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FULLERTON, DUNBAR, and CROW, JJ., that he was then at home sick and unable concur. MOUNT, C. J., and RUDKIN, J., to be out. The cause was tried by the court not sitting.

without a jury, and the court found for the plaintiffs, awarding them possession of the

lot in controversy, and also judgment for (44 Wash. 665)

$25 damages. The defendant moved for a CUMMINGS et al. v. SUNICH.

new trial, and submitted affidavits of per(Supreme Court of Washington. Dec. 11, 1906.) ) sons whose evidence was discovered subAPPEAL - REVIEW - DISCRETION OF COURT – sequently to the trial, that they saw Mr. NEW TRIAL.

Cummings present at the time of the removal Where the evidence in an action was conflicting, the discretion of the trial court in

of the buildings and structures, and that he granting a new trial for insufficiency of the evi

assisted the defendant in removing them. dence, or because of newly discovered evidence, The motion for a new trial was granted, and will not be reviewed on appeal.

the plaintiffs have appealed from the order [Ed. Note.For cases in point, see Cent. Dig.

granting the new trial. vol. 3, Appeal and Error, $$ 3871, 3876.]

The evidence was conflicting, and the afAppeal from Superior Court, King County ; | fidavits submitted on the motion for new John B. Yakey, Judge.

trial show new and material evidence as to Action by Mary A. Cummings and hus- whether respondent's entry was peaceable or band against Nicholas Sunich. From an forcible. That is a material question of fact order granting defendant a new trial, plain- in the case. It has been often held by this tiffs appeal. Affirmed.

court that it will not disturb an order grantMcCafferty & Bell, for appellants. Fred

Fred | ing a new trial in the absence of an abuse of H. Peterson and H. C. Force, for respondent. discretion, and that when the evidence con

flicts as to material facts, the granting of a HADLEY, C. J. This action was brought new trial for insufficiency of the evidence, or under the forcible entry and detainer statute, because of newly discovered material evifor the purpose of recovering possession of dence, will not be held to be an abuse of a certain lot in Seattle. The plaintiffs are discretion. The above grounds, with others, not, and at no time have been, the owners were alleged in the motion for new trial, and of the lot, but for several years they were the order does not specify upon what ground given parol permission by a former owner the motion was granted. It will therefore to occupy the lot, with chicken coops and a be presumed that the court was influenced chicken house or a small barn for the pur to grant the new trial by reason of the conpose of raising chickens, but without pay flicting testimony and proposed testimony, ment of rent. They were so occupying it and that its discretion was exercised in that when the defendant purchased the lot from regard. If the ruling of the trial court were the former owner. The defendant at once based upon a mere question of law, then this notified plaintiffs that he had purchased the court might, in line with previous holdings lot, and that he desired them to remove their cited by appellants, review the ruling for structures therefrom, so that he might pro mere error, there being no discretion involved reed to construct a house thereon for his in such a ruling. This is, however, not such a home. The removal was not made at once, case.

Discretion is involved here, but we and the testimony conflicts as to just what shall not say from the record in the case occurred between the parties. The testimony that the court abused its discretion. submitted by defendant is to the effect that The judgment is affirmed. plaintiffs at once stated that they would remove at any time when defendant was FULLERTON, CROW, and DUNBAR, JJ., ready to occupy for the purpose of building; concur. MOUNT, C. J., and RUDKIN, J., that defendant built a fence between his lot not sitting and that of plaintiffs adjoining, and placed material upon the ground ready for constructing his building, all without objection

