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case, that such an attempt was made by the described was upon the lots described, and respondent. It is true the door above men, to show that all such lots were necessary for tioned was not furnished, and was probably the convenient use and occupation of the not an item which should have been properly structure, we think, is fully answered by the included in the lien statement; but the tes- testimony in the case. timony shows to our minds that it was only The fifth and sixth assignments of errors a mistake in judgment on the part of the we think equally without foundation. The respondent as to what his legal rights were, judgment will therefore, in all things, be afand, at most, that he was in doubt as to the firmed. legal standing of this item. It appears that the door was included in the material wbich

HOYT, C. J., and SCOTT, ANDERS, and the claimant was, under the written contract GORDON, JJ., concur. with the contractor, to furnish for the building, but that before it was furnished the contractor had seen a door somewhere else

(11 Wash. 193) that he thought would just suit the place

KLINE et al. v. CITY OF TACOMA et al. which this door was to occupy, and had asked (Supreme Court of Washington. Feb. 14, the respondent to allow him to obtain this

1895.) door elsewhere, viz. from Paulson's furnish- STREET ASSESSMENTS-VALIDITY-COLLATERAL ing house. The door furnished from Paul

ATTACK. son's was substituted for the one to be fur

1. Under the charter of the city of Tacoma,

providing that before the making of a street imnished by the respondent, and went into the provement, the cost of which is to be assessed building, and the owner of the building re- against the property benefited, the council shall ceived the benefit of it without any expense

pass a resolution "ordering the work to be or extra charge to him, and he was in no way

done, an assessment based on a resolution de

claring it to be the "intention" of the council damaged by the fact that one particular door to improve the street is void. Hoyt, C. J., diswas substituted for another. The respondent

senting.

2. Where an assessment against property having made a contract for the furnishing of

benefited by a street improvement is void for the door, it was natural for him to conclude failure to comply with the statutory requirethat it was a furnishing of the door by him, ments, the property owner may sue to set it even though he obtained the same elsewhere.

aside, though this involve a collateral attack on

the assessment proceedings. But, if it were not, we are satisfied there was no intention to perpetrate a fraud upon Appeal from superior court, Pierce coun. the appellant; and that was the view taken ty; John C. Stallcup, Judge. by the judge who tried the case, who saw

Action by Nerman Kline, trustee, and oththe witness upon the stand, his manner of

ers, against the city of Tacoma and others, testifying, etc., and who simply concluded

to set aside an assessment levied for imfrom all the facts in the case that justice provements. From the judgment dismisswould be best subserved by deducting the

ing the action, plaintiffs appeal. Reversed. value of the door, viz. three dollars, from the Tillotson & Milligan, for appellants. James claimant's bill, and giving judgment for the Wickersham and Stacy W. Gibbs, for rebalance. Even by this ruling the appellant | spondents. is relieved from paying the value of the door, when it received the benefit of it, or of one DUNBAR, J. This action, it seems to us, substituted for it, and is to that extent a falls squarely within the decision announgainer by the transaction which it is object-ced by this court in Buckley v. City of Taing to. Under the circumstances, we think coma, 9 Wash. 253, 37 Pac. 441. It was conwe would not be justified in declaring this ceded by one of the attorneys for respondlien i valid for this mistake.

ents that the case in its general features As to the second proposition, that the lien could not be distinguished from that case. claim is for materials used in the construc- It was contended, however, by respondents' tion and completion of a one-story refrigerat- other attorney, that there were some dising machine building and boiler house, and tinguishing features, but we are entirely that the proofs show there were two build- unable to discover them. The main propoings, instead of one, we have to say that in sition decided in the Buckley Case was that our judgment the proofs show that the build- the improvement had not been ordered by ings were substantially one; that, while resolution, as required by the charter. In there was an old boiler house on the grounds, the case at bar the resolution for the imit was overhauled, and rebuilt substantially, I provement is identical with that in the forand substantially connected with the refrig- mer case. It is argued by counsel for reerating machine building. So that, in this spondents that it was sufficient that the resrespect, we think there was no chance for olution declared the intention of the counany mistake as to the identity of the struc- cil to improve these streets, but in the tures in the lien notice or the complaint. This Buckley Case this court said: “But perhaps also answers the third proposition raised by the greatest defect of this resolution is that, appellant.

