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er to confer benefits on the property taxed. body to such an extent that it soon after The case of Skagit Co. v. Stiles (Wash.; de- died from the effects of the injury. She precided Dec. 26, 1894) 39 Pac. 116, goes at sented her claim for damages thus sustained length into a discussion of the proposition to the city council, but that body refused to raised here as to the constitutionality of pay the same or any part thereof. Therethe portion of the act claimed to be valid, after she sued the city for the value of the and the conclusion reached by the court in horse and expenses incurred in endeavoring that case sustains the contention of appel- to cure it, basing her action on the neglilant that the act in question is unconstitu- gence of the city in causing and permitting tional and void. That being true, a discus. the piece of plank which caused the injury sion of the other points raised would be un- to be and remain in the street. A demurrer availing. The judgment will therefore be to the complaint was overruled, whereupon reversed, and the cause remanded, with in- the city answered, denying the allegations of structions to proceed in accordance with this the complaint generally, and setting up afopinion.

firmatively that D street was in safe condi.

tion for travel by all persons exercising reaHOYT, C. J., aud SCOTT, ANDERS, and sonable care; that, if there were any sticks GORDON, JJ., concur.

in the street at the time mentioned in the complaint, they did not constitute a defect

therein, nor an obstruction to travel; that (11 Wash, 328)

the sticks were few in number, and from 6 SAYLOR v. CITY OF MONTESANO.

inches to 4 feet in length, and were not lying (Supreme Court of Washington. March 2, on the traveled portion of the street, but 1895.)

near the sidewalk, 10 or 20 feet from the Cities-LIABILITY FOR DEFECTIVE STREET No- | traveled portion of it, and in plain view of TICE OF DEFECT CONTRIBUTORY NEGLIGENCE

any person traveling on D street; that QUESTION FOR JURY ADEQUACY OF VERDICTWHO MAY QUISTION.

plaintiff left the traveled portion of the 1. In the absence of a provision to the con

street, and drove over the unused side theretrary in the statute under which it was incorpo- of, and over the sticks mentioned, without rated, a city is liable for injuries resulting from cause; and that the city had no notice that the defective condition of its streets, where, by

the sticks were there, and authorized no one such statute, it is given control of its streets.

2. A city is liable for injuries from an ob- to put them there. The plaintiff denied the struction placed on a street by its street commis- new matter of the complaint, and, upon the sioner, in the discharge of his duties, where it

issues joined, a trial was had, resulting in a was negligently allowed to remain on the street for several days.

verdict and judgment for plaintiff, from 3. Notice to the street commissioner of a which judgment the defendant prosecutes city, whose duty was to keep its streets in prop- this appeal. er condition, of an obstruction in a street, is notice to the city.

The appellant is a city of the third class, 4. Where a street for its whole width is laid organized and existing under and by virtue out for travel, the mere fact that one driving of a general law of this state. That law along the same failed to see sticks on which his

does not specifically make such cities liable horse stepped does not constitute negligence, though the sticks were on a part of the street not

in damages for injuries arising from obusually traveled.

structions or defects in the streets; hence it 5. Whether a street was safe for travel is is assumed that such an action as the one at ordinarily a question for the jury. 6. In an action for injuries from a defective

bar cannot be maintained, and it is therefore street, the policy of the city authorities as to

asserted that the demurrer to the complaint improving its streets is immaterial.

should have been sustained. This question 7. Appellant cannot complain that the ver- was presented for our determination in the dict against it is inadequate. Hoyt, C. J., dissenting.

recent case of Sutton v. City of Snohomish

(decided Jan. 31st; not yet officially reportAppeal from superior court, Chehalis coun

ed) 39 Pac. 273; and we there came to a ty; Mason Irwin, Judge.

conclusion at variance with the position here Action by Mary A. Saylor against the city attempted to be maintained by the appelof Montesano for personal injuries. Judg- lant. In the decision in that case we adment was rendered for plaintiff, and defend

hered to the doctrine announced by our terant appeals. Affirmed.

