time, and that the verdict was contrary to the law and the evidence. No appearance or argument on the part of respondent is made here upon the appeal. The action of respondent was for damages for an alleged assault and battery. Appellant denied the allegations of the complaint, and further pleaded justification, the use of lawful force and great provocation. Without detailing the nature of the affair or the cause leading up to it, looking to the cold printed record, if we were sitting as jurors, we think we would decide that it discloses by an overwhelming weight of evidence great provocation, justification, and lawful force by appellant. We are unaware of the precise ground considered by the trial judge as requiring a new trial. We have examined the instructions, and they seem to be correct in form and propriety and strictly applicable to the issues and facts in the case. No error occurring at the trial and excepted to at the time is pointed out or apparent. The order must therefore have been based upon insufficiency of the evidence to justify the verdict. Upon this, while we have not had the advantage of seeing the witnesses and hearing them testify and of judging of their credibility and virtue, upon the record thereof and a longdistance consideration of the conduct of the respondent on the day in question and his general offensive and ruffianly disposition and demeanor as disclosed by the testimony, we should be very decidedly inclined to disagree with the view that the evidence was in any respect insufficient, but would, on the contrary, be emphatically of the opinion that it was overwhelmingly sufficient to justify the verdict. Everett v. Phillips, 90 Wash. 269, 155 Pac. 1059; Vulcan Mfg. Co. v. Pac. Sea Prod. Co., 90 Wash. 439, 156 Pac. 400; Hawn v. Yakima County, 93 Wash. 87, 160 Pac. 7; Marshall v. Dunn, 93 Wash. 156, 160 Pac. 298; Sturtevant Co. v. Fidelity, etc., Co., 92 Wash. 52, 158 Pac. 740, L. R. A. 1917C, 630. In the case last cited we held that, where the evidence is in substantial conflict upon any controlling issue in the case, it cannot be said that there is any abuse of discretion by the trial court in granting a new trial on the ground that the verdict is against the evidence. Hence, much as we are inclined to disagree with his honor the trial judge as to the weight of the evidence, the discretion to be exercised judicially was initially his, and possibly his greater advantage in weighing the evidence at close range guided his discretion and his judgment. At all events we do not feel justified in declaring that his order was the result of a clear abuse of discretion. Unfortunate as it may be for the appellant to be forced to submit to continued litigation of the cause, we see no escape therefrom. Order affirmed. PER CURIAM. The opinion in this cause is Appel-reported in 93 Wash. 522. We there directed that the judgment, notwithstanding the verdict, be reversed and the cause remanded, with instructions to enter a judgment upon the verdict. A petition for rehearing was interposed, calling attention to the fact that the respondents had filed a motion for a new trial which had not been passed upon by the trial court, and contending that our order was erroneous since it did not reserve this right to the trial court. In this particular the order will be modified. However, there was a decided conflict in the evidence upon the chief issues. lant recognizes the rule that, with an order granting a new trial, where the motion is based upon several grounds, the court does not specify the exact grounds upon which it is granted, and it does not appear to have been granted solely upon questions of law, the appellate court will not interfere unless there has been a clear abuse of discretion. Notwithstanding that acknowledged rule, appellant contends upon the record here that the granting of a new trial was in legal effect an abuse of discretion. We have repeatedly held that the granting of a new trial is within the discretion of the trial court, and his ruling will not be disturbed on appeal where no abuse of such discretion appears. Clark v. Ellington, 86 Wash. 110, 149 Pac. 350; Caughren v. Kahan, 86 Wash. 356, 150 Pac. 445; Wik v. King, 86 Wash. 171, 149 Pac. 640; Langley v. Devlin, 87 Wash. 592, 151 Pac. 1134; Pappas v. Dailey, 90 Wash. 286, 155 Pac. 1059; Payzant v. Caudill, 89 Wash. 250, 154 Pac. 170; The petition in so far as it relates to other questions discussed is denied. CAMMARANO et ux. v. LONGMIRE, Sheriff, et al. (No. 14378.) (Supreme Court of Washington. Jan. 9, 1918.) 1. JUDGMENT 143(9)-SETTING ASIDE DEFAULT-DISCRETION. In action against a sheriff for wrongful exesheriff for failure to appear within 20 days aftcution, an order of default, entered against the er service of summons, was within the court's [2] The appellants next contend that the court erred in sustaining a demurrer to their complaint and entering a judgment of dismissal. appellants rely upon the case of Slyfield v. In support of this contention the discretion to vacate, on motion by the sheriff 2 | cretion of the court, and we cannot think days after the 20-day period and his affidavit such discretion was here abused. showing he understood the real party in interest would enter appearance for him; for the sheriff, being but the functionary of the law charged with the legal duty of executing the writ, should not be held to answer personally for his conduct in that behalf, unless his acts were without authority of law. 2. EXEMPTIONS Willard, 43 Wash. 179, 86 Pac. 392. It is MORTGAGE. argued that the case is authority for the rule Exempt household goods may be mortgaged; that a chattel mortgage by the owner upon such mortgage operating as waiver of the ex-exempt property is void if the owner thereemption. 