(45 Wash. 9) from plaintiffs; that when he was ready to

STATE v. SCHAEFER. begin construction, he removed the chicken (Supreme Court of Washington. Dec. 14, 1906.) coops and tore down the small building of 1. NUISANCE-PROSECUTION-EVIDENCE. the plaintiffs; that Mrs. Cummings, one of On a prosecution for maintaining on certain the plaintiffs who was present, made no ob

premises a nuisance, by reason of the way in

which a slaughterhouse was conducted thereon, jection to the removal, but did object to admission of evidence that blood and putrid the manner of removal; that Mr. Cummings, matter were permitted to flow from said premisher husband and coplaintiff, was present, and

es into and beyond the adjoining highway, is did not object in any manner. Mrs. Cum

not error, it tending to show the conditions on

the premises, and the jury being expressly mings testified at the trial, but her husband charged that they were confined in their dedid not. She says the removal was without liberations to a nuisance committed and mainthe consent of plaintiffs, and she testified

tained on said premises. that she asked defendant to leave the work

2. SAME-EXTENT OF ABATEMENT.

On a prosecution for maintaining a nuiof tearing down until her husband could as

sance the issue being whether a slaughterhouse sist in looking after the structures, saying was being conducted so as to be a nuisance, and

there being no issue or evidence as to whether ditions existing on the premises described it could not be conducted without causing a

in the information, and the court expressly nuisance, an order absolutely prohibiting slaughtering, regardless of whether its objec

charged the jury that they were confined in tionable features be removed so as to avoid the

their deliberations to a nuisance committed maintenance of a nuisance, is too broad.

and maintained on said premises. There was [Ed. Note.-For cases in point, see Cent. Dig. no error in the ruling complained of. vol. 37, Nuisance, $ 218.]

The third and fourth assignments are basAppeal from Superior Court, Asotin County; ed upon the ground that the order of abateC.F. Miller, Judge.

ment was too sweeping and deprived the apJacob Schaefer was convicted of maintain pellant of his property without compensation ing a nuisance, and appeals. Affirmed, with and without due process of law. The order leave to move for modification of order of of abatement recites substantially all the abatement.

facts charged in the information, and adGeo. W. Tannahill and Sturdevant &

judges and decrees that from and after ten Bailey, for appellant. Geo. H. Rummens, for

days from the date of the order, the appelrespondent.

lant, his agents, servants, and employés

shall desist and refrain from cooking or RUDKIN, J. This was a prosecution for

boiling the entrails and offal of slaughtered the crime of maintaining a public nuisance,

animals on said premises, and after forty The information is somewhat voluminous,

days from date of the order, shall further but the substance of the charge is that the

desist and refrain from killing or slaughterdefendant maintained a slaughterhouse on

ing any animals of any kind thereon. We certain described premises in which the

are of opinion that the order of abatement business of slaughtering cattle, hogs, and

went farther than was justified by the facts sheep was conducted and carried on, and

before the court. that, by reason of the maintenance of such

The court charged the jury that "The busislaughterhouse, the slaughtering of animals

ness of slaughtering animals for food is not therein, the cooking and boiling of the offal

a nuisance, as a matter of law, independentand entrails of such animals in a cooking

ly of the manner in which it was conducted, tank kept and maintained at said slaughter

but you must find from the evidence beyond house, the feeding of such offal and entrails

a reasonable doubt that it was conducted in to hogs and chickens, and the accumulation

such a manner as to be a public nuisance as of blood and decayed matter, vile, offensive,

heretofore explained to you." This is no and noxious exhalations, injurious and dan

doubt a correct statement of the law, but the gerous to the health, comfort, safety, and re

court went beyond this in its order of abatepose of persons traveling upon or along the

ment. While the order was fully warranted roads and highways, and living in the vicin

by the testimony, so long as the business of ity of such slaughterhouse, were emitted

the appellant is conducted as at present, yet and sent forth into the air. The jury return

the order absolutely prohibits the appeled a verdict of guilty as charged, upon which

lant from slaughtering animals on his own the court rendered judgment imposing a

premises, regardless of whether the business fine on the defendant, and abating the

is so conducted as to avoid the creation or nuisance complained of. From this judg

maintenance of a nuisance. In other words, ment, the present appeal is prosecuted.

