to be vacated. At page 435 of 21 Wash., and page 579 of 58 Pac., the court said: "Now it will be observed that the petition in this instance fails entirely to set forth the judgment and decree complained of, or, except by inference, that any judgment or decree in which the appellant was interested was rendered at all.” It cannot be said there is any such uncertainty in the setting out of the judgment in this petition. A petition in this kind of a proceeding is simply the statement of the petitioner's cause of action as if it were a complaint, in which it becomes necessary to set forth the judgment sought to be vacated. We are unable to see why in such a pleading the decree sought to be vacated should be set forth with any greater certainty than as if it becomes necessary to plead it in an ordinary civil action. The allegations of this petition leave no uncertainty as to the nature of the decree, the grounds upon which it was rendered, the party in whose favor and the party against whom it was rendered, the court in which it was rendered, and the date on which it was rendered. The authorities seem to be uniform to the effect that nothing more is required. 2 Black on Judgments (2d Ed.) 964; 11 Ency. Pl. & Pr. p. 1126. ment or decree. Fraud would, of course, be | total failure to set out the judgment sought one good cause, but there might be many other causes sufficient under this section which would not be if there were no such provision. It did not take away any rights possessed by parties having judgments rendered against them, but gave additional rights to parties having judgments rendered against them upon service by publication. In the absence of this provision, a judgment rendered upon service by publication could not be set aside for any different reason than could other judgments. This section is not the whole law upon the subject setting aside divorce decrees simply because such decrees are excluded from its operation. Graham v. Graham, 102 Pac. 891. This petitioner does not have nor does she seem to be claiming any greater rights because the fraud, which she alleges was perpetrated upon her was in a cause where the decree purports to have been rendered upon service by publication, instead of some other kind of service. The effect of the fraud on her rights is in no way controlled by the kind of service purported to have been made. And we do not think this petition shows want of jurisdiction in the superior court simply because it may allege a cause for vacating the decree under this section if it were not a divorce decree. It also may show facts constituting fraud sufficient for vacating the decree independent of this section, and this brings us to that question. The general law relating to the vacation of judgments, being sections 5153-5162, Ballinger's Ann. Codes & St. (Pierce's Code, §§ 1033-1042), among other things provides: "Sec. 5153. The superior court in which a judgment has been rendered, or by which or the judge of which a final order has been made, shall have power, after the term at which such judgment or order was made, to vacate or modify such judgment or order: (4) For fraud practiced by the successful party in obtaining the judgment or order. "Sec. 5156. The proceedings to obtain the benefit of subdivisions two, three, four, five, six, and seven of section 5153 shall be by petition verified by affidavit, setting forth the judgment or order, the facts or errors constituting a cause to vacate or modify it, and if the party is a defendant, the facts constituting a defense to the action. It is contended that this petition fails to set forth the decree which is sought to be vacated, and that the petition cannot be aided by the previous record in the cause, since the proceeding is in the nature of an independent action as was suggested by this court in the case of Roberts v. Shelton S. W. R. R. Co., 21 Wash. 427, 435, 58 Pac. 576, upon which counsel for respondent relies. We do not understand that decision to hold that the judgment or decree sought to be vacated must be set forth in the petition by a copy thereof as seems to be the contention. An Are the allegations of fraud in this petition sufficient to constitute a cause for the relief prayed for? That is, are they sufficient in law to entitle the petitioner to offer proof in support thereof? A brief summary of the main facts alleged may be stated as follows: The petitioner by the direction and consent of