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Though findings of fact in an equitable case are not necessary, where findings of fact have been made, they must be excepted to, if they are to be reviewed on appeal.

[Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 1536-1551; Dec. Dig. § 265.*]

3. APPEAL AND ERROR (§ 265*)-EXCEPTIONS BELOW-NECESSITY-FINDINGS OF FACT.

In insolvency proceedings, where the subject of the controversy was whether a note was given for a valuable consideration, a finding that the claim was based upon a promissory note made and executed by the insolvent to the claimant for a valuable consideration was a finding of fact, which must be excepted to in order to be reviewed on appeal.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 265.*]

the findings may have been somewhat in the nature of conclusions of law, as they frequently are; but the finding that the claim of George Benoit against the estate was based upon a promissory note, made and executed by the said Lambert Benoit to the said George Benoit for a valuable consideration, is certainly a finding of fact. This was the essential fact that was the subject of the controversy, viz., whether the execution of the note was for a valuable consideration. The same finding was found in relation to the claim of Zelia Benoit.

the statement of facts will be stricken, and, Under the authorities above referred to, as there are no questions raised outside of the statement of facts, the appeal will be dismissed.

RUDKIN, C. J., and CROW, MOUNT, and PARKER, JJ., concur.

OLYMPIC OIL CO. v. KANE et ux.

Department 2. Appeal from Superior Court, Yakima County; E. B. Preble, Judge. Action by the Yakima Grocery Company against Zelia Benoit and another. Judg-(Supreme Court of Washington. Dec. 6, 1909.) ment for defendants, and plaintiff appeals. 1. TRIAL (§ 387*)-DECISION-FILING-TIME. Appeal dismissed. A judge of the superior court does not lose jurisdiction to render a decision in a cause by Hull & Livesey, for appellant. Englehart the lapse of more than 90 days from the submis& Rigg, for respondents.

sion thereof before the decision is filed.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 904; Dec. Dig. § 387.*]

DUNBAR, J. Claims by Zelia Benoit and George Benoit and others against the estate of Lambert Benoit, insolvent, were filed in the matter of the assignment of Lambert Benoit for the benefit of creditors. Exception to the claims of Zelia Benoit and George Benoit were filed by the respondent Yakima Grocery Company, a corporation. Notwith-matter litigated in an independent action. standing the exceptions, the court found that the claims were legal and just claims, and judgment was entered accordingly, and, from that judgment, this appeal is taken.

2. ELECTION OF REMEDIES (§ 7*) - PROCEEDINGS JURISDICTION-INDEPENDENT ACTION -WAIVER.

Where claimants of a fund consented to a hearing and determination of the claim of a receiver of a corporation thereto, in the receivership case, they waived their right to have the

The respondents move for an order to strike the statement of facts and affirm the judgment, for the reason that there are no exceptions to the findings of fact, or any of them, as required by law. After the findings of fact, the exception was as follows: "To all of which plaintiffs except, and their exception is allowed." This court has held in an unbroken line of authority from Rice v. Stevens, 9 Wash. 298, 37 Pac. 440, to Fender v. McDonald, 102 Pac. 1026, that such exceptions are insufficient to bring up for review any question upon the evidence; and, although it has been held that findings of fact in an equitable case are not necessary, we have as universally held that, where findings have been made, they must be excepted to. However, it is earnestly contended by the counsel for appellant that, conceding this to be the law, the findings in this case were really not findings of fact, but were in effect conclusions of law. With this contention we are unable to agree.

[Ed. Note.-For other cases, see Election of Remedies, Cent. Dig. § 12; Dec. Dig. § 7.*]

Department 2. Appeal from Superior Court, King County; George E. Morris, Judge.

Action by the Olympic Oil Company against Wayne Automobile Agency and others. Judgment for plaintiff, and defendants M. Francis Kane and Ida M. Kane appeal. Affirmed.

James C. Moody, for appellants. McBurney & Cummings, for respondent.