94 WAIVER CHATTEL --- Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford, Judge. Action by Nicholas Cammarano and wife against Robert Longmire, Sheriff of Pierce County, and others. From judgment for defendants, plaintiffs appeal. Affirmed. H. G. Raettig, of Tacoma, for appellants. S. A. Gagliardi, of Tacoma, for respondents. after choses to claim the exemption. The case as it is reported lends color to the claim, but its reading in the light of the record will show that the mortgagor purported by the terms of the mortgage to waive his exemptions as against the mortgage debt on property not included within the mortgage. The statute apparently authorizing such a waiver held that the mortgage was void as to exempt was held unconstitutional, but it was not property included within the description of FULLERTON, J. The appellants executed the property mortgaged. Nor is such a mortto Florina Albino a chattel mortgage on all gage void. To deny the right to mortgage their household goods to secure their prom-exempt property would be to deny its right of issory note for $100. The note not having sale or other disposition. This is not the polbeen paid at maturity, an action was institut-icy of the law. The constitutional provision ed for the foreclosure of the mortgage. A judgment was rendered directing the foreclosure, and a special execution was issued to the sheriff authorizing him to sell the mortgaged goods to satisfy the judgment and costs in the foreclosure proceedings. Before the date set for sale, the appellant Nicholas Cammarano, as head of a family, filed an affidavit setting up that he was entitled to hold the property as exempt from execution. His claim was disregarded by the sheriff, and execution sale of the property was duly made. The appellants thereupon brought an action against the sheriff, the judgment plaintiff, and the sureties upon her indemnity bond to the sheriff, for the recovery of damages. From a judg-(Supreme Court of Washington. Jan. 9, 1918.) ment for the respondents this appeal is prosecuted. referred to in the case of Slyfield v. Willard, requires the Legislature to protect to heads of families a certain portion of the homestead and other property from forced sales, not voluntary sales or sales made under a voluntary pledge. The judgment of the lower court is without error, and must be affirmed. It is so ordered. ELLIS, C. J., and PARKER, MAIN, and WEBSTER, JJ., concur. VANHORN et al. v. NESTOSS et ux. (No. 13647.) 1. GUARDIAN AND WARD 15-QUALIFICA- ply to bonds of guardians, section 1395, requir- [1] The first contention of appellants is that the court erred in vacating the order of default entered against the respondent sheriff, because of his failure to plead or en-bonds of executors and administrators shall apter his appearance within 20 days after the service of the summons. The 20-day period expired on January 11, 1917, and a default was entered on January 12, 1917. On the day following the entry of the default the sheriff moved for its vacation, showing by affidavit that his failure to appear was due to a misunderstanding, he having understood that the attorney for the real party in interest would enter an appearance for him. The sheriff was but the functionary of the law charged with the legal duty of executing the writ issued on the foreclosure judgment, and should not be held to answer personally for his conduct in that behalf, unless his 3. GUARDIAN AND WARD_104-SALE OF REAL ESTATE CURING DEFECTS. acts were without authority of law. To va- The failure of a guardian to qualify by givcate the default was within the sound dis-ing a bond is not a defect coming within the 2. GUARDIAN AND WARD 15-QUALIFICATION OF GUARDIAN-NECESSITY OF BOND. The failure of a guardian to qualify by giving a bond is a jurisdictional defect, which deof the wards, so that a sale of real estate in a prives the court of jurisdiction over the estate guardianship proceeding, where no bond has been given, is illegal and void. curative provisions of Rem. Code 1915, § 1693, | the right to the possession thereof, and for providing that a sale of any real estate by a the rents and profits. guardian shall not be avoided on account of any irregularity in the proceedings provided it appears that the guardian was ordered to make the sale by the probate or superior court having jurisdiction of the estate, etc., since the bond being essential to jurisdiction the court did not have jurisdiction of the estate, especially as that section further provides that the failure to give an additional bond at the time the sale is ordered, if required, is not a curable defect. 