ritorial supreme court in Hutchinson v. City Austin E. Griffiths, for appellant. Linn, of Olympia, 2 Wash. T. 314, 5 Pac. 606, and Bridges & McKinlay, for respondent.

by the supreme court of the United States in

Barnes v. District of Columbia, 91 U. S. 510, ANDERS, J. While the respondent was and in other cases, and in fact, as we think, driving up to the sidewalk on D street, one by the majority of the courts of the states of the principal thoroughfares in the city of outside of New England; and it is not necesMontesano, for the purpose of taking a per- sary to here reiterate what was there said. son into her carriage, her horse stepped up- Judge Dillon, after an exhaustive review of on one end of a piece of plank, which, with the authorities upon this subject, expresses other sticks and rubbish, was lying several the conclusion reached by him as follows: feet from the walk, thereby causing the oth- "But where the duty to repair is not specif. y end to suddenly rise and penetrate its ically enjoined, and an action for the dam

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ages caused by defective streets is not ex- on the street in that vicinity at the time of pressly given, still both the duty and the lia- the accident or before. He further testified bility, if there be nothing in the charter or as follows: “It was muddy. I was waitin legislation of the state to negative the in- ing for better weather to come, as I did not ference, have often, and, in our judgment, always take them away unless there was properly, been deduced from the intrinsic enough to pay to hire a team.

When any nature of the special powers conferred upon trash stopped the sewer up, I generally piled the corporation to open, grade, improve, and it up beside the walk until there was enough exclusively control public streets within at different places to pay." From this lantheir limits, and from the means which, by guage it appears that the street commissiontaxation and local assessments, or both, the er not only had notice that this “trash" was law places at its disposal to enable it to dis- in the street, but that he did not deem it charge this duty.” 2 Dill. Mun. Corp. $ proper for him to permit it to remain there, 1018.

as he was intending to remove it at some The motion for a nonsuit was, in our judg. | convenient time, or when it would “pay" to ment, properly denied. The grounds of the

do so.

That the public had a right to have motion, exclusive of those which were in- that street kept at all times in a reasonably cluded in the demurrer, were (1) that, upon safe condition for travel in the ordinary the pleadings, the defendant was entitled to inodes, regardless of the convenience or inrecover; and (2) that the plaintiff failed to convenience of the street commissioner, make a case for the jury.

seems to have been entirely forgotten until In respect to the first proposition, it is it was too late to prevent the injury comclaimed that the respondent based her cause plained of. of action upon the alleged negligent act of It is also claimed that the evidence shows the street commissioner in putting the al- want of due care on the part of the respondleged obstruction in the street; and it is in- ent, but that was one of the questions presisted that in no event is the city liable for sented to and determined by the jury. All the negligence of such officer. We think, that was required of the respondent was the however, that the city is liable for the negli- | exercise of ordinary care, and the fact that, gent acts of its street commissioner done in while driving upon the street, she failed to the discharge of his official duties, but, wheth- discover these sticks until her horse stepped er it is or not, it certainly is liable for its upon them would not of itself, as matter of own neglect of duty. An examination of the law, constitute negligence. The city had pleadings discloses that the respondent not improved the street, and left it open to the only alleged that the street commissioner public, throughout its entire width. It was placed the planks or sticks in the street, but graveled from the center outward for the that they were negligently allowed to remain greater part of the distance to the sidewalk, there by the city for several days prior to and was comparatively level, and its surface the accident, and that the city had or should was in proper condition for usual travel, have had notice that they were in the street from sidewalk to sidewalk. Under these cirat the time of the accident. We cannot cumstances, it was the duty of the city to therefore say that the cause of action was keep the whole of it in a safe condition for based upon the negligence of the street com- passage. Elliott, Roads & S. p. 455; Jones, missioner any more than it was upon that of Neg. Mun. Corp. p. 147. the city itself, and consequently we are un

