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ity if the note is not duly presented for payment within six months after its date, and that "in the other he is not released from liability by any mere delay in presenting it." But the Supreme Court in later cases has not adopted the rule as thus stated. "But this section," says the court in Cousins v. Partridge, 79 Cal. 229, 21 Pac. 745, speaking of section 3135 of the Code, "clearly applies to a case where a demand is necessary, and a demand is necessary only when it is sought to charge indorsers and others than the principal. Formerly, in order to hold indorsers on paper payable on demand, demand and notice had to be made and given within that very uncertain period called 'a reasonable time.' Now, section 3135 limits that time to a year or six months (according as the note does or does not bear interest), and after that time there cannot be a demand and notice which will bind an indorser." The rule as thus declared is followed in Jones v. Nicholl, 82 Cal. 33, 22 Pac. 878, the opinion being written by the writer of the opinion in Machado v. Fernandez, supra, and also in Beer v. Clifton, supra. It follows that if counsel's construction of the opinion in Machado v. Fernandez is correct, and it at least appears to be, the rule as therein declared has been overruled by the cases to which we have just directed attention. And any other construction of section 3135 of the Civil Code would render meaningless the section, although its purpose, so far as the second subdivision thereof would be affected by such a construction, is accomplished by section 3248 of the same Code.

The complaint here alleges, "upon information and belief," that Williams left the state on or about the 8th day of June, 1903, and that on the 16th day of February, 1905, the plaintiff caused the note to be presented at Hornbrook, Cal., "the same being the place where said note was dated and the place for the payment thereof"; but that the maker was not "in said Hornbrook or in the state of California." It is not stated that the note was presented or attempted to be presented before the 8th day of June, 1903, the time at which it is alleged that Williams left the state and five months after the plaintiff became the owner of the note. While it is dated at Hornbrook, by its terms it is not payable there, nor is there designated in it any particular place at which it is payable. There is no allegation that Hornbrook

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was at any time the place of residence of the maker, and there is no averment that any effort was made to find his place of residence, if he ever had any in California. note not payable at any particular place is payable and should be presented for payment at the residence or place of business of the maker, or wherever he may be found, at the option of the presentor; and it is only where the maker has no place of business or residence within the state, or where his place of business or residence cannot be ascertained with reasonable diligence, that presentment for payment is excused. "The complaint is insufficient because it states no facts respecting the knowledge or ignorance of Dinkelspeil & Co., and their indorsers or agent, as to the actual place of residence or business of the maker of the note, and does not allege what was her last known place of residence or business, or that any inquiry or presentment was made thereat. Merely looking out for the payor at the place where

the Instrument is dated is not of itself due diligence, but presentment must be shown to have been made at the promisor's last known place of residence or business." Haber v. Brown, 101 Cal. 451, 35 Pac. 1035. Moreover, it was necessary to show more knowledge of the whereabouts of the maker than that involved in mere "information and belief." The complaint should have shown, if it were the fact, that inquiries as to his whereabouts were made of his personal acquaintances, or other persons in a position in which they were likely to know something of his movements. Information thus acquired would be, it is true, hearsay, but the defendants were entitled to know, we think, as bearing upon the question of diligence, what the plaintiff actually did in the matter of making efforts to make a demand upon the maker of the note. He was entitled to knowledge, through appropriate averments, of the sources of plaintiff's "information and belief" as to the whereabouts of the maker when the alleged efforts were made to make presentment and demand.

The complaint falls far short of stating a cause of action against either of the respondents.'

The judgment is affirmed.

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(47 Wash. 210)

STATE ex rel. SHORES et al. v. ROSS, Public Land Com'r.

(Supreme Court of Washington. Sept. 28, 1907.) 1. PUBLIC LANDS-TIDE LANDS-APPLICATION FOR PUBLIC SALE.

It is the duty of one making a written application to the board of state land commissioners for a public sale of tide lands to fully state the facts, not only as to possession, but also as to improvements, whether such improvements are such as are contemplated by the statute or not.

2. SAME.

One making application to the board of state land commissioners for a public sale of tide lands who is without actual knowledge of the condition of the land as to possession or improvements is in no position to present a proper application, but he should first examine the property, and become fully advised as to the situation.

