Page images
PDF
EPUB

his foot between the cable and the pulley, with the result as above stated. The trial judge first submitted the case to the jury which returned a verdict for the appellant. Afterwards he granted a motion for a new trial on the ground that the evidence, as a matter of law, did not justify a verdict. This appeal is from the order granting the new trial.

The motion for a new trial was not filed before it was served on the appellant, and a motion was made in the court below to strike it for that reason. The respondent. in answer to the motion, asked, and over the objection of the appellant obtained, from the court an order extending the time within which to move for a new trial, and the motion for a new trial on which the court acted was served pursuant to that order. The appellant urges here that the trial court was without power to make an order extending the time in which a motion for a new trial could be filed, and he insists that the order appealed from is erroneous for that reason. It is conceded that this court has, in a number of cases, approved the practice followed by the trial court, but it is contended that the recent statute which requires a judgment on a verdict to be entered immediately on the return of the verdict has changed the rule. But, without following the argument, we think that the statute cited did not have that effect. It does not purport to change the existing practice, and the reasoning by which the practice was justified under the earlier statute is equally applicable to the existing one. For cases where the reasons are stated, see Bailey v. Drake, 12 Wash. 99, 40 Pac. 631; Leavenworth v. Billings, 26 Wash. 1, 66 Pac. 107; Kreielsheimer v. Nelson, 31 Wash. 406, 72 Pac. 72.

Passing to the principal question, we think the court was in error in holding that the evidence introduced at the trial did not justify a verdict. There are jurisdictions in which it is maintained as a hard and fast rule that if a child goes upon the premises of another without express permission, and is there injured by coming in contact with dangerous machinery, it cannot recover damages from the owner, on the principle that such owner owes the child no active duty to see that it does not come to harm, but only the duty not to wantonly or willfully injure it. But this court has not adopted this rule in its entirety. Where the dangerous machinery is connected with an ordinary manufacturing plant, and so surrounded with the ordinary safeguards as to legitimately lead to the conclusion that children of immature years unattended will not approach it, the owner or operator owes no such duty of active vigilance to possible trespassing children as requires him to keep a guard over the premises; and hence he is not responsible if a child does approach and meet with injury from such machinery. Such is the principle of the case of Curtis v.

Tenino Stone Quarries, 37 Wash. 355, 79 Pac. 955. There the machinery on which the child was injured was within an inclosure which was constructed at a considerable distance from any highway or any place where children were accustomed to play, and had no especial attractiveness, being machinery in common use and no more exposed than the manner of its use required, and we held, which must unquestionably be the rule, that the owner of such property owed no such duty to trespassing children as required him to so fence and guard his machinery as to render it impossible for them to receive an injury therefrom. On the other hand, we have held that where dangerous machinery and dangerous substances, of a character likely to excite the curiosity of children and allure them into danger, have been left unguarded in exposed places close to the highways, or playgrounds of children, even though on the premises of the owner, and children have been attracted to them and met with injury, the owner or person leaving the dangerous machinery or substance is liable for such injury. Case of this class are Ilwaco, etc., Nav. Co. v. Hedrick, 1 Wash, St. 446, 25 Pac. 335, 22 Am. St. Rep. 169, and Nelson v. McLellan, 31 Wash. 208, 71 Pac. 747, 60 L. R. A. 793, 96 Am. St. Rep. 902. The first is a turntable case, and the second a case where dynamite had been left partially exposed on a vacant lot used by children as a playground. The children injured in each case had no special license to be at the place where the injury occurred, nor did the owner of the articles or substance causing the injury owe to the children any special duty of protection or care. But the cases are rested on the principle that it is negligence in itself to leave exposed and unguarded near the haunts of children dangerous machinery or compounds which must necessarily result in injury to them if they come in contact with it. It matters not that the dangerous article may be on the premises of its owner, or that the injured person must become technically a trespasser to approach it, it is enough that the thing is dangerous in itself, and is attractive and alluring to children, and has been left exposed and unguarded in a place where it must reasonably have been anticipated that children would be attracted to it, and tempted to play with and handle it. Between the two extremes represented by these divergent rules there are, of course, a large class of cases which, from the facts, or the deduction properly to be drawn from the facts, cannot certainly be said to fall within the one or the other. The question then, like all other disputed questions of fact, becomes one for the jury, to be determined for or against the plaintiff as the jury may believe the evidence warrants, after the court has instructed them in the law relating to the duties of the owners and operators of such property.

