land in con- with another in a partnership name troversy was acquired on the 12th day of change the rule as to make a liability incurDecember, 1885, by the defendant J. C. Mc- red therein by the husband only enforceFadden. On the 6th day of June, 1888, by able against his separate property? We a decree of divorce, the marriage relations think not. The community, and not the husbetween Lydia S. Diamond and J. C. Mc- band alone, would have been benefited if the Fadden were terminated, but no division, business of the partnership had resulted in separation, or disposition was made of their gain. Hence its losses should fall upon the community real estate. On March 26, 1885, community, and not upon the husband alone. a judgment was recovered by one G. G. Tur- It is a well-settled rule that the property of ner against the said J. C. McFadden and the individual members of a partnership can one D. P. Ballard, which judgment was for be made available for the payment of its the reformation of a lease of certain real debts when there is not sufficient partnerproperty made and executed by D. P. Bal- ship property available for that purpose. It lard and J. C. McFadden, as a partnership would seem to follow as a necessary conseknown as Ballard & McFadden, and the quence that process which would reach the money judgment was for costs in such ac- property of the individual members would tion. On March 6, 1886, an execution was be of such a nature as to be enforceable issued upon the cost judgment in such ac- against the community to the same extent tion, and levy was made upon the property as though the judgment upon which it was

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issued had been against such member for a liability incurred by him in the prosecution of a like business on his own account. The facts stated compel us to hold that the liability upon which the judgment in question was rendered was incurred in the prosecution of a community business, and that such judgment could be satisfied out of the community property. Such being the fact, but two reasons have been suggested why the sale under the execution did not vest a perfect title in the defendant Fidelia B. Turner, or those under whom she claims, as against the community and each of its members. One is that there was property belonging to the partnership out of which the execution could have been satisfied. That there was sufficient partnership property for that purpose does not clearly appear from the allegations or proofs, but, if there was, it would furnish no grounds for a collateral attack upon the proceedings which culminated in the sale. Such fact might bave furnished sufficient reason for setting aside the sale in a direct proceeding for that purpose. But, after it had been confirmed, it was invulnerable to collateral attack on account of facts not appearing in the record, unless a want of jurisdiction was thereby shown. The other is that the deed executed in pursuance of the sale was void, for the reason that it was executed in the name of a dead

It is no doubt true that a deed so executed could have no force whatever, but it does not follow that no title was acquired by the purchaser at the execution sale. The certificate of purchase and confirmation of sale were alone essential to pass the substantial title of the defendant in the execution to the purchaser at the sale.

The execution of the deed after the time for redemption had expired was a purely ministerial act on the part of the officer, and could have been compelled by the purchaser, or those claiming under him, at any time in a proper proceeding for that purpose. Until the sale had been set aside, a certificate of purchase would be as fully protected as though the legal title had been conveyed by deed made in pursuance of the statute. The judgment will be affirmed.

loss, there was evidence that the appraiser se. lected by the insurance companies exercised a continuous influence over the other appraiser and the umpire, and that he stated that he was working for the companies, and proposed to look after their interests; that every time the insured's manager interfered it would cost the insured something; and that he (the appraiser) was well paid by the companies, and they could well afford to do it. It further appeared that the award was grossly inadequaie; that before arranging for arbitration, and pending negotiations as to the loss, the company was taking steps to obtain an appraiser without the insured's knowledge; that the appraiser obtained was accepted by the insured because he was highly recommended by the company; that the insured's largest stockholder, who had principal charge of its business, was not aware of the apnraiser's misconduct; and that just before the award was signed the insured announced that it would not be bound by it, and repudiated it immediately when made. Held that, the objection to the appraisement having been made in due time, it should be set aside.

3. In an action on a fire insurance policy, where ihe amount of the loss cannot be exactly ascertained, the finding of the court in regard thereto will not be disturbed, if there is some evidence to support it.

4. By agreeing to arbitrate, the company waives the provision in the policy that, in case of dispute as to the amount of the loss, pay. ment shall be made 60 days after proofs of loss are submitted, so as to entitle the insured to interest on the amount of his loss, in case the arbitrators' award is set aside, from the date of the loss.

Appeal from superior court, Spokane county; Norman Buck, Judge.

man,

| Action by J. N. Glover against the Roch.

ester German Insurance Company to set aside an award and recover on an insuransa policy. Judgment in part for plaintiff, and both parties appeal. Affirmed.

Turner, Graves & McKinstry ·and Van Ness & Redman, for plaintiff. Nash & Nash, for defendant.

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SCOTT, J. This was an action upon an insurance policy to recover for a loss by tire. A number of other cases are by stipulation made dependent upon this one. The Spokane Mercantile Company was a corporation engaged in business at the city of Spokane, in this state, and had taken out insurance policies upon its stock of merchandise, in various companies, to the amount of $52,000. On the 9th day of January, 1893, said stock was greatly damaged and partly destroyed by fire. The defendant company had issued one of said policies in the sum of $1,000. It is alleged in the complaint that the several claims were by said mercantile company assigned to the plaintiff. It is fur. ther alleged that the value of said stock of goods at the time of said fire was the sum of $73,254.77, and that the loss to said company by reason of said fire was the sum of $60,575; that said mercantile company and the defendant were unable to agree upon the amount of the loss sustained, and thereupon, and in pursuance of policy conditions, an agreement was entered into whereby the question of the sound value of said goods at the time of said fire, and the damage thereto

(11 Wash. 143) GLOVER v. ROCHESTER GERMAN INS.

