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by the Legislature. The cases cited in sup- | mining whether the cause was remorable to the port of the contention of the plaintiffs in er

federal courts. ror are all predicated upon the common-law

[Ed. Note.For cases in point, see vol. 42,

Cent. Dig. Removal of Causes, $ 132.] rule in the absence of a statute, and where

2. SAME-AMENDMENT-DISCRETION. there was no by-law of the corporation from

Where, in an action for injuries, the comwhich flowed the right here claimed. They

plaint alleged damages amounting to $2,010).50, are clearly distinguishable from those cases but prayed for judgment only in the sum of where the right to an inspection of its books

$1,982, it was not an abuse of the trial court'e

discretion, after the filing of a petition for the by a stockholder of a corporation is held

removal of the cause to the federal ('ourts, to primarily to be an unconditional one, and permit plaintiff to amend his complaint so as which are based upon a statutory provision to conform the allegations to the demand for

damages. conferring the right, and in all of which mandamus is held to be the proper remedy

[Ed. Note.-For cases in point, sre vol. 42.

Cent. Dig. Removal of Causes, $ 133; vol. 39. when such right is denied. Swift v. Rich Cent. Dig. Pleading, SS 731-733.] ardson, 7 Houst. (Del.) 338, 32 Atl. 143,

3. MASTER AND SERVANT-INJURIES TO SERV40 Am. St. Rep. 127; Ellsworth V. Dor ANT-DIRECTIONS. wart, 95 Iowa, 108, 63 N. W. 588, 5S Where the agent of defendant sawmill comAm. St. Rep. 427: State ex rel. v. St. L. &

pany, on the evening before plaintiff's injury,

directed him to "get in and do anything that he S. F. Ry. Co., 29 Mo. App. 301 ; State ex rel.

saw to be done,” such direction was sufficient Bergenthal v. Bergenthal, 72 Wis. 314, 39 to include the coupling of cars. N. W. 566. There is no difference in prin 4. SAME-WARNING-INSTRUCTIONS. ciple between these cases where the right

Where plaintiff, a minor 17 years of age.

was employed to work around the plant of deis a statutory one and those in which the

fendant sawmill company, and was directed to writ has been awarded to perform a duty couple cars, defendant was guilty of negligence enjoined by the charter or a by-law of a cor in failing to instruct him concerning the danporation. In People v. Pacific Mail Steam

gers of his employment and how to perform the

work. ship Co., 34 How. Prac. (N. Y.) 193, the right

[Ed. Note. For cases in point, see vol. 34, to inspect the list of stockholders was given Cent. Dig. Master and Servant, 83 314, 315.] both by the charter and the statute, and such

Root, J., dissenting. right, upon a refusal to permit such inspection, was enforced by mandamus. In Lyon Appeal from Superior Court, Mason Counet al. v. American Screw Co., 16 R. I. 472, 17 ty; O. V. Linn, Judge. Atl. 61, it was held that the refusal to per Action by Samuel Stark, an infant, by form the duty enjoined or imposed by a by W. J. Stark, his guardian ad litem, against law was properly the subject of a suit in the Port Blakely Mill Company. From a mandamus. It was so held in Cockburn v. judgment for plaintiff, defendant appeals. Union Bank, 13 La. Ann. 289. The relator Affirmed. has pleaded the by-law. He therefore relies

S. P. Richardson and Hastings & Stedman, upon a right given, and not upon a showing

for appellant. Troy & Falknor and L. R. such as is required by the common law, and

Byrne, for respondent. which in the state of the pleadings is conceded by the respondents, who have refused, and do refuse, to perform their duty which is

DUNBAR, J. This action was commenced enjoined by the by-law, and by so doing they

in the superior court of Mason county by a have deprived, and do deprive, relator of a

minor 17 years old, against the defendant, a

citizen and resident of the state of California. primary right to which he and every other stockholder of the company is entitled. We

