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was made thereby. The cause was tried by upon the general account. We therefore find the court and resulted in a judgment dis- it impossible to determine satisfactorily to missing the action and awarding costs to ourselves what, if any, amount should be Brandt and wife and said bank. The plain- charged against this property. The burden tiff has appealed. i

of proof was upon appellant, and the account It is assigned that the court erred in refus- should have been so kept that it could have ing the admission in evidence of appellant's been clearly ascertained what was chargeable daybooks, containing the items involved in against the property. The court found that the suit and in holding that appellant's mem- appellant furnished materials to Sly upon orandum and delivery slips were books of various building contracts of which this original entry and the best evidence. Appel- was one, and that they were sold upon generlant was, however, able to produce, and did al account to Sly upon his sole responsibilproduce, the memorandum slips showing all ity and without any intention on the part of the items claimed except certain small items appellant of claiming liens upon the propamounting to $6.40. Moreover the record

Moreover the recorderty. 'Under the later decisions of this court sufficiently shows that the remaining items the absence of intention, at the time the goods were included in the daybooks. If appel- were sold, to assert a lien would not have lant were entitled to enforce this lien for any precluded its enforcement afterwards if the amount, the competency of the evidence as goods were actually sold for the understood to the somewhat inconsiderable amount of

purpose of being used in the building, and if $6.40 should be considered, but, inasmuch as they were so used, unless the right to a lien we think the lien cannot be sustained for was waived. Stringham v. Davis, 23 Wash. other reasons, the competency of this evi- 56S, 63 Pac. 230; Blumauer v. Clock, 24 Wash, dence becomes immaterial for the determina- 596, 6+ Pac. 814, 85 Am. St. Rep. 966. But tion of the appeal.

in such event it must be clearly shown that Some technical reasons are urged by re- the material was used in the building, and spondents against the enforcement of the

what amount of the purchase price remains lien by way of informality in the notice of unpaid. lien, variance as to ownership, and the in

It is assigned that the court erred in disclusion of nonlienable articles. We shall, missing the complaint against the Netherhowever, pass over these and discuss what lands American Mortgage Bank. No eviwe consider more serious matters affecting

dence was introduced in support of the althe essence of appellant's claim for a lien.

legations of the complaint against the bank, We think the proof is not satisfactory as to and its answer was not brought up with the the actual delivery of the material at the

record. There is, therefore, nothing here for property in question, and that it was actu

our consideration upon that subject. ally used thereon. The testimony of the

The judgment is affirmed. president of the appellant corporation upon that subject was that he knew nothing more about the delivery than that some of the


CROW, and DUXBAR, JJ., concur. goods were given to appellant's deliveryman with slips specifying the property in question at the place of delivery. The delivery

(14 Wash. 72) man did not testify. The larger part of the

CREECH et al. v. CITY OF ABERDEEN. material was delivered to one Fuller by direction of Sly. Fuller was a subcontractor

(Supreme Court of Washington. Sept. 25,

1906.) of Sly's for painting. Sly was at the time

1. APPEAL-EXCEPTION-DENIAL OF CONTINengaged in constructing a number of other

UANCE. houses to which appellant was sending ma

Denial of continuance for an amendment terials on his account. Fuller did not testify, changing the cause of action cannot be reviewed so that it does not appear what painting

in the absence of exception. material went to this building. We think

[Ed. Note.For cases in point, see vol. 2, the evidence upon this subject is too indefinite

Cent. Dig. Appeal and Error, $ 1496.] and uncertain to charge the property with a

2. CONTINUANCE-DISCRETION OF COURT. lien. Moreover the goods sold for the differ

It cannot be said that there was an abuse

of discretion in refusing a continuance for abent houses were all charged to Sly in one

sence of a witness, where the opposing party general account. There were here and there before the trial offered to allow the witness' extending through the account certain no

deposition to be taken, waiving all formalities, tations indicating that materials were deliver

and the facts which it was alleged were expected

to be proved by him were testified to by many ed to different houses, and many items are others, shown to have been delivered at Sly's shop, [Ed. Note. For cases in point, see vol. 10, for what purpose does not appear. Sly's Cent. Dig. Continuance, $$ 17, 18.] credits for payments were, however, entered 3. APPEAL – HARMLESS ERROR ALLOWING generally in the account. No separate ac.


Error in allowing an extra peremptory count for payments applicable to each build

challenge will be held harmless, it not appearing ing was kept. There was some evidence of

that the jury was rendered partial thereby. the special application of some payments, but [Ed. Yote.-For cases in point, see vol. 3, they were in any event entered as credits Cent. Dig. Appeal and Error, $ 4124.]