CO. (Supreme Court of Washington. Feb. 12,

1895.) ASSIGNMENT BY CORPORATE PRESIDENT-VALIDITY -INSURANCE-APPRAISEMENT OF Loss — FRAUD OF APPRAISER-INTEREST FROM DATE OF Loss.

1. An assignment of an insurance policy by a corporation, by its president and general man. ager, who, with one other, who advised and rat. ified the assignment, owned all the corporate stock, is valid.

2. In an action to set aside an award of

by reason thereof, was submitted to two ap- valid, on the ground that it was never aupraisers and an umpire, one of which ap- thorized or ratified by the board of direct. praisers, A. A. Brann, was selected by the ors. The assignment was made by Brockinsured, the other Hyman Lippman, by the bausen, the president and general manager defendant, and the umpire, E. Dempsie, by of the mercantile company. It appeared that the two appraisers; that the said arbitrators, the stock of said corporation was all owned in pursuance of said agreement, made an by said manager and one other person, and appraisement of said stock, and determined that said other stockholder advised and ratithat the sound value thereof at the time of fied the assignment. We think this was the fire was the sum of $50,319.84, and the sufficient to constitute a valid assignment of damage thereto by reason of said fire was the claim to the plaintiff. the sum of $24,560.45. The action was It is next contended that, upon the merits, brought to set aside this award, and to re- the award should be sustained, and the concover judgment for the full amount named in sideration of this question involves several said policy.

features of the case. First, as to the disOne of the grounds upon which such re qualitication of Lippman to act as an aplief was sought is as follows: It is charged praiser upon the ground of bias. The policy that the defendant represented to said Spo- | provided in this respect that the appraisers kane Mercantile Company that the said should be competent and disinterested, and, Lippman was competent, fair, and disinter- to satisfy this requirement, they should have ested; that he was unknown to the insured; been indifferent between the parties and imthat, relying upon said representation, it partial judges. It does not appear that Lippassented to his selection as such appraiser; man had been previously employed to act that in fact said Lippman was neither com- as an appraiser by the defendant company, petent, fair, nor disinterested; that he was although he had acted in that capacity on biased and interested towards and on be- two occasions for other companies. We do half of the defendant; that he had been not attach any importance to this, and it previously employed by the defendant to does not appear that the lower court did. act as an appraiser in similar cases; that Said court, however, found as a fact that the defendant fraudulently concealed from Lippman was biased and prejudiced in fasaid mercantile company the fact that said vor of the defendant. There was testimony Lippman had been previously employed by to show that Lippman exercised a continual the defendant in a similar capacity, and that controlling influence over the other appraiser he was biased in its behalf, and that the and the umpire, and substantially had matsaid award so rendered was unjust and un- ters his own way. It also appears that at fair to the insured, and was procured by the various times during the making of such apdefendant through fraud and collusion, and praisement Lippman made statements to the undue and improper means and influence; effect that he was working for the insurance that, prior to the time said award was companies, and that it was their stock; that signed, the said insured repudiated said ap. they were buying the stock; that he had sevpraisal, and rescinded said agreement of sub- eral altercations with Brockhausen, cursed mission thereto. The answer denied that the him, and ordered him out of the store, and value of the stock on hand at the time of that he said "every time Brockhausen interthe fire was any greater than the sum of feres it will cost the Spokane Mercantile $50,319.45; that the mercantile company re- Company something"; that he was there to pudiated the appraisal or rescinded the look after the interests of the insurance comagreement of submission prior to the sign- panies, and he proposed to do it; that he ing of the award, or at any time; and denied was well paid by the insurance companies the assignment of the policy to the plaintiff, to look after their interests; that they could on information and belief; and pleaded, as well afford to pay him good wages, for he an estoppel, full knowledge on the part of was of great benefit to them, and they well said mercantile company of the manner in knew it. There was testimony to show that which said appraisal was carried on, and of Lippman was very domineering throughout the conduct and actions of the appraisers in the entire proceeding; that he seemed to un. connection therewith, at the time. Certainderstand that he was there especially in the other matters were alleged and denied which interests of the insurance companies, for the are not material to the controversy. The purpose of getting the award made at as low case was tried before the court, sitting with- a figure as possible; and said that he was out a jury; a decree was rendered in favor acting for the insurance companies, and that of the plaintiff, vacating the award, and ad. Mr. Brann was there to represent the merjudging the loss of plaintiff's assignor to cantile company.