PARKER, J. This is an appeal from an order of the superior court requiring appellants to pay over to the receiver of the Wayne Automobile Agency, a corporation, the sum of $750, claimed by the receiver to be a part of the assets of that corporation. So far as necessary to be noticed, the facts appearing in the record are as follows: The appellant M. Francis Kane is the president and general manager, and the appellant Ida M. Kane, his wife, is the secretary and treasurer of said corporation, and have at all times since its organization had the entire Some of management and control of its business and

having been decided to the contrary in the case of Demaris v. Baker, 33 Wash. 200, 74 Pac. 362.

It is next argued in behalf of appellants that the court was without jurisdiction in this cause to determine the controversy here involved, and that their rights in the premises cannot be determined except by an independent action commenced and prosecuted against them. We think, however, in view of the fact that they consented to the hearing and determination of the matter by the superior court in the receivership cause, they thereby waived their right to have the matter litigated in an independent action, unless it can be said they did not waive this right in view of their contention and offer of evidence touching the then pendency of another action involving the same issues. Upon this question, however, we think the evidence fails to show that there was another action pending involving the recovery from them by the receiver of this money. The only evidence of another suit related to one commenced a considerable time prior to the payment of this money to appellants.

affairs. In January, 1908, by order entered in this cause, Frank Brightman was appointed receiver of the corporation, and as such became entitled to the possession of all its property and assets. On May 15, 1908, the receiver filed in this cause his petition, alleging, in substance: That at the time of his appointment as such receiver there was pending in the superior court of King county a suit in the name of appellants as plaintiffs, against Z. E. Foster, defendant, seeking to recover the sum of $1,000 as a balance due on the purchase price of an automobile sold by the corporation to Foster; that on the 15th day of May, 1908, said suit was compromised and settled by appellants with Foster by the payment to appellants of the sum of $750 in cash; and that the same belongs to the receiver as a part of the assets of the corporation, which he demanded from them, and they refused to pay the same over to him-upon which facts he prayed for an order of court directing appellants to pay over to him said sum of $750, or to show cause, at a time and place to be fixed, why they should not be required to do so. Thereupon the court issued its order to show cause accordingly, and in pursuance thereof, on the 1st day of June, 1908, the matter came on for hearing before the court. So far as appears from this record, no answer or pleading was filed in response to this petition until long after the hearing and the court's order thereon; but evidence was introduced in behalf of all parties, upon the theory that appellants were claiming that there was another We conclude that the superior court corsuit pending by which the receiver was seek-rectly disposed of the issues involved, and ing to recover from them this same money, its judgment and order is therefore affirmed. and also that it was their own property, as if they had tendered these issues by formal answer, which issues were thereafter tendered by formal answer, apparently for the purpose of making the record complete. At the conclusion of all the evidence, counsel for appellants moved to dismiss the petition and proceeding upon the ground that the evi-(Supreme Court of Washington. Dec. 9, 1909.) dence showed another suit was pending in-1. EJECTMENT (§ 84*) - ISSUES - PROOF-ADvolving the same issues, and also upon the ground that the evidence upon the merits Ballinger's Ann. Codes & St. § 5508 (Pierce's was not sufficient to warrant the court in Code, § 1144), provides that defendant in ejectdirecting them to pay over the money to the ment may set up a legal or equitable defense to plaintiff's claims, and that the superior title, receiver as part of the assets of the corpo- whether legal or equitable, shall prevail, and secration. Thereupon the court took the mat- tion 5509 (section 1145) declares that defendant ter under advisement, and on the 18th day shall not be allowed to prove any estate in himself of December, 1908, decided the matter favor- or another, unless the same is pleaded in his anof December, 1908, decided the matter favor-swer. Held that, where plaintiff in ejectment ably to the receiver, and ordered that the alleged that he was the owner of the property appellants within 20 days thereafter pay to in fee simple, and was entitled to the possession, the receiver, or into the registry of the which he deraigned title from the government, but failed to plead the various instruments by court for his benefit, the said sum of $750, and defendant pleaded a general denial only, from which order this appeal is taken. defendant could not prove title in himself by adverse possession.

