Action by the city of Seattle against the Puget Sound Improvement Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Bausman & Kelleher, Peters & Powell, and R. P. Oldham, for appellant. Scott Calhoun and Elmer E. Todd, for respondent.

MOUNT, J. This action was brought by the respondent to recover over from the appellant the amount of a judgment for personal injuries recovered by C. S. Smith against the city, and paid by the city. The case was tried to the court without a jury, and a judgment was rendered against the appellant. The appellant alleges that the court erred in overruling a demurrer to the complaint and in making certain findings of fact.

The material allegations of the complaint are as follows: "That Second avenue is now and was at all times herein mentioned a public street in said city of Seattle, being one of the principal streets in said city and a common thoroughfare, and as such much used by the public; that at all times herein mentioned said defendant was the owner of lots 1 and 4, in block 6, of the plat of the town (now city) of Seattle, as laid off by C. D. Boren and A. A. Denny, in the county of King, state of Washington; that at all times herein mentioned there was situated on said lot a four-story brick building, known as the 'Boston Block,' and under the sidewalk on Second avenue in front of said lots, particularly in front of that store building in said block known as 'No. 722 Second Avenue,' in said city, said defendant maintained an area way, and at or near said store building in said sidewalk maintained a trapdoor down into said area way and cellar, beneath said sidewalk; that on the night of the 19th of October, 1901, and for many months prior thereto, the defendant had negligently and carelessly maintained said trap-door in said sidewalk as aforesaid; that said trapdoor, which was made of iron, was unlawfully and dangerously raised above the surface of the adjoining sidewalk for a height of from two to three inches; that said opening in the sidewalk was covered as aforesaid by iron trap-doors, which met over the middle of said opening; that at said point of meeting one of said iron doors projects above the other, and said iron doors had become on the surface worn smooth, and at all times were slippery and dangerous to life, and to travelers using the same in walking over said sidewalk in the ordinary and usual manner; that said defendant carelessly and negligently failed to place any danger signals as a warning around or about said defective place in said street and sidewalk and said obstruction thereon contained; that on the night of said 19th of October, 1901, one Christina D. Smith, while lawfully traveling along said Second avenue, at or near No. 722 Second

avenue, stumbled on said iron doors, and, the same then and there being slippery, stumbled, slipped, and fell, and was thereby thrown on said iron doors on said sidewalk and ground, and therefrom she sustained great and severe injuries." Then follow allegations of the extent of the injuries to Mrs. Smith; that she duly presented her claim to the city for damages; "that thereafter, to wit, on or about the 11th day of February, 1902, said Christina D. Smith and Lee Smith, her husband, instituted an action in the superior court of King county, Wash., to recover damages against the city of Seattle on account of said injuries so received as aforesaid, which cause is numbered 34,982 in the files of said court; that said city of Seattle duly defended against said action, and issues were joined therein, and a trial was had upon said issues in said court on January 29, 1903, resulting in a verdict in favor of said Christina D. Smith and her husband in the sum of $7,653; that said city of Seattle duly filed its motion for a new trial, which said motion was denied by the court, and judgment entered upon said verdict in the sum of $7,633 and costs against said city; that from said judgment the city of Seattle duly appealed to the Supreme Court of the state of Washington, and thereafter the Supreme Court of the state of Washington affirmed said judgment of the superior court, with costs; that thereafter, on the 23d day of December, 1903, the remittitur from the Supreme Court affirming said judgment was filed in the office of the clerk of said superior court, and final judgment was entered against said city of Seattle for $7,633 and costs, amounting to $180.15; that on said 23d day of December, 1903, the city of Seattle was forced to and did pay said judgment, with interest and costs amounting in the aggregate to $8,151.91; that in addition thereto said city of Seattle was forced to and did expend as necessary expense in defending said suit and in prosecuting said appeal the sum of $500." Then follows an allegation of notice to the appellant to defend the suit.

Upon the sufficiency of this complaint the appellant argues that the complaint shows that the appellant and the city were joint tort-feasors, and, since there can be no indemnity by one joint tort-feasor against another, there can be no recovery in this case. But, as we read the allegations of the complaint, we find nothing in it to justify the conclusion that the city and the appellant were joint tort-feasors. The allegations are that the defendant maintained an area way beneath the sidewalk and trap-doors in the sidewalk; that the trap-doors were carelessly and negligently maintained by defendant, and were unlawfully and dangerously raised above the surface of the sidewalk two or three inches; that said doors were worn smooth and slippery, and were danger

