ALBION VASHONIAN RESPONDENT'S CONTENTION CHIPPEWA to pass astern of the Albion and between | bow, contrary to the finding that she was on the Vashonian and the Albion, and in doing the port bow. Also, if the Vashonian ported so struck the Albion about amidships, inflict- her helm and took a heavy swing to staring the injuries which the plaintiffs complain board to pass the Albion, it necessarily folof and for which they seek to recover from lows that the Albion was not on the port side the defendants. of the Vashonian. On the other hand, if the Albion was on the port side of the Vashonian and ported her helm sufficiently to swing her three-quarters of a point to starboard, and if at that time she was, as is claimed, dead ahead of the Chippewa, which was passing distance to the port of the Vashonian, there was then no necessity for the Vashonian to make any swing to starboard. The trial court, however, adds that the Albion did not change her course to pass the Vashonian. But though this may be so, it is also apparent from the finding that the Vashonian had to swing 33 degrees around the circle to pass to port of the Albion, which means that they were approaching starboard to starboard. The court further found that the Albion was approaching the Vashonian and the Chippewa both port to port, and that the Albion at all times had the right of way. Such a finding as to right of way can only be made upon the assumption that the Albion was crossing the courses of the Vashonian and the Chippewa, having them upon her port side. ALBION VASHONIAN APPELLANT'S CONTENTION. CHIPPEWA If Although these findings may appear at first to be inconsistent, upon closer examination we do not find that they are irreconcil. able with the previous findings. None of them are the basis for the finding that the Albion was on the port bow of the Vashonian, The crucial point of dispute in the case concerns the position of the Albion and the Vashonian just before the collision. The trial court found that the two vessels approached port to port, which is the respondents' contention. The appellants, however, contend that the Albion was on the starboard bow of the Vashonian, which would make the approach starboard to starboard. this is true, then the Vashonian was directly between the Albion and the Chippewa, and the former was not visible to the latter, unless she could be seen over the upper works of the Vashonian. If, however, the Vash-on which the finding of negligence must rest. onian was to the port of the Albion, as found The finding that the Chippewa was first by the trial court, then the Vashonian being made aware of the proximity of the Albion on the starboard of the Chippewa, which is when the Vashonian swung to starboard is undisputed, the Chippewa had an unobstruct- not necessarily a finding that the Albion was ed view of the Albion, and failure to see her not in plain view of the Chippewa prior to could be attributed only to the negligence that time, nor is the finding that the Vashonof the Chippewa. The witnesses do not ian swung three points to starboard concluagree on this point. Those on the Albion at sive proof that such a maneuver was neces the time testified positively that the Vash-sary to enable her to pass the Albion in safeonian was on her port bow, while Mr. Jack-ty. The determination of which vessel had son, master of the Vashonian, testified that the right of way is unnecessary to a finding the Albion was on his starboard and crossed that the collision was due to negligence on his bow. The evidence was sharply con- the part of the Chippewa, since it is admitflicting, but we are not prepared to say that ted that, when the Chippewa and the Albion the facts as found by the trial court are not discovered that there was a misunderstandsupported by a preponderance of the evi-ing of intention, both vessels displayed propdence. The appellants, however, contender seamanship, and that finding does not milthat the findings as to the facts of the collision, which are practically a copy of the opinion, are inconsistent and do not support the conclusion that the Albion's lights were not obscured from the Chippewa, and could have been observed by the exercise of reasonable diligence on her part. These claimed inconsistencies are stated as follows: If the Albion's lights came into view from behind the Vashonian so as to become visible to the Chippewa, as found by the court, then the Vashonian being on the Chippewa's starboard bow, it necessarily follows that the itate against the essential finding that the Albion was on the port bow of the Vashonian. Construing the findings as a whole, we fail to see wherein they are defective. Appellants apparently find no fault in the rule of law applied by the trial court. That, under the facts as found by the trial court. the failure by the Chippewa to observe the lights of the Albion constitutes negligence as a matter of law is fully supported by the cases relied upon. The Gazelle (D. C.) 33 Fed. 301; The New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126; Brigham v. Luck (89 Wash. 342) (No. STATE ex rel. ANGELES BREWING & PEAL. [2] Appellants, however, except to that portion of the judgment which was allowed as compensation for freight damaged in the collision, for the reason that the allowance made was the price of the freight lost, as shown by the duplicate invoices furnished by the various shippers in response to a request sent out by the adjusters of