Appeal from Superior Court, Chehalis Coun- , mitted error in allowing respondents to exty; Mason Irwin, Judge.

ercise a fourth peremptory challenge. It Action by F. E. Creech and. others against seems that in impaneling the jury one James the city of Aberdeen. Judgment for plain- | Phillips, a juror, was called, who was chaltiffs, and defendant appeals. Affirmed. lenged by the appellant for cause, and the See 84 Pac. 623.

challenge was sustained. After this the R. E. Taggart and Ben Sheeks, for appel-court permitted the respondents to exercise lant. John C. Hogan and W. H. Abel, for

a fourth peremptory challenge, to the allowrespondents.

ance of which appellant excepted. It does

not appear that the jury was rendered parDUNBAR, J. This is an action to recover tial by this mistake on the part of the court, upon a contract for laying water pipe under the juror who took the place of the juror the Chehalis river, and for damages alleged who was challenged being examined and to have been caused by the city having fur- passed for cause. All that the appellant can nished defective material. Under the con- claim is the right to have its case tried by tract the work was to be done by the respond- an impartial jury. It was said by the Suents, and the material to be furnished by the preme Court of Mississippi, in the case of city, the appellant.

State v. Dalton (Miss.) 10 South. 578: “The It is difficult to tell from appellant's brief action of the court in permitting to appellees exactly what the contentions are, as there a fifth peremptory challenge was erroneous, is no statement of the case, and the assign- but the error is not reversible. The plainments are not regularly made. The first con- tiff, as has long been held in this state, had tention seems to be that the court erred in no vested right in any particular juror. He refusing to grant a continuance. It is as- had a right to an impartial jury, and this serted that four days before the date set / right seems to have been enjoyed by him.” for the trial the plaintiffs were permitted by It has frequently been decided by this court the court to amend their complaint, changing that litigants had no vested right in any the nature of the second cause of action; particular juror, and in passing upon the that this amendment was allowed over the laws in relation to the selection of jurors it objection of the defendant, and without any was said, in State v. Straub, 16 Wash. 111, other notice than that given to Mr. Taggart, 47 Pac. 227: "This court has held so many one of the attorneys for the appellant at the times that it seems that we ought not to be time, who happened to be in attendance on called upon to further discuss this character the court. Conceding, without deciding, that of questions, that these conditions in regard the amendment did change the nature of the to the selection of jurors are directory, and cause of action, it seems that there was no that no litigant has a vested right in the exception taken to the ruling of the court in procedure. Certainly, in the absence of a denying the motion for continuance. The showing that a material interest had been attorneys for the appellant made an affidavit affected, the judgment would not be reversed of certain things which he expected to prove for an irregularity so far as the procedure by a Mr. Wilson, who was not able to at- is concerned." tend court at the time of the trial, and An examination of the record leads us to this affidavit was the basis of the motion conclude that no prejudicial error was comfor continuance. But an investigation of mitted by the court in the admission or rethe record shows that one of the attorneys jection of testimony, or in the giving of infor the respondents, who was first advised structions by Mr. Wilson that he would not like to The judgment is affirmed. attend the court on the day the trial was set for, advised him to report to Mr. Taggart,

MOUNT, C. J., and ROOT, CROW, and and informed Mr. Taggart of Mr. Wilson's

HADLEY, JJ., concur. communication, and suggested that Wilson's deposition be taken, and that he would waive all formalities. This was not done, nor, up

(44 Wash. 99) on an examination of Mr. Taggart, would he

STRUNZ et ux. v. HOOD et al. assert that the testimony which he expected

(Supreme Court of Washington. Sept. 27, to adduce by the witness Wilson was not

1906.) cumulative; and the record shows that the

1. BOUNDARIES-ACTION TO ESTABLISH-NAfacts which he indicated that he would prove

TURE OF REMEDY. by Mr. Wilson were sworn to by a great In an action under Ballinger's Ann. Codes many other witnesses whom the appellant & St. $8 5667-5669, providing for the estabproduced at the trial. Under all the circum

lishment of lost boundaries, and, in the court's

discretion, the appointment of commissioners stances, we cannot say that the court abused

to survey the boundaries, neither the court nor the discretion which is vested in it in such commissioners can correct the government surcases. Nor can we find any abuse of discre

veys or establish government corners at points tion of the court in refusing motion for

other than those fixed by the government sur

veyors. new trial upon the showing made.