grate. That duty included proper construction in the first place, and reasonable care on the part of the owner to keep the grate in repair thereafter, as long as he continued in possession. The duty sprang from the necessity of having safe sidewalks, and, as the necessity is continuous, so is the duty. Upon no other ground can the construction of a grate in a sidewalk, which is an interference with a public highway, be justified, even when permission is duly granted. Upon the transfer of the entire interest and possession to another, as the duty runs with the land, it would be cast upon the grantee. So a lessee of the entire premises and possession thereof by the tenant would doubtless throw the burden upon the latter. Shearman & Redfield on Negligence (5th Ed.) §§ 710, 713. The conveyance of an undivided interest, however, would not have that effect, and the demise of a part of the premises should not. The obligation goes with the land, and cannot be discharged by a partial alienation of the land at least unless the alienation, if for a fixed term, carries with it the exclusive possession of the premises for that term. Entire possession by a tenant from foundation to roof doubtless involves the duty of keeping a grate in front of the premises in repair, which otherwise rests on the owner of the fee. But whoever, even by due permission, cuts a hole in the sidewalk for the benefit of his adjoining property, must use reasonable care to protect the public from danger on account thereof. Reasonable care requires that he should provide a proper covering, inspect it from time to time, and repair it when necessary, as otherwise passers-by, for whose benefit the sidewalk is maintained, may be injured. If he parts with the premises, or parts with the possession thereof for a period, the burden falls on his successor in title or possession. If he transfers either title or possession in part only, he does not escape the burden. The implied duty assumed when the hole was cut and the grate placed over it requires reasonable precaution on the part of the owner to protect the public as long as he remains the owner and is in possession of any part of the building on the abutting land. He cannot cast the burden of maintenance on the public, any more than he could have cast upon them the burden of original construction; for the grate is wholly for the benefit of his property. Nor can he relieve himself of the duty without parting with the entire possession of the property benefited; for the safety of the public requires that the owner, as long as he is in possession of any part of the property, should be compelled to keep his structure in the sidewalk in suitable condition for use as a part of the sidewalk. As the duty is imposed by law for the public safety, its extent is measured by what

ever public safety requires. Anything less than the alienation of the entire property, either permanently, as by deed, or temporarily, as by lease, would leave the public without adequate protection. A person injured by a defective grate should not be subject to the hazard of ascertaining the precise relation existing between the owner and one of his tenants with reference to the control of the grate; but a simple rule, resting upon ownership and possession, in whole or in part, of the adjacent structure. is required by sound public policy.” See, also, Chicago v. Robbins, 2 Black (U. S.) 418, 17 L. Ed. 298; Milford v. Holbrook, supra; Port Jervis v. First National Bank, 96 N. Y. 550.

We find no error in the record. The judgment is therefore affirmed.

HADLEY, C. J., and FULLERTON, CROW, and ROOT, JJ., concur.

(151 Cal. 504)

ROBINSON et al. v. BLOOD et al.
(L. A. 1.807.)

(Supreme Court of California. July 12, 1907.) 1. JUDGMENT-BY DEFAULT-COLLATERAL ATTACK-WANT OF JURISDICTION. •

Where, in an action by a judgment creditor of a corporation to subject to his judgment the amount due from a stockholder on his stock subscription, it appeared that the complaint in which the judgment was rendered sufficiently stated a cause of action to give jurisdiction of the subject-matter, that the summons was served on the president of the corporation, and that default and judgment were duly entered, the judgment was not to be held void because of want of jurisdiction.

2. CORPORATIONS-EMPLOYMENT OF ATTORNEY -VALIDITY-PRESUMPTIONS.

The president of a corporation, under an authority, given at a meeting of the directors, employed an attorney to defend a suit brought against the corporation. The resolution authorizing the employment was regularly entered in the minutes of the corporation, which recited that the meeting was called by the president. Held, that a presumption that due notice was given to the directors was raised, rendering the employment valid, in the absence of evidence to the contrary.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, § 1300.] 3. SAME-DE FACTO OFFICERS.

A director of a corporation, who has ceased to be a stockholder, may continue to act as a de facto director. and his acts are not void as to third persons.

[Ed. Note. For cases in point, see Cent. Dig. vol. 12, Corporations. §§ 1241, 1242.]

4. SAME TERMINATION OF CORPORATE EXISTENCE.

A

Civ. Code, $ 358, as amended in 1901, provides that, where a corporation after its organization shall lose its property and shall fail for two years to elect officers and transact its business, its corporate powers shall cease. corporation was engaged in defending a foreclosure suit on its property, which was the only business it had. The last act in the defense was had within 30 days after October 12, 1901. The attorney conducting the defense sued the corporation for its services in August, 1903, and recovered judgment in September. The corporation did not lose all of its property until June

28, 1903, at which time its right of redemption under the sale in the foreclosure suit expired. Held, that the corporation was in existence at the commencement of the suit and at the rendition of a judgment against it for the attorney's fees, rendering the judgment valid.