4. GUARDIAN AND WARD 105(2)—SALE OF REAL ESTATE-SETTING ASIDE. An action by wards to have a sale of real estate in a guardianship proceeding declared illegal and void, and to establish their title to the real estate and for an accounting respecting the rents and profits, in which the complaint specifically attacked the sale as illegal and void, because the court was without jurisdiction, in that the guardian never qualified by giving a bond, was a proper attack on the guardianship sale and order of confirmation, as the other relief which they claimed was essentially conditioned upon whether the sale was invalid, and it was immaterial whether the attack was direct or collateral; the sale being void. 5. GUARDIAN AND WARD 108 - SALE OF REAL ESTATE-NOTICE OF DEFECTS. A purchaser of land at a sale in a guardianship proceeding was charged with notice of the guardian's failure to qualify by giving a bond. 6. GUARDIAN AND WARD 76-SALE OF REAL ESTATE-NOTICE OF DEFECTS. Probate Code (Laws 1917, c. 156) § 215, provides that no sale by any guardian shall be void, or be set aside or attacked, because of any ir regularities, and that none of the steps leading up to such sale or the confirmation shall be jurisdictional, and the confirmation shall be conclusive as to the regularity and legality of such sale, and the passing of title after the confirmation shall vest an absolute title in the purchaser, and the instruments of transfer may not be attacked, except for fraud. Section 222 provides that probate proceedings heretofore conducted, including sales by guardians in conformity with the provisions of that act or any prior law applicable thereto, are thereby declared valid, and section 223 provides that Rem. & Bal. Code, § 1693, curing defects in guardian's sales is thereby repealed, in so far as it affects sales hereafter to be made. Held, that section 215 is not to be given a retroactive effect, so as to cure jurisdictional defects in a guardianship's sale of real property made prior to its passage and taking effect. sold through a guardianship proceeding and The property was purchased by the defendants. The complaint attacks this proceeding as void, because the probate court had no jurisdiction over the estate of the wards at the time the property was ordered sold and the sale confirmed. The cause was tried to the court without a jury. Findings of fact and conclusions of law were entered, sustaining the title of the defendants. Thereafter a motion for a new trial was made, supported by an affidavit which tended to show failure to publish notice of the sale as required by the order directing the sale. Upon further consideration of the case the trial court entered judgment, granting the motion for a new trial. From this judgment the defendants appeal. A son, The facts are these: On June 17, 1900, Isaac L. Vanhorn, the father of the respondents, died, having devised to the respondents an undivided half interest in the quarter section of land here in controversy. On the 20 day of July, 1900, the last will and testament of the deceased was duly admitted to probate. On the 30th day of August, 1902, an order was made by the superior court, distributing an undivided half interest in the property here in controversy to the respondents. When Isaac L. Vanhorn died, he left surviving him his wife, Christina Annie Vanhorn, and two minor children, Mary J. Vanhorn and Elizabeth A. Vanhorn. Isaac L. Vanhorn, was born on the 7th day of October, 1900, a few months after his father's death. On November 14, 1902, Christina A. Vanhorn petitioned the superior court for Lincoln county to be appointed guardian of her three minor children, and on the same day an order making the appointment was entered. There was no provision in the order requiring a bond or fixing the amount thereof. In the petition for the appointment of a guardian it was asked that such appointment be made "without bonds." The order making the appointment was upon a printed form. and through that portion of the printed matter, which was to be filled in, covering the giving of the bond and the amount thereof, pen lines were drawn. On July 21, 1909, the guardian petitioned the superior court to sell the real estate owned by the minors. On July 26th an order was entered, directing the sale. On February 16, 1910, an order was entered, confirming the sale which had taken place prior thereto, and on the date fixed in the order directing the sale. At this sale the interest of the minors in the quarter section of land which had been devised to them by their father was purchased by the appellants. At the same time, by private arrangement, the mother's half interest in the same property was purchased by the same parties. The money received from the children's half interest in the land, together with the money which the mother received for her half interest, was invested in a half section of land near by, heavily incumbered by a mortgage. Approximately a year thereafter this half section of land was sold, and netted to the mother and children the sum of approximately $2,000, one half of which would belong to the mother, and the other half to the children. The evidence shows that no part of the children's money was either subsequently invested for them or applied to their education, support, or payment of their just debts. The complaint in this action attacks the sale in the guardianship proceeding as illegal and void, because, among other things, the court acquired no jurisdiction of the wards' estate because the guardian had given no bond. The first bond given by the guardian was on