[Ed. Note.-For cases in point, see vol. 8, It is also contended that the court com- Cent. Dig. Boundaries, $ 258.]

[ocr errors]

2. SAME - MONUMENTS AND FIELD NOTES of lots 1, 4, 5, and 6, of section 3; being the VARIANCE.

only portion of said section which can be afWhen there is a variance between field

fected by said boundary line. The defendnotes and monuments as set up by the United States government surveyors, the monuments

ants Rebecca E. McCall, Joseph L Rose, Nanmust prevail.

cy J. Rose, and the Pennsylvania Mortgage & (Ed. Note.-For cases in point, see vol. 8, | Investment Co., who were alleged to be the Cent. Dig. Boundaries, 8 17.]

owners of the east half of section 2, made 3. NEW TRIAL-NEWLY DISCOVERED EVIDENCE default. The defendant James Sullivan was -SUFFICIENCY. In an action under Ballinger's Ann. Codes

served by publication and defaulted for non& St. $$ 5607-5669, providing for the establish- appearance. The defendants Food and wife ment of lost boundaries, on a motion for a new denied that said dividing line was lost or trial on the ground of newly discovered evidence uncertain. On October 4, 1904, a trial was tending to show that an original government

had to determine whether said line had becorner could be located other than wbere established by the commissioners, the proposed

come lost and uncertain. Both parties conevidence must be clear and convincing in order ceded that the government corner post at the to sustain the motion,

northeast corner of section 3 and the north[Ed. Note. For cases in point, see vol. 37,

west corner of section 2 was in existence Cent. Dig. New Trial, $8 226-229.]

and could be accurately located. The evi4. JUDGMENT-DEFAULT-OPENING AS MATTER

dence disclosed that a portion of the southOP RIGHT.

Ballinger's Ann. Codes & St. § 4880, provid-west quarter of section 2, and the south and ing that where a defendant without the state west line of that part of section 3 here inhas not been served personally, he shall, on volved were bounded by Lake Newman, a application and sufficient cause shown, at any time before judgment, be allowed to defend,

meander line having been run along said does not authorize the setting aside of a default lake at said points by the United Stateg as a matter of right.

government surveyors. It further appeared [Ed. Note.-For cases in point, see vol. 30, that when the original government survey Cent. Dig. Judgment, & 251.]

was made, a meander corner post had been 5. NEW TRIAL -- MATTER OF RIGHT - ACTION

established on the shore of said lake at the INVOLVING REAL ESTATE.

Ballinger's Ann. Codes & St. § 5518, giving point where the line between sections 2 and a defendant served by publication in an action

3 intersected said meander line, but that this for the recovery of real estate a new trial as a monument had been lost. At the trial the matter of right, has no application to an action

plaintiffs produced numerous witnesses to to establish a lost boundary line under sections 5667-5669.

show that this monument could not be found [Ed. Note.-For cases in point, see vol. 37,

or located, while the defendants Hood and Cent. Dig. New Trial, $ 353.j

wife attempted to show that said corner had 6. Costs – APPORTIONMENT — ACTION TO ES- been located at the south end of a dividing TABLISH LOST BOUNDARY.

line run in 1903 by one Stolzenberg, a surIn an action to re-establish a lost boundary

veyor employed jointly by plaintiffs and said line under Ballinger's Ann. Codes & St. $$ 56675669, the cost should be equally divided between

defendants Hood and wife. The trial court the parties.

made findings of fact, from which it appears [Ed. Note.For cases in point, see vol. 8, that said adjoining sections 2 and 3 both abut Cent. Dig. Boundaries, 8 261; vol. 13, Cent.

upon that body of water known as “Newman Dig. Costs, 8 272.)

Lake," which so cuts them as to cause Appeal from

from Superior Court, Spokane the north and south dividing line between County; Henry L. Kennan, Judge.

them to be less than one mile in length; that Action by Wenzel Strunz and wife against said sections were included in a survey made Frank Hood and others. From a judgment | by the United States government in August, in favor of plaintiffs, defendant James Sulli- 1880; that in said survey a corner post was van appeals. Modified and affirmed.

established at the northwest corner of secR. J. Danson, for appellants Strunz and

tion 2, being the northeast corner of section

3, and that the field notes of said survey wife. P. C. Shine, for appellant Sullivan. Munter & Jesseph, for respondents.