5. SAME STOCKHOLDER'S LIABILITY ExFORCEMENT.

The right of a judgment creditor of a corporation to pursue the stockholders thereof to compel payment of the judgment is not defeated by the subsequent termination of the corporation by reason of Civ. Code, § 358, as amended in 1901, providing that, where a corporation shall dispose of all of its property and shall fail for two years to elect officers and transact its business, its corporate powers shall cease.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 12, Corporations, § 892.]

6. SAME-CORPORATE EXISTENCE.

Civ. Code, § 358, as amended in 1901, provides that the incorporation of a corporation claiming in good faith to be a corporation and doing business as such shall not be inquired into collaterally in any private suit to which it may be a party, and where a company claiming in good faith to be incorporated has been doing business for 10 consecutive years as a corporation no such inquiry shall be made by any person. A corporation was organized in 1887, and it claimed in good faith to be a corporation and did business as such until 1901. Thereafter a creditor obtained judgment against it and sought to pursue a stockholder to compel payment of the judgment. Held, that the stockholder could not question the existence of the corporation. [Ed. Note.--For cases in point, see Cent. Dig. vol. 12, Corporations, § 77.1

In Bank. Appeal from Superior Court, Santa Barbara County; Felix W. Ewing, Judge.

Action by Martha A. Robinson and another against James A. Blood and another. From a judgment for plaintiffs, defendant James A. Blood appeals. Affirmed.

W. S. Day, for appellant. Richards & Carrier, for respondents.

SHAW, J. This is an action by the plaintiffs, as judgment creditors of La Serena Land & Water Company, a corporation, against James A. Blood, a stockholder of the corporation, in the nature of a creditors' bill, to subject to the payment of the plaintiffs' judgment the amount due from Blood to the corporation upon his subscription to the capital stock thereof. Judgment was entered in the court below against Blood, from which he appeals.

The defenses set up by Blood are that the previous judgment in favor of the plaintiffs against the corporation is void, both for lack of jurisdiction and because of fraud and collusion between plaintiffs and the president of the corporation in obtaining it; that the corporation, at the time the former suit was begun, and for a long time prior thereto, had ceased to have a legal existence; and that plaintiffs' cause of action is barred by the statute of limitations. The evidence is contained in a bill of exceptions printed in the record. The judgment against the corporation is not void upon its face. The complaint therein sufficiently states a cause of

action to give the court jurisdiction of the subject-matter. The summons was duly served on the president of the corporation, and the default and judgment were duly entered. No irregularity appears on the face of the record.

On the question of fraud in procuring the judgment, the findings are against the defendant, and they are sufficiently supported by the evidence. The corporation was sued by Blood, the present defendant, to foreciose a mortgage he held against all of its property. McNulta, the assignor of plaintiffs, was employed as an attorney to defend the action for a stipulated fee. The contract with McNulta on behalf of the corporation was made by Barker, its president, in pursuance of an authority given him in that behalf at a special meeting of the directors. The suit of the plaintiffs was for the fees of MeNulta for his services in defending the foreclosure suit. The services were performed by him in accordance with his agreement, and there is nothing in the evidence which indicates fraud, bad faith, or collusion on his part. It is urged that the directors were not given notice of the special meeting at which Barker was authorized to employ McNulta. Conceding, for the purposes of this case, that his would be a good defense, either to the present action or to the action against the corporation to recover the attorney's fees, it is sufficient to say that the resolution authorizing the contract with McNulta was regularly entered in the minutes of the corporation, which recite that the meeting was called by the president, and that this raises a presumption that due notice was given thereof. Granger v. O. E. M. & M. Co., 59 Cal. 681; Balfour-Guthrie Co. v. Woodworth, 124 Cal. 172, 56 Pac. 891. The evidence given does not, as a matter of law, overcome this presumption. The court below gave credit to the presumption as against the testimony. We cannot interfere with its decision upon this conflict.

The evidence that one of the directors had ceased to be a stockholder at the time of this meeting did not prevent his continuing to act as a de facto director, nor make such action void as to third persons. San Jose Sav. Bank v. Sierra Lumber Co., 63 Cal. 179.

The claim that the action was barred by the statute of limitations is not urged, and it is not supported by the evidence.

