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and the order must be annulled." State ex any procedure, unless the motion or mode of rel. v. District Court, etc. (Mont.) 85 Pac. relief is prescribed in the Code or by some 367.

statute. This I hold to be a mistake. The The effect of the ruling of the Montana superior court is a court of general jurisSupreme Court was that, while the section diction, possessing all the usual and ordinary of the Montana Code (section 1869) like our powers of the former courts of law and equisection 1034 did not provide, in terms for no- ty, and it may, therefore, in any emergency tice to the adverse party of the filing of a 110t provided in the Code, follow the practice cost bill in the lower court, for costs award- of the common law and chancery courts in ed by the appellate court, still by analogy similar emergencies, and may adopt any prothe provisions of section 1867—our corres- cedure suitable to the exigencies of the case ponding section 1033—providing for the pres- over which it has jurisdiction. Code Civ. entation and settlement of cost bills where Proc., § 187. The statute allows the prevailjudgments were obtained in the trial court | ing party on appeal to file his cost bill withcontrolled, and that the same notice required out notice. This, of necessity, cannot conthere to be given, should be given when it clude the adverse party. An unsettled quesis sought to have costs awarded generally | tion, the correct amount of costs, remains for in the appellate court. specifically taxed in determination in such a case, and the court the lower court after the appellate judgment retains jurisdiction for that purpose. The allowing them. We are satisfied with the losing party may at any reasonable time reasoning in the, Montana Case, and with the thereafter, either before or after the issuconclusion reached in support of the con- ance of an execution, avail himself of this stitutionality of the section in question, when jurisdiction and move the court to retax the considered in connection with the other sec- cost by striking out the items not allowable, tion relative to the matter of taxing costs in and reducing those which are excessive. And the trial court to which we have referred. no doubt proceedings on execution could be It is a reasonable and warranted construc- stayed pending the determination of such motion which aids in securing to one the benefit tion, and the execution could be corrected of a judgment for costs given to him by the after the motion was decided. The only reappellate court and of which he would be striction upon the right to this motion is deprived, at least as far as section 1034 is that the party must not, after he has notice concerned, were a different result arrived at. of the bill, unreasonably delay moving to As both sides have presented this matter on retax, else he may be defeated by his laches. the merits we have so disposed of it regard- All these matters, in the absence of statuless of any question as to whether this appli- tory provisions on the subject, are within the cation for a writ is the proper remedy.

inherent power of the court. No statute is The petition for the writ is dismissed. required to give the court the necessary power

to protect the rights of parties to the litigaWe concur: HENSHAW, J. SLOSS, J.

tion. In many of the states the costs are MCFARLAND, J. ANGELLOTTI, J.

taxed by the clerk, without notice to either party, and no statutory procedure for retax

ing is provided, and yet motions by either SHAW, J. I dissent. I do not think it is

party to retax such costs are among the most necessary to declare section 1034 unconstitu

frequent of proceedings in those courts, and tional. Section 1033, in my opinion, was not

the power to decide them has never been intended to apply to the costs on appeal, and

doubted. The time within which they must section 1034 is valid without aid from the

be made is a matter for adjustment in such preceding section. The fact that no notice

states by judicial decision. The same power is expressly required in section 1034 should

must exist in this state in cases for which the not render the provision invalid. Nor should

Code makes no provision. The courts are as it be held that the provision that an execu

capable as the Legislature of framing a rule tion for such costs may be issued without

and procedure that will be reasonable and notice, invalidates the entire section unless

just to all parties, and no evils are to be apthe clause of section 1033 in regard to notice

prehended from the exercise by the courts is read into section 1034 also. It does not

of the power in this respect which the Legfollow from the lack of an express provision islature has committed to them by section in the Code for a previous or contempora- 187 aforesaid. In my opinion the court below neous notice, that the entire proceeding would should not have granted the motion to strike be unconstitutional. The court has inher- out the costs, except upon a showing that ent power to afford an ample remedy for any they were not legally allowable. The appelinjustice that may be attempted by the filing lant has followed the plain letter of the of an excessive cost bill. The entire argu- statute and the effect of the majority decision ment of the prevailing opinion is based on a will be that she will be now entirely deprived false premise which is not stated, namely, of her costs, and this is done by means of a that the superior court cannot entertain any strained and unnatural construction a lopted motion, nor afford any relief in a case by to avoid a difficulty which does not exist. (149 Cal. 790)

ploration Company, held by petitioner. SumUNION COLLECTION CO. v. SUPERIOR mons was issued, and was served on some COURT OF CITY & COUNTY OF SAN of the defendants, but petitioner has been FRANCISCO et al. (S. F. 4,608.)