the cargo. These invoices were admitted over objection Where, after judgment in an action in favor that they did not show the value of the of the receiver of a corporation, the court regoods lost, but in the absence of some show-moved the receiver and appointed another in his ing that the shippers' claims were fraudulently made or that the prices were in excess of the actual value, the invoices were competent evidence of the actual value of the goods lost and the amount paid by the respondents on that account. [3] Objection is made to the allowance of interest from October 2, 1910, the date on which the repairs on the Albion had been completed and she was returned to her run. The finding on which the judgment for interest was given is as follows: "All of the repairs, refitting, refurnishing, and adjustments occasioned by the collision were made by and the boat returned to her run on October 2, 1910, and this is an average date from which to compute interest." The damages allowed by the trial court were based on the amounts paid out by the respondents in repairing and refitting the boat, and in paying the claims for lost and damaged freight. These amounts could be determined by computation, and interest should be allowed from the date when a right to reimbursement arose. But as the award was to reimburse the respondents for money paid out, interest should not be allowed prior to the date of the original payment, as respondents had the use of the money until that time. The record does not disclose when the various payments were made, and we are unable to determine what would be a proper allowance of interest. Exhibit I is a bunch of vouchers for disbursements made on account of freight lost. The first of these vouchers shows payments of $1,648.76, but no dates on which the claims were paid are given. Mr. Janecke, receiver of the brewing company, testified that it was probably a year and a half (evidently from the date of the collision) before these claims were paid in full. Other vouchers show payments between November 3, 1910, and September 28, 1911. Exhibit J, which consisted of vouchers for payments made for repairs, is not before us, and we find no testimony as to when these items were paid. The judgment will therefore be reversed, and the cause remanded, with directions to the trial court to allow interest on the various amounts paid out by the respondents, on which a recovery was allowed, from the dates of their several payments. FULLERTON, CHADWICK, and ELLIS, JJ., concur. stead, substituting the latter as plaintiff in such action, and B. as attorney for plaintiff, W. and O., attorneys for the former receiver in such action filed a lien on the judgment for services in obtaining it, which the substituted receiver moved to strike, which motion the court overruled on the ground that it was made at an improper time, but without passing on the validity of the lien or the right of W. and O. to file such lien order overruling the motion, since no substantial on the judgment, no appeal will lie from the rights of the parties were affected. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 612-641; Dec. Dig. 91.] 2. CERTIORARI 5-ATTORNEY'S LIEN-Mo. TION TO STRIKE — APPEAL PENDING - REVIEW. The court, however, having decided that the validity of such lien could not be determined by a motion to strike, and the motion being ancillary to the case in which the judgment was obtained, which was pending on appeal in the Supreme Court, certiorari was the proper procedure to review the ruling. [Ed. Note.-For other cases, see Certiorari, Cent. Dig. §§ 5, 6; Dec. Dig. 3. ATTORNEY AND CLIENT 192 5.] - ATTOR judgment in an action. After his removal and The receiver of a corporation recovered the appointment of a substituted receiver, who was also substituted as plaintiff in the action, the attorneys for the original receiver filed a lien on the judgment, to which the substituted receiver addressed a motion to strike for invalidity. Certain insurance companies who had been subrogated in part to plaintiff's right in the judgment were not made parties to the proceeding, and other parties interested were not given the statutory notice provided for litigants. Held, that the motion to strike being an independent transaction between the substituted receiver and the filing attorneys who were not in court, except through the motion, and the insurance companies not being before the court at all, the motion was properly overruled, since the court could not pass on the validity of the lien where all the parties affected by the judgment were not before the court. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 425-427; Dec. Dig. 192.] Certiorari by the State, on the relation of the Angeles Brewing & Malting Company For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes A. W. Buddress, of Seattle, for relators. Edward Judd, of Seattle, for respondents. MORRIS, C. J. This is an original appli, cation for a writ to review an order of the superior court for King county, Vivian M. Carkeek, judge pro tempore, denying a motion to strike an attorney's lien filed against the judgment in Angeles Brewing & Malting Co. v. Carter, 154 Pac. 601. Subsequent to the rendition of the judgment in that case the superior court of Clallam county entered an order removing J. F. Janecke as receiver of the brewing company, and appointing S. M. Lauridsen in his stead. Lauridsen thereupon retained A. W. Buddress as his