the testimony in this case does not warrant The first assignment of error is that the

the conclusion that the business of slaughtercourt admitted testimony, over objection,

ing animals for food on the premises describtending to show that offensive odors arose

ed in the information cannot be conducted from the cooking tank maintained at the

without creating or causing a nuisance. In slaughterhouse; there being no averment in fact, this was not an issue in the case at all, the information authorizing such proof. The

under the allegations of the information, and record does not sustain this contention. The the plea of not guilty, nor was it made an information charged that a cooking tank was

issue at any stage of the trial. Such may kept and maintained at the slaughterhouse,

be the fact, but the evidence before us does that the offal and entrails of slaughtered

not establish it. The public must be protectanimals were cooked and boiled therein and ed against such conditions as are disclosed that by reason of such cooking and boiling

by this record, but individuals must also be offensive odors were emitted and sent forth. protected in their property rights. If the

The second assignment of error is that the business of the appellant can be conducted on court admitted evidence, over objection,

the premises described in the information tending to show the existence and mainte in such a manner as not to cause or create a nance of a nuisance at a place other than that nuisance, he should be permitted to so condescribed in the information. Evidence was duct it. If it cannot, the rights of the apadmitted, tending to show that blood and pellant must yield to those of the public. On water and putrid matter were permitted to this question of fact we express no opinion. flow from the premises described in the in The judgment is affirmed and the order of formation into and beyond the public high abatement will continue in force until modifiway adjoining the slaughterhouse.

Such

ed, but the appellant is granted leave to move proof necessarily tended to show the con for such modification within 30 days after

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filing the remittitur in the court below. the later act, for it is a remedial one, and he Upon the filing of such a motion the court cannot complain so long as the remedy given

satisfies the requirements of due process of law. will take further proof and determine

[FXd. Note.-For cases in point, see Cent. Dig. whether a slaughterhouse can be maintained

vol. 23, Forcible Entry and Detainer, § 4; vol. on the appellant's premises without creating 10, Constitutional Law, 88 925, 927, 928.) a nuisance; and, if it so finds, it will pre 6. SAME-PROOF-SUFFICIENCY. scribe the terms and conditions upon which Plaintiff, in a forcible entry and detainer such business may be conducted, and modify proceeding, proved title to the premises and that

defendant entered into possession without perthe order of abatement accordingly. Wilcox

mission and without color of title, and that due v. Henry, 35 Wash. 591, 77 Pac. 1055. If it notice to remove had been given and that he had finds that the business cannot lawfully be failed to comply therewith. Held to make out conducted there, the order of abatement will a prima facie case for plaintiff. stand. Neither party will recover costs on

[Ed. Yote.--For cases in point, see Cent. Dig.

vol. 23, Forcible Entry and Detainer, $ 140.] this appeal.

Appeal from Superior Court, King County; CROW, FULLERTON, HADLEY, and

R. B. Albertson, Judge. ROOT, JJ., concur. MOUNT, C. J., and Action by the Columbia & Puget Sound RailDUNBAR, J., not sitting,

road Company against Albert S. Moss, in which Mary E. Stevens and others inter

vened. From a judgment of nonsuit, plain(44 Wash. 589)

tiff appeals. Reversed, and new trial ordered. COLUMBIA & PUGET SOUND R. CO. V.

Piles, Howe & Farrell and Dallas V. HalMOSS (Stevens et al., Interveners).

verstadt, for appellant. Jerold Landon Finch, (Supreme Court of Washington. Dec. 7, 1906.)

for respondent. 1. FORCIBLE ENTRY AND DETAINER-STATUTORY PROVISIONS.

Laws 1891, p. 179, c. 96, 88 1, 2, defining RUDKIN, J. This was an action to reforcible entry or forcible detainer, and other cover possession of real property under the sections, providing that, if defendant denies

forcible entry and detainer laws of this state. plaintiff's claim of ownership and states facts showing that he has a lawful claim to the pos

The original complaint was filed on the 14th session, the action shall stand for trial as one day of June, 1905, under the second subdiof ejectment, etc., and Laws 1905, p. 173, c. vision of section 2 of the act of March 7, 86, amending certain sections of the act of

1891, which provides as follows: "Every per1891, are independent enactments, and the act of 1905 is not a re-enactment of section 1 of

son is guilty of a forcible detainer. * * the act of 1891.

