Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

cient to sustain the verdict returned by the stock, at which meetings, among other jury, it follows that the judgment appealed things, ground was selected as a site for from must be affirmed. ·

the hotel building to be erected by the cor

poration, committees were appointed to seHOYT, C. J., and ANDERS, SCOTT, and lect plans, take charge of the construction DUNBAR, JJ., concur.

of the building, and to solicit subscribers to the capital stock. By-laws were adopted,

and other business transacted. On June 16, (11 Wash. 249)

1891, the trustees awarded a contract for BIRGE V. BROWNING et al.

the construction of an hotel building, and

thereafter work was commenced upon said (Supreme Court of Washington. Feb. 20, 1895.)

building, and progressed until about $14,SUBSCRIPTIONS TO CORPORATE STOCK - ESTOPPEL.

000 had been expended in its construction, 1. Under 1 Hill's Code, $ 1497, providing that no corporation shall commence business un

when operations were suspended for lack of til the whole of its capital stock has been sub

funds. At that time about $6,000 had been scribed, it is a good defense to an action against collected upon stock subscriptions, and about subscribers for unpaid subscriptions that the

$3,000 additional in material and labor had whole amount of the capital stock was never subscribed, in the absence of proof of an estoppel.

been accepted in payment of stock subscrip2. Part payment of their subscriptions to the tions. Soine of the respondents had made capital stock of a proposed corporation does not partial payments on their subscriptions, but constitute a waiver by the subscribers of the performance of conditions necessary to the for

the pleadings nowhere allege, nor does the mation of the corporation, or an estoppel to deny proof show, that any of the defendants its corporate existence, in the absence of evi- . knew that the full amount of the capital dence that they attended the corporate meetings,

stock had not been subscribed until work and knew that such conditions were not performed.

ceased on the hotel building.

At the close of the plaintiff's case the Appeal from superior court, Lewis coun

court should have granted respondents' moty; W. W. Langhorne, Judge.

tion for judgment of dismissal, because, as Action by George F. Birge, receiver,

the case then stood, in addition to what has against F. H. Browning and others. Judg- already been stated, there was no evidence ment for defendauts, and plaintiff appeals.

tending to show that any of the respondents Afirmed.

were in attendance at any of the meetings Leroy A. Palmer and Landrum & Land- so held, and there was no proof of a waiver rum, for appellant. A. E. Rice, Geo. E. by any of the defendants, nor any proof Rhodes, and H. Julius Miller, for respond creating an estoppel by conduct as to any ents.

of them. The court overruled said motion,

however, and the testimony subsequently GORDON, J. The appellant here is the re- taken did not establish any new fact, nor ceiver of the Centralia Hotel Company, a does it alter or add to the foregoing statecorporation, which had prior to the com- ment. This court, in the case of Hotel Co. mencement of this action been adjudged in- | v. Schram, 6 Wash. 134, 32 Pac. 1002, has solvent. He brought this action to recover said: “The capital stock of a corporation the amounts unpaid upon respondents' sub- being fixed by its charter, the corporation scriptions to the capital stock of said cor- has no authority to begin business until the poration. The respondents answered-First, whole amount of such capital stock has been that there was no actual incorporation of subscribed.” Section 1497, 1 Hill's Code, prothe company; second, that the full amount vides that “no such corporation shall comof the capital stock had not been subscrib

business

* until

the whole ed. To which appellant replies that the amount of its capital stock has been subrespondents are estopped to deny the ex- scribed”; and we have no doubt that, in istence of the corporation, and that they had the absence of any statutory provision upon waived their right to interpose these de- the subject, this would be found to be the fenses. The court below rendered judgment law. It is conceded by the learned counfor the respondents, from which judgment sel for appellant that, in an action by a this appeal is prosecuted.

corporation against stock subscribers, all the The articles of incorporation of the Cen- conditions precedent to liability must have tralia Hotel Company were filed on the 230 been complied with before liability attaches, of March, 1891. None of the respondents unless such conditions have been waived by were named as officers in such articles of the acts and conduct of the persons for incorporation, nor were any of them after- whose benefit the implied condition existwards elected to office therein. The capital i ed; and the controlling questions here are stock was fixed at $10,000, divided into 800 of fact, and not of law. The court below shares of $30 each. The entire amount sub- found the facts against the appellant, and scribed, however, never exceeded $16,000. an examination of the record convinces us Meetings were held, both before and after that there is nothing in the evidence to justhe filing of the articles of incorporation, tify the contention of appellant's counsel which were attended by promoters of the that any of the defendants have been guilty enterprise and subscribers to the capital of such acts or conduct as amount in law

mence

[ocr errors]

to a waiver or create an estoppel. It fol- $1,000 bond, but his objection was overruled, lows that the judgment appealed from and he then moved the court for an order to should be affirmed.