3. SAME-EVIDENCE-SUFFICIENCY.

Evidence held to show such collusion between applicant for a writ of mandamus to compel the commissioner of public lands to deliver a deed of certain tide lands and other bidders at a public sale thereof as to avoid the sale.

Application for a writ of mandamus by the state, on relation of E. A. Shores and another, against E. W. Ross, commissioner of public lands. Writ denied.

Wm. H. Pratt and Walter Loveday, for relator. John D. Atkinson, A. J. Falknor, and E. M. Hayden, for respondent.

CROW, J. This original proceeding, being an application for a writ of mandamus to compel the respondent to deliver to the relator E. A. Shores a deed for certain first class tide lands, has heretofore been presented to this court, and in a written opinion reported in 87 Pac. 262, where a complete statement may be found, it was directed that the superior court for Pierce county take evidence, make findings of fact, and certify the same to this court. In pursuance thereof, the cause came on for hearing in due course before the Honorable W. O. Chapman, judge of the superior court, and the evidence taken before him, together with his findings thereon, having been certified to this court, the entire cause is now before us for final disposition.

The honorable superior judge found (1) that the relator E. A. Shores in his application for a sale of the tide lands made misrepresentations as to possession and improvements; and (2) that at the tide-land sale there was collusion between the relator and other bidders. Having carefully examined all the evidence, we accept and approve these findings. On January 9, 1906, the relator made a written application to the board of state land commissioners for a public sale of the tide lands, in which he stated that the lands were not in the possession of any person, and that no improvements were situated thereon. The evidence shows that they were then occupied by the North Shore Lumber

Company, in connection with its sawmill; such occupancy being so open and notorious that any person could have easily learned thereof had he so desired. The relator in his application also represented that no improvements were located on the tide lands, but the superior court found there were im provements of the value of $500. The relator now contends that it was not necessary for him to mention in his application the improvements shown by the evidence, as they were not such as are contemplated by the statute. It is unnecessary for us to pass upon this contention. It was needful anl proper that the board of land commissioners should be advised of the true condition of the lots by the written application, not only as to possession, but also as to existing improvements, whether such improvements care within the statutory requirement or not, and it was the relator's duty to fully state all the facts in that regard. He now contends that he did not have actual knowledge of the exact condition of the lands as to possession or improvements, and that he has not been guilty of willful misrepresentation. Accept

ing this statement as true, he was then in no position to prepare and present a proper application to the board of state land commissioners, but should have deferred making his application until he could first examine the property, and become fully advised as to the situation.

The finding that collusion existed between the relator and other bidders at the sale of June 30, 1906, is clearly sustained. The collusion shown was of such a character that, under our former opinion, we are now compelled to deny the writ, without regard to the misrepresentations as to possession or improvements. The evidence shows that the relator was represented at the sale by his son, E. Arthur Shores, and his son-in-law, one Eldridge; that one Lay and one Haller, real estate speculators, were present; that Lay had called upon E. Arthur Shores the day previous, and advised him of his intention to bid; that at the sale a consultation took place between Shores. Eldridge, Haller, and Lay; that Haller withdrew, after stating that he would be satisfied with whatever Mr. Lay might do; that Eldridge, being the only bidder therefor, purchased lot 1; that Lay purchased lot 2 after slight competitive bidding; that he also purchased lot 3, being the only bidder therefor; that the total purchase price for all three lots was $87.52; that, as shown by the evidence of disinterested expert witnesses, the three lots were on the day of sale worth at least $2,000 market value; that a few minutes after the sale Eldridge and Lay directed the county auditor to make receipts for the entire purchase price to the relator; and that E. Arthur Shores thereupon executed and delivered to Lay an instrument reading as follows: "Tacoma, Wn.. June 30, 1906. For services rendered and lots delivered after deeds are ob

tained, I hereby agree to pay L. D. Lay five hundred dollars. E. A. Shores." The evidence fails to accurately declare what serv ices were rendered by Lay to Shores. Lay and Haller had an agreement by which the one was to receive $200 and the other $300 of this sum. All the parties above mentioned deny any consultation at the sale or collusion in the matter of bids, but the purchase of the property at an exceedingly low figure and the $500 bonus to Lay agreed upon immediately thereafter are utterly unexplained, as likewise are other suspicious circumstances disclosed by the evidence. Applying the law of this case as settled by our former opinion to the evidence and facts now before us, we cannot award the relator any relief. The writ is denied.