The verdict of the jury was in favor of the are of the opinion, therefore, that the trial plaintiff, the respondent here. court properly overruled the demurrer, and, In the original complaint the respondent upon the respondents' refusal to plead fur avers certain injuries amounting to $2.040.50, ther, the awarding of the peremptory writ hut prays for only $1,982. Within the time was proper, and the judgment will be af in which the appellant was entitled to plead, firmed.

it filed its petition and bond for a removal Afirmed

to the United States Circuit Court. There

upon the respondent moved to amend his comPOTTER, C. J., and BEARD, J., concur. plaint, bringing the allegations of the com.

plaint within the demand, which motion to amend was allowed by the court, and this

is the first error assigned by the appellant. (44 Wash. 309)

The contention is that, the respondent having STARK v. PORT BLAKELY MILL CO.

shown by his original complaint that his (Supreme Court of Washington. Nov. 9, 1906.) damages claimed amounted to more than

$2,000, it was error of the superior court not 1. REMOVAL OF CAUSES-DAMAGES-AMOUNT IN CONTROVERSY.

to grant a removal to the federal court. 1 Where plaintiff's original complaint averred Enc. Pl. & Pr. 712, is cited to the effect that, a cause of action for damages amounting to

where the real amount in controversy is $2,040.50, but prayed judgment only for the sum of $1,982, the demand for judgment constituted

made to appear, it is the all-controlling the matter in dispute, for the purpose of deter criterion of jurisdiction, and many cases are

cited to sustain the same doctrine. But an that was to be done around there. The car investigation of all of the authorities con coupling was not excepted from the general vinces us that a different rule applies in cases direction. It is conceded that the boy was where the action is for damages. "In all not instructed how to couple cars, or informed actions sounding in damages, the plaintiff is of the danger of coupling cars. It is conlimited by his demand therefor in his dec tended by the appellant that the boy apprelaration or complaint, and can recover no ciated the danger from the fact that he stated more than the amount specified.” 5 Enc. Pl. he knew that if he did hold on to the link & Pr. 712. "The rule, then, is settled that until the drawheads came together his hand the demand of the plaintiff in his declarations was bound to be crushed. Of course, he did decides the sum in dispute.” Desbrow v. understand that; but, equally of course, he Driggs, 16 How. Prac. (N. Y.) 316.

“The did not intend to hold onto the link until value of the matter in, dispute, for the pur the drawheads came together and crushed poses of removal, is to be determined by his hand. His testimony was that, in notireference to the amount claimed in the dec cing the danger to his legs, he turned around laration, petition, or bill of complaint." Dil to protect them, and that, inadvertently, of lon's Removal of Causes, § 93. See, also, course, he left his hands in the dangerous Barry v. Edmunds, 116 U. S. 550, 6 Sup. Ct. place too long. Every man of common intel501, 29 L: Ed. 729; De Camp v. Miller, 44 N. ligence knows that if his hand comes in conJ. Law, 617. In any event, the application tact with a running saw, or his head with a to amend was submitted to the discretion of descending pile driver, or any part of his the trial court, and, from the whole record body with any dangerous piece of machinery in the case, we are satisfied that the discre in motion, he will be injured. If the simple tion was not abused.

fact that he knew that, if there was a conAt the time the respondent went to work tact between his person and the dangerous for the mill company, he was instructed as to machinery, injury would result to him, would what his duties should consist of; that is to preclude him from recovering, no man could say, he was to pull the slack for the loaders, ever recover, no matter what the negligence to clean bark and dirt off the track, and to of the employer was in not furnishing him stamp the logs. He worked in the perform a safe place, or not informing him of the ance of such duties until the day before his perils incident to his particular employment. injury, which occurred when he was attempt Many objections are made to the instrucing to couple one logging truck to another, tions in this case, but they involve questions one of the logging trucks being stationary and that have been determined over and over the other being pushed up grade by one man by this court, and it would be unprofitable to at the tiine of the injury. The contention again enter into a discussion of them. The of the appellant is that the respondent had instructions, it seems to us, were all fair and never been ordered to make couplings, and stated the law, and were as favorable to the that, therefore, the appellant was not re appellant as instructions could possibly be sponsible for any injury that happened to and keep within the law. him in the performance of the work which The judgment is affirmed. was unauthorized.