require the sheriff to proceed with a special

execution. This motion was denied. So it HOYT, C. J., and ANDERS, DUNBAR, will be seen that the question involved here and SCOTT, JJ., concur.

is, can a supersedeas bond to stay an execution of this kind of a judgment be fixed, so

far as the amount is concerned, by the court, (11 Wash. 366)

or is the amount fixed by the terms of the STATE ex rel. WASHINGTON BRIDGE

statute? Section 7 of the chapter in relation CO. v. SUPERIOR COURT OF SNO

to appeals to the supreme court (St. 1893, p. HOMISH COUNTY et al.

122) provides that "the appeal bond must be

executed in behalf of the appellant by one (Supreme Court of Washington. March 7, 1895.)

or more sufficient sureties, and shall be in SUPERSEDEAS BOND ON APPEAL-CERTIORARI.

a penalty of not less than $200 in any case; 1. A judgment in favor of a bridge company

and in order to effect a stay of proceedings for a specified sum of money for the construction as in this section provided, the bond, where of a bridge, and decreeing the foreclosure of a the appeal is from a final judgment for the mechanic's lien upon the bridge and land upon which it stands, is “a final judgment for the re

recovery of money, shall be in a penalty covery of money," within St. 1893, p. 122, $ 7,

double the amount of the damages and costs providing that the supersedeas bond on appeal recovered in such judgment and in other from such a judgment shall be in a penalty cases shall be in such penalty, not less than double the amount of damages and costs recov

$200, and sufficient to save the respondent ered therein. 2. Certiorari is an appropriate remedy,

harmless from damages by reason of the apwhere the court, without jurisdiction, assumes peal, as a judge of the superior court shall to fix the amount of a supersedeas bond on ap

prescribe.” It is the contention of respondpeal in a case, where the amount of such bond is expressly prescribed by statute.

ents in this case that the judgment here falls

within the last provision above quoted, and Certiorari by the state of Washington on

that the statute should not be literally conthe relation of the Washington Bridge Com

strued; while the relator contends for a strict pany against the superior court of Snohomish

construction of the statute, insisting that this county and others to review an order fixing

is a final judgment for the recovery of monthe amount of a supersedeas bond on appeal

ey, and. that the judge of the court has no from a judgment in favor of such company

jurisdiction so far as the amount of the bond for a sum of money and decreeing the fore

is concerned. We are inclined to agree with closing of a mechanic's lien for the construc

this construction. This judgment is certaintion of a bridge. Order set aside.

ly a final judgment for the recovery of Stiles, Stevens & Tillinghast, for relator. money. The judgment is that the plaintiff Black & Edwards, for respondents.

shall recover a certain sum, and because the

judgment proceeded to give the plaintiff a DUNBAR, J. The relator obtained a judg- lien upon certain property does not, it seems ment against the Land & River Improvement to us, without some provision of the law to Company of Everett for the sum of $8,671.80 that effect, take from him his right to the and costs, recovered November 19, 1894. The statutory bond. It is strongly urged by the judgment further decreed the foreclosure of learned counsel for the respondents that the a mechanic's lien for the construction of a statute cannot be construed to recover dambridge, upon the bridge and the land upon ages for foreclosure of mortgages, or in rewhich it stood, and established relator's lien plevin actions or actions of forcible entry as a prior lien to those of the other defend- and detainer, and that the intention of the ants in the action. Execution was issued legislature was to provide for the bond in November 20, 1894, to the sheriff of Sno- double the value of the judgment only in homish county, and he proceeded to adver- cases where there was no other security for tise the property for sale. On the 7th day the payment of the judgment. It seems to of December following the Land & River Im- us that had this been the intention of the provement Company of Everett made an ex legislature it would have been easy and natparte application to the judge of the su- ural for it to have inserted the word "only," perior court of Snohomish county for an or- which would then have made the statute der fixing the amount of the supersedeas plain. But whatever construction might be bond. An order was made by the judge placed upon this law, so far as the foreclonaming $1,000 as the amount of such bond. sure of mortgages is concerned,-a question On the 8th day of January, defendant com- which we will not now investigate,-this acpany served and filed its notice of appeal tion must stand upon an entirely different from the judgment, and filed one bond in the basis. In the foreclosure of a mortgage a sum of $200 for costs, and another in $1,000 deficiency judgment is generally rendered, as a supersedeas bond. The clerk on the but there may or may not be a deficiency same day gave notice to the sheriff that a judgment in the foreclosure of a mechanic's supersedeas bond had been filed. Relator | lien. The judgment is generally twofold in at the time excepted to the sufficiency of the its application; the judgment for the deficiency being only against the contractor, ANDERS, š The prosecuting attorney and there being no judgment for deficiency filed an inforination in the superior court against the owner of the property upon of King county accusing the defendant of which the lien is foreclosed. The lien in the crime of selling intoxicating liquor this case is purely incidental. The judgment without having obtained a license therefor was a straight judgment for the recovery of from the proper authorities. The offense so much money; and, in the absence of any is alleged to have been committed as folprovision of the statute excepting a judgment | lows: "John Doe Bodeckar, whose true of this kind from the operations of the seem- Christian name is to the prosecuting attoringly mandatory provisions of the law above ney unknown, in King county, state of quoted, we must conclude that the plaintiff Washington, on the 4th day of July, 1894, in this case was entitled to the statutory unlawfully and willfully did sell and disbond.