(2) Who in the nighttime, or during the 2. SAME - WHAT CONSTITUTES UNLAWFUL absence of the occupant of any real propDETAINER.

erty, enters thereon, and who, after demand After one has served notice on another to remove from certain premises and the latter

made for the surrender thereof, refuses for fails to comply therewith, the latter is guilty the period of three days to surrender the same of unlawful detainer, provided the former can to such former occupant. The occupant of prove the allegations necessary to sustain his

real property within the meaning of this subcomplaint.

division is one who for the five days next [Ed. Note.-For_cases in point, see Cent. Dig. vol. 23, Forcible Entry and Detainer, $ 27.]

preceding such unlawful entry was in the 3. SAME-REMEDY-STATUTES.

peaceable and undisturbed possession of such The remedy of one seeking to charge an real property.” Laws 1891, p. 179, C. 96. other with being guilty of unlawful detainer is Afterwards an amended complaint was filed prescribed by the law in force at the time of

by leave of court, alleging not only a forcible the commencement of his action.

detainer under the above subdivision, but [Ed. Note. For cases in point, see Cent. Dig. vol. 23, Forcible Entry and Detainer, § 4.]

also an unlawful detainer under section 1

of the act of March 7, 1891 (Laws 1891, p. 4. SAME-WRIT OF RESTITUTION. Plaintiff in an action to recover possession

212, c. 115), and subdivision 6 of section 3 of realty under the forcible entry and detainer of the act of March 6, 1905 (Laws 1905, p. laws failed to append an abstract of its title

173, c. 86). The former section provides : to the complaint, as prescribed by Laws 1891, p. 179, c. 96, defining forcible entry and de

"That any person who shall, without the pertainer and prescribing the procedure in suits mission of the owner and without having therefor. He sued out a writ of restitution any color or title thereto, enter upon the before final judgment, which remedy was not

lands of another, and shall refuse to remove available under the act of 1891, but was available under Laws 1905, p. 173, c. 86, the

therefrom after three days' notice, shall be general forcible entry and detainer act. Held, deemed guilty of unlawful detainer and may that plaintiff elected to proceed under the be removed from such lands." The latter general forcible entry and detainer act, and he

subdivision is as follows: "A tenant of real must, to recover, prove the forcible or unlawful detainer, as alleged, for his rights are determined

property for a term less than life is guilty by that act.

of unlawful detainer either. * * * (6) 5. SAME-STATUTORY REMEDY-APPLICABILITY Any person who shall, without the permisTO DEFENDANT.

sion of the owner and without having any A person making an entry into the possession of land before Laws 1905, p. 173, c. 86,

color of title thereto, enter upon the land amending the general forcible entry and detainer of another and who shall fail or refuse to act, took effet, may be proceeded against under remove therefrom after three days' notice,

in writing, to be served in the manner provided in this act.” When taken in connection with the first part of the section, the language of the last subdivision is inaccurate and contradictory, but we think it is apparent that the Legislature intended to declare that the persons therein named should be deemed guilty of unlawful detainer. Issue was joined on the amended complaint and a trial had. At the conclusion of the plaintiff's testimony the court found that it was not in the peaceable and undisturbed possession of the property in controversy for the five days next preceding the unlawful entry complained of and granted a nonsuit. From this judgment, the plaintiff has appealed.

If the peaceable and undisturbed possession of the appellant for the five days next preceding the entry of the respondent were the only issue in the case, we are not prepared to say that there was error in the court's ruling, but, inasmuch as that question may not arise on a retrial, we will not decide it on this appeal. We are satisfied, however, that the appellant made out a prima facie case under other provisions of the statute, and that the respondent should have been put upon his defense. Counsel are not agreed as to the applicability of the amendatory act of 1905 to this case, nor as to the effect of that act upon a like provision found in section 1 of the act of 1891, supra. The appellant contends that the amendatory act of 1905 is but a re-enactment of section 1 of the act of 1891. The language of the two provisions is almost identical, and, if section 1 of the act of 1891 stood alone, the argument would perhaps be unanswerable, but other provisions of that act must be taken into consideration in determining the question. Section 2 of the act of 1891 provides that there must be embodied in or appended to the complaint an abstract of the plaintiff's title, and that the answer must state whether the defendant makes any claim of title, and, If he makes no such claim, but claims the right of possession, the answer must state the grounds upon which the right of possestion is clained. Section 3 provides that, if the answer denies the plaintiff's claim of ownership and states facts showing that the defendant has a lawful claim to the possession, the action shall stand for trial as one of ejectment. While, tlierefore, the general forcible entry and detainer statute as amended by the act of 1905 defines unlawful detainer in the language of the act of 1891, yet the procedure under the two acts is different. First, the pleadings are different. Under section 2 of the act of 1891 an abstract of the plaintiff's title must accompany the complaint, while under section 8 of the general forcible entry and detainer act the complaint need only be in writing and set forth the facts upon which the plaintiff seeks to recover, describing the property with reason

