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the breach. But this principal cannot apply to a case where the alleged stranger has, by previous valid contract with the original principal debtor, and based upon a valuable consideration, viz., the proceeds of the note in question, agreed to assume and pay the debt. These 15 makers were, in fact, the sureties or accommodation makers as to the guaranty company, and were entitled to the resulting legal rights and equities arising out of that relationship, and when Mrs. Wertheimer knew, or had notice, of such relationship she was bound to do nothing to endanger or destroy any of such rights, and from that time the guaranty company as to her was no longer a stranger in respect to such debt. It was legally bound by contract to the makers of the note to pay it in the first instance, and as between them and itself it was the duty of the company to either pay it, or in some manner protect the makers from legal process to collect the note. The company sought to perform this duty by contracting with Mrs. Wertheimer through Selling, and when doing so was not acting as a volunteer or a stranger to the legal relation existing between Mrs. Wertheimer and defendants.

In Arnold v. Green, 116 N. Y. 566, 23 N. E. 1, it is said that the terms "stranger" and "volunteer," as used with reference to the subject of "Subrogation," mean one who in no event resulting from the existing state of affairs can become liable for the debt, and whose property is not charged for the payment thereof, and cannot be sold therefor. The payment by one who is liable to be compelled to make it or lose his property will not be regarded as made by a stranger. When the person paying has an interest to protect, he is not a stranger. Suppiger v. Garrels, 20 Ill. App. 625; Bennett v. Chandler, 199 Ill. 97, 64 N. E. 1052; Mavity v. Stover. 68 Neb. 602, 94 N. W. 834. If, during the period of leniency granted in the extension agreement, defendants had tendered payment of the note, and it was accepted, and then they had sued the guaranty company upon its contract of indemnity with them, it, no doubt, could successfully plead in abatement its extension agreement with the payee; but, if defendants had been sued by Mrs. Wertheimer upon this note prior to the expiration of the time given in the extension agreement, they not only could have successfully pleaded the agreement as a defense, but they would have been bound to do so to preserve their right of immediate indemnity as against the guaranty company. Not to do so would be in effect confessing judgment upon a demand, the maturity of which had been extended for a valuable consideration paid by one in privity with the defendants.

No distinction whatever has been suggested by counsel for plaintiff, and we think none can be found, between the case at bar and the case of Union Life Insurance Co. v.

Hanford, 143 U. S. 187, 12 Sup. Ct. 437, 36 L. Ed. 118, cited and quoted in the opinion, and other cases cited there in the same connection, to which may be added the following, to the same effect: Herd v. Tuohy, 133 Cal. 55, 65 Pac. 139; Wyatt v. Dufrene, 106 Ill. App. 214; Stove Works v. Caswell, 48 Kan. 689, 29 Pac. 1072; Franklin Savings Bank v. Cochrane, 182 Mass. 586, 66 N. E. 200, 61 L. R. A. 760; Pratt v. Conway, 148 Mo. 291. 49 S. W. 1028, 71 Am. St. Rep. 602; Regan v. Williams, 185 Mo. 620, 81 S. W. 959, 105 Am. St. Rep. 600; Miller v. Kennedy, 12 S. D. 478, 81 N. W. 906; Iowa Loan & Trust Co. v. Schnose (S. D. decided April 4, 1905) 103 N. W. 22; Merriam v. Miles, 54 Neb. 566, 74 N. W. 861, 69 Am. St. Rep. 731; Travers v. Dorr, 60 Minn. 173, 62 N. W. 269; George v. Andrews, 60 Md. 26, 45 Am. Rep. 706.

For these reasons the motion should be disallowed.

(49 Or. 603)

MULTNOMAH COUNTY v. FALING. (Supreme Court of Oregon. July 23, 1907.) PAUPERS-LIABILITY TO SUPPORT RELATIVE.

B. & C. Comp. § 2654. provides that every poor person who shall be unable to earn a livelihood by reason of bodily infirmity shall be supported by the father, brothers, etc., and that every person failing to give such support, when directed by the county court, shall forfeit such sum monthly as the court shall find sufficient, to be recovered for the use of such poor person. Held, that there is no liability under the statute until an order has been made by the county court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Paupers, § 152.]