It is contended by learned counsel for appellants that the lower court was without

Upon the merits there is nothing but questions of fact involved, and from a careful reading of all the evidence in the record we conclude that the learned superior court was fully warranted in finding that the money in the hands of appellants belonged to and was a part of the assets of the corporation, and that the receiver was therefore entitled to the same.

RUDKIN, C. J., and DUNBAR, MOUNT, and CROW, JJ., concur.

BROWN v. HALEY.

VERSE POSSESSION.

[Ed. Note.-For other cases, see Ejectment, Cent. Dig. §§ 232, 233; Dec. Dig. § 84.*1 2. APPEAL AND ERROR (§ 889*)-PLEADINGS

AMENDMENT REGARDED AS MADE.

jurisdiction to render the decision appealed from, for the reason that more than 90 days had elapsed since the submission of the Where, in ejectment, defendant was permit. cause. This contention is without merit, ted to prove title in himself by adverse posses

sion over plaintiff's objection that no such claim | (1) in admitting respondent's evidence of adwas pleaded, the Supreme Court on appeal could verse possession for the purpose, of proving not treat the answer as amended to conform to title in him; and (2) in its findings of fact, the proof. conclusions of law, and decree.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3621, 3622; Dec. Dig. § 889.*]

Department 2. Appeal from Superior Court, Jefferson County; Lester Still, Judge. Action by E. M. Brown against William Haley. Judgment for defendant, and plaintiff appeals. Reversed, and new trial granted.

He

The controlling question before us is whether respondent should have been permitted to introduce affirmative evidence to show title in himself by adverse possession. has presented a voluminous and well-prepared brief in support of his position that under the issues the evidence was properly admitted. It is not necessary that we should enter upon a discussion of each and every

A. R. Coleman, for appellant. A. W. Bud-point he has discussed. They all involve the dress, for respondent.

CROW, J. This action was commenced by E. M. Brown against William Haley to recover possession of land, with damages for its detention. The plaintiff alleged: The plaintiff alleged: "(1) That plaintiff is the owner in fee simple and is entitled to the possession of the following described lands and premises in Jefferson county, Wash., to wit: [Description]. (2) That defendant is wrongfully in possession of said land and withholds the same, and the possession thereof, from plaintiff, to the damage of plaintiff in the sum of $100." The defendant denied each and every allegation of the complaint. On trial the plaintiff produced deeds and other written evidence sufficient to show the fee-simple title in himself deraigned from the United States government. Without disputing the execution or validity of any of these written instruments, the defendant by cross-examination of plaintiff's witnesses and by affirmative evidence introduced in his own behalf was permitted to show facts tending to establish title by adverse possession in himself. this evidence the plaintiff objected and saved exceptions. The trial court found for the defendant, and dismissed the action. The plaintiff has appealed.

single contention that, by reason of appellant's failure to allege the various deeds and instruments through which he deraigned his title, respondent was entitled under his general denial to show any facts sufficient to establish adverse title in himself. In other words, he contends that the defendant in an action to recover possession of real property may, under a general denial, introduce any affirmative evidence showing or tending to show title in himself, should the plaintiff in the first instance fail to deraign his title by the allegations of his complaint. In support of this contention, he cites Parker v. Dacres, 1 Wash. St. 190, 24 Pac. 192; Carkeek v. Boston National Bank, 16 Wash. 399; 47 Pac. 884; Chrast v. O'Connor, 41 Wash. 360, 83 Pac. 238. None of these cases sustain respondent's present contention. They in effect hold that, when the plaintiff does not deraign his title by the allegations of his complaint, the defendant, under a general issue, may attack and dispute with affirmative evidence such evidence of title as the plaintiff offers. In Parker v. Dacres, To the defendant, not only answered by a general denial, but also pleaded title in himself under a mortgage foreclosure and sale. So far as the defendant's right to prove, under the general issue, an adverse or outstanding title in himself, was concerned, no such question arose; but under the denial he was permitted to prove facts which in equity were sufficient to estop the plaintiff's grantor, one Steil, from asserting title adverse to the foreclosure sale pleaded by the defendant and under which he held the property. In Carkeek v. Boston National Bank, an equitable action to enjoin an execution sale of lands in King county, it was held that where the reply for the first time alleged a certain title to other lands in Mason county, without deraigning the same, the defendant would be permitted to introduce evidence of fraud for the purpose of defeating such alleged title in Mason county which was only incidental to the main issue in the case. In Chrast v. O'Connor it was held that, where the defendant alleged title generally without deraigning it, the plaintiff under the general denial of his reply might introduce evidence to show that a deed offered by the