pose of, for and in consideration of money, It is also urged by the respondents that the intoxicating malt liquor, to wit, beer, complaintiff has not sought his proper remedy; | monly known and designated as “lager that his remedy was by mandamus against beer,' to a person and persons whose name the sheriff to compel him to act, instead of is to the prosecuting attorney unknown, by certiorari against the court. It may be said malt liquor then and there being an that the relator here had the right to man- intoxicating liquor, and not then and there damus the sheriff, but, if he had, we think sold upon the written prescription of any it was a concurrent right, and it would be reputable physician, or for medical, memore equitable to proceed against the court chanical, or scientific purposes, but for the who made the order without jurisdiction than purpose of beverage only, said intoxicating against the subordinate officer, whose pri- | liquor as aforesaid then and there not sold mary duty it is to obey the orders of the within the corporate limits of any city, court. From our view of the law, the court town, or village, or within one mile of the in this case acted without jurisdiction abso- corporate limits of any city, town, or villutely, having no authority to fix the amount lage, or within one mile of the corporate of the bond; and it is stated by Harris on limits of the same, he the said John Doe Certiorari (section 78) that, “in England as Bodeckar, whose true Christian name is unwell as in this country, the writ of certiorari known to the prosecuting attorney, as aforewill go when the acts sought to be reviewed said, not then and there having a license isor to be questioned were in cases of jurisdic- sued by the proper authorities to sell intoxition, and not in any mere form." We think cating liquors in King county, state of Washthe cases generally sustain this text. The ington." It does not appear that the defendrelator, then, having applied for the proper ant either interposed a motion to set aside the remedy, and the court having acted without information or demurred thereto, but it does jurisdiction, the order complained of will be appear that the cause was regularly callset aside and held for naught.

ed for trial, that a jury was regularly

impaneled and sworn, and that a witness HOYT, C. J., and ANDERS, SCOTT, and

was called upon the part of the state. The GORDON, JJ., concur.

defendant then objected to the introduction of any evidence for the alleged reason

that the information does not state an (11 Wash. 417)

offense. The court, after argument, susSTATE v. BODECKAR.

tained the objection, and thereupon releas(Supreme Court of Washington. March 16, ed the defendant from custody, exonerated 1895.)

his bondsmen, and discharged the jury. INTOXICATING LIQUORS-SALE WITHOUT LICENSE- From such judgment the state prosecutes SUFFICIENCY OF INFORMATION-DISMISSAL this appeal. -DISCHARGE OF DEFENDANT.

This action was instituted under section 1. An information for selling liquor without a license, under Pen. Code, $ 133, making such

133 of the Penal Code. The crime charged selling a misdemeanor, is not defective because is therefore a statutory one, and the sufit fails to state the name of the person to whom ficiency of the information must be tested the sale was made, where it states that the name of such person was unknown to the prosecuting

by the provisions of the statute itself. attorney.