Appeal from Circuit Court, Multnomah County; Arthur L. Frazer, Judge.

Action by the by the county of Multnomah against X. J. Faling. From a judgment overruling a demurrer to the complaint, defendant appeals. Reversed and remanded, with directions to sustain the demurrer.

Thos. N. Strong, for appellant. Ernest Brand, Jr., for respondent.

BEAN, C. J. This is an action brought by the county court of Multnomah County against Xarifa J. Faling to compel her to pay to the county $30 per month for the support of her brother, Cornelius W. Barrett, an alleged poor person, and comes here on appeal from a judgment rendered in favor of plaintiff, after overruling a demurrer to the complaint.

Section 2654, B. & C. Comp., provides that: "Every poor person, who shall be unable to earn a livelihood in consequence of bodily infirmity, * shall be supported by the father, mother, children, brothers, or sisters of such poor person, if they or either of them be of sufficient ability; and every person who shall fail or refuse to support his or her father, mother, child, sister or brother, when directed by the county court,

shall

forfeit and pay to the county, for the use of the poor of their county, the sum of thirty dollars per month, or such other sums as the court shall find sufficient, to be recovered in the name of the county court for the use of the poor as aforesaid before any justice of the peace or any court having jurisdiction." There is no averment in the complaint that the defendant has been directed by the county court to support her brother, and that she has failed or refused to comply therewith, and this is an essential prerequisite to the maintenance of the action. At common law there is no legal liability resting on one relative to support another, however strong the moral duty may be. The duty of providing such support is purely statutory, and the procedure provided for its enforcement is exclusive. Belknap v. Whitmire, 43 Or. 75, 72 Pac. 589. Under this statute the county court has no cause of action against a delinquent relative except upon his failure to perform the duty imposed upon him by statute "when directed by the county court." The provision is that every person who shall refuse to support his or her parents, children, brother, or sister, "when directed by the county court," shall forfeit and pay to the county for the use of the poor the sum of $30 per month, or such other sum as the court shall find sufficient, "to be recovered in the name of the county court" before a court having jurisdiction. To fix a liability in favor of the county court and against the delinquent relative, it is necessary therefore that an order be made by the court directing him to discharge the duty imposed upon him, and that such direction has been ignored. Faling v. Multnomah Co., 46 Or. 460, 80 Pac. 1009. This is the plain reading of the statute, and the necessary and orderly procedure to fix liability upon a delinquent relative and a complaint by a county court, which fails to allege a compliance with the statute, necessarily does not state a cause of action.

For these reasons the judgment of the court below must be reversed, and the case remanded, with directions to sustain the demurrer to the complaint, and for such further proceedings as may be proper not inconsistent with this opinion.

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Under B. & C. Comp. § 102, providing that the court may, in furtherance of justice and upon proper terms, at any time before the cause is submitted, allow any pleading to be amended by correcting a mistake in any respect, or, when the amendment does not substantially change the cause of action or defense, by conforming the pleading to the facts proved, where the complaint in an action for injuries sustained because of a defective bridge alleged that plaintiff had not been informed of its defective condition, but did not allege that plaintiff was without knowledge of the defect or danger, as

required by Laws 1903, p. 280, § 59, it was proper to allow an amendment during the trial making that allegation, since the amendment did not change the cause of action, and it did not appear that defendant had been misled. [Ed. Note. For cases in point, see Cent. Dig. vol. 39. Pleading, §§ 676-683.]

2. SAME

EFFECT OF OBJECTION TO TESTIMONY UNDER ORIGINAL COMPLAINT.

The fact that under the original complaint objection was made to the admission of testimony as to plaintiff's lack of knowledge of the defect in the bridge did not deprive the court of power to allow the amendment.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 653-675.]

3. APPEAL-REVIEW-DISCRETION OF LOWER COURT-AMENDMENT OF I'LEADINGS.

The ruling of the trial court on a motion to amend the complaint will not be disturbed on appeal, except for manifest abuse of discretion.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3825-3833.] 4. HIGHWAYS ESTABLISHMENT BY USER PUBLIC IMPROVEMENT.