while it declares the intention of the counThe fourth contention, that the burden was cil to improve N street, it does not order upon the plaintiff to show that the structure anything, and furnishes no basis for any action on the part of the engineer and board state at any great length the reasons which of public works.” It is contended earnest- led me to differ from my associates in the ly by the respondents that this action can- construction of the law applied to that and not be maintained, because it is a collateral kindred cases. I, however, desire to state proceeding instead of a direct one. The generally the reason which lies at the basis case of Buckley v. City of Tacoma was also of the difference between us. It grows out a collateral attack, if, indeed, the present of the fact that to my mind such decisions case is a collateral instead of a direct at- do not sufficiently distinguish between the tack. But conceding, for the purposes of right of the property owner to escape paythis case, though a doubtful proposition, ment of taxes after the work for which they considering the fact that the law makes were levied has been completed, and his no provision for an appeal from such or- right, in a proper proceeding, to prevent ders, that this is a collateral proceeding, the the work being done. In the one case, the point raised by the respondents is not well rights are not asserted in due season; in taken; for even collateral attacks will be the other, they are. Enough appeared from entertained where the judgment or action the record in this and the other cases to is absolutely void. It was held by this show it was the intention of the common court in the case above cited that the action council to direct the work to be done at the of the corporation was void. After men- expense of the adjoining property owners, in tioning the authority which was granted to accordance with the provisions of the charter the corporation to improve the streets, and of the city. It also appeared that notice that asserting that under the facts shown in that the city was about to proceed in the prosecucase the corporation had exceeded its au- tion of the work was given the publicity rethority, this court said: “It is unnecessary quired by the charter. This being so, it to cite authorities on these points. The 'A must be presumed that if the property ownB C' of the laws of municipal corporations, er would have seen a notice in the proper that the power to levy special assessments form, founded upon proper orders of the is to be construed strictly, that the mode common council, and thus been given the prescribed is the measure of power, and opportunity to appear and object to the that material requirements must be com- proceedings, he would have seen the pubplied with before there is any liability, is lication founded upon the defective proceedall that need be quoted. Spokane Falls v. ings, and would have had the same notice, Browne, 3 Wash. St. 84, 27 Pac. 1077. An as- in fact, of what was being done that he sessment made contrary to these principles would have had if the publication had been is void, and an injunction lies to restrain in pursuance of regular proceedings and in its collection,"--citing Dill. Mun. Corp. 803; due form. For this reason it should be held High, Inj. 539. We also held there that the that the publication of the notice, although objections raised by the appellant went to such notice was defective, as well fulfilled the jurisdiction of the city to make the im- the purpose of the charter-which was to provements at all at the expense of abutting give the property owner an opportunity to property, by reason of a complete failure be heard-as would one in proper form. to carry out the plain conditions of the char- | And since a proper notice, published as reter, which were conditions precedent to the quired, would be presumed to have come exercise of the power. Long and learned to the knowledge of the property owner. briefs have been filed by the attorneys for there is the same reason to presume inat respondents in support of their contentions, the defective notice came to his knowledge. but, as this court went into many of the Hence, in the adjudication of his rights, it questions discussed there at some length, must be presumed that he had actual knowl. in the case mentioned above, and decided edge of the publication of the notice. This it adversely to the respondents' contention, being so, he had the same opportunity to we do not feel called upon now to again object to the proceedings before the work enter upon a discussion of those questions. was done, as after its completion. An atSo far as the question of waiver is concern- tack upon the proceedings, before the work ed, we think the many cases cited by re- was commenced, would correspond to a dispondents on that proposition are not ap- rect attack upon a judgment of a court, plicable to the facts shown in the case at an attack after its completion, to a colbar. The judgment will therefore be re- lateral attack upon such judgment. Pubversed.

lic policy requires that every property hold

er who has had an opportunity to make SCOTT, ANDERS, and GORDON, JJ., a direct attack should be precluded from

making a collateral one, at least until he

has shown, not only that the proceedings HOYT, C. J. (dissenting). I did not con- were defective, but also that he has suffercur in the opinion rendered in the case of ed injury by reason thereof. It is maniBuckley v. City of Tacoma, upon which the festly unfair that the property owner, harforegoing opinion is founded, though my ing knowledge of the fact that the city is dissent does not appear in the record. At about to improve a street in front of his this late day it would be of little use to property, should remain quiet until after

concur.

such improvement has been made, and his tiff will pay all costs that may be adjudged to property thereby benefited, and then escape

defendant, and all damages he may sustain by the payment of his proportion of the cost

"reason of the attachment,” only the attach

ment costs can be recovered in a suit on the of such improvement by reason of some bond, and not the entire costs of the original defect in the proceedings of which he might suit. have availed himself to prevent the work

