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now asked was urged upon our attention at June, the defendant filed and served a notice the prior hearing, but it is claimed that it of intention to move for a new trial, and on should follow as a matter of course, the the 5th day of said month filed such motion court having found against the plaintiff upon Before the determination thereof, and on bis cause of action. A further examination June 13th, the defendant also filed a motion of the record does not satisfy us that this to vacate the judgment on the ground that matter was fully litigated or received such it had been prematurely entered. This moattention at the trial as would justify the tion was heard and determined against the rendering of a judgment thereon at this defendant on the 21st day of said month, time. The main controversy was apparent- and the motion to set aside the verdict and ly upon the plaintiff's cause of action; and for a new trial was denied on the 14th day the right of the defendant to recover upon of December following. The only point the notes seems to have been only indirect- raised upon this appeal is that the court ly brought in question and incidentally re- erred in refusing to vacate the judgment. ferred to several times upon the trial. In There seems to be some inconsistency in the one part of his testimony, plaintiff claimed statutes relating to motions for a new trial there was an agreement that the notes were and for rendering judgments on verdicts. 2 not to be paid, and in another there was a Code, s 404, provides that the party intendcasual reference to the fact that he had re- ing to move for a new trial must, within two ceived no consideration therefor, as the deed days after the verdict of the jury, etc., file to the lands in question had never been de- and serve a notice of his intention to so livered to him. It also appears that the de- move; while section 435 provides that judg. fendant claimed to have come into the pos- ment shall be entered upon a verdict within session of said notes as a bona fide holder, five days after the filing thereof, unless a and he now urges that such defenses were motion for a new trial shall have been filed, not available as against him for that rea- etc. In this case the judgment was rendered son. The evidence upon both sides as to within the five days, and before notice of an such matters is meager and unsatisfactory, intention to move for a new trial had been and, in view of the foregoing, we are not given, but within the two days allowed the disposed to grant the motion, and are of the defendant to give notice of such intention. opinion that justice will be best subserved Conceding that the judgment was premature by remanding the cause for a trial of the ly entered, we do not think the action of the issue regarding the right of the defendant court should be set aside or reversed under to recover upon the notes, with leave to the the circumstances of this case, for it clearly parties to amend their pleadings, if desired, appears that the defendant lost no substanand introduce further testimony; and it is tial rights in the premises. His motion for so ordered.

a new trial was thereafter heard upon the

merits, and was denied; and we think for HOYT, C. J., and ANDERS, J., concur.

this reason, at least, the point is not well

taken, and the judgment should be affirmed. (11 Wash. 412)

HOYT, C. J., and DUNBAR, ANDERS, PORT TOWNSEND NAT. BANK v. WEY

and GORDON, JJ., concur. MOUTH. (Supreme Court of Washington. March 16,

(11 Wash. 432) 1895.)

STATE ex rel. THEIS et al. v. BOWEN, REVIEW ON APPEAL MOTION TO VACATE JUDG

Treasurer.
MENT.

(Supreme Court of Washington. March 18, Where defendant moved for a new trial, and also moved to vacate the judgment because

1895.) it was prematurely entered, and the motion for State WARRANTS-RATE OF INTEREST-PRESENTA. a new trial was heard on its merits and denied, the judgment will not be disturbed because of

Interest is payable upon state warrants the erroneous denial of the motion to vacate the

at the legal rate in force at the date of their same, where defendant lost no substantial right

presentation to the state treasurer for indorseby such denial.

ment; and the act reducing the legal rate of inAppeal from superior court, Jefferson coun

terest to 8 per cent, is inapplicable to state war.

rants issued, and so presented, before such act ty; Henry McBride, Judge.

went into effect. Action by Port Townsend National Bank

Mandamus to compel the state treasurer to against Andrew Weymoutb on a promissory

pay the amount of certain state warrants, note. Judgment was rendered for plaintiff,

and interest thereon at the rate existing be and defendant appeals. Affirmed.

fore the Washington act reducing the legal Morris B. Sachs and George H. Jones, for rate to 8 per cent. went into effect. Writ appellant. Carroll & Rohde, for respondent, granted.