If a highway has been traveled, used, improved, and worked by the public as a county road for a period of 10 years or more, it is a legal county road.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Highways, §§ 1-10.]

5. BRIDGES ACTIONS FOR INJURIES-ADMISSIBILITY OF EVIDENCE-AUTHORITY TO CONSTRUCT AND REPAIR.

In an action for personal injuries sustained because of a defective bridge, testimony to show that the road and bridge had been kept in repair by the road supervisor under the direction of the county court is admissible without showing an order of the court authorizing or directing him to keep them in repair, or that no record of such authority had been made. since, under Laws 1903, p. 282, § 68, the road supervisor is an officer of the county appointed by the court, and it is his duty under Laws 1903, p. 271, § 28, to keep the public roads in repair.

6. BRIDGES--USE FOR TRAVEL-CONTRIBUTORY NEGLIGENCE.

Where a county constructs or maintains a bridge for use by the public, a traveler may assume, in the absence of information to the contrary, that he may safely travel over any portion of the bridge and in doing so he is not guilty of contributory negligence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Bridges, §§ 91, 94.]

7. TRIAL-INSTRUCTIONS-SUFFICIENCY AS

WHOLE.

Where an instruction as a whole clearly states the law as to the measure of damages for personal injury, and the jury could not be misled thereby, it will not be held insufficient on account of the wording of a portion thereof.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 703-717.]

Appeal from Circuit Court. Marion County; Thomas A. McBride, Judge.

Action by H. P. Ridings against Marion county. From a judgment for plaintiff, defendant appeals. Affirmed.

C. L. McNary, for appellant. C. D. Latourette and Geo. G. Bingham, for respondent.

BEAN, C. J. This is an action to recover damages for an injury received by plaintiff, while traveling on a county road leading

from Woodburn to Monitor in defendant county, in consequence of a defect in a bridge over Pudding river on such road. After alleging that the road upon which he was traveling at the time of his injury was a legal county road, and that the bridge thereon was and had been, for a long time prior to the accident, out of repair and in a dangerous and defective condition, and known to the county authorities to be so, plaintiff avers that, "while he was lawfully traveling upon said highway and not having been warned of the defects in said legal county road, or in said bridge, or of the dangerous condition of the same, the horse upon which plaintiff was riding stepped through a hole in said bridge, and plaintiff by reason thereof was thrown violently to the flooring of said bridge" and severely and permanently injured in his right arm. The answer denies all the material allegations of the complaint. Upon the issues thus joined, the cause was tried before the court and a jury, resulting in a verdict in favor of plaintiff. From the judgment entered therein defendant appeals, assigning error in the admission of testimony and in the giving of instructions. The several assignments of error will be considered in the order in which they were presented.

1. Plaintiff, as a witness, testified that after dark on the evening of October 30, 1904, as he was traveling over the bridge In question going towards Woodburn, he niet a buggy and team, and in turning out to allow them to pass his horse stepped in a hole in the bridge, and he was thrown violently to the floor thereof and severely injured. He was thereupon asked by his counsel whether he had any previous knowledge of the existence of the hole in the bridge. To this question an objection was interposed and sustained, because a want of such knowledge was not alleged in the complaint, but simply that plaintiff had not been warned of the defect. Plaintiff then moved for permission to amend his complaint by inserting the words "and without knowledge." The motion was allowed, and this ruling is assigned as error. The omission of an averment in the complaint that plaintiff was without knowledge of the defect in the highway was no doubt due to the fact that the pleader had forgotten that section 4781, B. & C. Comp.. giving a right of action to one injured while lawfully traveling on a county road, had been amended or changed by the act of 1903 (Laws 1903, p. 280, § 59). But as the amendment did not change the cause of action, and it does not appear that the defendant was in any way misled to its prejudice thereby, it was properly allowed. The statute authorizes the court to allow a pleading to be amended at any time before the cause is submitted by correcting a mistake therein, or when the amendment does not substantially change the cause of action or defense by conforming the plead

