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case, that such an attempt was made by the respondent. It is true the door above men tioned was not furnished, and was probably not an item which should have been properly included in the lien statement; but the testimony shows to our minds that it was only a mistake in judgment on the part of the respondent as to what his legal rights were, and, at most, that he was in doubt as to the legal standing of this item. It appears that the door was included in the material which the claimant was, under the written contract with the contractor, to furnish for the building, but that before it was furnished the contractor had seen a door somewhere else that he thought would just suit the place which this door was to occupy, and had asked the respondent to allow him to obtain this door elsewhere, viz. from Paulson's furnishing house. The door furnished from Paulson's was substituted for the one to be furnished by the respondent, and went into the building, and the owner of the building received the benefit of it without any expense or extra charge to him, and he was in no way damaged by the fact that one particular door was substituted for another. The respondent having made a contract for the furnishing of the door, it was natural for him to conclude that it was a furnishing of the door by him, even though he obtained the same elsewhere. But, if it were not, we are satisfied there was no intention to perpetrate a fraud upon the appellant; and that was the view taken by the judge who tried the case, who saw the witness upon the stand, his manner of testifying, etc., and who simply concluded from all the facts in the case that justice would be best subserved by deducting the value of the door, viz. three dollars, from the claimant's bill, and giving judgment for the balance. Even by this ruling the appellant is relieved from paying the value of the door, when it received the benefit of it, or of one substituted for it, and is to that extent a gainer by the transaction which it is objecting to. Under the circumstances, we think we would not be justified in declaring this lien i valid for this mistake.

As to the second proposition, that the lien claim is for materials used in the construction and completion of a one-story refrigerating machine building and boiler house, and that the proofs show there were two buildings, instead of one, we have to say that in our judgment the proofs show that the buildings were substantially one; that, while there was an old boiler house on the grounds, it was overhauled, and rebuilt substantially, and substantially connected with the refrigerating machine building. So that, in this respect, we think there was no chance for any mistake as to the identity of the structures in the lien notice or the complaint. This also answers the third proposition raised by appellant.

The fourth contention, that the burden was upon the plaintiff to show that the structure

described was upon the lots described, and to show that all such lots were necessary for the convenient use and occupation of the structure, we think, is fully answered by the testimony in the case.

The fifth and sixth assignments of errors we think equally without foundation. The judgment will therefore, in all things, be affirmed.

HOYT, C. J., and SCOTT, ANDERS, and GORDON, JJ., concur.

(11 Wash. 193)

KLINE et al. v. CITY OF TACOMA et al. (Supreme Court of Washington. Feb. 14, 1895.)

STREET ASSESSMENTS-VALIDITY-COLLATERAL

ATTACK.

1. Under the charter of the city of Tacoma, providing that before the making of a street improvement, the cost of which is to be assessed against the property benefited, the council shall pass a resolution "ordering" the work to be done, an assessment based on a resolution declaring it to be the "intention" of the council to improve the street is void. Hoyt, C. J., dissenting.

2. Where an assessment against property benefited by a street improvement is void for failure to comply with the statutory requirements, the property owner may sue to set it aside, though this involve a collateral attack on the assessment proceedings.

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Action by Nerman Kline, trustee, and others, against the city of Tacoma and others, to set aside an assessment levied for im

provements. From the judgment dismissing the action, plaintiff's appeal. Reversed.

Tillotson & Milligan, for appellants. James Wickersham and Stacy W. Gibbs, for respondents.

DUNBAR, J. This action, it seems to us, falls squarely within the decision announced by this court in Buckley v. City of Tacoma, 9 Wash. 253, 37 Pac. 441. It was conceded by one of the attorneys for respondents that the case in its general features could not be distinguished from that case. It was contended, however, by respondents' other attorney, that there were some distinguishing features, but we are entirely unable to discover them. The main proposition decided in the Buckley Case was that the improvement had not been ordered by resolution, as required by the charter. In the case at bar the resolution for the improvement is identical with that in the former case. It is argued by counsel for respondents that it was sufficient that the resolution declared the intention of the council to improve these streets, but in the Buckley Case this court said: "But perhaps the greatest defect of this resolution is that, while it declares the intention of the council to improve N street, it does not order anything, and furnishes no basis for any

