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FULLERTON, DUNBAR, and CROW, JJ., concur. MOUNT, C. J., and RUDKIN, J., not sitting.

(44 Wash. 665)

CUMMINGS et al. v. SUNICH. (Supreme Court of Washington. Dec. 11, 1906.) APPEAL REVIEW - DISCRETION OF COURT — NEW TRIAL.

Where the evidence in an action was conflicting, the discretion of the trial court in granting a new trial for insufficiency of the evidence, or because of newly discovered evidence, will not be reviewed on appeal.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3871, 3876.]

Appeal from Superior Court, King County; John B. Yakey, Judge.

Action by Mary A. Cummings and husband against Nicholas Sunich. From an order granting defendant a new trial, plaintiffs appeal. Affirmed.

Fred

McCafferty & Bell, for appellants. H. Peterson and H. C. Force, for respondent.

HADLEY, C. J. This action was brought under the forcible entry and detainer statute, for the purpose of recovering possession of a certain lot in Seattle. The plaintiffs are not, and at no time have been, the owners of the lot, but for several years they were given parol permission by a former owner to occupy the lot, with chicken coops and a chicken house or a small barn for the purpose of raising chickens, but without payment of rent. They were so occupying it when the defendant purchased the lot from the former owner. The defendant at once notified plaintiffs that he had purchased the lot, and that he desired them to remove their structures therefrom, so that he might proreed to construct a house thereon for his home. The removal was not made at once, and the testimony conflicts as to just what occurred between the parties. The testimony submitted by defendant is to the effect that plaintiffs at once stated that they would remove at any time when defendant was ready to occupy for the purpose of building; that defendant built a fence between his lot and that of plaintiffs adjoining, and placed material upon the ground ready for constructing his building, all without objection from plaintiffs; that when he was ready to begin construction, he removed the chicken coops and tore down the small building of the plaintiffs; that Mrs. Cummings, one of the plaintiffs who was present, made no objection to the removal, but did object to the manner of removal; that Mr. Cummings, her husband and coplaintiff, was present, and did not object in any manner. Mrs. Cummings testified at the trial, but her husband did not. She says the removal was without the consent of plaintiffs, and she testified that she asked defendant to leave the work of tearing down until her husband could assist in looking after the structures, saying

that he was then at home sick and unable to be out. The cause was tried by the court without a jury, and the court found for the plaintiffs, awarding them possession of the lot in controversy, and also judgment for $25 damages. The defendant moved for a new trial, and submitted affidavits of persons whose evidence was discovered subsequently to the trial, that they saw Mr. Cummings present at the time of the removal of the buildings and structures, and that he assisted the defendant in removing them. The motion for a new trial was granted, and the plaintiffs have appealed from the order granting the new trial.

The evidence was conflicting, and the affidavits submitted on the motion for new trial show new and material evidence as to whether respondent's entry was peaceable or forcible. That is a material question of fact in the case. It has been often held by this court that it will not disturb an order granting a new trial in the absence of an abuse of discretion, and that when the evidence conflicts as to material facts, the granting of a new trial for insufficiency of the evidence, or because of newly discovered material evidence, will not be held to be an abuse of discretion. The above grounds, with others, were alleged in the motion for new trial, and the order does not specify upon what ground the motion was granted. It will therefore be presumed that the court was influenced to grant the new trial by reason of the conflicting testimony and proposed testimony, and that its discretion was exercised in that regard. regard. If the ruling of the trial court were based upon a mere question of law, then this court might. in line with previous holdings cited by appellants, review the ruling for mere error, there being no discretion involved in such a ruling. This is, however, not such a case. Discretion is involved here, but we shall not say from the record in the case that the court abused its discretion. The judgment is affirmed.

FULLERTON, CROW, and DUNBAR, JJ., concur. MOUNT, C. J., and RUDKIN, J., not sitting

(45 Wash. 9)

STATE v. SCHAEFER. (Supreme Court of Washington. Dec. 14, 1906.) 1. NUISANCE-PROSECUTION-EVIDENCE.

On a prosecution for maintaining on certain premises a nuisance, by reason of the way in which a slaughterhouse was conducted thereon, admission of evidence that blood and putrid matter were permitted to flow from said premises into and beyond the adjoining highway, is not error, it tending to show the conditions on the premises, and the jury being expressly charged that they were confined in their deliberations to a nuisance committed and maintained on said premises.

2. SAME-EXTENT OF ABATEMENT.

On a prosecution for maintaining a nuisance the issue being whether a slaughterhouse was being conducted so as to be a nuisance, and

there being no issue or evidence as to whether it could not be conducted without causing a nuisance, an order absolutely prohibiting slaughtering, regardless of whether its objectionable features be removed so as to avoid the maintenance of a nuisance, is too broad.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Nuisance, § 218.]