plaintiff went from this state to Chicago February 29, 1908, with the mutual understanding that he would join her, and they would resume housekeeping in some Eastern city. The divorce proceeding was commenced May 29th, only three months later, by the publication of a summons in which a decree was rendered August 4, 1908. The petitioner never learned of or had any intimation of the pendency of the action or rendering of the decree until August 29, 1908. received any copy of the summons or complaint through the mail, though from the time she went away up until August 29th she received from respondent 37 letters, a large number of which were written after the action was commenced. Among them being letters dated May 21, May 25, June 3, 9, 14, and 19, 1908. It will be noticed that respondent's affidavit of mailing the summons and complaint was May 28th, yet they were not received by her notwithstanding she received these numerous letters sent her very near the same time both before and after. alleging these and other circumstances indicating that she was fraudulently prevented from making her defense, she says in her petition that she "alleges and believes that such summons and complaint was mailed to her." It seems to us these allega After cause for the relief petitioner prays for. [cloud upon their title. The claim for damWe are of the opinion that the sustaining ages is general, with the exception of a of the demurrer to the petition and dismissal special plea for attorney's fees in this acthereof by the learned trial court was er- tion. The court below made findings in favor of respondents, holding the recorded roneous. The orders appealed from are therefore re-writing to be a slander and cloud upon reversed, and the cause remanded, with direc- spondents' title, and awarding them damtions to overrule the demurrer to the peti- ages in the sum of $350, and the case is tion. brought here on appeal. But two questions are presented on the RUDKIN, C. J., and DUNBAR, CROW, appeal: Does the record complained of conand MOUNT, JJ., concur. MCGUINNESS et ux. v. HARGISS. (Supreme Court of Washington. Dec. 2, 1909.) 1. QUIETING TITLE (§ 20*)-CLOUD ON TITLE NATURE OF INSTRUMENT. Under Ballinger's Ann. Codes & St. § 5521 (Pierce's Code, § 1156), authorizing the determination of an adverse claim which did not constitute a cloud on title according to the principles of equity, it is not necessary that an instrument, on its face, should confer some interest in land in order to authorize an action to quiet title against it so long as it asserts a claim thereto. [Ed. Note.-For other cases, see Quieting Title, Cent. Dig. §§ 49, 50; Dec. Dig. § 20.*] 2. QUIETING TITLE (§ 7*)-CLOUD ON TITLERECORDED CLAIM. A recorded notice of a contract of sale, reciting that an alleged vendee had paid to the vendor $100 on the purchase price of certain real estate described, the balance to be paid when the vendor furnished an abstract and clear title, that the vendee was willing to carry out the contract, and, on the vendor's failure to do so, claimed $10,000 damages and a lien on the land until it was paid, constituted a cloud on the vendor's title. [Ed. Note.-For other cases, see Quieting Title, Dec. Dig. § 7.*] 3. LIBEL AND SLANDER (§ 139*)- SLANDER OF TITLE-DAMAGES. Only special damages which must be pleaded and proved are recoverable in an action of Islander of title. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 394; Dec. Dig. § 139.*] 4. LIBEL AND SLANDER (§ 139*)-SLANDER OF TITLE-DAMAGES-ATTORNEY'S FEES. Attorney's fees, either as damages or costs, other than statutory, are not recoverable in an action for slander of title. [Ed. Note.-For other cases, see Libel and Slander, Dec. Dig. § 139.*] Department 1. Appeal from Superior Court, Snohomish County; W. W. Black, Judge. Action by M. J. McGuinness and wife against Leonard C. Hargiss. Judgment for plaintiffs, and defendant appeals. Modified and affirmed. stitute a cloud upon title? And are respondents, upon the pleadings and proof, entitled to damages? On October 8, 1908, appellant filed for record in the office of the county auditor for Snohomish county the following writing: "Legal Notice of Contract of Sale. Notice is hereby given that I, Leonard C. Hargiss, a bachelor of Washington, have paid to M. J. McGuinness of Snohomish, Washington, the sum of one hundred dollars gold coin on 80 acres, described as follows: The N. W. 4 of the N. W. 4 of section 