action on the part of the engineer and board of public works." It is contended earnestly by the respondents that this action cannot be maintained, because it is a collateral proceeding instead of a direct one. The case of Buckley v. City of Tacoma was also a collateral attack, if, indeed, the present case is a collateral instead of a direct attack. But conceding, for the purposes of this case, though a doubtful proposition, considering the fact that the law makes no provision for an appeal from such orders, that this is a collateral proceeding, the point raised by the respondents is not well taken; for even collateral attacks will be entertained where the judgment or action is absolutely void. It was held by this court in the case above cited that the action of the corporation was void. After mentioning the authority which was granted to the corporation to improve the streets, and asserting that under the facts shown in that case the corporation had exceeded its authority, this court said: "It is unnecessary to cite authorities on these points. The 'A B C' of the laws of municipal corporations, that the power to levy special assessments is to be construed strictly, that the mode prescribed is the measure of power, and that material requirements must be complied with before there is any liability, is all that need be quoted. Spokane Falls v. Browne, 3 Wash. St. 84, 27 Pac. 1077. An assessment made contrary to these principles is void, and an injunction lies to restrain its collection,"-citing Dill. Mun. Corp. 803; High, Inj. 539. We also held there that the objections raised by the appellant went to the jurisdiction of the city to make the improvements at all at the expense of abutting property, by reason of a complete failure to carry out the plain conditions of the charter, which were conditions precedent to the exercise of the power. Long and learned briefs have been filed by the attorneys for respondents in support of their contentions, but, as this court went into many of the questions discussed there at some length, in the case mentioned above, and decided it adversely to the respondents' contention, we do not feel called upon now to again enter upon a discussion of those questions. So far as the question of waiver is concerned, we think the many cases cited by respondents on that proposition are not applicable to the facts shown in the case at bar. The judgment will therefore be reversed.

SCOTT, ANDERS, and GORDON, JJ.,

concur.

HOYT, C. J. (dissenting). I did not concur in the opinion rendered in the case of Buckley v. City of Tacoma, upon which the foregoing opinion is founded, though my dissent does not appear in the record. At this late day it would be of little use to

state at any great length the reasons which led me to differ from my associates in the construction of the law applied to that and kindred cases. I, however, desire to state generally the reason which lies at the basis of the difference between us. It grows out of the fact that to my mind such decisions do not sufficiently distinguish between the right of the property owner to escape payment of taxes after the work for which they were levied has been completed, and his right, in a proper proceeding, to prevent the work being done. In the one case, the rights are not asserted in due season; in the other, they are. Enough appeared from the record in this and the other cases to show it was the intention of the common council to direct the work to be done at the expense of the adjoining property owners, in accordance with the provisions of the charter of the city. It also appeared that notice that the city was about to proceed in the prosecution of the work was given the publicity required by the charter. This being so, it must be presumed that if the property owner would have seen a notice in the proper form, founded upon proper orders of the common council, and thus been given the opportunity to appear and object to the proceedings, he would have seen the publication founded upon the defective proceedings, and would have had the same notice, in fact, of what was being done that he would have had if the publication had been in pursuance of regular proceedings and in due form. For this reason it should be held that the publication of the notice, although such notice was defective, as well fulfilled the purpose of the charter-which was to give the property owner an opportunity to be heard-as would one in proper form. And since a proper notice, published as required, would be presumed to have come to the knowledge of the property owner. there is the same reason to presume that the defective notice came to his knowledge. Hence, in the adjudication of his rights, it must be presumed that he had actual knowl edge of the publication of the notice. This being so, he had the same opportunity to object to the proceedings before the work was done, as after its completion. An attack upon the proceedings, before the work was commenced, would correspond to a direct attack upon a judgment of a court, an attack after its completion, to a collateral attack upon such judgment. Public policy requires that every property holder who has had an opportunity to make a direct attack should be precluded from making a collateral one, at least until he has shown, not only that the proceedings were defective, but also that he has suffered injury by reason thereof. It is manifestly unfair that the property owner, having knowledge of the fact that the city is about to improve a street in front of his property, should remain quiet until after

such improvement has been made, and his property thereby benefited, and then escape the payment of his proportion of the cost of such improvement by reason of some defect in the proceedings of which he might have availed himself to prevent the work being done. To countenance such a course is, in effect, to allow one property owner to derive a benefit from a mistake of the officers of the city of which he had full knowledge, at the expense of other property owners, who had no knowledge of such defect.