unable to ascertain the whereabouts of many (Supreme Court of California. Oct. 2, 1906.) of the defendants, and these have consequent1. COURTS - JURISDICTION - STATUTORY PRO- ly not been served, nor have they appeared VISIONS.

in the action. In order to get the informa(ode Civ. Proc. $ 187, provides that, "when

tion necessary to enable it to make service, jurisdiction is by the Constitution or by this Code, or by any other statute conferred on a the petitioner filed in the superior court an court or judicial officer, all the means neces- affidavit alleging that it could not ascertain sary to carry it into effect are also given, and

the whereabouts of many of the defendants in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out

not served except by examining persons conby this Code or by the statute, any suitable nected with the El Dorado Exploration Comprocess or mode of proceeding may be adopted

pany; that one of such persons was Mrs. which may appear most comformable to the spirit of this Code.” Held, that this section

Elizabeth M. Ustick, who refused to give does not confer jurisdiction, but merely enables any information which would enable the petithe court to exercise a jurisdiction otherwise tioner to cause summons to be served, and created.

praying for an order requiring Mrs. Ustick to 2. DISCOVERY-JURISDICTION. Const. art. 6, § 5, granting to superior

appear before the court to be examined "concourts jurisdiction in all cases in equity, con- cerning her knowledge as to the whereabouts fers on the court the power to compel a dis- of the defendants not served.” An order was covery in all cases in which under the established rules of chancery practice existing at

made as asked, and a subpoena issued and the time of the adoption of the Constitution served on Mrs. Ustick. She appeared at the a party would have been entitled to this relief. | time set and objected to the court proceeding 3. SAME-NATURE AND SCOPE OF REMEDY.

in the matter, upon the ground that the court In an action against the stockholders of a corporation, plaintiff was unable to ascertain

had no jurisdiction. The court sustained her the whereabouts of all of the defendants, and objection, refused to cause her to be sworn, subpænaed a witness to appear before the court and ordered that she be discharged from furto give information as to the whereabouts of ther appearance in the matter. The purpose some of the defendants. Helā, that such a proceeding was not one for discovery, as matters

of the present proceeding is to obtain a writ sought to be discovered must be material to of mandate directing the respondent court the existing suit or to one which is to be insti

and judge to require Mrs. Ustick to be sworn tuted.

as a witness and to give her testimony in 4. SAME-EXAMINATION BEFORE TRIAL. Plaintiff in an action against the stock

respect to the matter stated in the affidavit. holders of a corporation, being unable to ascer- The sole question to be determined is whethtain the whereabouts of all of the defendants,

er the superior court of this state has jurissubpænaed a witness to appear before the

diction to compel the defendant, or a strancourt to testify as to the whereabouts of some of the defendants. Held, that the plaintiff was ger to a pending action, to appear before it, not entitled to examine the witness in such prior to trial, and be examined as to the a manner or for such purpose, and the court

whereabouts of certain defendants, in order properly refused to compel her to be sworn. [Ed Note.For cases in point, see Cent. Dig.

that they may be served with summons. vol. 16, Discovery, S 10.]