HADLEY, C. J., and MOUNT, ROOT, and DUNBAR, JJ., concur.

(47 Wash. 200)

CLAIBORNE v. CLAIBORNE. (Supreme Court of Washington. Sept. 28, 1907.) DIVORCE ALIMONY PROVISION FOR MINOR

CHILD-GUARDIAN.

Under Ballinger's Ann. Codes & St. § 5723, providing that in granting a divorce the court shall make provision for the guardianship and support of any minor children, remuneration may be provided for a guardian of a minor child, and a decree that the husband pay a certain amount for the support of the wife, who has the custody of their child, and the child, is valid.

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Laura Claiborne having been granted a divorce from her husband, Austin Claiborne, defendant thereafter moved to vacate so much of the original decree as awarded alimony, and an order to show cause why he had not complied therewith, and from an order overruling such motions he appeals. firmed.

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William H. Gorham, for appellant. Blaine, Tucker & Hyland, for respondent.

MOUNT, J. On November 14, 1901, the respondent Laura Claiborne, was at her suit divorced by the superior court of King county, Wash.. from the appellant. She was awarded the care and custody of a minor son. In the decree the court found "that there is no community property or other property owned by either party to this action requiring the interference of this court; * * that the defendant is a very competent business man, and has heretofore been earning $250 per month, and is in good health; that $100 per month is a reasonable allowance for alimony for the plaintiff for the support of herself and younger son." Thereupon a decree was entered, which provided, among other things, as follows: "That the defendant pay to the plaintiff the sum of $100 per month, com

mencing on January 1, 1902, and a like amount on the 1st day of each and every month thereafter for the support of herself and younger child, to continue in force until the further order of this court." Thereafter, on November 13, 1906, the defendant in that action, having been served with an order to show cause why the allowance made by the decree as stated above had not been paid as provided in that decree, filed a motion to vacate so much of the original decree of divorce as awarded alimony for the support of his divorced wife, and on November 16, 1996, filed a motion to vacate the order to show cause why he had not complied with the decree. Both of these motions were based upon the ground that the court rendering the decree of divorce had no jurisdiction to require the husband to support his divorced wife and child, and that such order was therefore void. These motions upon the hearing were denied, and the court, after hearing the application upon its merits, directed the defendant to turn over a certain insurance policy to the plaintiff. This appeal is prosecuted from that order.

The only question presented here upon the merits is whether that portion of the decree of divorce awarding $100 per month to the wife for support of herself and minor child is void. In the case of State ex rel. Brown v. Brown, 31 Wash. 397, 72 Pac. 86, 62 L. R. A. 974, we affirmed a judgment enforcing a decree like the one in this case. It is true the validity of the decree in that case was not discussed in the opinion or in the briefs of counsel. The validity of the original decree was apparently conceded. The statute, at section 5723 (Ballinger's Ann. Codes & St.), provides that "in granting a decree the court shall make provision for the guardianship, custody. support, and education of the minor children of such marriage." This means that the court may appoint a guardian for minor children, and that such guardian may be remunerated by order of the court. If the statute makes no provision for the support of the divorced wife where there is no property and no children, it clearly makes provision for the support of minor children of divorced parties, and intends, at least, that where one of them is fitted for the care of the minor children, and is appointed to care for them, such party may be rewarded for such care as fairly as a stranger might be. It must follow that, in addition to the actual requirement for the child, provision by way of remuneration may be made for the guardian. This may have been the sole purpose of the decree in this case. Where there is no property, but where there are minor children of divorced parties, we are satisfied that the statute is broad enough to authorize the court to decree to either party having the care and custody of such children sufficient support for both the child and the guardian.

The original judgment therefore was not

void, and the order appealed from must be this motion came on for hearing, the appelaffirmed.

HADLEY, C. J., and CROW, ROOT, DUNBAR, and RUDKIN, JJ., concur.

(47 Wash. 196)

HODGE v. HODGE.

(Supreme Court of Washington. Sept. 28, 1907.)