Applying these principles to the case before us, we think the court erred in adjudging that the facts shown by the evidence did not warrant a recovery. Whether the sheave wheel when in operation belonged to the class of dangerous machinery, whether it was of such an attractive or alluring character as to attract children, and whether it was placed and operated without guards or protected so close to a public highway that it must have been foreseen that it would attract and injure a child of such tender years as the plaintiff, were questions for the jury to determine from all of the evidence, and the court was right in submitting it to them in the first instance, but in error in afterwards holding that the question presented was of such a nature that it must be determined in favor of the defendant as a matter of law.

We conclude, therefore, that the order appealed from must be reversed, and the cause remanded, with instructions to enter a judg ment upon verdict returned by the jury. It is so ordered.

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

(44 Wash. 143)

MERRITT et al. v. RUSSELL & CO. (Supreme Court of Washington. Oct. 15, 1906.) CHATTEL MORTGAGES-RECORD-REMOVAL OF

PROPERTY-STATUTORY PROVISIONS.

Ballinger's Ann. Codes & St. § 4559, enacted in 1879, providing that where mortgaged property is removed from the county where the mortgage is recorded, it is, except as between the parties, exempted from the mortgage, unless the mortgagee shall, within 30 days after such removal, take possession of the property, or cause the mortgage to be recorded in the county to which the property is removed, is not repealed by Act March 13, 1899 (Sess. Laws 1899, p. 157, c. 98), which contains no provision for recording a chattel mortgage other than in the county where the property is at the time of its execution, no direction as to what shall be done in case of removal of the property from that county, and no repealing clause, but provides in section 7 (page 159) that, in case mortgaged property exists in two or more counties, a copy of the mortgage may be filed in each, and in section 3 (page 158) that every mortgage filed in pursuance of the act shall be full notice to all the world.

[Ed. Note.--For cases in point, see vol. 9, Cent. Dig. Chattel Mortgages, § 466.]

Appeal from Superior Court, Spokane County; D. H. Carey, Judge.

Action by M. W. Merritt and another for injunction against Russell & Co. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Jas. A. Williams and Denton M. Crow, for appellant. Post, Avery & Higgins, for respondents.

ROOT, J. On August 29, 1900, one G. A. Grimes, the then owner of certain personal property which was situate in Whitman county, Wash., executed and delivered to appellant, Russell & Co., a corporation, a chattel

mortgage thereon, which chattel mortgage was filed in the office of the auditor of Whitman county, Wash., the county in which the property was then situate, on September 12, 1900. Some time after the filing of the chattel mortgage, the mortgaged property was removed by Grimes to Spokane county, and was, on June 9, 1902, purchased by respondents, who had no notice of appellant's chattel mortgage, except such notice as was given by the filing in Whitman county. Appellant's mortgage was not filed in Spokane county until after the purchase by respondents. On May 16, 1904, appellant placed a certified copy of its chattel mortgage in the hands of the sheriff of Spokane county and delivered to such officer notice of mortgage sale, and the sheriff was advertising the property to be sold under said mortgage when this action was begun by respondents to enjoin the sale. Upon a trial, judgment was entered in favor of respondents, adjudging that they were the owners of the mortgaged property, freed from any lien under appellant's mortgage.

The only question which arises on this appeal is, was the filing of appellant's mortgage in Whitman county sufficient notice to charge respondents with constructive notice in purchasing the property after its removal to Spokane county? Section 4559, Ballinger's Ann. Codes & St. (enacted in 1879), reads as follows: "A mortgage of personal property must be recorded in the office of the county auditor of the county in which the mortgaged property is situated, in a book kept for that purpose. When personal property mortgaged is thereafter removed from the county in which it is situated, it is, except as between the parties to the mortgage, exempted from the operation thereof unless either: (1) The mortgagee within thirty days after said removal, causes the mortgage to be recorded in the county to which the property has been removed; or *** (3) The mortgagee within thirty days after such removal takes possession of the property.

Appellant contends that this section of the statute is repealed by the act of March 13, 1899 (chapter 98, p. 157, Sess. Laws 1899). The act just mentioned contains no repealing clause, and contains no provision for recording a chattel mortgage other than in the county where the property exists at the time of the execution of the mortgage. There is no direction as to what shall be done in case the property mortgaged is removed from the county where the mortgage was made and filed. The only reference to property existing in more than one county is found in section 7, which reads as follows: "That in case the property mortgaged exists in two or more counties, a copy of such mortgage may be filed in each of such counties with like force and effect as the original mortgage." This section evidently refers only to the property which exists in two or more counties at the time of the execution of the mortgage. Section 3

of said act, among other things, said: "Every mortgage filed and indexed in pursuance of this act shall be held and considered to be full and sufficient notice to all the world, of the existence and conditions thereof."