Blake & Post, for petitioners. James A. SCOTT, J. A verdict was found in favor

Haight, Asst. Atty. Gen., for respondent. of plaintiff on the 1st day of June, 1893. Judgment was rendered thereon on the fol- HOYT, C. J. The record in this case pre lowing day. Thereafter, on the 3d day of sents but a single question: What was the

TION.

effect of the act reducing the legal rate of not to apply to warrants issued before the interest to 8 per cent. upon state warrants passage of the act, for the reason that the issued before such law went into effect? In language used showed such to have been the our opinion, this question is decided by the intention of the legislature, and not because case of Trust Co. v. Gelbach, 8 Wash. 497, the act was unconstitutional; and on that 36 Pac. 467. Counsel for respondent has at- ground the same rule would obtain in retempted, in his able argument, to distinguish spect to warrants of the state as to those of this case from that one, but, to our minds, a county. It follows that the petitioners are there is no substantial difference between entitled to the relief prayed for. It is therethe question therein decided and the one pre- fore ordered that a peremptory writ of mansented in this case. It was held in that case damus be issued to the state treasurer in acthat the statute, which provided that war- cordance with the prayer of the petition. rants not paid for want of funds should Neither party will recover costs. draw interest at the legai rate, so impressed the rate in force at the time payment was

DUNBAR, ANDERS, and GORDON, JJ., refused upon the warrants that a change in concur. such rate thereafter would have no effect upon the rate collectible thereon. If such

(11 Wash, 318) was the force of an agreement to pay inter- WHITMAN V. MAST, BUFORD & BURest provided by the statute, the same force

WELL CO. et al. (DAWSON et al., should be given to an agreement to pay in

Interveners). terest authorized by a custom so long rec

(Supreme Court of Washington. March 1, ognized and acquiesced in as to have the

1895.) force of a statute. If, prior to the going in

AssignMENT FOR BENEFIT OF CREDITORS-Rights to effect of the law in question, any rate of

OF RECEIVERS. interest could be collected upon the warrants 1. The decisions of the supreme court of of the state, it was the legal rate then in Minnesota that assignments for the benefit of force, and, if that or any other rate was col

creditors made under Sess. Laws Minn. 1881,

p. 193, c. 148, and Sess. Laws Minn. 1889, p. lectible, it was by force of a law, or custom 78, c. 30 (St. 1894, 88 4240_4254), are volunso acquiesced in as to have the force of a tary, will be followed by the courts of Washlaw. That some rate of interest was col

ington.

2. A voluntary assignment passes title to all lectible on state warrants before the act in

the assignor's personal property, wherever situquestion went into effect is conceded by the ated. respondent. It must follow that there was 3. Receivers appointed on the removal of an either a law authorizing such interest to be assignee for the benefit of creditors in proceed

ings under the assignment laws of Minnesota paid or a custom to that effect of the kind (Sess. Laws 1881, p. 193, c. 148; St. 1894, 88 above specified. Hence there was no real 4240-4254) are successors to all the rights of distinction between county warrants and

the assignee. state warrants so far as this question is con

Appeal from superior court, Yakima councerned. As to one class the statute provided ty; Carroll B. Graves, Judge. that they should draw the legal rate of in- Action by Charles E. Whitman against the terest; as to the other class the statute, or Mast, Buford & Burwell Company, in which that which had the force of a statute, made

E. E. Kelso was summoned as garnishee. a like provision. If in the one class the le- Victor Robertson, as assignee of defendant, gal rate prevailing at the time payment was

intervened. William Dawson, Jr., and Albert. refused was so impressed that it would not B. Ovitt, receivers, were substituted as plainbe affected by a change in such rate, there

tiffs in intervention. Judgment for plaintiff, is no reason why such rate should not be and interveners appeal. Reversed. held to have been in like manner impressed Jones & Newman, for appellants. Whitson upon the other class. The writer did not