Appeal from Superior Court, Asotin County; C. F. Miller, Judge.

Jacob Schaefer was convicted of maintaining a nuisance, and appeals. Affirmed, with leave to move for modification of order of abatement.

Geo. W. Tannahill and Sturdevant & Bailey, for appellant. Geo. H. Rummens, for respondent.

RUDKIN, J. This was a prosecution for the crime of maintaining a public nuisance. The information is somewhat voluminous, but the substance of the charge is that the defendant maintained a slaughterhouse on certain described premises in which the business of slaughtering cattle, hogs, and sheep was conducted and carried on, and that, by reason of the maintenance of such slaughterhouse, the slaughtering of animals therein, the cooking and boiling of the offal and entrails of such animals in a cooking tank kept and maintained at said slaughterhouse, the feeding of such offal and entrails to hogs and chickens, and the accumulation of blood and decayed matter, vile, offensive, and noxious exhalations, injurious and dangerous to the health, comfort, safety, and repose of persons traveling upon or along the roads and highways, and living in the vicinity of such slaughterhouse, were emitted and sent forth into the air. The jury returned a verdict of guilty as charged, upon which the court rendered judgment imposing a fine on the defendant, and abating the nuisance complained of. From this judgment, the present appeal is prosecuted.

The

The first assignment of error is that the court admitted testimony, over objection, tending to show that offensive odors arose from the cooking tank maintained at the slaughterhouse; there being no averment in the information authorizing such proof. The record does not sustain this contention. information charged that a cooking tank was kept and maintained at the slaughterhouse, that the offal and entrails of slaughtered animals were cooked and boiled therein and that by reason of such cooking and boiling offensive odors were emitted and sent forth. The second assignment of error is that the court admitted evidence, over objection, tending to show the existence and maintenance of a nuisance at a place other than that described in the information. Evidence was admitted, tending to show that blood and water and putrid matter were permitted to flow from the premises described in the information into and beyond the public highway adjoining the slaughterhouse. Such proof necessarily tended to show the con

ditions existing on the premises described in the information, and the court expressly charged the jury that they were confined in their deliberations to a nuisance committed and maintained on said premises. There was no error in the ruling complained of.

The third and fourth assignments are based upon the ground that the order of abatement was too sweeping and deprived the appellant of his property without compensation and without due process of law. The order of abatement recites substantially all the facts charged in the information, and adjudges and decrees that from and after ten days from the date of the order, the appellant, his agents, servants, and employés shall desist and refrain from cooking or boiling the entrails and offal of slaughtered animals on said premises, and after forty days from date of the order, shall further desist and refrain from killing or slaughtering any animals of any kind thereon. are of opinion that the order of abatement went farther than was justified by the facts before the court.

The court charged the jury that "The business of slaughtering animals for food is not a nuisance, as a matter of law, independently of the manner in which it was conducted, but you must find from the evidence beyond a reasonable doubt that it was conducted in such a manner as to be a public nuisance as This is no heretofore explained to you."

doubt a correct statement of the law, but the court went beyond this in its order of abatement. While the order was fully warranted by the testimony, so long as the business of the appellant is conducted as at present, yet the order absolutely prohibits the appellant from slaughtering animals on his own premises, regardless of whether the business is so conducted as to avoid the creation or maintenance of a nuisance. In other words, the testimony in this case does not warrant the conclusion that the business of slaughtering animals for food on the premises described in the information cannot be conducted without creating or causing a nuisance. In fact, this was not an issue in the case at all, under the allegations of the information, and the plea of not guilty, nor was it made an issue at any stage of the trial. Such may be the fact, but the evidence before us does not establish it. The public must be protected against such conditions as are disclosed by this record, but individuals must also be protected in their property rights. If the business of the appellant can be conducted on the premises described in the information in such a manner as not to cause or create a nuisance, he should be permitted to so conduct it. If it cannot, the rights of the appellant must yield to those of the public. On this question of fact we express no opinion.

The judgment is affirmed and the order of abatement will continue in force until modified, but the appellant is granted leave to move for such modification within 30 days after

filing the remittitur in the court below. Upon the filing of such a motion the court will take further proof and determine whether a slaughterhouse can be maintained on the appellant's premises without creating a nuisance; and, if it so finds, it will prescribe the terms and conditions upon which such business may be conducted, and modify the order of abatement accordingly. Wilcox v. Henry, 35 Wash. 591, 77 Pac. 1055. If it finds that the business cannot lawfully be conducted there, the order of abatement will stand. Neither party will recover costs on this appeal.