The principal defense appears to be the claim that the corporation had ceased to exist before McNulta began or performed the services, and never thereafter became a legai corporation. This claim is founded upon that part of section 358 of the Civil Code, as amended in 1901, which reads as follows: "If a corporation does not organize and commence the transaction of its business, or the construction of its works, within one year from the date of its incorporation, or if, after its organization and commencement of its business, it shall lose or dispose of all of

its property, and shall fail for a period of two years to elect officers, and transact, in regular order, the business of said corporation, its corporate powers shall cease." The claim is unfounded. Before the amendment of 1901, the part of the section corresponding to the above was as follows: "If a corporation does not organize and commence the transaction of its business, or the construction of its works, within one year from the date of its incorporation, its corporate powers cease." There was no failure to organize the corporation, or to begin the transaction of its business, within the year after its incorporation. The corporation, therefore, has had a legal existence from the time of its incorporation until the present time, unless it ceased to exist after the amendment of 1901, under the provisions of that amendment.

The action against the corporation to recover the attorney's fees was begun on August 22, 1903. The corporation did not lose all of its property until June 28, 1903, at which time its right of redemption under the sale in the foreclosure suit expired. The conditions on which the corporate powers would cease, under the part of the amendment above quoted, did not occur until after the latter date, at all events. The corporation was engaged in defending the foreclosure suit upon its property, which appears to have been the only business it had. While so engaged it cannot be said that it was failing to transact its business in regular order. The last act in this defense was the filing of a petition for rehearing in the Supreme Court, within 30 days after October 12, 1901. Consequently there was not, either at the time the action for attorney's fees was begun or on September 2, 1903, when the judgment therein was rendered, a failure for 2 years to transact the business of the corporation. The subsequent expiration of the 2-year period could not affect the right of the judgment creditors to pursue the stockholders to compel payment of the judgment.

Another sufficient ground for holding that the corporation still has a corporate existence is found in the terms of the concluding clause of section 358, as amended in 1901. This clause is not included in the part above quoted. It is as follows: "The due incorporation of any company claiming in good faith to be a corporation under this part, and doing business as such, or its right to exercise corporate powers, shall not be inquired into collaterally in any private suit to which such de facto corporation may be a party; but such inquiry may be had at the suit of the state on information of the Attorney General; provided, however, as to any company claiming in good faith to be, and which has been doing business for ten consecutive years as a corporation, no such inquiry shall be made either by the state or by any person whatsoever." This corporation was organized in 1887, and, so far as appears,

it claimed in good faith to be a corporation and did business as such from that time until the passage of this amendment in 1901. Under this clause no inquiry as to its corporate powers can be made in this action. Furthermore, immediately after the part of the section first above quoted occurs this clause, "and the said corporation may be dissolved at the instance of any creditor of the said corporation, at the suit of the state, on the information of the Attorney General." In San Diego Gas Co. v. Frame, 137 Cal. 441, 70 Pac. 295, under a law similar in all respects to this part of section 358, it was held that the corporation continues to exist until, in a suit for that purpose, its corporate franchise is declared forfeited.

This disposes of all the points presented by the appellant in support of his appeal. The judgment is affirmed.

We concur: BEATTY, C. J.; McFARLAND, J.; SLOSS, J.; LORIGAN, J.; HENSHAW, J.; ANGELLOTTI, J.

(5 Cal. App. 719) VAN HORN v. VAN HORN. (Civ. 347.) (Court of Appeal, First District, California. June 13, 1907. Rehearing Denied by Supreme Court August 12, 1907.)

1. DIVORCE-EVIDENCE-WIFE'S CHARACTER.

Under Code Civ. Proc. § 2053, providing evidence of the good character of a party is not admissible in a civil action, until his character has been impeached, or the issue involves it, in a divorce action against a wife for adultery, evidence as to her good character was properly

excluded.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, §§ 365, 372.]

2. SAME-CO-RESPONDENT'S CHARACTER.

Under Code Civ. Proc. § 2053, providing evidence of a witness' good character is not admissible until the character has been impeached, etc., where, in a divorce action against a wife for adultery, the co-respondent was not a party, and had not been impeached as a witness under section 2051, authorizing impeachment, evidence as to the excellence of his character was properly rejected.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, §§ 365, 372, 374.] 3. SAME.

Though the custody of a minor child was involved in a divorce action against the wife for adultery, it was not error to exclude evidence as to her good character; the minor being a boy 15 years old, the wife having been adjudged guilty of adultery, and the disposition of the minor being within the sound discretion of the court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, §§ 365, 372, 784.] 4. APPEAL - REVIEW DENCE-GROUNDS.

EXCLUSION OF EVI

The trial court's ruling in rejecting evidence will be upheld on appeal, if correct, whether the ground upon which it was based was stated in the objection or not.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3406.]

Appeal from Superior Court, Alameda County; F. B. Ogden, Judge.