& Parker, for respondent. concur in the conclusion to which the court arrived in the case above cited, but by its SCOTT, J. On the 17th day of September. decision the law of the state as to the pay- 1893, Mast, Buford & Burwell Company, a ment of interest upon county warrants was corporation organized and existing under the declared and made certain, and the rule laws of the state of Minnesota, made a gentherein announced should be adhered to. eral assignment of all its property, wherever And, in our opinion, the same line of reason- situate, for the benefit of its creditors, and ing will compel us to hold that interest must appointed Victor Robertson, of St. Paul, be paid upon state warrants at the legal rate Minn., assignee. E. E. Kelso, a resident of in force at the date of their presentation to this state, was indebted to said corporation the treasurer for indorsement. It is true in a large amount upon account. The rethat the law reducing the rate might be con- spondent, Charles E. Whitman, is a citizen of stitutional when applied to contracts of the the state of Missouri. On December 12, 1893, state, and unconstitutional when applied to respondent recovered a judgment against said those of counties, for the reason that it may | corporation in the superior court for Yakima be within the power of a state to repudiate county, this state, and on the 26th day of a legal contract. But as we understand the February, 1894, caused a writ of garnishcase above cited, the reduced rate was held ment to be served upon the said E. E. Kelso, who answered, setting up the prior assign- , debtor himself may be restrained from leavment of the account to said assignee, and de- ing the state, and may be required to appear nying his indebtedness to said corporation. and make full disclosure as to the disposition April 11, 1894, said assignee filed his com- of property or in relation to any other matplaint in intervention in said garnishment ter pertaining to the insolvent estate. Any proceedings, claiming said indebtedness un- security given within four months prior to der said assignment. On the day of the assignment, with a view to giving preferDecember, 1894, upon motion, William Daw- ence to any creditor upon a pre-existing debt, son, Jr., and Albert B. Ovitt, receivers, were shall be void as to all persons or creditors resubstituted as plaintiffs in the complaint in ceiving the same who shall have reasonable intervention in the place and stead of said as- cause to believe that such debtor was insignee. Respondent interposed a general de solvent. In case of the death of the assignee murrer to the complaint in intervention and or receiver, the court may appoint another to a motion for judgment upon the answer of fill the vacancy, and the court may for proper the garnishee, both of which were sustained cause remove such assignee, and appoint anby the court, and, appellants electing to stand other in his stead; and the court shall order upon the answer of the garnishee and the such removal upon a two-thirds vote of the complaint, the court granted judgment creditors. No creditor shall receive any beneagainst the garnishee; to all of which rul- fit under the provisions of the act, or any payings the appellants excepted, and from which ment of any share of the proceeds of the they now prosecute this appeal.