CROW, FULLERTON, HADLEY, and ROOT, JJ., concur. MOUNT, C. J., and DUNBAR, J., not sitting.

(44 Wash. 589)

COLUMBIA & PUGET SOUND R. CO. v. MOSS (Stevens et al., Interveners). (Supreme Court of Washington. Dec. 7, 1906.) 1. FORCIBLE ENTRY AND DETAINER-STATUTORY PROVISIONS.

Laws 1891, p. 179, c. 96, §§ 1, 2, defining forcible entry or forcible detainer, and other sections, providing that, if defendant denies plaintiff's claim of ownership and states facts showing that he has a lawful claim to the possession, the action shall stand for trial as one of ejectment, etc., and Laws 1905, p. 173, c. 86, amending certain sections of the act of 1891, are independent enactments, and the act of 1905 is not a re-enactment of section 1 of the act of 1891.

2. SAME - WHAT CONSTITUTES UNLAWFUL DETAINER.

After one has served notice on another to remove from certain premises and the latter fails to comply therewith, the latter is guilty of unlawful detainer, provided the former can prove the allegations necessary to sustain his complaint.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Forcible Entry and Detainer, § 27.] 3. SAME REMEDY-STATUTES.

The remedy of one seeking to charge another with being guilty of unlawful detainer is prescribed by the law in force at the time of the commencement of his action.

[Ed. Note. For cases in point, see Cent. Dig. vol. 23, Forcible Entry and Detainer, § 4.] 4. SAME-WRIT OF RESTITUTION.

Plaintiff in an action to recover possession of realty under the forcible entry and detainer laws failed to append an abstract of its title to the complaint, as prescribed by Laws 1891, p. 179, c. 96, defining forcible entry and detainer and prescribing the procedure in suits therefor. He sued out a writ of restitution before final judgment, which remedy was not available under the act of 1891, but was available under Laws 1905, p. 173, c. 86, the general forcible entry and detainer act. Held, that plaintiff elected to proceed under the general forcible entry and detainer act, and he must, to recover, prove the forcible or unlawful detainer, as alleged, for his rights are determined

by that act.

5. SAME-STATUTORY REMEDY-APPLICABILITY TO DEFENDANT.

A person making an entry into the possession of land before Laws 1905, p. 173, c. 86, amending the general forcible entry and detainer act, took effect, may be proceeded against under

the later act, for it is a remedial one, and he cannot complain so long as the remedy given satisfies the requirements of due process of law.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Forcible Entry and Detainer, § 4; vol. 10, Constitutional Law, §§ 925, 927, 928.] 6. SAME-PROOF-SUFFICIENCY.

Plaintiff, in a forcible entry and detainer proceeding, proved title to the premises and that defendant entered into possession without permission and without color of title, and that due notice to remove had been given and that he had failed to comply therewith. Held to make out a prima facie case for plaintiff.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Forcible Entry and Detainer, § 140.]

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by the Columbia & Puget Sound Railroad Company against Albert S. Moss, in which Mary E. Stevens and others intervened. From a judgment of nonsuit, plaintiff appeals. Reversed, and new trial ordered.

Piles, Howe & Farrell and Dallas V. Halverstadt, for appellant. Jerold Landon Finch, for respondent.

RUDKIN, J. This was an action to recover possession of real property under the forcible entry and detainer laws of this state. The original complaint was filed on the 14th day of June, 1905, under the second subdivision of section 2 of the act of March 7, 1891, which provides as follows: "Every person is guilty of a forcible detainer. * * (2) Who in the nighttime, or during the absence of the occupant of any real property, enters thereon, and who, after demand made for the surrender thereof, refuses for the period of three days to surrender the same to such former occupant. The occupant of real property within the meaning of this subdivision is one who for the five days next preceding such unlawful entry was in the peaceable and undisturbed possession of such real property." Laws 1891, p. 179, c. 96. Afterwards an amended complaint was filed by leave of court, alleging not only a forcible detainer under the above subdivision, but also an unlawful detainer under section 1 of the act of March 7, 1891 (Laws 1891, p. 212, c. 115), and subdivision 6 of section 3 of the act of March 6, 1905 (Laws 1905, p. 173, c. 86). The former section provides: "That any person who shall, without the permission of the owner and without having any color or title thereto, enter upon the lands of another, and shall refuse to remove therefrom after three days' notice, shall be deemed guilty of unlawful detainer and may be removed from such lands." The latter subdivision is as follows: "A tenant of real

property for a term less than life is guilty of unlawful detainer either. *** (6) Any person who shall, without the permission of the owner and without having any color of title thereto, enter upon the land of another and who shall fail or refuse to 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 claimed. 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, therefore, 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 apply 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 has no just ground of complaint. 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.