Section 5508, Ballinger's Ann. Codes & St. (Pierce's Code, § 1144), provides that the plaintiff shall set forth in his complaint the nature of his estate, claim, or title to the property, that the defendant may set up a legal or equitable defense to plaintiff's claims, and that the superior title whether legal or equitable shall prevail. Section 5509, Ballinger's Ann. Codes & St., provides that: "The defendant shall not be allowed to give in evidence any estate in himself or another in the property, or any license or right to the possession thereof, unless the same be pleaded in his answer." Although the appellant in his complaint pleaded the nature of his title by alleging it to be in fee simple with right of possession, he failed to plead the various instruments by which he deraigned it from the United States government. The respondent failed to plead any title in himself, his answer being a general denial only. The appellant contends that the trial court erred

On the entire record, we conclude that the judgment should be reversed and a new trial granted, with permission to either party to amend his pleadings upon proper åpplication. It is so ordered.

RUDKIN, C. J., and MOUNT, PARKER, and DUNBAR, JJ., concur.

defendant as a part of his chain of title | sue, would have been entitled to a continuwas a forgery. In all of the above cases ance. It would be an injustice to now allow the affirmative evidence offered and admit- an amendment to comply with proofs made ted under the general denials tended direct- under such circumstances. ly to negative the evidence or claim of the adverse party. Here the respondent failed to introduce any evidence whatever to destroy the probative force or verity of the appellant's evidence. He made no attack on the execution, validity, sufficiency, or form of the deeds and other instruments which indisputably and conclusively supported appellant's claim to the fee-simple record title. Respondent's only evidence was in the nature of an avoidance of appellant's title, not to disprove the same, but to affirmatively show an independent title in himself by adverse possession. This evidence was under the issues admitted in direct violation of the positive prohibition of section 5509, Ballinger's Ann. Codes & St., for, instead of disproving appellant's title, respondent thereby sought to affirm his own without pleading the same. Allen v. Higgins, 9 Wash. 446, 37 Pac. 671, 43 Am. St. Rep. 847; Garvey v. Garvey, 52 Wash. 516, 101 Pac. 45.

Respondent now contends that his answer should be amended to comply with the proofs made; and that this court should consider all amendments that could have been made in the trial court. Had the evidence been admitted without objection, there might be some merit in this contention. The evidence was not only inadmissible under the pleadings and statute, but it was at all times vigorously assailed by appellant, who now,

with much force, contends that no amendment can be ordered by this court to comply with evidence admitted over his objection, and that an amendment can only be allowed after trial when evidence sufficient to warrant it has been admitted without ob

jection. This is consistent with the rule announced in Ness v. Bothell, 101 Pac. 702, cited by the respondent, where this court, quoting from Davis v. Hinchcliffe, 7 Wash. 199, 34 Pac. 915, said: "The court did not err in permitting the filing of the amended answer. It has been the uniform ruling of this court that, in an equity case which is tried de novo here, the case will be tried upon the testimony, and the pleadings will be considered amended to meet the requirements of the testimony. 'In equity cases, if evidence is introduced without objection which would entitle a party to relief, the decision will be based upon it, without regard to the pleadings, which are treated as amended.' Davis v. Hinchcliffe, 7 Wash. 199, 34 Pac. 915." This is not an equity case, nor was the evidence introduced without objection. The respondent did not ask permission to amend during the trial. Had he done so, the appellant, on claiming surprise or showing his lack of preparation to meet the new is

HALE v. CROWN COLUMBIA PULP &
PAPER CO.