2. In an action on an attachment bond, in

the absence of proof of actual damages, exembeing done. To countenance such a course

plary damages cannot be recovered, though the is, in effect, to allow one property owner to writ was maliciously sued out. derive a benefit from a mistake of the of

3. The fact that judgment was rendered for

defendant in a suit in which an attachment was ficers of the city of which he had full knowl

issued does not show that the writ was maliedge, at the expense of other property own- ciously sued out. ers, who had no knowledge of such de

Appeal from superior court, Pierce counfect.

ty; John C. Stallcup, Judge. I have not overlooked the argument of

Action by George S. Helfrich against J. D. the majority of the court growing out of

Meyer and others. From a judgment for the distinction sought to be made between plaintiff, defendants appeal. Reversed. mere irregularities in the proceedings relating to the improvement and want of juris

Sharpstein & Blattner, for appellants. diction to proceed therein, and I must con

John P. Judson, for respondent. cede that such argument is planted upon decisions of courts entitled to much credit.

SCOTT, J. This was an action for the reIt, however, seems to me that such courts

covery of damages on an attachment bond. have taken too narrow a view of the sub

Plaintiff obtained judgment, and defendants ject. It is a matter of almost universal appealed. J. D. Meyer & Co. commenced an experience that the proceedings of city of action against F. W. Walker and respondent, ficials in matters of this kind are seldom

as copartners, to recover the sum of $219.50. such as to give jurisdiction if the technical

On the day previous an action had been rule enforced by such courts is given force.

brought against the same parties by Esberg, It follows that either a more liberal rule

Bachman & Co., and in that action a writ must be invoked, or designing property own

of attachment was issued, which was levied ers will escape their just share of the ex

upon certain real estate and a large quantity penses incident to the proper improvement

of cigars belonging to respondent. The bond of the streets of the city. I think the rule

upon which this action was instituted was should be that where the common council

executed in the suit brought by Meyer & is clothed with authority by law to proceed

Co., and a writ of attachment was issued in the matter, and it does proceed, it should

therein to the sheriff. The case brought by be presumed to have proceeded regularly;

Esberg, Bachman & Co. was subsequently and, where it appears that such nouce has

settled, and the real estate and a portion of been given as would bring the property

the cigars were released. The remainder of owner into the proceeding if it had been

the cigars was retained by the sheriff upon regularly instituted, he should be held to

the writ issued in favor of J. D. Meyer & have consented that the improvement

Co. No effort was made to dissolve the atshould be made, notwithstanding the de

tachment upon motion, and upon trial of the fects in the proceeding, unless he appears

cause a judgment was rendered for the deand makes objections, or can show that the

fendants. burden upon his property has been increas- It is contended that there is no evidence ed by reason of the wrongful action of the

to sustain a recovery on the bond. The officers of the city. It is only necessary to

judgment in the original action was introhold that a notice founded upon defective duced in evidence, but this simply shows a proceedings, or defective in form, but which judgment in favor of the defendants on the the court can see was of the same value to

cause of action and for a certain amount of the property owner as the one required by

costs. The costs of the original action canlaw, shall have the same effect upon his

not be recovered in an action upon the atrights; and to that extent courts should

tachment bond. We so held in Crockery Co. be willing to go, rather than see such in

v. Haley, 6 Wash. 302, 33 Pac. 650. The justice done as is every day brought about language of section 293 (volume 2) of the by a contrary holding. In my opinion, the

Code, providing that the bond shall be condijudgment should be affirmed.

tioned that the plaintiff will pay all costs that may be adjudged to the defendant, and

all damages which he may sustain by reason (11 Wash. 186)

of the attachment, relates only to the attachHELFRICH v. MEYER et al.

ment costs. The original action might have

been prosecuted without the issuance of an (Supreme Court of Washington. Feb. 14,

attachment, and, so far as the question of 1895.)

costs is concerned, should be regarded as a ATTACHMENT BOND MEASURE OF RECOVERY PunitiVE DAMAGES-EVIDENCE OF MALICE.

separate or independent proceeding. There 1. Under 2 Code, $ 293, providing that at

was no proof in the case of any actual damtachment bonds shall be conditioned that plain- ages whatever. It appeared from the testimony that the plaintiff had continued to said Lockey for nonpayment of his taxes for conduct his business, and there was no proof the year 1891; that, upon the issuing of said that he had been deprived of making any injunction, the defendants gave an undertaksales by reason of the cigars having been ing, required by law, copy of which was detained under this writ as aforesaid, nor made part of the complaint; that such prothat he would have sold the same had they ceedings were bad in sucb action that it was remained in his possession, nor that they finally decided by the court, and thereby aj. had deteriorated in value while in the hands Judged that said Lockey was not entitled to of the sheriff; and the court below instruct- said injunction (the judgment roli is by ref. ed the jury that under the pleadings and erence made a part of the complaint); that proofs the plaintiff could not recover dam- while the injunction bond was given to Walkages for the detention of the property. er, as city treasurer, to indemnify and save