also show that a quarter post was estab

lished on said line, 40 chains south of said CROW, J. This action was instituted by initial corner; that said field notes further the plaintiffs Wenzel Strunz and Mary show that a meander post was also fixed and Strunz, his wife, under sections 5667-5669, established where said dividing line ran into Ballinger's Ann. Codes & St., to re-establish said Newman Lake, and that said dividing certain lost corners and a lost boundary line line between said sections 2 and 3 connected between two sections of land in Spokane said three posts and was and is the dividing county. The plaintiffs alleged that said line line between said two sections; that said between sections 2 and 3 of township 26 quarter post and said meander corner post had north, of range 45 E., W. M., had been lost both been lost and obliterated, and that their and was uncertain; that plaintiffs are the location cannot be ascertained; that the plainowners of certain subdivisions constituting the tiffs and said defendants Hood and wife canfractional southwest quarter of section 2; that not agree upon the location of said lost quar. the defendant Joseph Sullivan is the owner of ter post and meander corner post, and that the northwest quarter of said section 2; that one competent surveyor would be ample as a the defendants Hood and wife are the owners commissioner to establish said boundary. Up on said findings the court entered a prelimin-, boundary line as marked by said commisary order appointing Joseph M. Snow, a com- sioner. petent and practical surveyor, as a commis- At the preliminary hearing, the appellants sioner to survey, erect, establish, and proper- Strunz and wife earnestly endeavored to ly mark the quarter corner post, and the show that no monuments locating the quarmeander corner post, on the dividing line ter section corner or the meander corner between said sections. On April 14, 1995, could be found, also that the lines previously the commissioner made a written report, run by various surveyors, one of whom had from which it appears that he did not suc- been jointly employed by themselves and the ceed in finding the original government quar- respondents Hood, were incorrect. After ter post or the original government meander the report of the commissioner had been post; that he did find the original govern- filed, and the appellants Strunz and wife had ment post at the northwest corner of section interposed their exceptions, they asked per2, and the northeast corner of section 3; that mission to introduce further evidence, for from this point he ran a random line in a the purpose of showing that their exceptions southerly direction to the shore of Newman were well taken, and that the locations of Lake; that having done so, he made a care- said original government quarter post and ful search along this random line for a dis- said original government meander corner post tance of 200 feet on each side, but that said could be respectively found, ascertained, and search failed to show any trace or mark to established at points about 170 feet and indicate that the section line had ever been 356.63 feet west of the points reported by run or marked on the ground; that after- Commissioner Snow, and they now contend wards he ascertained the true course of the that the trial court erred in refusing said random line by a solar observation, and then offer. The evidence which appellants then established a true line running due south tendered was afterwards specifically detailed from said corner of sections 2 and 3, on the in the affidavits presented in support of their north boundary of the township; that at a motion for a new trial. The issue as to point 2,610 feet south of said section corner, whether the monuments and boundaries he established a quarter section corner be- were lost had been previously tried, and tween sections 2 and 3, and marked the same there is nothing in the report of the commisby setting a granite stone; that at a point sioner inconsistent with the findings then 1.880 feet south of said corner of sections 2 made. Under some circumstances it might and 3 and at a point 20 feet north of high- be proper to admit additional evidence, when water mark on the shore of Newman Lake, the report of the commissioner and the exhe established the meander corner, and ceptions thereto come on for hearing, but we marked the same by setting a granite stone. fail to see any reason for doing so in this The plaintiffs filed written exceptions to this case, and conclude that the trial court did report. On July 7, 1905, the defendant Sulli- not err in refusing the offer made by the van moved the court to vacate the default appellants. The report of the commissioner entered against him, supporting his motion explicitly detailed the methods adopted by by affidavits which appear in the record. him for discovering the true location of the Afterwards, the report of the commissioner, government monuments and for re-establishthe exceptions of the plaintiffs thereto, and ing the lost quarter section corner and the motion of the defendant Sullivan to va- meander corner. Were we to consider the cate the default came on for hearing, at additional evidence offered by the appellants which time the trial court confirmed and ap- as disclosed by the affidavits presented in proved the report of the commissioner and support of their motion for a new trial, our denied the motion to vacate said default. conclusion would nevertheless be that the The plaintiffs' motion for a new trial having meander corner and the quarter section been overruled, judgment was entered estab- corner were both lost, and could only be lishing the boundary line, the quarter sec- established in the manner adopted by the tion corner, and the meander corner, as commissioner shown and fixed by said commissioner's re- Appellants correctly contend that a court port. The plaintiffs Strunz and wife have or a court commissioner cannot correct the appealed from said final judgment, and the United States government surveys, or esdefendant Sullivan has also appealed from tablish government corners at points other said final judgment, and from the order deny than those fixed by the government surveying his judgment to vacate said default. ors; that in any attempt to re-establish an