the 13th day of March, 1914, and long subsequent to the sale under the guardianship proceeding through which the appellants claim title. the The first question is whether the giving of a bond by a guardian is a condition precedent to the right to act as such. In other words, if the guardian fails to give bond, does the court acquire any jurisdiction over wards' estate. It is a general requirement of statutes providing for the appointment of guardians that the appointee shall give bond for the faithful execution of his trust, and under such statutes it is generally held that an act done without, or before, giving such bond, is a nullity. In 12 R. C. L. at page 1116, it is said: "It is a universal requirement of the statutes providing for the judicial appointment of guardians that the appointee should give bond, in a sum fixed by the court and with surety acceptable to it, for the due execution of his trust. And it is usually held that the giving of such bond, the 'qualification' of the guardian as it is called, is a condition precedent to the vesting of his authority; and that any act done without or before the giving of such bond is a nullity.' In Woerner on the American Law of Guardianship, at section 38, page 120, relative to the requirement that a guardian must give bond before he can act as such, it is said: The statutes of this state, requiring a bond of the guardian, in effect at the time the sale here in question took place, are found in Rem. Code. Section 1632 of this Code provides: "The court shall take of each guardian appointed under this act a bond, with approved security payable to the state of Washington, in the sum of not less than twice the value of the personal property and twice the estimated value of the annual rents, profits and issues of the real property belonging to the estate, conditioned as follows. * Section 1633 provides that: "All the provisions of chapter 8 of this title relative to bonds given by executors and administrators shall apply to bonds taken of guardians." By this section the statutory requirement relative to bonds given by executors and administrators is made to apply to bonds given by guardians. Section 1395, as to executors and administrators, requires that: "Every person to whom letters testamentary before receiving them, execute a bond to the or of administration are directed to issue must, state of Washington, with two or more sufficient sureties, to be approved by the judge. Section 1449 requires that: * * "Every executor or administrator shall, after having qualified, by giving bond as hereinbefore provided, have a right to the immediate possession of all the real as well as personal estate of the deceased. * [1] The statutes requiring a guardian to give bond are designed to protect the ward's estate. Reading section 1632, which requires that the court shall take of each guardian a bond, in connection with sections 1395 and 1449, which are made by statutory reference to apply to guardians, as well as executors and administrators, it is plain that the Legislature manifested an intention that the giving of a bond was a condition precedent to the right of the guardian to act. In other words, the guardian cannot qualify as such without the giving of such bond. These same statutes were under consideration by the federal Circuit Court of Appeals for the Ninth Circuit in Hatch v. Ferguson, 68 Fed. 43, 15 C. C. A. 201, 33 L. R. A. 759, and a like conclusion was there reached. In that case land of the wards had been sold in a proceeding in which a so-called guardian was acting as such, but who at no time had given the bond required by the statute. The court there, after reviewing the authorities, used this language: statute and the purpose which was intended to "Considering the language of the Washington be subserved by the provision requiring a bond of the guardian before he should assume the duties of his office, we think it the better doctrine to hold that the statute is mandatory, and that the execution of a bond is made the necessary prerequisite to the appointment of a guardian. It was evidently contemplated that in the creation of guardianships two steps, equally indispensable, should be taken: First, the appointment; second, the giving of the requisite security by the guardian so nominated-and that the appointment without the bond, and the bond potent to create the official relationship of without the appointment, would be equally imguardian and ward. It is not the policy of the statute to extend to the purchaser at a guardian's sale the protection which in many instances is accorded to the innocent purchaser. The protection of the minor is deemed of the first importance. It is intended that the purchaser of the minor's property shall be placed upon inquiry to ascertain that the antecedent steps have been taken in accordance with the law. It is within the power of all to know whether the person who assumes to act as guard Then follows the condition which the bond ian is in fact clothed with the powers of that shall contain. Under the language of the first subdivision the statute does not cure defects unless the guardian was ordered to make the sale by a court "having jurisdiction of the estate." Neither would it apply under subdivision 2, if the court, at the time of ordering the sale, had required an additional