able certainty. Second, under the act of 1891 no writ of restitution is authorized until after final judgment; and third, under the forcible entry and detainer act as amended, the plaintiff must prove his cause of action as alleged, namely, that he is the owner of the property, that the defendant entered without permission and without having color of title thereto, that a proper notice to surrender possession was given and served, and that the defendant has failed to comply therewith. If he fail to prove the forcible entry or the forcible or unlawful detainer as alleged, he will fail in the action, while, under the act of 1891, the only effect of such failure is to convert the action into one of ejectment where the superior right will prevail. For these reasons, the act of 1905 is not a re-enactment of section 1 of the act of 1891, but, on the contrary, the general forcible entry and detainer act as amended by the act of 1905, and the act of 1891 are independent enactments both of which are in full force and effect. After the appellant served notice on the respondent to remove from the premises, and the failure of the respondent to comply therewith, the latter : was guilty of unlawful detainer, provided the appellant could prove the allegation of its complaint, and the remedy of the appellant was under the law in force at the time of the commencement of its action. It might proceed under the amendatory act of 1905, in which case it would be compelled to prove the forcible or unlawful detainer as alleged, or it might proceed under the act of 1891, under which the superior title would prevail. Having failed to append an abstract of its title to the complaint, and having sued out a writ of restitution before final judgment, it must be held to have elected to proceed under the general forcible entry and detainer act, and its rights will, therefore, be determined by that act. The respondent contends that his entry was made before the amendatory act took effect, and that such act cannot anply to him. The act is purely a remedial one, and the respondent has no vested right in a remedy. So long as the remedy given satisfies the requirements of due process of law he bas no just ground of complaint. In disposing of the case the court below expressed the opinion that the appellant's remedy was by ejectment, but it apparently overlooked the fact that unlawful detainer will lie under the above statutes in many cases where ejectment was the only remedy under former laws.

We will add in conclusion that the appellant alleged and proved its title to the property, that the respondent entered without permission and without having color of title thereto, that due notice to remove from the premises was given, and that the respondent failed to comply therewith. This made a prima facie case for the appellant, and the granting of a nonsuit was error.

Other parties intervened in the action, but costs. That on the date of the entry of the their rights were not determined in the court judgment, Alf H. Turner was the owner of below and will not be considered here. the legal title to the land in controversy in

For the error in granting the nonsuit, the this action. That, afterwards, on September judgment is reversed, and a new trial or 26, 1899, a motion was entered to revive the dered.

judgment, and served on all the defendants

therein except the defendant Alf H. Turner. MOUNT, C. J., and FULLERTON, HAD That the judgment was afterwards revived LEY, ROOT, DUNBAR, and CROW, JJ., as to all the defendants except Turner. That concur.

the judgment creditor W. V. Rinehart is now asserting a lien under his alleged judg

ment on the land which formerly belonged to (45 Wash. 1)

Turner, but which now belongs to the plainHEMAN V. RINEHART et al.

tiff, who purchased the same from Turner (Supreme Court of Washington. Dec. 13, 1906.)

without any knowledge of the pretended 1. INJUNCTION-RESTRAINING ORDER_EFFECT.