12, township 27, range 5 east W. M., also the N. E. 14 of the N. E. 4 of section 11, township 27, range 5 east W. M., in Snohomish county, state of Washington, full purchase price to be $1,675.00, balance of $1,575.00 to be paid when said M. J. McGuinness furnishes clear abstract showing good title and full warranty deed, clear of all incumbrances. That the said Leonard C. Hargiss is ready and willing to pay the full amount in cash to carry out the deal, and in event said M. J. McGuinness cannot give good title to said land, said Leonard C. Hargiss claims from M. J. McGuinness $10,000 damages, and a lien on said land until it is paid. [Signed] Leonard C. Hargiss." Appellant justified this record with the con It tention that he had entered into a contract with respondents for the purchase of this land, which they refused to carry out. is not necessary to refer to the evidence of the parties in regard to this alleged contract, inasmuch as it will be of no aid in the determination of the questions involved in the appeal. The court below found that no contract had been entered into between the parties, and whatever there was of negotiation was ended on August 24th, when a Seattle bank, acting for appellant, wrote to a Snohomish bank, in which a deed, abstract, and satisfaction of mortgage had been deposited, as part of the negotiations, in part as follows: "I beg to advise you that the McGuinness deal appears to be entirely off." We need only say that the evidence strongly supports the findings of the Frederick R. Burch, for appellant. Robert court upon the question of the contract, and McMurchie, for respondents. we are of the same opinion. MORRIS, J. It is contended by appellant that the inRespondents charge appel-strument complained of is not a cloud, belant with slandering their title to real estate, cause it could not be made the basis for and seek damages and the removal from either acquiring or maintaining an interest record of the offending instrument as a in the land, and that in order to constitute a cloud the instrument must upon its face | damage, there was an attempt to prove loss confer some right, title, or interest in the of a subsequent sale at a higher price; but land. Such is unquestionably the rule in such evidence did not commend itself to the many of the states; but in this state the rule court, as is evidenced by its language as was announced as far back as Lemon v. found in the record: found in the record: "I don't think Mr. Waterman, 2 Wash. T. 485, 7 Pac. 899, that McGuinness has been damaged very much, a decree quieting title might be had not- except with reference to the expense of this withstanding the absolute invalidity of the lawsuit, and I think he is entitled to attorclaim or estate moved against, upon the ney's fees. The only evidence about the theory, as stated in Watson v. Glover, 21 value of attorney's fees in this matter is Wash. 677, 59 Pac. 516, that section 5521, $350, and I am inclined to think that is Ballinger's Ann. Codes & St. (Pierce's Code, liberal, and I have made up my mind to § 1156), had enlarged "equity jurisdiction so allow as total damages $350. You can call as to embrace a case wherein the adverse it attorney's fees, or whatever you please." interest or claim does not constitute a It is evident that, in the opinion of the court cloud," according to the principles of equity. below, no damage was established, and that The court then refers to the fact that Cali- the award of $350 is given for attorney's fornia and Oregon have similar statutes, and fees in this action. quotes from Castro v. Barry, 79 Cal. 443, 21 Pac. 946, in saying that the object of the statute is to authorize proceedings "for the purpose of stopping the mouth of a person who has asserted or who is asserting a claim to the plaintiff's property. It is not aimed at a particular piece of evidence, but at the pretensions of the individual." And from Teal v. Collins, 9 Or. 89, wherein the court says: "It is sufficient that the party in possession is incommoded or damnified by the assertion of some claim or interest in the property adverse to him." Similar rulings have been announced in Jackson v. Tate-(Supreme Court of Washington. Dec. 1, 1909.) bo, 3 Wash, St. 456, 28 Pac. 916, and Montgomery v. Cowlitz County, 14 Wash. 230, 44 Pac. 259. We therefore hold, upon the first point submitted, that the writing signed by appellant constituted a cloud upon respondents' title. Upon the second point submitted, we are of the opinion that the court below erred. In actions of slander of title it is the recognized rule that only special damages are recoverable, and that such damages must be pleaded and proved. 