It is likewise claimed by the learned counable to concede that the city should recover,

sel for the appellant that this collection of upon the pleadings.

broken planks and sticks did not constitute In regard to the second proposition, we are

a defect or obstruction in the street, and was of the opinion that the position of the appel- not dangerous to travel, as it was lying on a lant is not tenable. Appellant claims that portion of the street not usually traveled, it was not proved that the city had notice,

and which it was not the duty of the city to either actual or constructive; but, as we con- keep in repair, and free from obstructions strue the evidence, it proves actual notice. and defects. That this particular portion of Notice to the street commissioner, upon the street was not in a safe condition was whom was imposed the duty of keeping the demonstrated by what actually happened streets in proper condition, was notice to the thereon. Respondent not only had a right city. And the street commissioner himself to drive over any portion of the street, brut a testifies that, two or three days before the right to expect that all portions of it were accident in question occurred, he took sev- in a safe condition for ordinary use. Whetheral pieces of broken planks or sticks from er a particular thing constitutes a defect or the sewer under the sidewalk, and put them obstruction, or is dangerous to travel, does together near the sidewalk, at about the not depend altogether upon its size. Small place where the plaintiff's horse was injured.objects, as well as large ones, may render a It is true he said he did not remember the street unsafe, and hence cities have frequent. particular piece which caused the injury, but ly been held liable for injuries caused by he did not say that it was not one of those he loose cobble stones. In Hazzard v. City of took from the sewer, and it does not appear Council Bluffs (Iowa) 53 N. W. 1083, the de that there were any such sticks elsewhere fendant city was made to respond in dam

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ages for injuries to a horse caused by step- the party objecting, the sale was properly conping upon a brickbat which was in a pile of

firmed. rubbish on the street. Ordinarily, the ques- Appeal from superior court, King county; tion of whether a street is in proper repair

J. W. Langley, Judge. and safe for ordinary travel is a question of Action by A. Feek against J. P. Brewer, fact to be determined by the jury; and, when Adora B. Brewer, his wife, the Washington so determined, their finding will not be dis- National Bank of Seattle, and others. There turbed, unless absolutely unsupported by the was a judgment for plaintiff, and from an evidence.

order confirming a sale thereunder said Error is alleged upon the refusal of the named defendants appeal. Affirmed. court to permit a certain map to be intro

Bausman, Kelleher & Emory, for appelduced in evidence at the trial; but inasmuch

lants. Stratton, Lewis & Gilman, for reas another map, showing the location of the spondent street and its surroundings, was admitted in evidence, at the instance of the defendant, GORDON, J. Respondent recovered we see no prejudicial error in the ruling of judgment in the court below against appelthe court.

lants J. P. and Adora B. Brewer for the sum The appellant undertook to prove by the of $9,490.42, in an action in which said appelmayor the policy of the town in respect to lants and various other parties were defend· the width of its streets which were graded ants. Said judgment also decreed the foreor graveled and made fit for travel. The closure and sale of a mortgage upon some 68 court rejected the evidence, and, as we think, lots in what is known as the "Walla Walla rightfully. The policy of the town as to Addition to the City of Seattle.” This appeal improving its streets was immaterial, the is from an order confirming the sale made question being what was actually done, and by the sheriff pursuant to a special execuwhat was the condition of the street at the tion and order of sale based on said judgparticular time and place in question.