It is appellant's contention that, under this section, the filing and indexing of a mortgage in Whitman county, where the property existed at the time the mortgage was executed, constituted constructive notice to the respondents and to all other persons of the existence and the conditions of said mortgage. Whether or not this is true must depend upon the question as to whether or not said section 4559, Ballinger's Ann. Codes & St., is repealed by the act of 1899. The latter act not purporting to cover the entire subject-matter of the former statute and having no repealing clause, and repeals by implication not being favored, it follows that the provision in section 4559 for the recording of the mortgage in the county in which the property has been removed is still in force, unless there be something in the act of 1899 repugnant thereto. We can find in the latter act no such inconsistent provision. Therefore, the appellant not having within 30 days after the removal of the property from Whitman to Spokane county caused the mortgage to be recorded in the latter county, and not having within said period taken possession of the same, its lien thereupon, as against these respondents, who purchased the property in good faith and without knowledge of the mortgage, became ineffectual.

The judgment of the trial court is affirmed.

MOUNT, C. J., and HADLEY, FULLERTON, RUDKIN, and DUNBAR. JJ., concur. CROW, J., having been of counsel, took no part.

(44 Wash. 166)

BECHER v. SHAW et ux. (BENESH, Garnishee).

(Supreme Court of Washington. Oct. 19, 1906.) HOMESTEAD — VOLUNTARY SALE - PROCEEDS EXEMPTION FROM GARNISHMENT.

In view of Ballinger's Ann. Codes & St. § 5219, providing how the homestead may be conveyed or incumbered. and section 5247, providing that in case of the sale of the homestead any subsequent homestead acquired by the proceeds thereof shall be exempt from attachment and execution, the money due from the purchaser on a voluntary sale of the homestead is not subject to garnishment.

[Ed. Note.-For cases in point, see vol. 25, Cent. Dig. Homestead, § 109.]

Appeal from Superior Court, Spokane County; D. H. Carey, Judge.

Action by Phil T. Becher against Henry A. Shaw and wife and Frank Benesh, garnishee. From a judgment in favor of defendants on a hearing of the garnishment proceedings, plaintiff appeals. Affirmed.

A. E. Gallagher and W. J. Thayer, for appellant. Belt & Powell, for respondents.

RUDKIN, J. On the 27th day of March, 1903, the plaintiff commenced an action against the defendants Henry A. Shaw and wife for the recovery of the sum of $296.90 with interest at the rate of 6 per cent. per annum from January 24, 1903. At the time of the commencement of such action a writ of garnishment was sued out and served on the garnishee defendant, Benesh. The garnishee answered that he was conditionally indebted to the defendants in the principal action in the sum of $500, with interest at the rate of 8 per cent. per annum from June 2, 1902, on account of the balance due on the purchase price of certain real property purchased by the garnishee from the principal defendants, and in the further sum of $24 on account of interest paid by the principal defendants on account of a certain mortgage on said real property, subject, nowever, to a counterclaim in the sum of $137.50 in favor of the garnishee against the principal defendants. The principal defendants controverted the answer of the garnishee, alleging, among other things, that the money due from the garnishee to the principal defendants was a part of the purchase price of their homestead, and that they intended to invest the same in another homestead. Judgment was given in favor of the plaintiff in the principal action on the 10th day of October, 1904, in the sum of $344.42 and $16.60 costs of suit. At the hearing of the garnishment proceedings the court found that the defendants in the principal action had occupied the premises theretofore sold to the garnishee for a period of 20 years prior to the time of sale, and that they at all times claimed the same as their homestead. "That on the 2d day of June, 1902, said Henry A. Shaw and wife sold to the garnishee defendant, Frank Benesh, said premises for the sum of $1,600, said premises being at that time mortgaged for the sum of $600, which mortgage the said Benesh assumed and agreed to pay as a part of the purchase price; and that the money due from the said Benesh to said Shaw and wife is the proceeds of the sale of said homestead, and that they at all times intended to purchase another homestead with said proceeds; and that the interest in said lands in said Henry A. Shaw and wife at the time of said sale is of the value of $1,000." As conclusions of law the court found that the proceeds of the sale of the homestead were exempt from garnishment, and entered judgment accordingly. From this judgment the plaintiff has appealed.