25 Am. & Eng. Enc. Law, 1079; 25 Cyc. 561. There was no plea nor proof of special damage, except the claim for an attorney's fee for the prosecution of this action. We have uniformly held that in this state attorney's fees, either as damages or costs, other than statutory, are not recoverable. In Spencer v. Commercial Company, 36 Wash. 374, 78 Pac. 914, the court attempts to forever settle the question by saying: "It has been so often decided that the granting of attorney's fees in cases of this kind was error that it is no longer proper subject for discussion." Other cases holding the rule are: Larson v. Winder, 14 Wash. 647, 45 Pac. 315; Trumbull v. Trumbull, 26 Wash. 133, 66 Pac. 124; Ditmar v. Ditmar, 27 Wash. 13, 67 Pac. 353, 91 Am. St. Rep. 817; Legg v. Legg, 34 Wash. 132, 75 Pac. 130; Criswell v. Board of Directors, 34 Wash. 420, 75 Pac. 984; McGill v. Fuller & Co., 45 Wash. 615, 88 Pac. 1038. While there was no plea of other special The judgment, in so far as it decrees a cloud upon respondent's title, is affirmed. In so far as it awards them damages, it is reversed. The cause is remanded, with instructions to modify in accordance with these views. RUDKIN, C. J., and GOSE, FULLERTON, and CHADWICK, JJ., concur. STATE v. KINGHORN. 1. CRIMINAL LAW (§ 173*)-"FORMER JEOPARDY"-WHEN ATTACHES. liminary things of record are ready for trial, Cent. Dig. § 289; Dec. Dig. § 173.* For other definitions, see Words and Phrases, the cause, and the state had begun the examinaThat a jury is impaneled and sworn to try tion of prosecutrix before accused had been arraigned and pleaded not guilty, was not ground for discharging the jury and declaring a mistrial; the court being authorized to require that accused be then arraigned and plead and proceed with the trial. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 616, 617; Dec. Dig. § 265.*] 3. CRIMINAL LAW (§ 182*)-FORMER JEOPARDY-MISTRIAL. state had commenced the examination of prosA jury was impaneled and sworn, and the ecutrix, when accused moved to dismiss because he had not been arraigned, and had not pleaded to the information. The motion was denied, whereupon accused was arraigned and entered a plea of not guilty. The jury was then discharged over accused's objection, and a new jury impaneled and sworn, and he was convicted, notwithstanding the plea of former jeopardy. Held, that jeopardy had attached, and that accused was entitled to a dismissal. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 323, 330-332; Dec. Dig. § 182.*] Fullerton, J., dissenting. Department 1. Appeal from Superior | is recognized in State v. Lee Doon, 7 Wash. Court, Snohomish County; W. W. Black, 308, 34 Pac. 1103, and in State v. Hubbell, Judge. 18 Wash. 482, 51 Pac. 1039, and by the fol Cliff Kinghorn was convicted of rape, and lowing cases from other jurisdictions: Lee he appeals. Reversed, with directions. E. C. Dailey, for appellant. GOSE, J. The appellant was tried, convicted, and sentenced upon an information charging him with having committed statutory rape. After the jury had been impaneled and sworn to try the case, and the state had sworn the prosecutrix as a witness, and had commenced interrogating her, the appellant objected to the introduction of any further evidence, and moved to dismiss the case because he had not been arraigned, and had not pleaded to the information. The motion having been denied, the appellant was arraigned under the order of the court, and entered a plea of not guilty. Thereupon, on the motion of the state, the jury was discharged, and an exception reserved by the appellant. Another jury was thereupon impaneled and sworn to try the case. The appeal is prosecuted from a judgment entered upon the verdict of the latter jury. After the second jury had been impaneled and sworn, the appellant entered a further plea of former jeopardy. The Constitution (article 1, § 9) provides that no person shall be twice put in jeopardy for the same offense. The appellant contends that the judgment violates this provision of our Constitution. There is a division of authority on the question as to when the period of jeopardy begins, but we think the better rule, and the one supported by the decided weight of