(Supreme Court of Washington. Dec. 9, 1909.)
1. EVIDENCE (§ 43*)-JUDICIAL NOTICE-PRIOR
PROCEEDINGS-RECORDS.

Courts will take judicial notice of their records with reference to prior proceedings by which a guardian ad litem for the plaintiff was appointed in the same case.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 62-65; Dec. Dig. § 43.*] 2. PARTIES (§ 96*)-CAPACITY TO SUE-OBJECTIONS-WAIVER-PLEADING TO MERITS.

A minor's want of capacity to sue personally is waived by defendant's pleading to the merits.

[Ed. Note.-For other cases, see Parties, Cent. Dig. § 168; Dec. Dig. § 96.*]

3. PARTIES (8 76*)-WANT OF CAPACITY TO

SUE-DEMURRER.

Want of capacity to sue, when it appears on the face of the complaint, must be urged by demurrer.

Dig. § 118; Dec. Dig. § 76.*]
[Ed. Note. For other cases, see Parties, Cent.

4. CORPORATIONS (§ 518*)-CORPORATE EXIST-
ENCE-PLEADING AND PROOF.

A corporation cannot appear generally in an action, and after pleading to the merits complain that there was no affirmative proof of its corporate existence.

[Ed. Note. For other cases, see Corporations, Cent. Dig. § 2086; Dec. Dig. § 518.*] 5. MASTER AND SERVANT (§§ 286, 289*)-INJURIES TO SERVANT-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY.

being struck by a tram cable while working on In an action for injuries to a servant by the track at the place and in the manner he was directed to work, due to the defectiveness of the brake shoes on the tram cars, whether defendant was negligent, and whether plaintiff was guilty of contributory negligence, were for the jury.

---

APPLICA

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. §§ 286, 289.*] 6. TRIAL (§ 252*) - INSTRUCTIONS BILITY OF EVIDENCE. Where, in an action for injuries to a servant, there was no choice of ways or places to stand while working, but plaintiff stood and worked, when injured, in the place and manner the master directed, an instruction that if there were two ways of doing the work, or two places to stand while working, one safe and the other dangerous, and the servant voluntarily chose the latter, he was negligent and could not recover, was properly refused.

[Ed. Note.-For other cases, see Trial, Dec. Dig. § 252.*]

7. MASTER AND SERVANT (§ 291*)-INSTRUC- | cover compensation for personal injuries susTIONS-APPLICABILITY TO EVIDENCE. tained on January 17, 1908. From a verdict and judgment in his favor, this appeal is prosecuted.

Where plaintiff's witness testified that the accident happened because the brakes would not hold the car that was being let down the tramway at the time plaintiff was injured, and defendant's witness did not see the accident, a requested charge that the master was not responsible for an injury resulting from the negligent execution of the details of the work was properly refused as inapplicable to the evidence. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 291.*]

8. NEGLIGENCE (§ 138*) INSTRUCTIONS "BURDEN OF PROOF."

An instruction that the happening of an accident did not show negligence, but that the burden was on plaintiff to prove negligence by a preponderance of the evidence, that if he failed to do so, or if the scale was evenly balanced, the verdict should be for defendant, sufficiently defined the burden of proof.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 355; Dec. Dig. § 138.*

For other definitions, see Words and Phrases, vol. 1, pp. 904-907; vol. 8, p. 7593.] 9. MASTER AND SERVANT (§ 198*)-Wпо ARE FELLOW SERVANTS-INDEPENDENT EMPLOY