I have not overlooked the argument of the majority of the court growing out of the distinction sought to be made between mere irregularities in the proceedings relating to the improvement and want of jurisdiction to proceed therein, and I must concede that such argument is planted upon decisions of courts entitled to much credit. It, however, seems to me that such courts have taken too narrow a view of the subject. It is a matter of almost universal experience that the proceedings of city officials in matters of this kind are seldom such as to give jurisdiction if the technical rule enforced by such courts is given force. It follows that either a more liberal rule must be invoked, or designing property owners will escape their just share of the expenses incident to the proper improvement of the streets of the city. I think the rule should be that where the common council is clothed with authority by law to proceed in the matter, and it does proceed, it should be presumed to have proceeded regularly; and, where it appears that such noce has been given as would bring the property owner into the proceeding if it had been regularly instituted, he should be held to have consented that the improvement should be made, notwithstanding the defects in the proceeding, unless he appears and makes objections, or can show that the burden upon his property has been increased by reason of the wrongful action of the officers of the city. It is only necessary to hold that a notice founded upon defective proceedings, or defective in form, but which the court can see was of the same value to the property owner as the one required by law, shall have the same effect upon his rights; and to that extent courts should be willing to go, rather than see such injustice done as is every day brought about by a contrary holding. In my opinion, the judgment should be affirmed.

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tiff will pay all costs that may be adjudged to defendant, and all damages he may sustain by "reason of the attachment," only the attachment costs can be recovered in a suit on the bond, and not the entire costs of the original suit.

2. In an action on an attachment bond, in the absence of proof of actual damages, exemplary damages cannot be recovered, though the writ was maliciously sued out.

3. The fact that judgment was rendered for defendant in a suit in which an attachment was issued does not show that the writ was maliciously sued out.

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Action by George S. Helfrich against J. D. Meyer and others. From a judgment for plaintiff, defendants appeal. Reversed.

Sharpstein & Blattner, for appellants. John P. Judson, for respondent.

SCOTT, J. This was an action for the recovery of damages on an attachment bond. Plaintiff obtained judgment, and defendants appealed. J. D. Meyer & Co. commenced an action against F. W. Walker and respondent, as copartners, to recover the sum of $219.50. On the day previous an action had been brought against the same parties by Esberg, Bachman & Co., and in that action a writ of attachment was issued, which was levied upon certain real estate and a large quantity of cigars belonging to respondent. The bond upon which this action was instituted was executed in the suit brought by Meyer & Co., and a writ of attachment was issued therein to the sheriff. The case brought by Esberg, Bachman & Co. was subsequently settled, and the real estate and a portion of the cigars were released. The remainder of the cigars was retained by the sheriff upon the writ issued in favor of J. D. Meyer & Co. No effort was made to dissolve the attachment upon motion, and upon trial of the cause a judgment was rendered for the defendants.

It is contended that there is no evidence to sustain a recovery on the bond. The judgment in the original action was introduced in evidence, but this simply shows a judgment in favor of the defendants on the

cause of action and for a certain amount of costs. The costs of the original action cannot be recovered in an action upon the attachment bond. We so held in Crockery Co. v. Haley, 6 Wash. 302, 33 Pac. 650. The language of section 293 (volume 2) of the Code, providing that the bond shall be conditioned that the plaintiff will pay all costs that may be adjudged to the defendant, and all damages which he may sustain by reason of the attachment, relates only to the attachment costs. The original action might have been prosecuted without the issuance of an attachment, and, so far as the question of costs is concerned, should be regarded as a separate or independent proceeding. There was no proof in the case of any actual damages whatever. It appeared from the testi

mony that the plaintiff had continued to conduct his business, and there was no proof that he had been deprived of making any sales by reason of the cigars having been detained under this writ as aforesaid, nor that he would have sold the same had they remained in his possession, nor that they had deteriorated in value while in the hands of the sheriff; and the court below instructed the jury that under the pleadings and proofs the plaintiff could not recover damages for the detention of the property.