It is not contended by the petitioner that

the proposed examination of Mrs. Ustick was In Bank. Application for writ of man

authorized by the provisions of the Code reladate by the Union Collection Company pray

tive to the taking of depositions. On the ed to be directed against the superior court

contrary, the argument is that, because there of the city and county of San Francisco and

is no specific statutory method applying to the Honorable James M. Troutt, judge there

such a case as this, the court should compel of. Proceeding disinissed.

the giving of the desired information in some J. S. Reed, for petitioner. C. H. Sooy suitable mode to be adopted by it. This and Eastin, Sooy & Dorn, for respondents. position is based upon section 187 of the Code

of Civil Procedure, which reads: "When juSLOSS, J. An alternative writ of man- risdiction is, by the Constitution, or by this date having been issued by this court, the Code, or by any other statute, conferred on a respondents demur to the petition, and thus court or judicial officer, all the means necesraise the question whether the following sary to carry it into effect are also given; facts, set forth in the petition, are sufficient

and in the exercise of this jurisdiction, if in law to authorize the granting of the re- the course of proceeding be not specifically lief sought: The Union Collection Company, pointed out by this Code or by the statute, petitioner herein, commenced an action in the any suitable process or mode of proceeding superior court of the city and county of San may be adopted which may appear most Francisco against some 240 defendants, stock- conformable to the spirit of this Code.” If holders of the El Dorado Exploration Com- the superior court, in which an action is pany, a corporation, to compel the payment | pending, has jurisdiction to compel the giving by such defendants of the unpaid subscription of information as to the whereabouts of deprice of their shares for the purpose of satis- fendants whom it is desired to serve with fying a judgment against said El Dorado Ex- summons, it may be assumed, for the purpose of this discussion, that the "process or risdiction of the court. No case has been mode of proceeding” employed was suitable cited which extends the right of discovery and conformable to the spirit of the Code. to a state of facts such as is here presented. But section 187 obviously does not attempt In Post v. Toledo, etc., R. R. Co., 144 Mass. in itself to confer jurisdiction. It merely | 341, 11 N. E. 540, 59 Am. Rep. 86, the operates to enable the court to exercise a plaintiff, creditor of a corporation, was aljurisdiction otherwise created. Tulare Coun- lowed a discovery of the names of stockty v. Kings County, 117 Cal. 195, 203, 49 Pac. holders, in order that he might enforce the 8. We are thus brought back to the orig- individual liability of such stockholders. But inal question of the power of the superior | the names of such stockholders constituted incourt, by any mode of procedure, to compel formation which was essential to plaintiff the giving of the information here sought to in order that he might frame his proposed be obtained from Mrs. Ustick. The alleged declaration or complaint, and institute his power is sought to be derived from the con- action. While the name and identity of the stitutional grant to the superior courts of proposed defendants are certainly material to jurisdiction in "all cases in equity" (Const. a cause of action about to be instituted, the art. 6, § 5), including, as is claimed, the

whereabouts of defendants who are known power to entertain proceedings in the nature

and who have been made parties, cannot be of bills of discovery. It is not necessary here

said to be material to an action already pendto decide the question adverted to, but not

ing against them. Hoppock's Executors v. definitely determined, in Wright v. Superior

United N. J. R. R. & C. Co., 27 N. J. Eq. Court, 139 Cal. 469, 73 Pac. 115, whether a 286 (reversed, on a ground not here involved, bill of discovery can, under any circumstan

in 28 N. J. Eq. 261), is similar in principle ces, be maintained in this state. Whatever

to Post V. Railroad Company. The other may be the ultimate conclusion on this

cases cited by petitioner have no bearing mere matter of procedure, we have no doubt | upon the particular point now under discus. that the superior court, under the constitu

sion. tional provision cited, has the power, by some

Since the information sought was not matesort of process, to compel a discovery in all

rial to the action in aid of which the procases in which, under the established rules

ceeding against Mrs. Ustick was instituted, of chancery practice, existing at the time

the petitioner could not, under any system of the adoption of the Constitution, a party

of procedure, have maintained a bill of diswould have been entitled to this relief.

covery against her. For the same reason,

such petitioner was not entitled to examine Is the present case one for a discovery under these rules? We think not. A bill

her as a witness in the manner here atof discovery seeks the disclosure of facts

tempted, and the court properly refused to

compel her to be sworn. within the knowledge of the defendant, or of papers in his possession, in aid of some

The proceeding is dismissed. other action or proceeding. The discovery may be sought in the same suit in which We concur: ANGELLOTTI, J.; SHAW, the ultimate relief is pursued, or it may be J; HENSHAW, J.; LORIGAN, J.; McFARsought merely in aid of some other proceed- | LAND, J. ing pending or to be brought. But whether the bill be for discovery and relief, or for discovery only, it is well settled that the