Section 1234 of the Code of Procedure pro 2. On the dismissal of an information on vides that the indictment or information demurrer thereto, it is error to discharge defendant, as he should be held to answer a new

must contain (1) the title of the action, information,

specifying the name of the court to which

the indictment or information is presentAppeal from superior court, King coun

ed, and the names of the parties; (2) a ty; Richard Osborn, Judge.

statement of the acts constituting the of. An information charging John Doe Bo

fense, in ordinary and concise language, deckar with selling liquor without a license

without repetition, and in such a manner was dismissed, and the state appeals. Re

as to enable a person of common underTersed.

standing to know what is intended. SecJohn F. Miller, Pros. Atty., and A. G. tion 1244 states when an indictment or inMcBride, for the State.

formation is sufficient, and it seems to us

y.

or

or

that the information in question is in sub- appearance of the defendant to answer a stantial conformity to these sections of the new indictment or information. That secCode. It is evident that the acts consti- tion relates to cases where the indictment tuting the offense charged in this instance has been set aside upon motion 'or found are stated in ordinary and concise lan- insufficient upon demurrer. The only auguage, and in such a manner as to enable thority given the court for discharging a any person of ordinary understanding to defendant upon demurrer-and the objecknow what was intended, and that is all tion under consideration must be deemed a that the law requires in charging the of- demurrer-is that contained in section 1281, fense. It is stated in the brief of counsel which is as follows: "If the demurrer is for the appellant that the court deemed the sustained because the indictment or ininformation insufficient, for the reason that formation contains matter which is a legal it did not state the name of the person or defense or bar to the action, the judgment persons to whom the liquor therein men. shall be final, and the defendant must be tioned was sold. It is true that the name discharged." In this case there was nothof the person to whom the beer was sold is ing stated in the information which could not stated in the information, but many possibly be construed as a legal defense or courts hold that in cases of this character bar to the action, and the court was thereit is not necessary to designate the name fore not warranted in discharging the deof the party to whom the sale was made. fendant. The court should have held him State v. Becker, 20 Iowa, 438; State to answer a new information, even though Schweiter, 27 Kan. 439; State v. Gummer, it was of the opinion that the facts stated 22 Wis. 422; State v. Jaques, 68 Mo. 260; did not constitute an offense. State v. Heldt, 41 Tex. 220. But even We cannot commend the practice of perwhere it is held that the name of the per- mitting the sufficiency of informations to son to whom the intoxicating liquor was be challenged for the first time by objecsold should be stated, the indictment or in- tions to the introduction of testimony. The formation is nevertheless held sufficient if law evidently contemplates that the de it is alleged that the name of such person fendant must either move to set aside the is unknown. The crime under our statute information demur thereto, or both, consists in the selling, and there would prior to entering his plea of not guilty; seem to be no reason why the name and when he fails to do so courts should names of the individual or individuals to not ordinarily permit him to call in ques. whom the sale is made should be specified. tion the sufficiency of the information in But, however that may be, we think that the manner which was done in this case. where it is shown by the information, as While the court should not permit a dein this case, that the party was unknown, fendant to be tried or convicted upon an the information is sufficiently definite and insufficient indictment or information, if certain in that regard. It was said in properly objected to, it is but just to the Myers v. People, 67 Ill. 503, that where state that it have notice of the particular it is an offense to sell spirituous liquors to objections which may be interposed to the a specified class of persons, or persons of accusation set forth in the information, and certain habits, etc., then the names of those an opportunity to meet them in an orderly persons should be set forth, in order that

This cannot be said to be the the defendant may have an opportunity to case where objections of this character are prepare for his defense. We think the cor- interposed at the trial. The judgment is rect rule, and the one supported by most reversed, and the cause remanded for furof the authorities, is laid down by Mr. ther proceedings in accordance with this Bishop in his Criminal Procedure (volume opinion. 1, § 548), as follows: "A sale of intoxicat. ing liquor without a license, where the li

HOYT, C. J., and DUNBAR, SCOTT, and is from public authority, and evi

GOLDON, JJ., concur. denced by a public record, may be charged as to a person unknown to the jurors."

(11 Wash. 422) He further says, in the

section: "Even, by some opinions, if the name is

STATE v. GOLDEN. known, it need not be alleged, though other

(Supreme Court of Washington. March 16, opinions require the name where known."