It is contended that no exemplary damages can be recovered upon an attachment maliciously sued out, where no actual damage is proven; and also that there was no evidence of malice in the case. We think both of these contentions must be sustained. There can be no recovery of exemplary damages where there is no actual damage. Myers v. Wright, 44 Iowa, 38. And there was no proof of malice. The facts only show that prior to the issuance of the attachment the defendant had denied any liability to Meyer & Co., and that he was successful upon the trial of that issue. But there is no evidence that Meyer & Co. were not proceeding in good faith, and the mere fact that they were unsuccessful on the trial of the issue as to the indebtedness claimed would not prove they acted maliciously in suing out the attachment. Reversed.

HOYT, C. J., and DUNBAR and ANDERS, JJ., concur. GORDON, J., concurs in the result.

(15 Mont. 429)

CITY OF HELENA v. BRULO et al.1 (Supreme Court of Montana. March 4, 1895.) VACATING DEFAULT JUDGMENT-ACTION ON INJUNCTION BOND-PARTIES.

1. The fact that defendant's attorney was not advised when his demurrer to the complaint would be submitted is not ground for setting aside a default judgment ordered on the demurrer being overruled.

2. The city, as the real party in interest, may sue on the bond on the dissolution of an Injunction restraining the treasurer from collecting a tax.

3. Attorney's fees paid to procure the dissolution of an injunction are recoverable as damages in an action on the injunction bond.

Appeal from district court, Lewis and Clarke county.

Action by the city of Helena against Emil Brulo and others. From a default judgment for plaintiff, and from an order denying a motion to set aside the same, defendants appeal. Affirmed.

The plaintiff pleads by its complaint filed In the district court that it is a municipal corporation; that on February 8, 1892, in an action brought by Richard Lockey against J. B. Walker, as city treasurer of the city of Helena, an injunction duly issued out of the district court was served on said Walker, restraining him from selling the property of

1 For opinion on rehearing, see 39 Pac. 852

said Lockey for nonpayment of his taxes for the year 1891; that, upon the issuing of said Injunction, the defendants gave an undertaking, required by law, copy of which was made part of the complaint; that such proceedings were had in such action that it was finally decided by the court, and thereby adjudged that said Lockey was not entitled to said injunction (the judgment roli is by ref erence made a part of the complaint); that while the injunction bond was given to Walker, as city treasurer, to indemnify and save him harmless from all damages that he might sustain by reason of said injunction, the said Walker was merely a nominal party to said action, and the real party in interest in that and in this action is the city of Helena, this plaintiff, and that the damages sustained were sustained by the city of Helena; that the damages sustained by the plaintiff by reason of said injunction amounted to the sum of $300, which sum the plaintiff paid for counsel to assist the then city attorney in procuring the dissolution of said injunction; that no part thereof has been paid, although payment thereof has been demanded. Judg ment for $300, together with interest, was prayed for. The injunction bond was in the usual form, and signed by the defendants. A general demurrer was interposed and overruled on the 20th of February, 1893. On March 2, 1893, judgment by default was entered in favor of plaintiff, and against the defendants, for the sum of $325.16, with interest. March 3, 1893, the defendants moved to set aside the default and judgment, upon the ground of excusable neglect. The substance of the affidavit to support said motion was that Mr. Bullard, who was the attorney for defendants, was not advised as to the date upon which the demurrer was submitted to the court, and was not advised as to any order in reference thereto until after default and judgment, but supposed that said demurrer was still pending; that it was through his inadvertence and want of information that the demurrer was submitted and default and judgment entered. An answer was tendered with the motion. The court overruled the motion to set aside the default and judgment. From the judgment, and from the order overruling the application of the defendants to set aside and vacate the judgment by default, an appeal is taken.

Massena Bullard, for appellants. Stephen Carpenter, for respondent.