ing to the facts proved. Section 102, B. & C. Comp. The power thus conferred upon trial courts has always been and should be liberally exercised in furtherance of justice, for as said by Mr. Chief Justice Strahan, in Baldock v. Atwood, 21 Or. 73, 26 Pac. 1058: "Nothing is ever gained by turning a party out of court or compelling him to take a nonsuit on account of some defect in his pleading not discovered perhaps until the progress of the case, when an amendment could supply the defect and the action or suit be brought to an early determination." The allowance of such an amendment rests in the discretion of the trial court, and its ruling will not be disturbed on appeal except in case of manifest abuse of such discretion. This rule has been so often announced and applied by this court that it is unnecessary to cite authorities in its support. The fact that objection was made to the admission of the testimony did not deprive the court of the power to allow the amendment. Wild v. O. S. L. Ry. Co., 21 Or. 159, 27 Pac. 954; Koshland v. Fire Association, 31 Or. 362, 49 Pac. 865; Farmers' Bank v. Saling, 33 Or. 394, 54 Pac. 190; York v. Nash, 42 Or. 321, 71 Pac. 59. The case of Mendenhall v. Harrisburg Water Co., 27 Or. 38, 39 Pac. 399, when rightfully understood, is not to the contrary. It was so explained in Farmers' Bank v. Saling, supra. 2. No evidence was admitted on the trial to show that the highway in question had been regularly laid out and established by the public authorities, but plaintiff was permitted to give evidence tending to show that it had been used and traveled by the public as a highway for more than 10 years prior to the time of plaintiff's injury, and that it had been recognized as such by the county authorities. The court instructed the jury that if the road had been traveled, used, improved, and worked by the public as a county road for a period of 10 years and more prior to the accident, it was, for the purpose of this action, a legal county road. There was no error in the admission of this testimony, or in so instructing the jury. In this state a highway may be established by adverse user, and, "where the length of time of such use by the public has been greater than the period prescribed by the statute of limitations for the recovery of real property, that will be regarded as sufficient evidence of the existence of a highway independently of any supposed dedication." Douglas County Road Co. v. Abraham, 5 Or. 318. To the same effect, Bayard v. Standard Oil Co., 38 Or. 438, 63 Pac. 614.

3. Objection was made to the admission of testimony that the road and bridge in question for more than 10 years had been kept in repair by the road supervisor under the direction of the county court without showing an order of the court authorizing or directing him to do so or that no record of such authority had been made. But we

think the evidence was competent. The road supervisor is an officer of the county appointed by the court (Laws 19v3, p. 282, § 68), and it is his duty to open or cause to be opened all county roads in his district and keep the same in good repair. For that purpose he is authorized to purchase, with any available funds on his hands, timber, plank, or other necessary material. Laws 1903, p. 271, § 28. In so acting he is the agent or representative of the county (McCalla v. Multnomah Co., 3 Or. 424), and it is not necessary to show a formal order of the court authorizing or instructing him as to when or how he shall perform his duty, or that no such order was entered of record. If a highway is opened and kept in repair by the proper county authorities, it is evidence tending to show that it is a county road, and it is not incumbent on one who is injured by the negligence of such authorities to show that the work was authorized by some formal order of the county authorities that it was done by or under their direction.

4. It appears that the bridge in question, which was about 16 feet wide, had been replanked or "half-soled" for about 10 feet in the center thereof a short time before the accident to plaintiff. The defendant requested the court to instruct the jury that, as plaintiff failed to show that the parties in charge of the buggy which he met on the bridge refused to give him half the road, it must be presumed that they did so, and as a consequence that he was guilty of contributory negligence in guiding his horse off of the replanking and into the hole in the bridge. But plaintiff had a right to assume, in the absence of knowledge to the contrary, that the bridge was safe for travel its full width, and could not be charged with contributory negligence in going off of the halfsoled portion thereof, whether he was compelled to do so or not. Where a county constructs or maintains a bridge for use by the public, a traveler has a right to assume, in absence of information to the contrary, that he may safely travel over any portion of such bridge and he is not guilty of contributory negligence in doing so.