debtor's estate, unless he shall have filed a The main point in controversy was as to release of his claim, and thereupon the judge whether or not this was a voluntary assign- shall enter an order discharging such debtor ment. It is asserted that the lower court from any claims of creditors who filed such was of the opinion that it was an involun- releases. The assignee or receiver shall, tary one, and it is conceded by appellants that within 10 days after his appointment, pubif the court was right in its view of this lish a notice; and all creditors claiming the question the judgment should be affirmed. benefit of the act shall file their releases with It is also conceded by both sides that the de- the said assignee or receiver within 20 days cisions of the supreme court of Minnesota after the publication thereof. The court diupon said question should be recognized as rects the distribution of the estate, and has binding here. It is contended by appellants control of the assignee or receiver, as the case that such assignment is a voluntary one, on may be, until settlement; and the act reads the ground that it is only made at the option (Sess. Laws Minn. 1881, c. 148, § 1; St. 1894, of the debtor, while the respondent contends $ 4240): "Which assignment shall be made that it is involuntary, on the ground that in accordance with and be governed by the when once the proceedings are set in motion laws of the state of Minnesota.” From all the statute steps in and regulates the entire of which it is argued that the assignment was matter to its determination, and the debtor a statutory one under an insolvency law, and has no further control thereover in any man- was in effect involuntary. And respondent ner. The assignment was made under chap- contends that the supreme court of that ter 148, Sess. Laws Minn. 1881 (page 193), state, notably in the case of Jenks v. Luddin and the act amendatory thereof, found on (Minn.) 27 N. W. 188, has so construed it. page 78, c. 30, Sess. Laws 1889 (sections In that case the court uses this language: 4240 4251, St. 1891). The title of that act “Now, our insolvent law and the statute of is as follows: "An act to prevent debtors Wisconsin regarding assignments for the from giving preference to creditors and to benefit of creditors are essentially different. secure the equal distribution of property of Our act of 1881 is, as we have repeatedly debtors, among their creditors, and for the held, a bankrupt act, the assignee being in release of debts against debtors." The pro- effect an officer of the court, and the assigned visions of these acts are that when any debt- property being in custodia legis, and adminisor shall become insolvent, or garnishment tered by the court or under its direction." shall have been made against him, or the The supreme court of wisconsin in considproperty of any debtor shall have been levied ering this act in McClure v. Campbell (Wis.) upon by virtue of an attachment, execution, 37 N. W. 313, held in accordance with the or legal process issued against him for the views of the respondent here as to the effect collection of money, he may make an assign- of Jenks v. Luddin, supra. We are of the ment for the equal benefit of all his creditors, opinion, however, that the case of Jenks v. who are required to file releases of their de- | Luddin will not bear the construction conmands against the debtor; and such assign- / tended for, viz. that such assignments ment discharges the attachment, garnish- are involuntary, and that the supreme court ment, or other levy upon his property, with of Minnesota by its later decisions does not certain exceptions therein provided. The as- so recognize it. It is true the supreme court signment must be filed in the office of the of Minnesota has termed this a "bankrupt" clerk of the district court. An attempt to law, but an examination of the decisions make an assignment under this act whereby shows that this term is used in a very broad one creditor shall obtain preference over an- sense, and not in its strict technical meaning. other is punishable as a misdemeanor. The They say of the first section that it provides

case

for "voluntary bankruptcy," and that it “au- in the hands of a third party by his own thorizes voluntary assignments and insolven- act and with his consent; in the other it is cy proceedings.” May v. Walker, 35 Minn. placed in the hands of a third party by 194, 28 N. W. 252, is a later case than Jenks operation of law, and without his act and v. Luddin, and in this case the view above against his consent. The subsequent constated is clearly recognized. The court says trol by the court under statutory regulations this was a case of assignment of partnership does not destroy this distinction. Whether property only; "the assignment in this case or not an assignment is a voluntary conveywas evidently intended to be a voluntary one ance by the assignor must be decided from under our insolvent act (Laws 1881, c. 148; a consideration of the manner in which the St. 1894, $8 4240-4254). The voluntary as- transfer of the property is made, and not signment there recognized is of all the debt- what may be prescribed by the statute as to or's property and estate not exempt by law." the manner in which the property is to be The case of Jenks v. Luddin, supra, is not at disposed of by the assignee after assignment. variance with the foregoing. In this case In Story, Conf. Laws (8th Ed.) § 411, it is the attachment was made in Wisconsin on said: “There is a marked distinction bereal estate, and was made prior to the as- tween a voluntary conveyance of property signment, and the court says: “We are ut- by the owner and a conveyance by mere terly unable to perceive upon what princi- operation of law in cases of bankruptcy in ple the courts of this state can or ought to invitum. Laws cannot force the will, nor interfere and deprive him of the benefit of compel any man to make a conveyance. In his lien which he had acquired, prior to the place of a voluntary conveyance of the ownassignment, upon the debtor's real estate er, all that the legislature of a country can in Wisconsin. We find no precedent for any do, when justice requires it, is to assume such thing. Even in England, whose courts the disposition of his property in. invitum. hold very firmly that an assignment under But a statutable conveyance, made under the a bankrupt or insolvent law has a universal authority of any legislature, cannot operate application, and passes all personal proper- upon any property except that which is withty of the insolvent in foreign countries, and in its own territory. This makes a solid disthat all attachments made thereon after such tinction between a voluntary conveyance of assignment, are invalid, we find no the owner and an involuntary legal convey. where they have ever attempted to enjoin ance by the mere authority of law. The fora creditor from availing himself of his at- mer has no relation to place; the latter, on tachment upon real property situated abroad, the contrary, has the strictest relation to whether levied before or after the assign- | place.