The case comes before us on the findings of the court below, and the sufficiency of these findings to sustain the judgment is the only question for consideration. The appelhomestead is a waiver of the homestead right, laut contends that a voluntary sale of the and that the exemption does not attach to or follow the proceeds of the sale. In support of this view he cites 15 Am. & Eng. Ency. of

Law (2d Ed.) p. 294, as follows: "In the absence of some provision in the statute to the contrary, the voluntary sale of his homestead by a debtor will constitute a waiver or abandonment of his right of homestead exemption, and the right will not follow and attach to the proceeds, but creditors may reach and subject them by garnishment or otherwise. In many states, however, the statute expressly or impliedly allows a debtor to sell his homestead for the purpose of investing in another homestead, and protects the proceeds prior to such reinvestment. In some states the proceeds are thus protected for a limited time only." Exemptions are, no doubt. creatures of the Constitution or the statute, and we accept the foregoing as a correct statement of the law. It only remains to consider whether our statute does expressly or by implication exempt the purchase price of the homestead from execution or garnishment, where the homestead claimant intended in good faith to reinvest the proceeds in another homestead. The statutory provisions bearing upon this question are the following: Section 5219, Ballinger's Ann. Codes & St., provides how the homestead may be conveyed or incumbered. Section 5220 provides how the homestead may be abandoned, viz., by declaration of abandonment or a grant thereof, executed and acknowledged. Sections 5222 to 5232 provide for a forced sale of the homestead, where the value exceeds the statutory exemption. Section 5233 provides that the amount of the homestead exemption must be paid to the claimant, and section 5234, that the money paid to the claimant is entitled to the same protection against legal process and the voluntary disposition of the husband as is the homestead itself. Section 5247 provides as follows: "In case of the sale of said homestead, any subsequent homestead acquired by the proceeds thereof shall also be exempt from attachment and execution; nor shall any judgment or other claim against the owner of such homestead be a lien against the same in the hands of a bona fide purchaser for a valuable consideration." We are inclined to agree with the appellant that section 5233, supra, has no application to the proceeds of a voluntary sale; but we are nevertheless of opinion that sections 5219 and 5247, which authorize the sale of the homestead free from all claims or liens and the acquisition of a new homestead exempt from attachment or execution, by implication exempt the proceeds of the sale of the homestead from garnishment for a reasonable time where the homestead claimant intends in good faith to reinvest the proceeds in another homestead. We think that a liberal construction of the statute requires us to so hold, and that any other construction would in a measure defeat the beneficent purpose the Legislature had in view. Of what avail would it be to the homestead claimant to sell his homestead free from claims and liens, if the proceeds are to become immediately subject to execution or garnishment.

If the claimant may exchange one homestead for another without forfeiting his exemption rights, why should he not be permitted to accomplish the same result through the medium of a sale.

In Watkins v. Blatschinski, 40 Wis. 347, the court said: "The statute further provides that no judgment or decree against the owner shall be a lien upon the homestead for any purpose whatever, except in certain specified cases, which need not be noticed. The policy of the statute cannot be misapprehended. Its obvious design and plain purpose is to benefit the debtor by securing to him his homestead beyond all liability to forced sale on execution or other process. In case the debtor desires to remove from the homestead for some temporary cause, or to absent himself for a time, the statute permits him to do so (Jarvais v. Moe, 38 Wis. 440); and the statute further enables him to sell and convey the homestead to a purchaser, free from all liens by judgment. It is obvious that this legislation is in the interest of the owner of the homestead, and was intended to confer valuable rights. It is not legislation for the benefit of creditors. Now, is it not plain that the right to sell and convey the homestead free from judgment liens is a barren right, so far as the owner is concerned, if the proceeds of the sale cannot be protected until they reach the hands of the vendor, or while in transition from one homestead sold to another purchased? It certainly seems to us to be a valueless right, if the proceeds of the sale are liable to be attached, or are subject to garnishment process, as soon as the homestead is sold. And we hardly think the Legislature would have been to the trouble of enacting that the homestead might be sold and conveyed free from all judgment liens, if the right existed in the judgment creditor at once to attach all securities or garnish all moneys arising from the sale. Consequently we must hold the intent of the law to be, to exempt the proceeds of the homestead, which the debtor bona fide intends to use and apply in obtaining another homestead. ** This undoubtedly is the policy and spirit of the statute, to allow a person to sell one homestead and buy another; and the exemption must cover the change, and protect the proceeds while the transfer is being made. Otherwise the beneficent object of the law would often be defeated, and the owner would derive no possible benefit from the provision which enables him to sell and convey his homestead free from all judgment liens except those specified." This decision was prior to the Wisconsin statute exempting the proceeds of the sale of the homestead for the period of two years. See, also, Cullen v. Harris, 111 Mich. 20, 69 N. W. 78, 66 Am. St. Rep. 380. The statute of Iowa authorizes a change in the homestead and provides that the new homestead shall be exempt to the extent of the value of the old, but does not in terms ex