5. The defense excepted to the following language in the court's charge to the jury: "In this case you cannot find for over $2,000 in damages, and the compensation you are to give is for whatever bodily injury you say he has suffered, you find that he has suffered, if he has suffered any, or is unable to perform any work as a mail contractor or any work whatever, whatever lessened capacity for work he has, if any. Your verdict should be for such sum as in your judgment would compensate him for the injury and suffering he has sustained, if you find he is entitled to compensation at all. If you find he is entitled to compensation at all for his reduced capacity for work and his disablement, if you find he is disabled, or incapacitated for labor in any degree whatever you find he is

incapacitated, you will fix that in the measure of damages." The objection is that the language excepted to is unintelligible, and it cannot be determined therefrom whether the court intended to confine the recovery of damages to the physical suffering of the plaintiff, or whether it intended to allow the jury to include damages for his mental suffering. But it is only a part of the instructions on the measure of damages. The remainder of the charge on that subject is as follows: "There is no exact measure for bodily pain and suffering in these matters. You cannot say so much pain is worth so many dollars, and such another amount of pain is worth so much more. You cannot estimate it with the accuracy that you could sum up an account. But it is left, to a very great extent, to the sound discretion of the jury, under the law. There is nothing to be given here on account of sympathy you may feel for this man. Whenever you begin to consider a verdict on the ground of sympathy, it is your duty to put your hands in your own pockets and contribute whatever amount you feel sympathy ought, and not to take it from the pockets of the citizens of Marion county. But whatever is fair compensation, if you think he has shown the right to recover at all, whatever is fair and just compensation inside of $2,000, you should give him; on one hand not wanting to give him any less than fair compensation, and on the other hand without any desire to shovel money out on the ground of sympathy, but just what justice and fairness would compensate um for whatever injury he has sustained at this place, if he has sustained any." When taken as a whole, the instruction, we think, clearly stated the law, and the jury could not have been misled thereby. It confined the recovery to compensation for the physical injury plaintiff sustained. Judgment affirmed.

(32 Utah, 381)

STATE ex rel. PORTER v. RITCHIE, Judge. (Supreme Court of Utah. June 25, 1907. On Rehearing, July 12, 1907.)

1. JUSTICES OF THE PEACE-PROCEDURE-NEW TRIAL.

Where the right to grant new trials is conferred upon justices of the peace, the same principles govern the extent and exercise of the jurisdiction as govern courts of record.

[Ed. Note. For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, §§ 369-371.] 2. SAME-APPEAL-TIME FOR TAKING-EFFECT OF MOTION FOR NEW TRIAL.

Rev. St. 1898, § 3744, provides that an appeal may be taken from the judgment of a justice of the peace at any time within 30 days after the rendition of judgment. Section 3742 provides that a new trial may be granted by the justice on motion made within 10 days after the entry of judgment. Const. art. 8. § 9, grants appeals only from final judgments of the justice of the peace. Held, that the filing of a motion for a new trial suspends the judgment, and an appeal cannot be taken until the overruling of the motion.1

1 Watson v. Mayberry, 49 Pac. 479, 15 Utah, 205.

3. SAME-NEW TRIAL-TIME FOR DECISION ON MOTION.

Under Rev. St. 1898, § 3742, providing that a new trial may be granted by a justice of the peace on motion made within 10 days after the entry of judgment, no time is fixed within which the motion must be decided.

4. STATUTES-REVISION-SETTING FORTH PRO

VISIONS AS ALTERED-CONSTRUCTION.

Where, in a revision of the statutes, the phraseology of a section is changed, the obvious effect of which is to give it a different meaning, the courts cannot give the old meaning to the new section.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 216, 312.]

On Application for Rehearing. 5. COSTS ON APPEAL-DISCRETION OF COURT

-MANDAMUS.

The awarding of costs in certiorari and mandamus proceedings rests in the discretion of the court.2

[Ed. Note.--For cases in point, see Cent. Dig. vol. 13, Costs, §§ 20-25.]