It is therefore admitted ment; and, in the case of personal property that a voluntary assignment by a party, acsituated abroad, we find no case where they cording to the law of his domicile, will pass have denied to a creditor the benefit of his at- his personal estate, whatever may be its tachment levied prior to the assignment." locality, abroad as well as at home. But In Covey V. Cutler (Minn.) 56 N. W. 255, it by no means follows that the same rule the supreme court of Minnesota clearly rec- should govern in cases of assignments by ognizes the voluntary character of these as- operation of law.” This is undoubtedly sussignments, and says that nothing was said in tained by the weight of authority. Jenks v. Luddin in conflict therewith. The It is further contended by the respondent, case of Covey v. Cutler, though brief, is that, even though Robertson could have directly applicable, and, it seems to us, de- maintained this action on the theory of a cisive of the question that such assignments voluntary assignment, the receivers could are regarded in Minnesota as voluntary ones, not do it, as they derive their authority solehaving the effect of transferring the entire ly by the appointment of the court in Minnepersonal property of the debtor, wherever sota. Robertson was removed pending his situate. If we were not to recognize this petition in intervention, and upon applicaconstruction as binding in this controversy, tion to the lower court the receivers were and were to consider the question independ- substituted in said proceeding, to which the ently, we would arrive at the same conclu- respondent objected. The title to the propersion, and follow the doctrine announced. ty was vested in Robertson by virtue of the The act in question has many features in assignment. Donohue v. Ladd, 31 Minn. common with our own insolvent law, but 244, 17 N. W. 381. The law provided that we said nothing contrary to the foregoing the assignee might be removed and receivin the case of Shoe Co. v. Adams, 5 Wash. ers appointed. This was a part of the as333, 32 Pac. 92, cited by respondent.

signment proceedings, and the insolvents in The assignment itself shows that it was effect assented thereto when they made the made by the debtor upon his own motion, assignment, and the receivers must be held It is not an assignment by operation of to have succeeded to all the rights of the origlaw, but is the voluntary act of the assignor. inal assignee, and therefore could maintain The principal distinction between a volun- the action. Reversed. tary assignment and an involuntary assignment in bankruptcy is in its inception. In HOYT, C. J., and ANDERS and GORDON, the one case the assignor's property is placed JJ., concur. DUNBAR, J., dissents.

(11 Wash. 429)

road law; and the amount thereof so deHAYWARD V. SNOHOMISH COUNTY. termined and allowed by the board of coun(Supreme Court of Washington. March 18,

ty commissioners shall be taxed against the 1895.)

lands of said district in due proportion as EMINENT DOMAIX-Public DIKES -COMPENSATION.

the tax for construction, and, when collected, Gen. St. tit. 21, c. 2, providing for the

shall be reserved and paid under the direcconstruction of public dikes and dams to protect tion of the board to the claimant or claim. overflowed lands, provides in section 1933 for

ants. In Askam v. King Co., 9 Wash. 1, 36 compensation for property taken or damaged only in case application is made therefor by the