The case is entitled, "Daniel Hale, by his Guardian ad Litem, F. P. Wagner." The complaint states that the plaintiff is a minor of the age of 20 years; but it does not allege the appointment of a guardian ad litem, and there was no evidence introduced on that subject. The evidence does show, however, that the respondent was a minor of the age of 20 years at the time of the trial. It is contended that the failure of the respondent to allege and prove the appointment of a guardian ad litem precludes a recovery. The record shows: That the complaint was filed on March 21, 1908; that on the same day and under the same title the respondent filed a petition, referring to his complaint, suggesting his infancy, and asking that a guardian ad litem be appointed for the purpose of this action; and that on the same day an order was entered of record appointing F. P. Wagner as his guardian ad litem for that purpose. If the action be treated as prosecuted by the guardtake judicial notice of their records with ian, the objection is not tenable. Courts will reference to the prior proceedings in the 10. MASTER AND SERVANT (§ 198*)-INJURIES case at bar. 17 Am. & Eng. Enc. Law (2d TO SERVANT-"FELLOW SERVANTS." Ed.) § 925. If it be treated as one proseAn instruction that if plaintiff, a track-cuted by the minor personally, the appellant man, and a brakeman were engaged in a common employment, and were so situated as to have opportunities to use precautions against each other's negligence they were fellow servants, and, if the accident happened through the negligence of a fellow servant, the master would not be liable, correctly stated the rule for determining who are fellow servants.

MENT.

A trackman and a brakeman in charge of cars operated on the track, though working for a common master, were not engaged in a common employment, and were not therefore fellow servants.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 493-514; Dec. Dig. § 198.*]

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. 88 493-514; Dec. Dig. 8

198.*

For other definitions, see Words and Phrases, vol. 3, pp. 2716-2730; vol. 8, p. 7662.] 11. MASTER AND SERVANT (§ 293*)-INJURIES TO SERVANT-APPLIANCES-MASTER'S DUTY. An instruction that it was a master's duty to exercise ordinary care and prudence to keep the machinery and appliances in "sound" repair, so that harm would not result to servants in the use of the machinery and appliances, was not erroneous in the use of the word "sound."

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 1148-1154; Dec. Dig. § 293.*]

Department 1. Appeal from Superior Court, Clarke County; W. W. McCredie, Judge. Action by Daniel Hale, by his guardian ad litem, against the Crown Columbia Pulp & Paper Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wilbur & Spencer and A. E. Miller, for appellant. E. M. Green and R. C. Sugg, for respondent.

waived the question of capacity by pleading to the merits. Want of capacity to sue, when it appears on the face of the complaint, must be taken by a demurrer. 2 Ballinger's Ann. Codes & St. §§ 4907, 4909, 4911 (Pierce's Code, §§ 374, 376, 378); Blumauer v. Clock, 24 Wash. 596, 64 Pac. 844, 85 Am. St. Rep. 966; Rothchild v. Mahoney, 51 Wash. 633, 99 Pac. 1031.

The complaint also alleges that the appellant is a corporation; but no evidence was offered in support of the allegation. An objection was raised upon this ground after verdict, and is renewed here. The rule is settled in this state that a defendant corporation cannot appear generally in an action, plead to the merits, and afterwards complain that there was no affirmative proof of its corporate existence. Garneau v. Port Sengfelder v. Mutual Life Ins. Co., 5 Wash. Blakely Mill Co., 8 Wash. 467, 36 Pac. 463; 121, 31 Pac. 428; Frost v. Ainslie Lumber Co., 3 Wash. St. 241, 28 Pac. 354, 915.

is that the respondent's injury was caused The negligence charged in the complaint by the appellant operating one of its cars with defective brakes. The answer contains a general denial of the allegations of the complaint, and pleads affirmatively that the respondent was guilty of contributory negligence, that he assumed the risk incident to his employment, and that the injury was

GOSE, J. This action was instituted by the respondent, the plaintiff below, to re *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

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