ment. Respondent having filed his motion It is further objected that the court erred in the court below to confirm said sale, the in instructing the jury, and also in refusing appellants J. P. Brewer and the Washington to instruct as requested by appellant. But, National Bank filed numerous objections, but in our opinion, the court properly refused to the only one relied upon in this court for a give the instructions requested, as those giv- reversal is that the mortgaged premises were en covered the whole case, and fairly pre- not sold in separate lots and parcels; and sented the law to the jury. If the instruc- affidavits were submitted for the considerations are open to criticism at all, it is that | tion of the lower court, and are brought up they were more favorable to the city than in the record, for the purpose of showing it was entitled to have given. The jury re- that, had the property been sold by sepaturned a verdict in favor of the respondent rate lots, it would have brought a higher for the sum of one dollar. Appellant claims price than it actually did bring, and that the this verdict is not supported by the evidence, value of the property was greatly in excess for the reason that the testimony shows that of the amount for which it was sold. Said the respondent was entitled to a much larger affidavits also show that at the time of sale sum, if any; but we do not think that we the appellants demanded of the officer conwould be justified in disturbing the verdict ducting the same that the lots should be sold of the jury upon this ground. The judgment separately. There were counter affidavits is affirmed.

filed upon behalf of the respondent. It ap

pears from the record that the debt to plainDUNBAR and SCOTT,JJ., concur. HOYT, | tiff was also secured in part by a pledge of C. J., dissents.

certain chattel securities, and the court by its

decree ordered these chattels to be first sold, (11 Wash. 264)

which was accordingly done. It further apFEEK v. BREWER et al.

pears that one of the defendants, the Seattle

Savings Bank, filed an answer in the fore(Supreme Court of Washington. Feb. 23, 1895.)

closure suit setting up that it had a mort. MortgagE FORECLOSURE-CONFIRMATION OF Sale.

gage subsequent to that of the plaintiff on On motion to confirm a sale under a judg.

the same property, with the exception of four ment foreclosing a first mortgage, it appeared lots, and asking that the property not includthat the property consisted of many lots, some ed in the said defendant's mortgage be orof which were covered by a second mortgage,

dered sold before the remainder of the real and that under the order of sale those lots were sold first, and the remainder afterwards; that

estate was offered, and this the lower court the lots of the two parcels were sold in mass, as in its judgment directed should be done. It authorized by 2 Hill's Code, $ 504, when the

also appears that the officer conducting the sheriff judges such a sale most advantageous, the order being silent in regard thereto; and that

sale, at the request of third parties claiming the opponents to the motion were parties to the a portion of the property, sold the portion so action, and were present when the order was claimed, separately. Thereafter the sheriff made, but did not object thereto. Hell, that

exposed and offered for sale in mass all the under 2 Hill's Code, $ 508, providing that such sales shall be confirmed unless there were sub

remaining and separate parcels, consisting of stantial irregularities, to the probable injury of 61 lots, embraced in the description of the

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mortgaged premises, and the amount of prop- record in this case discloses, every step reerty thus offered in lump was bid in by re- quired by law was taken by the officer in spondent for $9,014. The officer conducting making the sale. His return was made in the sale recites in his return that this meth- accordance with the statute, and within the od of sale was pursued by him "for the rea- powers conferred by it upon him; and we son that he deemed said method most ad- are unable to find that any irregularities, vantageous, and as likely to bring the highest "substantial" or otherwise, occurred in the price for said property.” It is undoubtedly proceedings concerning the sale, or that the the rule, and respondent so concedes, that, in officer abused the discretion confided to him the absence of a statute regulating the sale by the statute, or that any substantial injury of real estate on execution, it is the duty of was done to appellants in the course of the the officer, when the land consists of parcels, proceedings. We are unable to commend the to offer the parcels separately; and numer- conduct of appellants' counsel in informing ous authorities are cited by counsel for the “persons about to bid on said property that, appellants in support of this and kindred if the land was not sold in separate lots, propositions. The respondent, however, re- he would protest against the sale, and would lies upon the statute, and insists that it does contest the confirmation of any such sale," not affirmatively appear in this case that any as stated by him in his affidavit. Such conactual injury has been sustained by appel- duct was not calculated to inspire confidence lants by reason of the course adopted and in bidders, nor enhance the amount of their pursued by this officer in making the sale in bids; and, if we were able to conclude from question. Section 501, 2 Hill's Code, pro- the affidavits that the sum realized on the vides, among other things: “When the sale sale was less than the fair value of the propis of real property, and consisting of several erty sold, we would be disposed rather to atknown lots or parcels, they shall be sold sep- tribute such result to the conduct of counsel arately or together, as is likely to bring the than to the manner in which the officer conhighest price; or when a portion of such ducting the sale exercised his discretion. real estate is claimed by a third person, and The order appealed from is affirmed. he requires it to be sold separately, such portion shall be sold separately.” And sec- HOYT, C. J., and SCOTT and ANDERS, tion 504 provides that the sheriff shall "offer JJ., concur. DUNBAR, J., concurs in the rethe land for sale, the lots and parcels sepa- sult. rately or together as he shall deem most advantageous.” And upon the return of such