(48 Or. 593) matters as to which discovery is sought must

BAKER COUNTY V. HUNTINGTON et al be material to the existing suit or to the (Supreme Court of Oregon. Dec. 18, 1906.) one which is to be instituted. 6 Ency. of

1. APPEAL-REVIEW-SUBSEQUENT APPEALS. Pl. & Pr. 740; Bisp. Prin. of Eq. (4th Ed.) Questions decided on appeal become the $ 560; 1 Pom. Eq. Jurisp. (30. Ed.) 8 201. law of the case, precluding a review thereof See, also, many cases cited in 16 Century

on subsequent appeals.

[Ed. Note.--For cases in point, see Cent. Dig. Digest, cols. 1991 & 1992. Here the action

vol. 3, Appeal and Error, $ 4358.] in aid of which the plaintiff claims the right

2. TASATION – COLLECTORS — LIABILITIES ON to a discovery was already pending. The

BONDS. matters as to which disclosure is sought are Under B. & C. Comp. $ 3094, requiring in no way material to the issues presented the sheriff to give an additional bond as tax

collector, signed by some responsible surety as by the main action in the court below, and

approved by the county court, conditioned for a disclosure of them will not assist the plain- the faithful performance of his duties, it is tiff therein (petitioner here) in establishing the signatures of the obligors and not the its case. The facts constituting the cause of

insertion of their names in the body thereof

that gives validity to the bond. action are fully known to the plaintiff, and

[Ed. Note.-For cases in point, see Cent. Dig. have been set forth by it in its complaint. vol. 45, Taxation, SS 1031, 1028.] What it seeks now is not the disclosure of

3. SAME. facts relevant to the cause of action or which Where the supplemental bond of a sheriff will assist in establishing it, but of facts,

as tax collector stipulated that the sureties, entirely collateral to the merits, which will

"wr, or either of us, will pay" the sum of

$10,000, prefixing a sum of $1,000 or $2,000 enable it to bring defendants within the ju- to the signatures of the sureties could not limit

judgment for plaintiff, defendants A. L. Brown and others appeal. Affirmed.

J. H. Raley and C. A. Johns, for appellants. Leroy Lonax and Gustav Anderson, for respondent.

cr alter their joint and several liability as fixed by the the terms of the instrument. 4. SAME -- INCOMPLETE EXECUTION - IMPLIED NOTICE.

Where the bond of a sheriff as tax collector recited that H. was duly elected sheriff, and that the sureties agreed that if he did not perform the duties of his office, they would pay a certain sum, the sheriff not being designated in the bond as principal, his failure to sign the bond was not notice to the county of any failure to execute the undertaking.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, $81028, 1031.] 5. TRIAL - INSTRUCTIONS ASSUMPTION OF FACTS.

In an action on a tax collector's bond, an instruction that the mere signing by the sureties of an uncompleted instrument and leaving it with the collector, without any express restriction as to its delivery, is not enough, as a matter of law, to show authority to deliver it, but it is an important fact, "if you find it to be a fact," to be considered, etc., did not assume that it had been proven that the defendants left the bond with the collector without restriction as to delivery.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial. $ 420.] 6. APPEAL-REVIEW-HARMLESS ERROR.

Under B. & C. Comp, § 136, making it incumbent on a court to interpret written instruments, error, in submitting them to the jury, is harmless if their finding thereon is correct. [Ed. Note.

For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $8 4033, 4212.] 7. TRIAL-INSTRUCTIONS--FORM.

Though the court should not speak of facts as "important" in its charge, the use of such term will not be deemed misleading where it has been used a number of times in the instructions for both parties.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 46, Trial, $8 577–580.] 8. SAME-REQUESTS-NECESSITY.

That instructions, relating to the delivery of a bond and certain restrictions and reservations relative to the delivery, were confined to the time of delivery could not be complained of by defendants, who made no request that prior conversations be included in that portion of the charge.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 46, Trial, $ 628.] 9. APPEAL-REVIEW-PRESUMPTIONS.