authority, is that, when the accused has been placed upon trial in a court of competent jurisdiction on a sufficient indictment, before a jury legally impaneled and sworn, the constitutional peril has attached, and that a discharge of the jury without good cause, and without the consent of the accused, is equivalent to an acquittal. "While there is no jury set apart and sworn for the case, the defendant has not been conducted to his jeopardy. But when, according to the better opinion, the jury is full, sworn, and added to the other branch of the court, and all the preliminary things of record are ready for the trial, the prisoner has reached the jeopardy from the repetition of which our constitutional guaranty protects him." 1 Bishop's New Crim. Law, § 1015. "Though the jury has been impaneled and sworn, there is still no jeopardy, therefore no bar to second proceedings, unless the court is so clothed with authority and the prior proceedings are such that a judgment upon a verdict duly returned will be valid." Id. § 1020. This view v. State, 26 Ark. 260, 7 Am. Rep. 611; State v. Walker, 26 Ind. 346; People v. Barret and Ward, 2 Caines, 100; Commonwealth v. Cook, 6 Serg. & R. (Pa.) 577, 9 Am. Dec. 465; Mount v. State, 14 Ohio, 295, 45 Am. Dec. 542. The other view, that jeopardy begins only after verdict rendered, is condemned by Bishop as unsound in principle. He declares that the effect of such a holding is to make the Constitution read that no man shall be twice "tried" for the same offense, thus confounding the danger or jeopardy of the thing and the thing itself. 1 Bishop's New Crim. Law, § 1018. We next inquire whether there was good cause for discharging the jury. Had anything then occurred or been omitted which would have rendered a judgment erroneous We think not. on a verdict of guilty? When the appellant had been arraigned and pleaded not guilty, an issue was joined, and the trial should have proceeded. State v. Horine, 70 Kan. 256, 78 Pac. 411; Weaver v. State, 83 Ind. 289; Disney v. Commonwealth (Ky.) 5 S. W. 360; State v. Weber, 22 Mo. 321; State v. Williard, 39 Mo. App. 58; Morris v. State, 30 Tex. App. 95, 16 S. W. 757. In State v. Straub, 16 Wash. 111, 47 Pac. 227, we held that the failure to plead in a capital case could not be raised for the first time on appeal; that the omission was technical, and did not affect any substantial right of the accused. Applying the logic of that case to the case at bar, it will at once appear that, when the plea was entered, the irregularity was cured, and the trial should have proceeded in an orderly way before the jury then impaneled. follows from what we have said that the plea of former jeopardy should have been sustained, and the appellant discharged. was stated in oral argument by counsel for the appellant, and not denied by state's counsel, that the appellant and the prosecutrix have married and are now living together as husband and wife. This fact makes us less reluctant to adopt the view we have announced. It It The judgment will be reversed, with directions to discharge the appellant. RUDKIN, C. J., and CHADWICK and MORRIS, JJ., concur. FULLERTON, J. I am unable to concur in the holding that the defendant was in jeopardy by virtue of the proceedings had prior to the time he entered his plea, and I therefore dissent from the judgment pronounced by the majority. [Ed. Note. For other cases, see Partnership, Dec. Dig. § 311.*] 2. PLEADING (8 214*)- DEMURRER - ADMIS SIONS. A demurrer to a pleading confesses as true all the facts well pleaded. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*] 3. FRAUD (3*) - ELEMENTS - FRAUDULENT REPRESENTATIONS. A representation by the active partner to the copartner as to the value of the firm property, made to obtain a settlement of firm affairs, is a statement of a material fact, and if knowingly false, and made with intent to deceive the copartner, who believes it to be true and relies thereon in making the settlement to his injury, every essential element of fraud exists. [Ed. Note.-For other cases, see Fraud, Cent. Dig. § 1; Dec. Dig. § 3.