1. EXECUTORS AND ADMINISTRATORS-CLAIMS FOR SERVICES-FAMILY RELATION.

Where services are rendered by one who is a member of the family of the decedent, the law will not imply a contract to pay therefor, but facts from which it may be inferred that there was an understanding that they were to be paid for must be proved on presentation of a claim against his estate.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 733.] 2. SAME-EVIDENCE-SUFFICIENCY.

One took up his abode with his brother on a farm. The two did the work thereon, and took care of a government light for which the brother was keeper, and during the last illness of the brother the former did all the work. There was no contract of employment nor evidence of any acts to show that the former was to receive any pay for his work. Held as a matter of law not to authorize a recovery for the services.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 9032] 3. APPEAL-INVITED ERROR-RIGHT TO COM

PLAIN.

A party cannot complain of a judgment entered on his request and accepted by the adverse party in lieu of a new trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3591.]

Appeal from Superior Court, Skagit County; George A. Joiner, Judge.

Action by Woodbridge Hodge against Charles Hodge, administrator of the estate of Watson Hodge and Jennie Hodge, deceased. From a judgment for plaintiff, defendant appeals. Reversed with directions.

Million, Houser & Shrauger, for appellant. Smith & Brawley, for respondent.

MOUNT, J. Respondent brought this action to recover upon a claim for services rendered to Watson Hodge, deceased, during his lifetime. The respondent in his complaint alleged that he performed labor and services for his brother during his lifetime between December 1, 1903, and December 1, 1904, 305 days, at $1 per day, amounting to $305; that he cared for his brother during his last illness 143 days, from December 1, 1904, to April 23, 1905, at $2 per day, amounting to $286; that a claim for these amounts was presented to the appellant as administrator, and rejected. The answer of the administrator denied that respondent had rendered any services to the deceased. Upon these issues the case was tried to a jury, and a verdict was returned for the full amount claimed by the respondent. A motion for new trial was filed by the appellant. When

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lant offered to allow $50 on account of services rendered by respondent during the last sickness of Watson Hodge, and the court gave respondent the option of having a new trial granted or accepting $50 in lieu of the award of the jury of $286 for the services rendered during the last sickness of said deceased. The respondent accepted this offer, and judgment was thereupon entered for $540 for services rendered prior and $50 additional for care of said Watson Hodge, deceased, during his last sickness. This appeal is prosecuted from that judgment.

The only point made on this appeal is that the court erred in not sustaining appellant's motion for nonsuit at the close of plaintiff's evidence. The facts shown by the case are, in substance, as follows: The respondent, Woodbridge Hodge, and Watson Hodge, deceased, were brothers. The former at the time of the trial was 72 years of age. His brother at the time of his death was two years his senior. Watson Hodge died on April 23, 1905. About five or six years prior to Watson's death respondent came to this state to visit his brother Watson, whom he had not seen for about 40 years, and who at that time was living with his wife on a little farm on Samish Island, in Skagit county. Respondent thereupon made his home with Watson and his wife when he was not working for other persons. In November, 1903, Mrs. Watson Hodge died, and within a month thereafter respondent took up his permanent abode with his brother Watson, the two living together thereafter on Watson's place, doing their own cooking and housekeeping, performing such work as was to be done on the place, such as making garden, milking the cow, mowing the meadow of which there was one or two acres, and building a small fence, and taking care of a government light for which Watson Hodge was keeper at a monthly salary of $15. Upon the proceeds of all this work the two old men lived together. About the 1st of April, 1995, Watson Hodge became sick, and was thereafter confined to his bed until his death on April 23, 1905. During this time all the work and the care of Watson Hodge devolved upon respondent. Charles Hodge, the son of Watson, lived with his family near by his father, but they appeared to give little heed to the two old men. They visited Watson Hodge two or three times a few days previous to his death. This is the substance of the evidence in the case. There is no evidence of any contract of employment of respondent by his brother Watson Hodge, and there is no evidence of any acts or conduct of the parties or circumstances even tending to show that respondent was to receive any pay other than his living for his work.