(11 Wash. 353) sale of real estate it is provided, by section 508, that the plaintiff shall be entitled, on mo

DENNIS v. KASS & CO. et al. tion therefor, to have an order confirming

(Supreme Court of Washington, March 7, the sale, "unless the judgment debtor * *

1895.) shall file with the clerk

his objec

EXEMPTIONS OF PARTNER-PRIVATE INDEBTEDtions thereto"; and, "if such objections be filed, the court shall, notwithstanding, allow

A debtor is entitled to his exemptions out

of the property of a firm of which he was a memthe order confirming the sale, unless on the ber, levied upon under an execution against him hearing of the motion it shall satisfactorily individually, where his relation to the property appear that there were substantial irregulari

has become substantially that of a tenant in

common, because of an action for a dissolution ties in the proceedings concerning the sale,

of the firm having been brought against him by to the probable loss or injury of the party his copartner. objecting." In this case the appellants were

Appeal from superior court, King county; parties to the original action. They were

R. Osborn, Judge. present in court by counsel when the judg

Action by J. H. Dennis against Kass & Co. ment and order of sale was made up. They

and Terry King, a constable, for damages for were, as matter of law, bound to know that

wrongfully levying upon certain personal the statute conferred a discretionary power property claimed by plaintiff to be exempt upon the officer making the sale to sell “sej

from levy, under an execution on a judgment arately or as is likely to bring the highest

in favor of the said Kass & Co. From a price"; and, although the court did make judgment in favor of defendants, and that specific directions (presumably at the In

plaintiff was not entitled to such exemption, stance of interested parties) that certain por

plaintiff appeals. Reversed. tions of the mortgaged premises should be sold separately, the appellants, so far as W. E. Humphrey, for appellant. shown by the record, neither requested any further directions to the officer concerning

Steele & Gephart, for respondents. the mode, nor objected in any manner to the An officer can set off no specific chattel or order, of sale. It is the duty of the court, chattels to a debtor partner, and hence no under section 508, to confirm the sale, and it valid claim can be made by a partner for exis the right of the plaintiff to have the same emption in partnership property. 2 Lates, confirmed, unless it is then shown that there Partn. $ 1131, and cases cited; Thomp. were “substantial irregularities in the pro- Homest. & Ex. $8 194-196; State v. Spencer, ceedings concerning the sale." So far as the 27 Am. Rep. 244; Pond v. Kimball, 101 Mass.

NESS.

105; Gaylord v. Imhoff, 26 Ohio St. 321 (a , emptions should be allowed the individual full discussion of the question); Charleson partners out of partnership property when V. McGraw, 3 Wash. T. 344, 17 Pac. 883, levied upon under a judgment against the