The testimony shows that, on the evening before the accident, Mr.

MOUNT, C. J., and FULLERTON. HADGill, the agent of the company, told re

LEY, and RUDKIN, JJ., concur. ROOT, J., spondent to "get in and do anything that he dissents. saw to be done,” and that immediately he proceeded to do anything that he saw it was

(44 Wash. 287) necessary to do in and about the work in

STARK BROS. v. ROYCE. which he was engaged; that when he saw the cars needed to be coupled, he coupled

(Supreme Court of Washington. Xov. 9. 1906.) them; that he coupled one car that evening 1. MORTGAGES-FORECLOSURE-SALE-CONFIRin the presence of Mr. Kempler, the head

MATION.

Where a sale of land under a foreclosure of loader, and that the next morning when

an alleged mortgage was unsustainable because coupling another car, Mr. Kempler shoving the foreclosure decree was invalid, the court, the movable car, the accident occurred. on an application to confirm the sale, was au

thorized to take cognizance of the fact that the There is some conflict in the testimony as to

judgment on which the sale was founded must the latitude of the instruction given by Mr. be set aside, and to refuse for that reason to Gill, but that was a question for the deter confirm the sale. mination of the jury. This whole case re

[Ed. Note. For cases in point, see vol. 35, solves itself into this proposition: Was the

Cent. Dig. Mortgages, $$ 1530-15:33.] responclent instructed to couple the cars, or

2. JUDGMENT-MODIFICATION-NOTICE.

Where plaintiffs appeared at the hearing of did he have a right to construe his instruc

a motion to modify their judgment, and no obtions to include the coupling of cars? We jection was made that there was any lack of think there was sufficient testimony on that notice, they could not thereafter object that the subject to permit the jury to determine that

order modifying the judgment was invalid for

want of notice. the respondent was justified in concluding

3. SAME-VACATION-MOTION. that he was authorized and instructed to

Under the express provisions of Ballinger's couple cars as well as to do anything else Ann. Codes & St. § 5155, an application for

the modification or vacation of a judgment, scribed in the contract, although not of the should be by motion, whether the judgment same technical description as the one therein was void or erroneous because of irregularity in

described. This action was brought in July, obtaining it. | Ed. Note.-For cases in point, see vol. 30,

1905. The appellants treated the contract as Cent. Dig. Judgment, $8 614-617.)

a mortgage upon the land described in the 4. SAME-JURISDICTION.

respondent's patent, and in their complaint Where a judgment was void in so far as it alleged that the land had been erroneously directed foreclosure of an alleged lien, the court described in the contract by mutual mistake, had jurisdiction to modify it by striking out

and asked to have the description corrected the part that was invalid. (Ed. Note. For cases in point, see vol. 30,

so as to make it conform to the description Cent. Dig. Judgment, $ 666.)

contained in the patent. A foreclosure of 5. SANE.

the lien and a sale of the property according Where a judgment was entered by default to its amended description was prayed. The beyond the scope of the pleading on which it respondent defaulted in the suit, and judgwas based, it was voidable only, and could be

ment was taken against him as prayed for rorrected only by a motion on the ground that it was irregularly obtained.

in the complaint. The land was sold un6. MORTGAGES-CONTRACT—CONSTRUCTION. der the judgment, and return thereof duly Defendant, having settled on unsurveyed made

made by the officer making the sale and public land, executed a written contract for

docketed for confirmation. The respondent the purchase of fruit trees, which recited that defendant was the owner of 160 acres, and that

then appeared for the first time. He filed for the payment of the price of the trees he objections to the confirmation of the sale, bound himself, his heirs, assigns, and grantees basing his motion on the contention that the of and to the aforesaid land. Defendant there

judgment under which the sale was had was after acquired title to a quarter section of land in the section described in the contract, though

void. At the same time he moved to vacate not of the same technical description as the one and set aside all that part of the judgment therein described. Held, that the contract was which adjudged the contract to be a lien a simple contract for the payment of money, and not a mortgage on the land.