6. SAME.

Where the question presented in a mandamus proceeding in the appellate court, to compel the district court to reinstate an appeal from a justice's court, dismissed as not taken in time, was the jurisdiction of the district court to hear the appeal on the merits, costs should not be awarded against the real party in interest, who had moved in the district court to dismiss the appeal only as a suggestion that the court did not have jurisdiction, and who did not appear in the mandamus proceedings against the judge of the district court, who opposed merely to settle the law.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 13, Costs, §§ 20-25.]

Mandamus by the state, on the relation of Don Porter, against Morris L. Ritchie, as judge of the district court, and another. Writ granted.

that day the motion was heard by the justice and overruled. On the 10th day of October, 1906, Porter served the plaintiff in that action and filed with the justice a notice of appeal, and thereafter, on the 12th day of October, 1906, duly filed the necessary undertaking on appeal, as required by law, and appealed said cause to the district court of Salt Lake county. The justice thereafter in due time transmitted the papers in said case to the clerk of said district court, and the cause was duly docketed in said court and the fees therefor paid as required by law. In other words, the appeal was regular in all respects, if taken in time. On January 31, 1907, the plaintiff in said action served and filed a motion to dismiss said appeal upon the sole ground that it had not been taken within the time required by the laws of this state relating to appeals from justices' courts. Upon the hearing of said motion the respondent in this proceeding, as judge of said district court, sustained the same and dismissed said appeal, and, upon application to reinstate the same and to proceed to a hearing upon the merits, refused, and this application is made to require him to do so. The questions presented for decision are: (1) Was said appeal taken within the time required by the laws of this state governing appeals from justice courts to the district courts? And (2) was the motion for a new trial passed on within the time the law authorized the justice to do so?

The time within which an appeal must be taken from judgments of justices of the peace is stated in section 3744 to be "at any time within 30 days after the rendition of judg

C. S. Price, for petitioner. McGurrin & ment." If this section stood alone, or if the Gustin, for defendant.

FRICK, J. This is an original application to this court for a writ of mandate against one of the judges of the district court of Salt Lake county. The application is based upon substantially the following proceedings: On December 7, 1905, one Mae Houghton, as plaintiff, filed her complaint in the justice court in and for Salt Lake county against Don Porter. praying judgment for $41.66. Porter appeared and filed a general denial as a defense to the action. On January 8, 1906, the justice entered judgment, after a trial, against Porter, for the amount prayed for, with costs. On January 17, 1906, and within the time allowed by section 3742, Rev. St. 1898, and upon the grounds therein provided, Porter served the plaintiff, and filed with the justice, a motion for a new trial, supported by affidavit, as required by section 3743. This motion remained pending until September 27, 1906, when the plaintiff in said action caused a notice to be served on said Porter notifying him that said motion for a new trial would be heard by the justice on the 1st day of October following. On 20. S. L. Ry. Co. v. District Court, 85 Pac. 360, 30 Utah, 371; Hoffman v. Lewis (Utah) 87 Pac. 167; State v. Morse (Utah) 87 Pac. 705.

part above quoted is controlling in all cases, regardless of any other provision in other sections relating to the trial of and proceedings before justices of the peace, then it necessarily follows that the appeal in this case, not having been taken within the time fixed by said section, was not taken in time, and therefore cannot be sustained. In view, however, of other sections relating to the subjectmatter, this conclusion does not necessarily follow. Section 3742 reads as follows: "A new trial may be granted by the justice on motion made within ten days after the entry of judgment, for the following causes." Then follow the causes for which a new trial may be granted by the justice. This section, in another form, is first found in the Compiled Laws of 1876 as section 1802. The wording and punctuation, as there enacted, are as follows: "A new trial may be granted by the justice, on motion, within ten days after the entry of judgment, for any of the following causes." This wording and punctuation were carried into the Compiled Laws of 1888, and constituted section 3655 of that compilation. In 1898, however, when the Revised Statutes were adopted, the wording and punctuation were changed as they are now in section 3742, above quoted. During all of

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