partnership. Yet many of the cases cited are HOYT, C. J. Respondent Terry King was those in which the question was as to the a constable in the city of Seattle. The other right of the partnership, or its individual respondents were judgment creditors of the members, to exemptions, when the execution appellant. They caused an execution to is- was upon a judgment for a partnership debt. sue upon their judgment, and placed it in the These citations were, however, largely justihands of King for service. He levied the fied by the manner in which this subject has same upon the interest of the appellant in been treated by many of the text writers and certain personal property. This property, or most of the courts. Not one out of five of a portion thereof, was claimed by appellant the large number of cases which we have exunder the exemption laws, and proper and amined makes, or seeks to make, any distinctimely steps were taken to protect his rights tion whatever between a judgment against under such laws. No part of the property the partnership and one against the individwas set off to him, and his interest in all the ual partner claiming the exemption. Even property was sold, and bid in by the judg- when the question before the court was as ment creditors. This action was brought to to an exemption from execution against the recover damages for the alleged wrongful ac- individual partner, the reasoning and citation tion of the constable under the execution. of authorities have in most of the cases The facts relating to the property levied up- shown that there was no discrimination beon were as follows: The appellant and one tween cases like the one at bar and those in Wales had been partners in the restaurant which the execution was against the partnerbusiness, and the partnership of which they ship. That such discrimination is necessary were members was the owner of the property to a correct determination of the question prein question. The partner, Wales, long prior sented is clear. Partnership debts have a to the levy upon the property, had been en- superior claim to partnership assets. Hence joined from conducting the restaurant busi- it may be reasonable to hold that the memness, either with his partner, the appellant, bers of the partnership could claim no exempor on his own account. He had also brought tions out of such assets against such debts; an action to have the partnership dissolved, but it does not at all follow that the holding and in such action had sought the appoint- should be the same when the debt is that of ment of a receiver to take possession of the the partner who seeks the exemption. The property of the partnership. The appellant, holding as to nonexemption, even against by giving bond on appeal, had retained the partnership debts, is not universal. Many possession of the property, and had conducted courts of the highest standing have held that the restaurant business in his own name, and, the individual partners could claim exempin so doing, made use of the property which tions out of the partnership property when had belonged to the partnership. While he levied upon under a judgment against the was so conducting the business, he had paid partnership, and some have even held that off all the partnership debts. Under these the partnership itself could claim such excircumstances, it is claimed that he was enti- emptions. See Skinner v. Shannon, 44 Mich. tled to have his exemptions set off to him 86, 6 N. W. 108; Waite v. Mathews, 50 Mich. out of said property when levied upon to sat- 393, 15 N. W. 524; McCoy v. Brennan, 61 isfy a judgment against him.

Mich. 362, 28 N. W. 129; Stewart v. Brown, Whether or not the interest of the appellant 37 N. Y. 350. in this property was such that he could claim It must be conceded, however, that the deit as exempt is the important question to be cided weight of authority is to the effect that decided. In fact, it is the only one suggest- exemptions cannot be allowed in such cases. ed upon the oral argument, and the only one But it does not follow that any such suggested in the briefs of sufficient import- of authority, or any weight at all, is against ance to require attention. Whether or not the proposition that exemptions ought to be individual partners can claim exemptions out allowed when the execution is against an inof partnership property is a question which dividual member of the partnership. Our has often received the attention of the courts. examination of the cases has led us to believe The adjudications in reference thereto cannot that a decided majority of the courts which be harmonized, though, in our opinion, there have made any distinction between a judgis not so much difference in the decisions up- ment against the partnership and one against on the subject as a superficial examination the individual partner have held that exempwould lead one to suppose.

An examination tions should be allowed when the judgment of the cases cited in the carefully prepared is against such individual partner. See Evbrief of the respondents will show that a ans v. Bryan, 95 N. C. 174; Moyer v. Drumcritical examination must be made to deter- mond, 32 S. C. 165, 10 S. E. 952; Ex parte mine the weight of authority upon the exact Karish, 32 S. C. 437, 11 S. E. 298; Blanchquestion here presented. A reference to the ard v. Paschal, 68 Ga. 32; Wap. Homest. & facts shows that the case at bar called for Ex. p. 909. In these cases the property was no investigation as to whether or not ex- that of a partnership doing business at the

V.39p.no.6-42

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