claim of Rinehart to a lien thereon. That Ballinger's Ann. Codes & St. § 5135, provides that no injunction shall be granted in the

the plaintiff, Frank J. Heman, owns the absence of reasonable notice, except , that in

land in law and in equity, discharged and cases of emergency to be shown by the com free from any claims of the defendant W. V. plaint, the court may grant a restraining order Rinehart or others claiming through or under until notice can be given and a hearing had thereon. Held, that an ex parte emergency

him, and that the claim asserted by Rinehart order restraining the collection of a judgment casts a cloud upon the plaintiff's title. The could not be made effective for more than 11 defendant W. V. Rinehart and the defendyears merely because the party restrained was

ant II. C. Hollenbeck, to whom he assigned not cited and failed to appear and more for a dissolution thereof, no further steps having been

his judgment, for their first affirmative detaken by plaintiff in the prosecution of the case. fense, alleged: That W. V. Rinehart ob2. JUDGMENT–LIEN.

tained his judgment against Turner on OctoWhere an order was granted restraining

ber 11, 1993; that the judgment has never the collection of a judgment, but no service was had on the defendant nor the proceeding

been reversed, vacated, or set aside, but is prosecuted to determination, it was the duty of still in full force and ellect. That at the i he judgment creditor, after the expiration of

date of its entry, Alf H. Turner was the a reasonable time, to have applied for a dissolution of the order and hence the mere pen

owner of the fee-simple title to the land dency thereof did not suspend limitations in so now claimed by plaintiff. That on Novemfar as it affected the lien of the judgment.

ber 23, 1893, Alf H. Turner commenced ac3. TAXES-LIEN CREDITOR-PAYMENT-LIEN.

tion No. 16,377 in the superior court of King Where a judgment creditor paid taxes on land, believing in good faith, though erroneously,

county against W. V. Rinehart, one of the that the judgment was still a lien on the land, defendants lierein, and others, to enjoin the the payment was not voluntary, and he thereby collection and enforcement of the judgment acquired an equitable lien on the land for the

against him, and that on the same date, taxes so paid with interest from the several dates of payment.

November 23, 1893, he obtained the following 4. JUDGMENT-LIEN-EXPIRATION_TIME.

restraining order: "It appearing from the Under the express provisions of Ballinger's complaint in the above-entitled action that a Ann. Codies & St. § 5132, a judgment ceased to

judgment was rendered in cause No. 16,254 be a lien on land of the judgment debtor at the expiration of five years from the date of its in favor of W. V. Rinehart and against Alrendition, and this, notwithstanding the judg fred 11. Turner, plaintiff herein; and it ment debtor's absence from the state.

further appearing to the satisfaction of the [Ed. Note.--For cases in point, see Cent. Dig.

court that plaintiff is entitled to have the vol. 30, Judgment, $$ 1388–1389.]

collection of said judgment enjoined as to Appeal from Superior Court, King County ; | himself, and is entitled to have a restraining Arthur E. Griffin, Judge.

order and injunction herein, restraining said Action by Frank J. Heman against W. V. defendant W. V. Rinehart, plaintiff in said Rinehart and another. From a judgment for cause No. 16,231 in the superior court of plaintiff, defendants appeal. Reversed and

King county from taking any further steps remanded.

or proceedings whatever for the enforceGeo. McKay, for appellants. Ira Bronson ment of said judgment against said plaintiff and D. B. Trefethen, for respondent.

Turner until the further order of this court,

and that plaintiff is further entitied to the CROW, J. This is an action to quiet title relief against said judgment asked for in to 80 acres of land in King county. The | his complaint herein; now, therefore, * plaintiff, Frank J. Heman, alleged: That it is hereby ordered and decreed by the on October 11, 1893, a judgment which had court that the said defendant W. V. Rinehart, been rendered on September 16, 1893, was his agents, servants, and every other perentered in the superior court of King county, son whomsoever, be, and they are, hereby in cause No. 16,254, in favor of W. V. Rine enjoined and restrained from collecting or in hart, one of the defendants herein and plain anywise proceeding to enforce the collectiff therein, against Alf H. Turner and others, tion of the said judgment or from taking defendants therein, for $5,500, interest and any steps or proceedings whatever un.

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