It is contended that no exemplary dam- him harmless from all damages that he ages can be recovered upon an attachment might sustain by reason of said injunction, maliciously sued out, where no actual dam- the said Walker was merely a nominal party age is proven; and also that there was no to said action, and the real party in interest evidence of malice in the case. We think in that and in this action is the city of Hel. both of these contentions must be sustained. ena, this plaintiff, and that the damages susThere can be no recovery of exemplary dam- tained were sustained by the city of Helena; ages where there is no actual damage. My- that the damages sustained by the plaintiff ers v. Wright, 44 Iowa, 38. And there was by reason of said injunction amounted to the no proof of malice. The facts only show sum of $300, which sum the plaintiff paid that prior to the issuance of the attachment for counsel to assist the then city attorney in the defendant had denied any liability to procuring the dissolution of said injunction; Meyer & Co., and that he was successful up- that no part thereof has been paid, although on the trial of that issue. But there is no payment thereof bas been demanded. Judg. evidence that Meyer & Co. were not proceed- ment for $300, together with interest, was ing in good faith, and the mere fact that prayed for. The injunction bond was in the they were unsuccessful on the trial of the usual form, and signed by the defendants. issue as to the indebtedness claimed would A general demurrer was interposed and overnot prove they acted maliciously in suing ruled on the 20th of February, 1893. On out the attachment. Reversed.

March 2, 1893, judgment by default was en

tered in favor of plaintiff, and against the HOYT, C. J., and DUNBAR and ANDERS, defendants, for the sum of $325.16, with inJJ., concur. GORDON, J., concurs in the terest. March 3, 1893, the defendants moved result.

to set aside the default and judgment, upon the ground of excusable neglect. The sub

stance of the affidavit to support said motion (15 Mont. 429)

was that Mr. Bullard, who was the attorney CITY OF HELENA V. BRULO et al.'

for defendants, was not advised as to the (Supreme Court of Montana. March 4, 1895.) date upon which the demurrer was submit. VACATING DEFAULT JUDGMENT-ACTION ON IN- ted to the court, and was not advised as to JUNCTION BOND-PARTIES.

any order in reference thereto until after 1. The fact that defendant's attorney was default and judgment, but supposed that said not advised when his demurrer to the complaint demurrer was still pending; that it was would be submitted is not ground for setting aside a default judgment ordered on the demur through his inadvertence and want of inforrer being overruled.

mation that the demurrer was submitted and 2. The city, as the real party in interest, default and judgment entered. An answer may sue on the bond on the dissolution of an

was tendered with the motion. The court Injunction restraining the treasurer from collect

overruled the motion to set aside the default ing a tax.

3. Attorney's fees paid to procure the dis- and judgment. From the judgment, and solution of an injunction are recoverable as from the order overruling the application of damages in an action on the injunction bond.

the defendants to set aside and vacate the Appeal from district court, Lewis and judgment by default, an appeal is taken. Clarke county.

Massena Bullard, for appellants. Stephen Action by the city of Helena against Emil

Carpenter, for respondent. Brulo and others. From a default judgment for plaintiff, and from an order denying a HUNT, J. (after stating the facts). We are motion to set aside the same, defendants ap- of opinion that the aflidavit to set aside the peal. A thirmed.

default and judgment is wholly insufficient. The plaintiff pleads by its complaint filed The rest of the appeal being from the judg. In the district court that it is a municipal ment only, we are confined in our examina. corporation; tbat on February 8, 1892, in an tion to the question of whether the complaint action brought by Richard Lockey against J. states a cause of action and supports the B. Walker, as city treasurer of the city of judgment. Foster v. Wilson, 5 Mont. 53, 2 Helena, an injunction duly issued out of the Pac. 310; Haggin v. Lorenz, 16 Mont. district court was served on said Walker, re- 31 Pac. 607. We think it does. It gets forth straining him from selling the property of the corporate existence of the city of Helena,

1 For opinion on rehearing, see 39 Pac. 852

pleads the nature of the action brought by filed his account with the board of county Lockey against Walker as treasurer, the in- commissioners, who disallowed the same. junction issued therein, the giving of the le From this order of the board he appealed to gal undertaking, and the decision in that the district court, where a judgment was case. It further sets up that the city is the rendered in his favor. There are no technical rek! party in interest, Walker as treasurer, pleadings in this case. The only pleading being a mere nominal party; that the dam- was the account of the plaintiff, filed with ages sustained were sustained by the city of the commissioners, and which was as follows: Helena; and that the damages amounted to