attorney, and an order was entered substituting Lauridsen as plaintiff in place of Janecke, and Buddress as attorney for the plaintiff. Thereafter Willett & Olson, who had represented the receiver in the Carter Case, filed in that case a notice of attorney's lien, in which they claimed a lien for $4,000 on the judgment therein, for their services in obtaining the judgment. Relator Lauridsen thereupon filed a motion to strike the lien, the substance of which is as follows: "Now come the plaintiffs in this cause and move this honorable court to strike from the records and files in the above-entitled cause the purported 'Notice of Claim of Lien' and the purported claim of lien, dated August 14, and filed August 15, 1914, in said cause, whereby O. L. Willett and Frank Olson, doing business under the firm name of Willett & Olson, as attorneys in the city of Seattle, state of Washington, wrongfully claim a lien upon the judgment rendered in the before entitled cause in favor of the plaintiffs and against the defendant H. Carter, Inland Navigation Company, a corporation, and the Puget Sound Day Line, a corporation. This motion is based on the records and files in said cause, and on the ground that said Willett & Olson have not, nor either of them, any lien upon nor claim to said judgment; that said purported claim of lien was made and filed after the said Willett & Olson withdrew from said cause and A. W. Buddress was substituted in their place and stead as the attorney for the plaintiffs; that no such lien is given nor authorized by law; that said Willett & Olson are barred from claiming any such lien by reason of the fact that they elected to hold one J. F. Janecke individually only for the total amount of all of their alleged demands, including the amount included in said claim of lien, by commencing suit in said superior court against said J. F. Janecke, individually, therefor and obtaining judgment against him for the same in cause No. 103,619 in said court; that said claim of lien was made and filed without any leave of court appointing said receiver, or any other court." "That the present is not the proper time to take any such action. No attempt is being made of the records and the decisions, I am of the Ito foreclose the lien, and, from an examination opinion that the motion is not well taken." Relator now seeks by certiorari to review this decision. Respondents Willett & Olson appeared, demurred to the petition for want of facts, and also answered. [1, 2] It is apparent from the views expressed by the trial judge that he did not in any manner pass upon the validity of the lien, nor upon the right of Willett & Olson to file a lien upon the judgment obtained by them in the Carter Case, and as no substantial rights of the parties were affected, an appeal would not lie from the order; but since the trial judge did adjudicate that the validity of this lien could not be determined by a motion to strike the lien, and as the motion to strike was a proceeding ancillary to the Carter Case which was at that time pending in this court on appeal, certiorari is the proper procedure to review the ruling. Relator argues entirely in his brief that the lien is void, but as the decision of the trial court touched only the manner of precedure to remove the lien and not its validity, the only question before us is one of procedure, unless we decide that the action taken was the proper procedure to test the validity of the lien. [3, 4] The statute, Rem. & Bal. Code, § 136, which authorizes an attorney's lien on a judgment, makes no provision for the proce dure to be followed in enforcing the lien, nor of any procedure that would destroy it. There can be no question but that, as be tween the parties to the action in which the judgment was entered, the court has a right to determine all questions affecting the judgment raised by parties properly before the court, in some form of proceeding by which the matters might be properly adjudicated. Our inquiry, then, must be whether the court had before it upon the motion to strike all the parties who would be affected by the action of the court in declaring the lien val id, or in declaring it invalid and striking it. It is not necessary to decide whether the motion to strike would be the proper proce dure, if the validity of the lien were determinable from the record before the court, and we express no opinion upon that question, as we find that all the parties interested in the notice were not properly before the court, and that the validity and reasonableness of the lien could not be determined by the procedure adopted by the relator. The judgment in Angeles Brewing & Malting Co. v. Carter subrogated the Pacific Marine Insurance Company and the China Traders' Insurance Company "to the rights of the plaintiffs in the sum of $1,809.20 of the judgment, found in favor of the plaintiffs" by reason of their position as insurers The trial court overruled the motion to of the hull of the Albion. Neither of these In Bank. Petition by the Film Producers, Incorporated, for a writ of mandate against Frank C. Jordan, as Secretary of State. Writ denied. Frank C. Hill, Lynden Bowring, and Geo. S. Hupp, all of Los Angeles, for petitioners. U. S. Webb, Atty. Gen., for respondent. the lien, was made a party to the proceeding | 47,500 shares of preferred stock of the par value in which the lien and the motion to strike of $20 each. Held, that the articles of incorwere filed, and