The appellants Strunz and wife make nu- original survey the purpose should be to folmerous assignments of error involving the low the footsteps of the government surveyfollowing contentions: (1) Error of the trial or as nearly as possible, and that when there court in refusing to admit additional evi- is any variance between field notes and dence after the commissioner's report had monuments, as set up by the United States been made; (2) error in overruling appellants' government surveyors, the monuments must exceptions to said report; (3) error in deny. prevail. It was undoubtedly the duty of the ing appellants' motion for a new trial; (4) commissioner to ascertain, if possible, where error in taxing all costs against the appel- the original government monuments had lants; and (5) error in establishing the been actually located and established, rather than where he might think they ought to be some 356.65 feet west of the point fixed located or established. The commissioner's by the report of Commissioner Snow. He report, however, shows that, after a most does not attempt to show that any monument diligent search, he was unable to find the still remains or can be found at that point. original quarter ccrner or meander corner On the contrary a clear inference arises from posts or any traces thereof, and the evidence his affidavits that it does not now exist. of appellants and respondents' witnesses, in- It will thus be seen that he is now proposing cluding several competent surveyors, shows to ascertain and fix a corner and a lost that they were likewise unable to find the monument by vague and uncertain evidence same. This being true, it became the duty not sufficient to sustain findings which he of the commissioner to re-establish the lost would necessarily ask. Were we to concede line and relocate the lost quarter corner and everything for which he contends in his affilost meander corner. He did this by pro- davits and his application to set aside the ceeding from conceded monuments and cor- default, we would still conclude that his ners fixed by the government surveyors, and showing is insufficient. IIis application was by following the government field notes, and made before entry of final judgment, and he the trial court acted properly in approving contends that, under section 4880, Ballinger's his action and report.

Ann. Codes & St., it should have been We also conclude that no error was com- granted as a matter of right. This section mitted in denying the motion for a new trial. provides that where a defendant has not The appellants contend that they are en- been served personally in the cases provided titled to a new trial on account of newly in sections 4878 and 4879, he shall on applidiscovered evidence, which they now claim cation and sufficient cause shown at any time will show that the original meander corner before judgment, be allowed to defend. The can be found and located at a point some Legislature, in enacting these sections, in356.65 feet west of the meander corner es- tended that a defendant should not be altablished by the commissioner. They do not lowed to defend except upon sufficient cause claim, however, that any monument, or any shown. We do not think any such showing traces thereof, still remain at the point men- has been made by the appellant Sullivan. tioned. We have examined appellants' newly The appellant Sullivan also claims that discovered evidence as disclosed in their he is entitled to have the default vacated affidavits, and conclude that it is too vague, by reason of the provisions of section 5518, indefinite, and uncertain to fix the meander Ballinger's Ann. Codes & St. That seccorner in accordance with their present con- tion, however, refers only to an action for tention, at a point 356.65 feet west of the the recovery of the possession of real proptrue north and south line established by the erty. This is not such an action. This accommissioner. Evidence to sustain such a tion was commenced by the appellants Strunz contention should be most clear and con- and wife to re-establish a lost boundary vincing.

line, and not to recover possession of real The appellant Sullivan contends that the property. No error was committed by the trial court erred in denying his motion to trial court in refusing to vacate said default. vacate the default entered against him. He Appellants Strunz and wife further conconcedes that he was absent from the state tend that the trial court erred in taxing at the time the summons was published. against them the entire costs of this proThe default was entered on July 25, 1904. ceeding. In Cadeau v. Elliott, 7 Wash. 205, The affidavits presented in support of his 34 Pac. 916, we held that an equitable apmotion show that he returned to the state portionment of costs in a case of this charsome time in the following November, and acter would be an equal division of the same then knew of the pendency of this action, between the parties, and that rule should and that he also knew Commissioner Snow prevail here. was making his survey. He filed no motion It is ordered that the judgment of the suto set aside the default until July 7, 1905, perior court be modified, to the extent of at which time he did not tender any answer, taxing the costs equally between the appelbut in his own affidavit supporting his mo

lants Strunz and wife and the respondents tion, alleged that he had stated all the facts I lood and wife, and, as so modified, said with reference to said proceeding and said judgment will be affirmed. The respondents boundary line to his attorney, and was ad- Hood and wife will recover their costs on vised by him that he had a good and meri- this appeal torious defense. His affidavit show's his only contention to be that the original gov- MOUNT. C. J., and ROOT, DUNBAR, ernment meander corner post was located

FULLERTON, and HADLEY, JJ., concur.

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