upon his real property and directing its [Ed. Note. -For cases in point, see vol. 3.),

foreclosure and sale, basing his motion on Cent. Dig. Mortgages, $ 4.]

the grounds 1) that the judgment had been

irregularly obtained; and (2) that it was voil Appeal from Superior Court, Chelan Coun

on its face because beyond the scope of the ty; R. S. Steiner, Judge. Action by Stark Bros., a corporation,

allegations of the complaint. These motions

to vacate and the objections to the confirmaagainst Allen Royce. From a judgment in favor of plaintiffs for less than the relief

tion were heard by the court at the same

tiine. At the conclusion of the hearing, the demanded, they appeal. Affirmed. .

court sustained the objections to the conBarry & Brown and Ira Thomas, for ap firmation of the sale, and granted the inotion pellants. Reeves & Reeves, for respondent. to vacate the judgment in part, letting it

stand as a personal judgment against the FULLERTON, J. On September 8, 1894, respondent, but vacating and holding it for the respondent Royce entered into a contract naught in so far as it adjudged the contract with the appellants by the terms of which set out in the complaint to be a lien upon he agreed to purchase from the appellants | the land therein described and directed its a certain number of fruit trees at an agreed

sale.

From these orders, and from a prior price, payable in 10 equal annual install order refusing to strike the objections to the ments. The contract was in writing, and re confirmation on appellants' motion, this apcited that the respondent was the owner of peal is taken. 160 acres of land in what is now Chelan The order, refusing to strike the objections county, which was clear and free from in- filed by the respondent to the confirmation cumbrances, and to which he had perfect title. of the sale, is discussed by the appellants The contract further recited that the respond in connection with the order sustaining the ent, for the payment of the purchase price objections, and we shall consider it in the of the trees in accordance with the terms same manner. To this order it is objected therein stated, "binds himself, his heirs, as that it is based on grounds not authorized signs, and grantees of and to the aforesaid | by statute. It is argued that inasmuch as lands." The writing was acknowledged by the judgment under which the sale was had the respondent before a notary public in was entered by a court having jurisdiction form then required for the acknowledgment of the subject matter of the action and of of deeds to real property. At the time of the person of the defendant, and was regular the execution of the contract, the land at upon its face, the only inquiry permitted was tempted to be described was unsurveyed gov as to the regularity of the proceedings had ernment land on which the respondent was in making the sale, and, as the objections of a mere settler, having all the rights acquired the respondent did not question the regularby one settling upon unsurveyed lands, but ity of these proceedings, the court was in no legal title to the same whatsoever. After error when it refused to confirm the sale. wards, however, and before the action was in The case of Krutz v. Batts, 18 Wash. 460, stituted, he acquired a government patent to 51 Par. 1051, is relied upon to sustain the a quarter section of land in the section de contention. That case does lay down the

rule that the regularity and sufficiency of a , any objection was made to such hearing on judgment, fair upon its face, cannot be in the ground of insufficiency or want of notice. quired into at a hearing had on objections Under these circumstances, this court cannot made to the confirmation of a sale, even where say there was lack of notice. On the conthe sale is made under an execution issued on trary, it appears to us that the proceedings such judgment. To attack a judgment in this were regular and orderly. matter was said to be a collateral attack, and The second contention is settled by the statit was only where the judgment was void on ute itself. The trial court modified the judgits face that such an attack could be success ment on the ground of irregularity in obfully made. The court, however, did make taining it, and by section 5155 of the Code use of certain language in further discussing (Ballinger's Ann. Codes & St.) it is expressly the statute that would seem to justify the provided that where the grounds for vacating appellants' contention; and the same may be or modifying a judgment are for irregularsaid of the case of Harding v. Atlantic Trust ities in obtaining the judgment the proceedCo., 26 Wash. 536, 67 Pac. 222, subsequently ings shall be by motion. Griffith v. Maxwell, decided. But, in the later case of Waldron v. 25 Wash. 658, 66 Pac. 106. But had the orKineth, 41 Wash. 459, 84 Pac. 16, these cases der been based on the second ground of the were modified in the latter respect, and a motion; namely, that the judgment was void, much wider inquiry was held permissible; the result would not be different, as a void the court holding that the question whether judgment is properly set aside upon motion. real estate sold under execution was at the Sturgiss v. Dart, 23 Wash. 244, 62 Pac. 858; time of the sale exempt as a homestead might Dane v. Daniel, 28 Wash. 164, 68 Pac. 446. be inquired into and determined on a motion As to the contention that the court was for confirmation of the sale. This last case without authority to modify the judgment for justifies the order in question here. If the any of the reasons stated in the motion, it order vacating and setting aside as improvi- | would seem, unquestionably, that if the judgdently entered that part of the judgment au ment was void in so far as it directed a forethorizing and directing the sale is valid, then, closure of the asserted lien, the court had unquestionably, an order of confirmation of