this is an attempt on the poration, providing for such a division of corporate stock, were contrary to the law, for if part of relator to litigate the validity of the the shareholders were each allowed to vote aclien by a proceeding in which all interested cording to shares the holders of the common parties were not before the court; and as their capital invested was much less than that stock would control the corporation, though to those served, the statutory notice provid- of the holders of the preferred stock, "shares" of ed for litigants was ignored, and they were stock being but representatives of value, while compelled to come before the court on six if the shareholders were liable for such propordays' notice and have their claim determined tion of the corporate debts as the amount of their shares should bear to the whole of the in a proceeding in which no evidence could be capital shares the holders of the common stock taken to determine the right of respondents would be liable in an excessive amount. to the lien. Such procedure finds no support [Ed: Note.-For other cases, see Corporations, in law. As between parties to the suit, the Cent. Dig. § 164; Dec. Dig. 62. court has the right to determine all issues First and Second Series, Share.] For other definitions, see Words and Phrases, raised by the pleadings; but the filing of the lien and the motion to strike involved an independent transaction between the new receiver and the former receiver's attorneys who are not in court, except through the motion to strike, and between the insurance companies which are not before the court at all in this proceeding. The lien and the motion concerned a question of debt for services rendered. If the respondents saw fit HENSHAW, J. Mandate to the secretary they could, after filing the lien, bring an ac-of state, who has refused to file petitioners' tion to foreclose and have the right to the lien and its reasonableness determined in any proper forum. The validity of such a The secretary's refusal is based upon his lien, and the legality and justice of the conviction that the articles of incorporation claim, are questions which cannot in this in- do violence to the laws of the state in the stance be determined by a summary proceed- following particulars: The capital stock of ing to strike. The lien here was filed in this corporation is $1,000,000, divided into conformity with the statute granting it, and, 50,000 shares of common stock of the par valif the court should deprive the lien claim-ue of $1 each, and 47,500 shares of preferred ants of this lien, or declare it reasonable as stock of the par value of $20 each. Our law to parties against whom it might be enforced, (Civ. Code, § 290, subd. 6) permits the issuin an action in which they were not proper-ance of preferred capital stock, “provided, ly before the court, it would be acting with- however, that no preference shall be granted out authority of law and depriving litigants nor shall any distinction be made between of rights granted them by law. the classes of stock either as to voting power or as to the statutory, or constitutional liability of the holders thereof to the creditors of the corporation." Touching the stockholder's liability, section 322 of the Civil Code declares that each stockholder shall be We are therefore of the opinion that the ruling of the trial court was correct, and the demurrer to the petition for the writ of certiorari is sustained. It is so ordered. articles of incorporation, seeking a judgment compelling him to do so. FULLERTON, ELLIS, and MAIN, JJ., personally liable for such proportion of the concur. (171 Cal. 664) corporation debts "as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock or shares of the corporation." FILM PRODUCERS, Inc., et al. v. JORDAN, Secretary of State. (L. A. 4360.) The preferences, which in terms the arti(Supreme Court of California. Jan. 8, 1916.) cles of incorporation give to the preferred CORPORATIONS 62. CORPORATE STOCK COMMON AND PREFERRED STOCK-"SHARE." stock or stockholders, are not in and of themCiv. Code, § 290, subd. 6, permitting the selves in violation of our law. If our law is issuance of preferred stock, declares that no violated it is because by virtue of the differpreference shall be granted or any distinction made between the classes of stock, either as to ing par values between the common and the voting power or the liability of the holders to preferred stock, of necessity preference is corporate creditors. Section 307 gives to stock- given as to voting power to the common holders the right to vote to the extent of the stock, while as to the stockholder's liability number of shares held by each, while section 322 declares that each stockholder shall be person- preference is given to the preferred stock. ally liable for such proportion of the corporate Section 307 of the Civil Code gives to stockdebts as the amount of stock or shares owned holders the right to vote to the extent of the by him bears to the whole of the subscribed cap- "number of shares" held by, each. These ital stock. The capital stock of a corporation was $1,000,000, divided into 50,000 shares of sections of the Code thus given embody the common stock of the par value of $1 each, and law controlling the decision of the question. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Petitioners first contend that no violation, classes of stock in that in one class of stock is done to the law forbidding distinctions be- a single share, representing but one-millionth tween the voting power of common and pre- of the capital stock, is entitled to the same ferred stock, in that the law simply declares vote that another share representing twen that each share of stock shall be entitled to ty-millionths of the capital stock is given. its vote, and that under these articles of in- Or, to epitomize the consideration, if all of corporation each share is so given its right the stock of this corporation is subscribed for to vote. This is unquestionably true. Touch- at par, stockholders owning the common ing the second position taken by the secre- stock and having but $50,000 of investment tary of state it is argued that when section will control a corporation with a capital stock 322 of the Civil Code uses the words "stock" of $1,000,000, leaving the owners of $950,000 or "shares," it uses the words interchange-stock in a hopeless minority. Again we have ably as meaning the same thing, with the re- said that there is an intimate correlation be sult that each stockholder's liability would be tween the voting right and the stockholder's proportioned to the number of shares which liability. It becomes conspicuous when conhe owned, regardless of the par value of the sideration is paid to the latter question. It shares. Or, if this be not true, and the words it shall be said that in this corporation a above quoted, used as they are in the alterna- stockholder's liability is governed by the protive, are to be construed as meaning different portionate number of shares which he owns, things, it would then follow that the owner then it must result that one who owns a of one share of common stock, who thus own- single share of common stock is subjected to ed $1 of the capital stock of the corporation, the same liability as one who owns a single would be subjected to one-twentieth of the share of preferred stock, although his investliability that would attach to the owner of ment and ownership in the corporation will one share of preferred stock, who thus own-be but one-twentieth of that of the man who, ed $20 of the capital stock of the corporation. This position would appear to be equally sound. with a larger holding, incurs a less liability. Upon the other hand, if it be said that seetion 322 is to be construed as imposing liability in proportion to the ownership of the subscribed capital stock, then we still encounter the difficulty that the owner of $20 of the capital stock has a voting power only one-twentieth as great as that of the man who owns but a single dollar's worth of capital stock. The truth of the matter is that our statutes were framed, and our decisions under them based, upon a capitalization represented by shares of a single par value. The market trading in and the market value of these shares can have no bearing upon the con The difficulty with both of these positions, however, is that they take no account of the intimate relation necessarily existing under our law between the right to vote stock up on the one hand and the stockholder's liability upon the other. A brief discussion will show what is meant. "Shares" of stock are but representatives of value. They are but paper evidence of ownership of the capital stock of the corporation, and that ownership is precisely such as the share itself declares it to be. Where a corporation such as this has a capital stock of $1,000,000, every owner of one preferred share of stock owns twenty-struction of the statutes. It was the clear millionths of the capital stock of the corpo- design of our law that liability should be inration. Every owner of one share of com- posed in proportion to the ownership of the mon stock owns but one-millionth of the cap-capital stock, and where the shares of capital stock of the corporation. To say that ital stock had the same par value it was a each of these is a share and that each is giv-matter of indifference whether the law de en equal representation under the law because each stockholder is permitted to vote each share is but skimming the surface of the question. Each shareholder is entitled to vote in accordance with his ownership of the capital stock. Throughout the whole history of our law all shares of stock in any given corporation have been of identical par value, and no such questions as are here presented, therefore, have arisen or could arise. Every share represented an equal ownership in the capital stock, and it mattered not whether the law spoke of the right to vote or of the stockholder's liability as being based on and proportioned to "the amount of stock" or to "the number of shares." Reaching into the vitals of the question, therefore, there is a plain distinction in these clared that the liability should be in proportion to the owned shares or in proportion to the owned capital stock. The law, however, uses both phrases. When it comes to a stockholder's voting power in a corporation it may not be questioned for a moment but that that fundamental right to vote is based upon ownership of the capital stock as distinguished from shares and not merely upon shares, which are but representatives of value. And as little can it be questioned but that the voting power should be given to the stockholders in proportion to their interest in the capital stock of the corporation. For these reasons mandate is denied, and the writ discharged. We concur: ANGELLOTTI, C. J.; SLOSS, |