October 31st, 1889. $300, paid for counsel to assist the city at

Silver Bow County, M. T., to John E. Lloyd, torney in proving the dissolution of the said

Sheriff of Silver Bow County, M. T., Dr. injunction. In Creek v. McManus, 13 Mont. Services of Thomas Richards, as jailer of 152, 32 Pac. 675, it was held that attorney's Silver Bow county jail, M. T., from fees paid to procure the dissolution of an in- April 1st, 1889, to November 1st, 1889, junction are recoverable as an item of dam

at $100 per month, 7 months, at $100 per month

$700 ages in an action on the bond given in the Services of J. B. Knight, as guardia- over injunction sult. The record to which we are

H. Roberts..

95 confined discloses no radical error which will

$795 vitiate the judgment, and none will be pre sumerl. Dimick v. Caropbell, 31 Cal. 240. One jailer had acted, and the county paid

Where a case has been submitted to the for his services for the period for which the court, as was this, without argument or brief charges were made by the sheriff for the on appellants' part, we do not feel that it is services of Richards, who was a jailer in ad. our duty to make very diligent search to re- dition to the one paid by the commissioners. verse a judgment by default where no obvi. The necessity for the appointment of Richards ous fatal error appears. Territory v. Rob

as an additional jailer was proved upon the erts, 9 Mont. 12, 22 Pac. 132; Territory v. trial by overwhelming testimony. In fact Mooney, 8 Mont. 151, 19 Pac. 593; Territory there was no controversy in the district court V. Stanton, 8 Mont. 157, 19 Pac. 593.

upon that question, and the necessity is conThe order refusing to set aside the default ceded by counsel upon the argument in this and judgment, and the judgment, are af

court. The same statement as to the necesfirmed

sity may be made in regard to the employ.

ment of Knight as death watch. Tha comDE WITT, J., concurs.

missioners had appointed a person as death watch, and the only question between them

and the sheriff was as to the person who (15 Mont. 433)

should perform the duty. The sheriff would LLOYD v. BOARD OF COM'RS OF SIL- not allow the person whom the commissionVER BOW COUNTY.

ers desired to select to act, holding that he (Supreme Court of Montada. March 4, 1895.)

was not a suitable person for such service. BHERIFTS EMPLOYMENT OF JAILER AND GUARDS

The sheriff selected Knight. Therefore the -COMPENSATION.

commissioners would not pay the death watch 1. Under Comp. St. div. 5, § 1271, providing selected by the sheriff, and as to the jailer that the sheriff may employ, at the county's they would not pay any one. expense, "a jailer," in his absence, the sheriff may, when necessary, employ both a night and

We note the following statutes as applicaday jailer.

to this safety of his prisoners, he has authority to employ, at the county's expense, a necessary watch

have the care of building, inspecting and refor a prisoner under sentence of death.

pairing such jail, and shall, once every three 3. Where the county refuses to pay the sal- months, inquire into the state, as respects ary of the necessary persons employed by the sheriff to guard his prisoners, the sheriff may

the security thereof, and the treatment and pay them, and recover the amount from the condition of prisoners, and shall take all neccnunty as money paid for the benefit of the essary precaution against escape, sickness, corinty.

or infection. Appeal from district court, Silver Bow coun- "Sec. 1270. The sheriff shall have the custy; William T. Pemberton, Judge.

tody of the jail in his county, and of the prisAction by John E. Lloyd against the board oners therein, and shall keep the same, perof county commissioners of Silver Bow coun- sonally, or by his deputy, for whose debts ty. There was a judgment for plaintiff, and he shall be responsible, and shall furnish, at defendant appeals. Affirmed.

the expense of the proper county, all necesThis is an appeal by the board of county sary sustenance, bedding, clothing, fuel, and commissioners from a judgment in favor of medical attendance, for the prisoners com. plaintiff, the sheriff of that county, for money mitted to his custody. paid out for the services of a jailer, and for “Sec. 1271. The sheriff may appoint a jailer, & death watch for a prisoner under sentence who, in the absence or disability of the sherof death. There was also an appeal from an iff, shall have the custody of the jail and the order denying a new trial.

prisoners." It appears from the record that the sheriff Comp. St. div. a

ja ilince the sheriff is responsible for the besec. 1269. The county commissioners shall

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