*] 4. PARTNERSHIP ($ (§ 311*) FRAUD. SETTLEMENT Where the partner having the active management of a firm concealed from the copartner the true condition of the firm property worth $60,000, and fraudulently represented that the firm business had been profitless to obtain a settlement from the copartner, who relied on the representation and received in settlement of his interests in the firm a nominal sum, the settlement was obtained by fraud, and the copartner could sue to set the same aside. removed to Washington, and was conducted SALHINGER v. SALHINGER et al. here in various cities until the fall of 1892, (Supreme Court of Washington. Dec. 1, 1909.) when it was established at Everett, and plac1. PARTNERSHIP (§ 311*) — RELATION - RELATION-OBLI- ed under the management of Henry SalGATION OF PARTNERS. hinger. In 1894 Samuel Salhinger located A partnership relation is a fiduciary one, at San Francisco, where he has since reand requires of the partners the utmost_good faith, and a partner may not for his benefit de-sided, acting as a buyer for the firm until ceive the copartner to his injury either by false the fall of 1899, when Henry Salhinger, withrepresentations or by concealment, and in effect- out his consent, excluded him from any part ing a firm settlement must disclose to the copart- in the business, and refused to make him ner the condition of the firm affairs. any compensation for his interest therein. Samuel made repeated demands upon Henry, both by letter and in person, for a settlement of the partnership business, and a recognition of his rights therein, all of which were denied and refused. That in August, 1907, Henry organized the Salhinger Company, and transferred all of the partnership assets thereto, with intent to cheat and defraud the appellant and deprive him of his interest in such assets. In October, 1907, this action was commenced; the complaint reciting the above facts as a basis for relief, and praying for a dissolution of the copartnership, an accounting, and other equitable relief. The petition and certain affidavits, which are made a part thereof for the purpose of making a prima facie showing that appellant was entitled to the relief prayed for, then recite that, when Henry was served with the summons, he caused his wife to telegraph to appellant that he was very ill, and requesting appellant to come to Everett and see him, but that three days thereafter he appeared at San Francisco in seeming good health, and began to negotiate with appellant for a settlement of their differences. That for the past 10 years appellant has been in poor health, weakminded, and unable to do any business without the advice and guidance of his friends. That he was particularly subject to the in fluence of Henry, and that Henry, knowing these facts, and for the purpose of easily overreaching and defrauding him, obtained an interview with appellant and, taking him away from the companionship of his friends and advisers, kept him under his control for two days, during which time he obtained a settlement and discharge of all claims made by appellant in his complaint for a dissolution and accounting. This release was also signed by the wife of Samuel, who sets forth that she had no knowledge of the business nor of its then condition, having been married to Samuel after his removal to San Francisco. The consideration of this release was $50, and there was executed at the same time a paper, signed by Henry, as follows: "Everett. 10, 9, 1907. On December 1st I agree to pay Samuel Salhinger $25 each month." Henry was then at San Francisco, and it is asserted that the dating of this last writing at Everett was a part of Henry's scheme to cheat and defraud appellant and to enable him to [Ed. Note.-For other cases, see Partnership, Dec. Dig. § 311.*] Department 1. Appeal from Superior Court, Snohomish County; W. W. Black, Judge. Action by Samuel Salhinger against Henry Salhinger and others. From a judgment of dismissal entered on sustaining a demurrer to the petition, plaintiff appeals. Re versed and remanded. Tom Alderson and Thos. F. Murphine, for appellant. Brownell & Coleman, for respondents. MORRIS, J. It is sought in this proceeding to vacate a judgment upon the ground of fraud. A general demurrer to the petition was sustained in the court below, and, appellant electing to stand upon the petition, judgment of dismissal was entered, and the appeal follows. Samuel and Henry Salhinger are brothers. Sarah is the wife of Henry, and the Salhinger Company is a corporation in which Henry Salhinger and his wife are the sole stockholders. The petition sets forth: That in the year 1888 Samuel and Henry Salhinger entered into a copartnership at Chicago, under the firm name of S. & H. Salhinger. That subsequently the business was |