1895.) In our opinion, the court also erred in

CRIMINAL LAW--PROSECUTION OF ACCESSORY. discharging the defendant upon the objec

An accessory before the fact to a felony

should be prosecuted as a principal. tions made at the trial. It is enacted in section 1278 of the Code of Procedure that,

Appeal from superior court, King county;

T. J. Humes, Judge. if the court direct that the case be resubmitted, the defendant, if already in cus

Mike Golden was convicted of larceny, and

appeals. Affirmed. tody, must so remain, unless he be admitted to bail; or, if already admitted to bail, Melvin G. Winstock and Frank B. Ingeror money has been deposited instead there- soll, for appellant. John F. Miller, Pros. of, the bail or money is answerable for the Atty., and A. G. McBride, for the State.

manner.

cense

same

SCOTT, J. This appellant, one Good- and the petition was granted, and the cause friend, and one Hart, constituted three of a reassigned for argument. In the former party of five who were charged with steal- opinion we expressed a doubt as to whether ing $300 from two young women. Separate the statute in question was sufficiently deftrials were demanded, and the three named inite to authorize an appeal, but we have were tried and convicted. The other two since held, in Hays v. Bank (decided Janueluded the officers, and escaped. It is urged ary 11, 1895) 39 Pac. 98, that an appeal will that appellant's demurrer to the information lie. should have been sustained on the ground Appellant has shown in his petition for rethat the acts going to show that he aided hearing that he served the notice of appeal and abetted in the commission of the crime in question within the 10 days allowed by were not stated therein. No particular, how- the statute (1 Hill's Code, $ 2170), and transever, is pointed out wherein the information mitted the same to the state board of equalis claimed to have been insufficient, and, al- ization and appeal through the mail; that he though the appellant was but an accessory, mailed the same at Port Townsend, on the we are of the opinion that it clearly appears eighth day after the decision was rendered, from the proof that he was an accessory be- and, by the ordinary time taken for mail fore the fact, and under the repeated hold- matter to reach Olympia from Port Town. ings of this court he should be prosecuted send, it should have arrived here the next the same as a principal. The allegations in day, and certainly on the tenth day, which the brief are too general to raise any point would have been in time. A sufficient exas to the information, but we have examined cuse is shown for not having presented these it nevertheless, and think it was sufficient. matters at the original hearing. There is It also appears to us that the appeal in this no counter showing, and nothing to controcase is without merit. The questions raised vert the fact that the notice was received by appellant as to the admission of certain within the 10 days allowed, excepting that it evidence and the instructions of the court was marked as filed upon the eleventh day. are all based upon the theory that he was Under this showing, and especially as the an accessory after the fact. which, in our board had not certified their findings to the opinion, is not at all warranted by the proofs. commissioner of public lands, we are of the The evidence is entirely sufficient to justify opinion that we should find as a fact that the conviction of appellant as a principal. the notice had been actually received by the We are so well satisfied of this that we deem state board of equalization and appeal with it unnecessary to set the same forth in de- in the 10 days. The judgment of the lower tail. The instructions of the court covered court is therefore reversed, and the cause the cause fully, and it was fairly submitted remanded, with instructions to proceed to the jury. Affirmed.

therewith.

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

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

(11 Wash, 176) (11 Wash. 407) UNION WHARF CO. V. KATZ.

LIBBEY v. PACKWOOD. (Supreme Court of Washington. March 16,

(Supreme Court of Washington. March 16 1895.)

1895.) APPEAL FROM STATE BOARD OF EQUALIZATION.

Decision Ox APPEAL-JUDGMENT ON CROSS COM

PLAIST. Where it is shown in the petition for rehearing that notice of appeal from a decision of

On reversal of a judgment for plaintiff, the state board of equalization in a contest as to

in an action to compel the specific performance the right to purchase tide lands was served and

of a contract to surrender notes executed by transmitted by mail in time to reach the board

plaintiff, on the ground that plaintiff had waived within the 10 days allowed by 1 Hill's Code, 8

all rights under the contract, judgment will not 2170, for such appeals, there being no counter

be rendered for defendant on his cross comshowing, sufficient excuse being given for fail

plaint, seeking a recovery on the notes, where

the record shows that the evidence on both sides ure to present these facts at the original hearing, and the board not having certified their find

in regard to the right to recover was very meaings to the commissioner of public lands, it will

ger, little attention being paid to his claim on be presumed that such notice was received by

the trial. the board within the 10 days, and appeal granted

On motion by appellant for judgment on accordingly.

his cross complaint, the judgment having On rehearing. Reversed.

been reversed. Denied. For former opinion, see 36 Pac. 276.

For original opinion, see 39 Pac. 444. SCOTT, J. For the former decision in this SCOTT, J. On February 14th a decision cause, affirming the judgment, see 8 Wash. was rendered in this cause reversing the 389, 36 Pac. 276. A petition for rehearing judgment of the lower court. The appellant was filed, and an answer thereto was direct has filed and served a motion for judgment ed. The respondent did not see fit to avail upon the notes pleaded in his cross comitself of the privilege of answering the same, plaint. It is not contended that the relief

« ΠροηγούμενηΣυνέχεια »