HUNT, J. (after stating the facts). We are of opinion that the affidavit to set aside the default and judgment is wholly insufficient. The rest of the appeal being from the judg ment only, we are confined in our examination to the question of whether the complaint states a cause of action and supports the judgment. Foster v. Wilson, 5 Mont. 53, 2 Pac. 310; Haggin v. Lorenz, 15 Mont. 34 Pac. 607. We think it does. It sets forth the corporate existence of the city of Helena,

pleads the nature of the action brought by Lockey against Walker as treasurer, the injunction issued therein, the giving of the legal undertaking, and the decision in that case. It further sets up that the city is the rea! party in interest, Walker as treasurer, being a mere nominal party; that the damages sustained were sustained by the city of Helena; and that the damages amounted to $300, paid for counsel to assist the city attorney in proving the dissolution of the said injunction. In Creek v. McManus, 13 Mont. 152, 32 Pac. 675, it was held that attorney's fees paid to procure the dissolution of an injunction are recoverable as an item of damages in an action on the bond given in the injunction sult. The record to which we are confined discloses no radical error which will vitiate the judgment, and none will be presumed. Dimick v. Carapbell, 31 Cal. 240.

Where a case has been submitted to the court, as was this, without argument or brief on appellants' part, we do not feel that it is our duty to make very diligent search to reverse a judgment by default where no obvious fatal error appears. Territory v. Roberts, 9 Mont. 12, 22 Pac. 132; Territory v. Mooney, 8 Mont. 151, 19 Pac. 595; Territory v. Stanton, 8 Mont. 157, 19 Pac. 593.

The order refusing to set aside the default and judgment, and the judgment, are affirmed

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1. Under Comp. St. div. 5, § 1271, providing that the sheriff may employ, at the county's expense "a jailer," in his absence, the sheriff may, when necessary, employ both a night and day jailer.

2. Since the sheriff is responsible for the safety of his prisoners, he has authority to employ, at the county's expense, a necessary watch for a prisoner under sentence of death.

3. Where the county refuses to pay the salary of the necessary persons employed by the sheriff to guard his prisoners, the sheriff may pay them, and recover the amount from the county as money paid for the benefit of the connty.

Appeal from district court, Silver Bow county; William T. Pemberton, Judge.

Action by John E. Lloyd against the board of county commissioners of Silver Bow county. There was a judgment for plaintiff, and defendant appeals. Affirmed.

This is an appeal by the board of county commissioners from a judgment in favor of plaintiff, the sheriff of that county, for money paid out for the services of a jailer, and for a death watch for a prisoner under sentence of death. There was also an appeal from an order denying a new trial.

It appears from the record that the sheriff

filed his account with the board of county commissioners, who disallowed the same. From this order of the board he appealed to the district court, where a judgment was rendered in his favor. There are no technical pleadings in this case. The only pleading was the account of the plaintiff, filed with the commissioners, and which was as follows: October 31st, 1889.

Silver Bow County, M. T., to John E. Lloyd,
Sheriff of Silver Bow County, M. T., Dr.
Services of Thomas Richards, as jailer of
Silver Bow county jail, M. T., from
April 1st, 1889, to November 1st, 1889,
at $100 per month, 7 months, at $100
per month

Services of J. B. Knight, as guardia over
H. Roberts...

$700

95

$795

One jailer had acted, and the county paid for his services for the period for which the charges were made by the sheriff for the services of Richards, who was a jailer in addition to the one paid by the commissioners. The necessity for the appointment of Richards as an additional jailer was proved upon the trial by overwhelming testimony. In fact there was no controversy in the district court upon that question, and the necessity is conceded by counsel upon the argument in this court. The same statement as to the necessity may be made in regard to the employment of Knight as death watch. The com missioners had appointed a person as death watch, and the only question between them and the sheriff was as to the person who should perform the duty. The sheriff would not allow the person whom the commissioners desired to select to act, holding that he was not a suitable person for such service. The sheriff selected Knight. Therefore the commissioners would not pay the death watch selected by the sheriff, and as to the jailer they would not pay any one.

We note the following statutes as applicable to this controversy:

"Sec. 1269. The county commissioners shall have the care of building, inspecting and repairing such jail, and shall, once every three months, inquire into the state, as respects the security thereof, and the treatment and condition of prisoners, and shall take all necessary precaution against escape, sickness, or infection.

"Sec. 1270. The sheriff shall have the custody of the jail in his county, and of the prisoners therein, and shall keep the same, personally, or by his deputy, for whose debts he shall be responsible, and shall furnish, at the expense of the proper county, all necessary sustenance, bedding, clothing, fuel, and medical attendance, for the prisoners committed to his custody.

"Sec. 1271. The sheriff may appoint a jailer, who, in the absence or disability of the sheriff, shall have the custody of the jail and the prisoners."

Comp. St. div. 5.

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