We think the statements have been $45,000; and judgment was en- and conduct of Lippman were such, taken in tered against the defendant for its propor- connection with the fact that the award was tionate share thereof. Both parties appealed such a grossly inadequate one-which we therefrom. The appeal of the insurance com- shall further consider on the question of the pany will be first considered.

amount of damages, -as to justify the lower It is contended that the purported assign- court in finding that Lippman was biased ment of said claim to the plaintitf was in- and prejudiced as charged.

And the next question is, was the right to y regard to an agreement as to the amount of have the award set aside upon that ground the loss, with a view to adjusting the same fost or waived by the mercantile company, in without an arbitration, the agents of the inconsequence of not making timely objection? surance companies were communicating by Cases have been submitted by appellant telegraph with other officers of said compaholding that partiality, interest, or relation- nies at San Francisco, whereby they were ship on the part of an arbitrator is no ground asking to have one of certain persons menfor setting aside an award, if the party | tioned immediately sent to Spokane for the complaining had knowledge of the facts purpose of acting as an arbitrator. These when he agreed to submit the cause to arbi- telegrams, with two others in connection tration, or in time to revoke the submission therewith, which were sent while the arbi. before the award was made. This rule istrators were at work, are as follows: undoubtedly sound, and can be applied with- “Feb. 7th, '93. Dated Spokane, Wash., 7. out difficulty where a single fact, like that To Liverpool London & Globe Ins. Co., S.: of interest or relationship, is involved, as Send Treanor or Godfrey Fisher at once. the discovery of that one fact prior to or dur- Frank H. Swett." ing the progress of the proceedings would

“S. F., Feb. 7, 1893. To Frank H. Swett, afford complete and unmistakable knowl

Spokane, Wn.: Appraiser will leave Wednesedge to the party. There is more difficulty,

day night unless further advised. Liverpool however, when considered with reference to London Globe." the partiality or prejudice of an arbitrator,

"Liverpool London Globe: Your telegram wbich was not known at the time of the sub

this 7 to Frank H. Swett, Spokane, Wn., is mission; for sufficient notice of this might undelivered. Swett left for Ft. Sherman, not be given by any single act or expression

Ida ho. Receiver.” of the arbitrator, and might only appear from

"S. F., Feb. 8th, 1893. To F. H. Swett, numerous acts or his entire conduct in the

Spokane, Wn.: Trainor and Fisher both enmatter, and it might be difficult to say just

gaged; Lippman leaves to-night; should arat what particular time the complaining par

rive Saturday morning. Liverpool London ty had obtained sufficient knowledge of such

Globe." partiality or prejudice when, if he did not

“S. F., Feb. 20th, 1893. To F. H. Swett, object, he should be held to be estopped from

Spokane, Wn.: Our appraiser double price; thereafter raising the question. It appears

do not hold him too long. C. Mason Kinne." by the undisputed testimony in the case that Lippman was entirely unknown to the offi

“Feb'y 21st, '93. Dated Spokane, Wash.,

21st. To Col. C. Mason Kinne, N. E. Cor. cers and agents of the mercantile company

Cala. & Leidesdorff: Case very bad; proat the time he was agreed upon as an arbitrator. It further appears that he was high-gressing rapidly as possible; appraiser worth ly recommended to them as a qualified, fair,

price. Frank H. Swett.” and disinterested person by the agents of the

This would indicate strongly that the ininsurance companies, and, relying upon these

surance companies were desirous of having representations, the mercantile company ac

some one particular person, who had precepted him as an arbitrator. Before arran

viously shown his ability to act in that capaging for the arbitration, it appears that the

city to their satisfaction and advantage, on officers of the mercantile company were ask

the ground to serve as one of the arbitrators. ed by the agents of the insurance companies,

It is also difficult to understand why such who were upon the ground, if they could not

a person should be sent to Spokane while agree upon the amount of the loss, and were

negotiations looking to an agreement were answered that they probably could, as there in progress, as was done, if the companies should be no difficulty in arriving at it; and

were proceeding in entire good faith. It that it was agreed that the mercantile com

would rather look as though there was an pany should submit a statement of the attempt to get some advantage of the mer. amount claimed, and that the agents of the cantile company in the premises. When the insurance companies would make out a state

estimate of the goods lost and damaged, and ment of what they admitted the loss to be. the amount claimed therefor, was submitted In pursuance of this understanding, a de- by the mercantile company, the agents of the tailed statement by the mercantile company insurance companies refused to agree thereto. was made out and submitted to the insur- It does not appear that they made any propance companies. It further appears that

osition themselves, but they insisted on an Nash, who was the larger stockholder in the appraisemnt by arbitrators under the condimercantile company, and was an attorney at tions of the policy. These communications law, had principal charge of the proceedings by telegraph were unknown to the officers for the mercantile company, and that he was

and agents of the mercantile company at the seldom present and took no active part in the time they passed between the agents of the appraisement; and it does not appear that insurance companies at Spokane and the he knew of all the statements and acts afore- officers of the companies at San Francisco; said of Lippman during the progress of the nor does it appear that they obtained any proceedings. It further appears that prior to knowledge with regard thereto prior to the and while the parties were negotiating with commencement of this action, the same being

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