In

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 their rights were not determined in the court below and will not be considered here.

For the error in granting the nonsuit, the judgment is reversed, and a new trial ordered.

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

concur.

(45 Wash. 1)

HEMAN v. RINEHART et al. (Supreme Court of Washington. Dec. 13, 1906.) 1. INJUNCTION-RESTRAINING ORDER-EFFECT.

Ballinger's Ann. Codes & St. § 5435, provides that no injunction shall be granted in the absence of reasonable notice, except, that in cases of emergency to be shown by the complaint, the court may grant a restraining order until notice can be given and a hearing had thereon. Held, that an ex parte emergency order restraining the collection of a judgment could not be made effective for more than 11 years merely because the party restrained was not cited and failed to appear and move for a dissolution thereof, no further steps having been taken by plaintiff in the prosecution of the case. 2. JUDGMENT-LIEN.

Where an order was granted restraining the collection of a judgment, but no service was had on the defendant nor the proceeding prosecuted to determination, it was the duty of the judgment creditor, after the expiration of a reasonable time. to have applied for a dissolution of the order and hence the mere pendency thereof did not suspend limitations in so far as it affected the lien of the judgment. 3. TAXES LIEN CREDITOR-PAYMENT-LIEN.

Where a judgment creditor paid taxes on land, believing in good faith, though erroneously, that the judgment was still a lien on the land, the payment was not voluntary, and he thereby acquired an equitable lien on the land for the taxes so paid with interest from the several dates of payment.

4. JUDGMENT-LIEN-EXPIRATION-TIME.

Under the express provisions of Ballinger's Ann. Codes & St. § 5132, a judgment ceased to be a lien on land of the judgment debtor at the expiration of five years from the date of its rendition, and this, notwithstanding the judgment debtor's absence from the state.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1388-1389.]

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Frank J. Heman against W. V. Rinehart and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Geo. McKay, for appellants. Ira Bronson and D. B. Trefethen, for respondent.

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costs. That on the date of the entry of the judgment, Alf H. Turner was the owner of the legal title to the land in controversy in this action. That, afterwards, on September 26, 1899, a motion was entered to revive the judgment, and served on all the defendants therein except the defendant Alf H. Turner. That the judgment was afterwards revived as to all the defendants except Turner. That the judgment creditor W. V. Rinehart is now asserting a lien under his alleged judgment on the land which formerly belonged to Turner, but which now belongs to the plaintiff, who purchased the same from Turner without any knowledge of the pretended claim of Rinehart to a lien thereon. That the plaintiff, Frank J. Heman, owns the land in law and in equity, discharged and free from any claims of the defendant W. V. Rinehart or others claiming through or under him, and that the claim asserted by Rinehart casts a cloud upon the plaintiff's title. The defendant W. V. Rinehart and the defendant II. C. Hollenbeck, to whom he assigned his judgment, for their first affirmative defense, alleged: That W. V. Rinehart obtained his judgment against Turner on October 11, 1893; that the judgment has never been reversed, vacated, or set aside, but is still in full force and effect. That at the date of its entry, Alf H. Turner was the owner of the fee-simple title to the land now claimed by plaintiff. That on November 23, 1893, Alf H. Turner commenced action No. 16,577 in the superior court of King county against W. V. Rinehart, one of the defendants herein, and others, to enjoin the collection and enforcement of the judgment against him, and that on the same date, November 23, 1893, he obtained the following restraining order: "It appearing from the complaint in the above-entitled action that a judgment was rendered in cause No. 16,254 in favor of W. V. Rinehart and against AIfred H. Turner, plaintiff herein; and it further appearing to the satisfaction of the court that plaintiff is entitled to have the collection of said judgment enjoined as to himself, and is entitled to have a restraining order and injunction herein, restraining said defendant W. V. Rinehart, plaintiff in said cause No. 16,254 in the superior court of King county from taking any further steps or proceedings whatever for the enforce ment of said judgment against said plaintiff Turner until the further order of this court, and that plaintiff is further entitied to the relief against said judgment asked for in his complaint herein; now, therefore,

it

*

it is hereby ordered and decreed by the court that the said defendant W. V. Rinehart, his agents, servants, and every other person whomsoever, be, and they are, hereby enjoined and restrained from collecting or in anywise proceeding to enforce the collection of the said judgment or from taking any steps or proceedings whatever

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