Where, in an action on the bond of a sheriff, the court referred to a shortage of money occasioned by a deputy sheriff, and the bill of exceptions certified to by the judge did not purport to contain all the testimony, and there was no statement that no testimony was offered tending to show what caused the loss of the moneys collected, it will be presumed that the intruction was based on testimony.

(Ed. Note.--For cases in point, see Cent. Dig. vol. 3, Appeal and Error, 88 3073, 3751.] 10. TAXATION-COLLECTORS-LIABILITIES ON BONDS.

Where the bond of a sheriff as tax collector recited that if he did not pay over the money in his hands, “we, or either of us, will pay" the sum of $10,000, an instruction that the verdict, if any, against defendants should be for the sum of $10.000, with interest thereon at the legal rate from the date of the service of summons, was correct.

Appeal from Circuit Court, Umatilla County; W. R. Ellis, Judge.

Action by Baker county against A. H. Huntington, A. L. Brown and others. From a

MOORE, J. This is the third appeal by the defendants, A. L. Brown, D. Cartwright, J. T. Fyfer, James Fleetwood, and J. W. Isenhofer, from a judgment. rendered against them in an action upon an instrument alleged to be a sheriff's bond as tax collector. As grounds for a reversal of the judgment, it is contended that errors were committed in refusing to take from the jury the undertaking which forms the basis of this action; in refusing to give a judgment of nonsuit; and in declining to instruct the jury as requested to return a verdict for the defendants. These alleged assignments of error are founded on the assumption that the testimony introduced by the plaintiff was insufficient to show that Huntington, as sheriff of Baker county, ever had any authority from the defendants, as sureties on the bond, to deliver that instrument to the county court of that county. The legal principles so insisted upon were presented to, and considered by, this court on the former appeals (16 Or. 275, 79 Pac. 187, and 47 Or. 328, 83 Pac. 532), and the conclusions there reached have become the law of the case, precluding a review of the questions suggested. Applegate v. Dowell, 17 Or. 299, 20 Pac. 429; Portland Trust Co. v. Coulter, 23 Or. 131, 31 Pac. 280; Stager v. Troy Laundry Co., 41 Or. 141, 68 Pac. 405; Pacific Biscuit Co. v. Dugger, 42 Or. 513, 70 Pac. 523.

An exception having been taken to the following part of the court's charge, it is maintained that an error was committed in giving it, viz.: “(3) I instruct you that, as a matter of law, the lack of names of the principal and sureties in the body of the bond, lack of justification by two of the sureties, minutes or entries opposite the names of the sureties who signed, and failure of the principal to sign the bond, are not fatal defects, and do not, of themselves alone, render the bond void. The effect of these was to put the county upon inquiry, at the time IIuntington offered the bond, as to Huntington's authority to deliver the same as a completed obligation for the purpose claimed by the plaintiff, and the plaintiff will be held bound by any facts which you find it would then have ascertained by reasonable inquiry and investigation."

To render the instruction complained of intelligible, it is deemed proper to set out a copy of the bond, which, omitting the justification of the sureties thereon, is as follows: “State of Oregon, County of Baker-ss:

“Whereas, at an election held on the 4 day of June, 1900, A. H. Huntington was duly elected sheriff of the County of Baker, State of Oregon, we, A. L. Brown, -, and

hereby undertake that if the said A. H. Huntington shall not pay over according

to law all money that may come into his on the face of the instrument relieved the hands by virtue of such office, and otherwise sureties from liability thereon for a delivery well and faithfully perform the duties of and acceptance thereof without their knowlsuch office, that we, or either of us, will pay edge and consent. Johnston v. Kimball Townto the state of Oregon the sum of ten thou- ship, 39 Mich. 187, 33 Am. Rep. 372; Hall v. sand dollars.