jurisdiction to modify it by striking out the the sale cannot in any manner aid the ap void part, and its order in that respect could pellants. The sale as against them must fail not be a nullity for want of power to make it. for want of a judgment to support it, and, But it is contended that, conceding the judgsince they are the purchasers at the ex ment to be founded on an erroneous construcecution sale, they can acquire no title by its tion of the contract set out in the complaint, mere confirmation, whatever might be the it was nevertheless merely voidable and not rights of a third person purchasing at a ju void, and must be vacated, if vacated at all, dicial sale had under a judgment fair on its

on the first ground stated in the motion of face. Hence, a confirmation in so far as it respondent; namely, that it was irregularly would affect the appellants can be of no obtained. And, on this question it is argued validity, while it might compel the respondent that the facts do not show an irregularity in to resort to an independent action to re obtaining the judgment which the law permove the apparent cloud on his title. It is mits to be corrected by motion, but an error the policy of the law to avoid circuity of of law committed by the court that can be actions, and inasmuch as the subject-matter corrected only by a direct appeal from the of the controversy between the parties, as judgment. It has seemed to a majority of well as the parties themselves, were before this court that the judgment in question was the court in this proceeding, we conclude only voidable and not void, and hence we that the court could properly take cognizance agree with the appellant that authority for its of the fact that the judgment on which the modification must be found in the first sale was founded must be set aside, and re branch of the motion rather than the second: fuse for that reason to confirm the sale. that is, that it was irregularly obtained.

It is next contended that the court was Taking this view of the matter, we still think without jurisdiction to modify the judgment. the judgment is one coming within the definiIn support of this contention it is said that tion of an irregular rather than that of an the motion to vacate was heard without no erroneous judgment. If the respondent's tice to the appellant; that the proceeding view of the contract be correct, a question should have been by petition and not by mo we will notice later, the judgment was one tion; and that the court was without au entered by default beyond the purport and thority to modify the judgment for any of scope of the pleading; that is to say, it the reasons stated in the motion. As to was one the appellants were not entitled to the first objection the record does show that under any of the allegations of their comthe motion was served upon the appellants plaint. It is a general rule that a default on March 9, 1906, was noticed for hearing admits only those allegations of a complaint on the 13th of the same month, and that it that are well pleaded; 6 Ency. Pl. & Pr. 117. was heard on the 24th of the month. But it So, it is also a general rule that a defendant shows further that the appellants appeared has a right to rely on the presumption that a at the hearing by their attorneys, and re court will not, on his default, enter a judgsisted the motion, and does not show that ment against him not warranted by the plead