bond, and the sale had been made by the guardian without the giving of such bond. If the failure to give bond required by this second subdivision was not a curable defect, obviously it was not the intention of the Legislature to bring within the statute a defect caused by the failure of the guardian to qualify by the giving of a bond. would have shown that Ferguson could not law- The bond being essential to jurisdiction, the fully represent the Hatch heirs without first curative statute does not apply to the presgiving a bond, and that he had wholly failed to comply with the law in that regard. Notwith-ent action. standing the judgment of the probate court appointing the guardian, and the judgment of the superior court decreeing and confirming the sale, his acts are void, and may be so declared in any court having jurisdiction of the subjectmatter and the parties to the suit. To hold that such defects may be taken advantage of only in direct proceedings is to afford but little protection to the ward whose property is being administered. The circumstances which attend and induce the sale continue in most instances until the ward reaches his majority and the guardian is discharged. Until that time it is obvious that the ward has rarely the opportunity to reclaim his property or protect his rights. The evils which it is the policy of the statute to obviate are real, and their existence is aptly illustrated in the case before the court, since it appears from the record that Ferguson, who acted as guardian, but who failed to give the bond required by law, has appropriated to his own use all of the children's money which he received as the proceeds of the sale of their land, and has wholly failed to account therefor." [2] It is no doubt true that there are a few cases holding that the failure to give a bond by the guardian is not a jurisdictional defect; but the great weight of authority, and, as we think, the better reason, is to the effect that a failure to give the bond is a jurisdictional defect, and that a sale of real estate in a guardianship proceeding where no bond has been given is illegal and void. It would serve no useful purpose to review the many cases upon this question, as each must depend, to a large extent, upon the language of the statute before the court in the particular The statutes in this state, in requiring a guardian's bond, are mandatory. The giving of the bond was essential to the qualification of the guardian, and without such bond the court had no jurisdiction over the wards' estate. case. to make the sale by the probate or superior court having jurisdiction of the estate; "2. That he gave a bond which was approved by the probate or superior judge, in case a bond was required upon granting the order; "3. That he gave notice of the time and place and sale, as in the order and by law prescribed; and "4. That the premises were sold accordingly, by public auction, and the sale confirmed by the court, and that they are held by one who purchased them in good faith." [4, 5] Two other questions remain for consideration: First, did the respondents, in their complaint, properly attack the guardianship sale and the order of confirmation? and, second, was the purchaser at the sale charged with notice which an investigation of the guardianship proceedings would have disclosed? These questions are both answered in the affirmative by the case of Dormitzer v. German Savings & Loan Society, 23 Wash. 132, 62 Pac. 862. In that case the plaintiffs, during their minority, inherited a half interest in certain real estate in the city of Spokane. The father caused a brother of his, and an uncle of the children, to be appointed their guardian. Thereafter, the property was sold and was purchased by the father. After the purchase was made, the father executed a mortgage to the guardian for the purchase price, which mortgage was subsequently released. Thereafter the father mortgaged the property to the German Savings & Loan Society for a large sum of money. The action was begun by the plaintiffs for the purpose of having the release of the mortgage by the guardian set aside, and for general relief. The facts as pleaded in the complaint showed that the sale through the guardianship proceedings to the It was father was fraudulent and void. there held that the plaintiffs would be reestablished in their title, unincumbered, and that the deed by the guardian to the father was fraudulent and void. It was also held that the German Savings & Loan Society was charged with notice of what the guardianship proceedings would show, and that that society took its mortgage charged with knowledge that the sale to the father was fraudulent and void. In the present case the respondents specifically attack the guardianship sale as illegal and void, because the It will be noticed that by this statute a court was without jurisdiction to order the sale by a guardian shall not be void on ac- sale. It is true that they ask for possession count of any irregularity in the proceeding, and for an accounting, but the gravamen of providing it appears, as recited in the first the charge was the illegality of the sale. subdivision, that the guardian was ordered Every other relief which they claimed was to make the sale by the probate or superior essentially conditioned upon whether the |