Parker, 39 Mich. 287. In the case at bar, For $1,000.00....A. L. Brown. (Seal.)

though the bond on its face states that Hunt$2,000.00....James Fleetwood. (Seal.) ington was duly elected sheriff, etc., he is $1,000.00....D. Cartwright. (Seal.)

not designated therein as principal, and, as $1,000.00....Harry A. Duffy. (Seal.) the only person named as a party is A. L 1,000.00....J. T. Fyfer. (Seal.) Brown, who signed the instrument, no notice

1,000.00....J. W. Isenhofer. (Seal.)" on that account could have been imparted to As evidence of the ability of the sureties to

the plaintiff of any failure to execute the unperform the undertaking, and as to the surren

dertaking. der of the instrument, we take the following

As the other parts of the instruction comexcerpt from a former opinion: “It appears plained of state the defendants' theory of the from accompanying certificates that Duffy,

case they will not be considered, believing Fyfer, Cartwright, and Isenhofer justified,

that no error was committed as alleged. but not so with Fleetwood and Brown. It is

Exceptions having been taken to the folalleged that Huntington delivered the writing

lowing parts of the charge, it is contended

that errors were committed in instructing the obligatory to the county court of Baker coun

jury as follows: ty as and for his additional bond as sheriff and ex officio tax collector of that county,

"(5) It is not necessary for the plaintiff and that the same was accepted by the court."

to show express authority from the defend46 Or. 275, 79 Pac. 187. Considering the

ants to Huntington to deliver the bond. . clauses of the instruction in the order stated,

Huntington's authority may be implied from it is the signatures of the obligors to the bond,

the acts and conduct of the sureties. The and not the insertion of their names in the

mere signing of them of the uncompleted body thereof, that give validity to the instru

and imperfect instrument in the manner in ment and render them liable for a breach of

which they signed it, and leaving it with its conditions. 5 Cyc. 732 and 739; Murfree,

Huntington without any express restriction Official Bonds, $ 168. The statute, requiring

as to its delivery, is not enough, as a matter the execution of a supplemental undertaking,

of law, to show authority to deliver it, but it is as follows: "Before entering upon his duty

is an important fact, if you find it to be a as tax collector, the sheriff shall give a bond,

fact, to be considered by you along with all signed by some responsible surety company,

the other evidence in determining whether

the sureties intended to vest Huntington or some responsible surety or sureties as approved by the county court, conditioned for

with authority to deliver the instrument in the faithful performance of his duties as such

its then condition as their act and deed, or tax collector, in such amount as the county

whether the understanding was that the court shall direct, and such bond if signed by

bond should not be delivered until the ag. a surety company shall be paid for by the gregate amounts assumed by the several county court." B. & C. Comp. $ 3094.

sureties should equal the face of the bond. legislative assembly has not demanded that

“(6) The uncompleted condition of the inthe sureties to the bond of a sheriff as tax

strument in the particulars to which I have collector should justify, and, in the absence

referred, although in itself not a fata] deof an enactment to that effect, the signatures

fect, should be considered, as also should the of the obligors without evidence of their quali

attempt to limit the liability of the sureties, fications validates the instrument, if it is ap

by writing the amount each intended to asproved by the county court. Du Boise V.

sume, if you find that the figures were placed Bloom, 38 Iowa, 512. An examination of the

there by the sureties or at their direction for bond hereinbefore set out will show that pre

any such purpose, opposite the signatures. ceding the name of A. L. Brown appear the

If you are satisfied from the evidence that word and figures, "For $1,000.00," and that

the defendants wrote or caused to be written similar memoranda are prefixed to the names these figures opposite their signatures in an of the other obligors, which words and figures attempt thereby to limit their liability, you are designated by the court as "minutes or en- should consider that fact. All these are imtries.” What such word and figures may

portant factors, and should be considered, mean is unimportant, so far as the plaintiff And if, at the time they executed the bond, is concerned, for the bond on its face being they imposed no restrictions upon its de joint and several, the prefixing to the names livery, and nothing was said about that matof the sureties of the minutes or entries ad- ter or the obtaining of other sureties, this is verted to cannot limit or alter their liability an important fact for your consideration as which is fixed by the terms of the instrument. evidence, although not conclusive of an intent Dangel v. Levy, 1 Idaho, 722. It has been to make Huntington their agent to deliver the held that the failure of a principal to sign a bond to the county. Huntington's author. bond when his name appears in that capacity | ity must be determined from all the circum.

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