ings; Bosch v. Kassing, 64 Iowa, 314, 20 V. , the judgment," and the question was whether W. 454. Any default judgment, therefore, the facts brought the case within that prowhich goes beyond the scope of the plead vision of the statute. On this question the ings, inasmuch as it is a judgment against court said: “We think the facts alleged and which the defendant has had no opportunity established make these grounds applicable to defend, is a judgment obtained contrary in this case. Here was a petition which conto the course and practice of the courts, and tained no allegations authorizing a personal hence, is a judgment irregularly obtained judgment against Celia Larson. Counsel, within the meaning of the statute, rather taking the decree of the court, knew such to than one entered through error of law com be the fact. As a lawyer, he knew that mitted by the court. Cases in point are Vass Celia Larson might confidently rely upon the V. Building Association, 91 N. C. 55, and fact that nothing was sought, as against her, Larson v. Williams, 100 Iowa, 110, 63 N. W. save the extinguishment of her dower right 464, 69 N. W. 441, 62 Am. St. Rep. 514. In in the premises. Having no defense to make the first case a judgment was entered against to that claim, she was not called upon to certain defendants who had been summoned appear and to answer to the petition. It to appear by leave of court as additional matters not that the notice said that a perparties defendant, but against whom no sonal judgment would be asked against her, pleadings had been filed. After the judg. as she had a right to rely upon the fact that ment had been entered, the defendants mov the petition contained no averment warranted against it on the ground that it had ing such relief. It is claimed that, as the been irregularly obtained. This motion was court by the notice had jurisdiction of the granted by the trial court, and affirmed on

person of Celia Larson, and by law had appeal; the appellate court saying: “An ir jurisdiction in a proper case to render a perregular judgment is one given contrary to sonal judgment as to the subject-matter, the method of procedure and the practice therefore jurisdiction was in all respects comunder it, allowed by law. As, if judgment plete, and, having failed to appear, she is should be given against an infant, no guard concluded from now being heard. Such ian having been appointed or appearing to claim is not well founded. It is said in represent him and take care of his interests Bosch v. Kassing, 64 Iowa, 314, 20 N. W. 454: in that behalf; or, where the court gave 'It is true, a defendant may be concluded by judgment without the intervention of a jury a default where the facts stated in the peti. in a case where the party complaining was tion do not constitute a good cause of action entitled to a jury trial, and did not waive his

in law, or where the petition is so defective right thereto; or, where a judgment was as to be vulnerable to a demurrer; but where prematurely entered by default; or, where the petition omits the necessary averment to it was the duty of the plaintiff to give notice show liability against the defendant, the court of the taxing of costs, and failed to give such

may, and should, even upon default, refuse to notice, and took judgment. In such and

enter judgment.' Clearly, then, procuring the like cases, the judgment is irregular, and up

court to enter such a judgment, under the on proper application of the party injured

circumstances, was an 'irregularity in obtainthe court would set it aside for such irregu

ing a judgment,' under the statute we are larity. Keaton v. Banks, 10 Ired. (N. C.)

considering.” 381, 51 Am. Dec. 393; Dick v. McLaurin, 63

On the question of the nature of the conN. C. 185; Cowles v. Hayes, 69 N. C. 410;

tract set out in the complaint, we are clearly Freeman on Judgments, § 97. Then, is the

of the opinion that it is not a mortgage or judgment in question irregular in a material

lien of any kind upon the lands described. respect? We think it is; and that is so be

It does not, by any express words, purport cause it was without any proper pleading

to charge the land with the payment of the on the part of the plaintiffs that put the ap

indebtedness it creates, and such an intent pellees to any defense they might be able

cannot be inferred from the phrase, above and see fit to make.”

quoted, purporting to bind the "heirs, asThe second case. was an equitable action

signs, and grantees" of the lands. But, withbrought to set aside a default judgment en

out further reviewing the question, we think tered against the wife of the principal de

it a simple contract for the payment of monfendant. A personal judgment had been tak

ey, and did not authorize the judgment of en against her although it appeared from the

foreclosure originally entered by the court. allegations of the complaint that she was not

We conclude, therefore, that the order appersonally liable as she was not a party

pealed from should be affirmed, and it is so to the contract out of which the liability

ordered. arose. The notice served upon her, however, recited that a personal judgment would be taken against him if she did appear and de

MOUNT, C. J., and RUDKIN, HADLEY, fend the action. The statute there provided

and DUNB AR, JJ., concur. that a judgment may be vacated, among other causes, for "irregularity in obtaining CROW and ROOT, JJ., did not participate

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