Pac. 1097, it was decided by this court that owner, and therefore violates Const. art. 1, 8 16,

the drainage law of this state (Gen. St. tit. providing that property shall not be taken or 21, c. 1) is unconstitutional, as it provides damaged for a public use without just compensation having been first made.

for the taking of private property without

there having been an assessment of damAppeal from superior court, Snohomish

ages or the payment of compensation therecounty; John C. Denney, Judge.

for. This case followed the case of PeterIn the matter of the attempted collection of

son v. Smith, 6 Wash. 163, 32 Pac. 1050, taxes for dike purposes by Snohomish coun

where the question of the power to condemn ty against Anthony J. Hayward. There was

land under the provisions of chapter 19, a judgment for plaintiff, and defendant ap

Laws 1890, was in question; and we there peals. Reversed.

held that the procedure provided for in that Crowley, Sullivan & Grosscup, for appel- act was in violation of section 16, art. 1, lant.

of the constitution, which provides that no

private property shall be taken or damaged DUNBAR, J. This is an appeal from a for public or private use without just comjudgment of the superior court of Snohomish pensation having been first made and paid county rendered in an action brought for into court for the owner. It was also nothe collection of taxes under the revenue ticed in that case that the constitution pro law of 1893, and involves the constitutionality vides that, whenever an attempt is made to of chapter 2, tit. 21, Gen. St., which is a take property for use alleged to be public chapter in relation to public dikes and dams. (an allegation which appears in the dike law Section 1929 provides that when five or more in question), the question whether the conowners of lands adjoining and contiguous, temp'ated use be really public shall be a subject to overflow from tide water or river | judicial one, and determined as such, without freshet, shall petition the board of county regard to any legislative assertion that the commissioners of the county in which such use is public. We there held that under this lands are situate, setting up certain facts, if constitutional guaranty the owner of the the county commissioners find, among other land could not be compelled to present the things, that such proposed improvement shall claim for damages, but that he could remain be for the public good or benefit, they shall quiet, and be assured of his constitutional so declare on the record of their proceedings, right to receive his damages before his propand appoint three viewers to view out and erty was appropriated; that before it was locate the proposed dikes and dams, etc. condemned the county must ascertain his Section 1930 provides that the routine of damages, and either pay it to him or pay it procedure under this chapter shall be, as far into court for his benefit, and that the as practicable, the same as prescribed by amount of his damages must be ascertained the road law for the location and estab- in court in a proceeding instituted for that lishment of county roads; also providing that purpose, and in which the defendant could the dikes and dams established under this appear and make his showing, if he so de act shall be to all intents and purposes pub- sire; that there was no authority under lic highways. Section 1931 prescribes the the constitution for submitting the question duties of the viewers,-among other things, of damages to the road viewers, to be arbithat they estimate the cost of the proposed trarily passed upon by them,-following the dikes and dams, and such costs, when ap- doctrine laid down by the supreme court of proved by the board, shall be apportioned California in Weber v. Board, 59 Cal. 265, and added to the regular taxes of the land- under substantially the same statutes and owners of such district on the assessment same constitutional provisions. The law in roll for the current year, and collected as question here is subject to the same objecother taxes. Section 1932 provides for the tions that were discussed in the case above supervisors of dikes and dams for the district; mentioned. There is no brief filed by reand section 1933 provides that in locating and spondent in this case, but it is alleged in establishing the dikes and dams, if the own- the brief of the appellant that it was conceder or owners of the lands through which ed in the court below that section 1933 was they pass shall feel aggrieved on the score unconstitutional, but that the court did not of right of way or other cause, they shall consider that section a material part of the have proper cause for damages, and that in chapter. It seems to us that, if section 1933 such cases claims for damages shall be tiled were eliminated from the chapter, there and the amount thereof determined in ac- would be no provision left whatever for the cordance with the provisions of the general compensation of the landowner, and no pow.

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