empt the purchase money arising from the sale of the homestead. Nevertheless, the Supreme Court of that state has repeatedly held that, where a party sells his homestead with the intention of purchasing another, he will be allowed a sufficient time within which to exercise that right, and during such period the proceeds of the sale are exempt. In State v. Geddis, 44 Iowa, 537, the court said: "Section 2000 of the Code provides that: "The owner may from time to time change the limits of the homestead by changing the metes and bounds, as well as the record of the plat and description, or may change it entirely. **** Section 2001: "The new homestead to the extent in value of the old, is exempt from execution in all cases where the old or former homestead would have been exempt, but in no other, nor in any greater degree.' Here is an absolute right given to change one homestead for another, or to sell the homestead and acquire a new one, which shall be exempt to the same extent as the foriner one. There is no prescribed method as to how this shall be done. The statute does not provide that the sale must be for money in hand, which must be immediately invested in the new homestead; that is, that the selling of the old and purchasing of the new must be simultaneous acts. We must give the statute a reasonable construction so as to effectuate its object. If a homestead be sold, and the proceeds applied to some other use, there is no doubt that the exemption would cease; but where the sale is made on a credit and with the intention of using the proceeds when collected in purchasing another homestead, and the proceeds are not put to any intervening use, they are exempt while thus in transitu, so to speak, from the old homestead to the new. Any other rule would practically prohibit the changing of homesteads." See, also, Schuttloffel v. Collins, 98 Iowa, 576, 67 N. W. 397, 60 Am. St. Rep. 216, and cases cited. We are not unmindful of the fact that there are numerous decisions to the contrary of the views here expressed, but as said by the court in Watkins v. Blatschinski, supra. they are mostly from states where the courts place a strict construction on exemption laws: whereas, this court has uniformly declared that such laws must be liberally construed.

Finding no error in the record, the judg ment is affirmed.

MOUNT, C. J., and FULLERTON, HADLEY. CROW, ROOT, and DUNBAR, JJ.,

concur.

(44 Wash. 155)

POLSON et ux. v. CITY OF ABERDEEN. (Supreme Court of Washington. Oct. 19, 1906.) 1. BOUNDARIES-WATERS-LANGUAGE OF DE

SCRIPTION-CONSTRUCTION.

Where land is described as bounded by or upon, or as running to or along, the sea, or

shore or bank of a stream, the grant carries the entire estate of the grantor whether limited by high or low water mark or by the thread of the stream.

[Ed. Note. -For cases in point, see vol. 8, Cent. Dig. Boundaries, §§ 102-108.]

2. SAME--PLATS.

Where the owner of land bounded on the south by a river platted the land, but as a considerable portion of the river bank above the government meander line had been washed away, did not, according to the plat, extend the boundaries of lots along the river beyond the bank of the river as it actually existed at the time the plat was filed, the purchasers of the lots did not take title beyond the southern boundaries as shown on the plat.

[Ed. Note. For cases in point, see vol. 8, Cent. Dig. Boundaries, §§ 90, 91.]

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Suit by Alex Polson and wife against the city of Aberdeen to quiet title. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

R. E. Taggart and Ben Sheeks, for appellant. John C. Hogan, for respondents.

RUDKIN, J. On the 10th day of October, 1866, the United States by letters patent granted to Samuel Benn lots 3 and 4, and the W. 1% of the N. W. 4 of section 9, township 17 N., range 9 W., W. M., in Chehalis county, Wash. Terr. county, Wash. Terr. The lands thus granted are situated on the northerly bank of the Chehalis river. Benn and wife continued to own the property until the 16th day of February, 1884, on which date they prepared, executed, and filed a plat of a portion thereof, known as "Samuel Benn's plat of Aberdeen." Between the time the government surveys were extended so as to include these lands and the time of filing the last-mentioned plat, the northerly bank of the river had washed away to such an extent that the government meander line extended from 30 to 40 feet below the grass line or river bank proper, and below the line of ordinary high tide. When the survey for the plat was made the surveyor, by direction of the owners, placed the stakes marking the southerly boundary of the plat and the fractional lots bordering on the river at the edge of the grass line, or on the bank of the river as it then existed, and the plat as filed shows the length of the side lines of each fractional lot from River street, which is substantially parallel to the river, but the side lines of the lots are not joined on the river front. II street as shown on this plat intersects River street at right angles and extends to the southerly boundary of the plat on the river front, wherever that may be ascertained Lot 6 of block 52 lies on the easterly side of II street, and on the southerly side of River street. The east line of the lot as shown by the plat is 51 feet in length and the west line fronting on H street 50 feet in length. Lot one of block 53 lies to the westerly side of H street. and to the southerly side of River street. The east line of the

« PreviousContinue »