In the case of Morrissey v. Faucett, 28 Wash. 52, 68 Pac. 352, we stated the rule in cases like this as follows: "It is a rule universally recognized that, when the services

are rendered by one who is a member of the family of the employer, the law will not imply a contract to pay for the services from the mere fact that they have been rendered upon the one hand and the benefits thereof received upon the other, as in the case of strangers. This is also held to be the rule when there is no actual blood relationship existing between the parties, provided they sustain to each other the ordinary relations of members of the same family. It has been held, however, that, when the family relationship exists, it is not necessary to prove the terms of a direct and positive contract, but that proof may be made of words, acts, and conduct of the parties, and circumstances from which the inference may follow that there was an understanding that the services were not to be rendered gratuitously, that, when such is the case there is a contract upon which the value of the services can be recovered, and it is for the jury to say from all the conduct of the parties and from the circumstances in evidence whether there was in fact such an understanding or agreement." See, also, McBride v. McGinley, 31 Wash. 573, 72 Pac. 105. is clear in this case that respondent and his brother Watson were living together as members of the same family. There was no evidence to take the case to the jury upon the question of services rendered prior to Watson's death, under the rule above stated, and therefore the court erred in not dismissing the case as to that item. The appellant cannot now complain of the judgment for $50, because that judgment was entered upon request of the appellant, and was accepted by respondent in lieu of a new trial upon that

item.

For the reasons above given, the judgment of the trial court is reversed, with directions to enter a judgment for respondent for $50 and costs of that court, appellant to recover the costs of this appeal.

HADLEY, C. J., and FULLERTON,

CROW, ROOT, DUNBAR, and RUDKIN, JJ., concur.

(47 Wash. 194)

BRANDT v. LITTLE. (Supreme Court of Washington. Sept. 26, 1907.) JUDGMENT — VACATING — MERITORIOUS DEFENSE.

Where an independent action is brought to vacate a judgment as obtained without jurisdiction, a showing that defendant has or at the time of judgment had a defense is none the less necessary because the judgment may have been so obtained, especially if the lack of jurisdiction does not appear on the face of the record.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, $$ 849-851.]

Appeal from Superior Court, King County; A. W. Frater. Judge.

Action by John Brandt against M. A. Lit

tle. Judgment for defendant, and plaintiff appeals. Affirmed.

Fred H. Peterson and H. C. Force, for appellant. J. H. Allen and James A. Dougan, for respondent.

ROOT, J. This is an action in equity to vacate a judgment upon the ground that in the original action no summons, complaint, nor any process of any kind was served upon this plaintiff, who was one of the defendants therein. A demurrer was sustained to the complaint, upon the ground that it did not allege that appellant had a defense upon the merits to the original suit. Appellant electing to stand upon his complaint, a judgment of dismissal was entered, and from this the present appeal is prosecuted. It is urged by appellant that, in an tion to set aside a judgment obtained without jurisdiction, no showing of merits is necessary, and reliance is placed upon the cases of Hole v. Page, 20 Wash. 208, 51 Pac. 1123, and Bennett v. Supreme Tent, Maccabees, 40 Wash. 431, S2 Pac. 744. In each of the cases cited, a motion was made in the original case to set aside the judgment, and the lack of jurisdiction appeared upon the face of the record. The general rule, however, seems to be that in cases where an independent action is brought in equity to set aside the judgment complained of-especially where the defect of jurisdiction does not appear upon the face of the record-it is necessary to make a showing that the party has, or at the time of the entering of the judgment complained of did have, a good and sufficient defense, in whole or in part, to the action, and that a different result would or should have been obtained had the complainant had an opportunity to defend in said action. In other words, the complainant upon invoking the assistance of a court of equity must show that the former judgment was inequitable. This would seem to be a wholesome and salutary rule. The time and the attention of the court ought not to be consumed in hearing a proceeding to set aside a former judgment, unless such judgment has in reality prejudiced the rights of the party complaining. If it is not made to appear that any different result would or should have been reached had he been properly served, then he is not in a position to say that anything inequitable has been done him. It is possible that there may be exceptions to this rule, as in the case of a nonresident, or perhaps, in a case where, had the defendant known of the judgment being taken against him he could have paid, adjusted, or satisfied it more advantageously, although as to these matters we do not decide at this time.

As to the necessity for a showing of merits we cite the following authorities: Hill v. Lowman, 15 Wash. 503, 46 Pac. 1042; Dunklin v. Wilson, 64 Ala. 162; State v.

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