« PreviousContinue »
der authority of the said judgment ren- ment against Turner ceased to be a lien after dered against said Alf H. Turner in favor five years from the date of its rendition. He of said W. V. Rinehart in said cause num- further contends that the appellants Rinehart bered 16,254 of the superior court of King and Hollenbeck have not been enjoined from ('ounty, Wash., or under any execution is- reviving the judgment against Turner, and sued by authority of said judgment until the that having neglected to do so, they now hold further orders of this court; and that said no lien whatever against the land. The redefendant W. V. Rinehart be, and hereby straining order above set forth seems to is, cited to appear before this court upon the have been granted without notice, upon the 5th day of December, 1893, at 9:30 a. m., allegations of the complaint, as an emergency to show cause why this injunction should not order. It directed that the appellant Rinebe made perpetual.” That the foregoing hart be cited to appear on December 5, 1893, order has never been vacated. That although and show cause why the injunction should . the injunction has never been made permanent, not be made perpetual. There is no allegait is still in full force and effect. That on tion that the order was ever served on the June 17, 1905, the defendant Rinehart ap- appellant Rinehart, or that he was cited to peared in the injunction suit and filed and appear and show cause why the injunction served his answer, since which time no fur- should not be made perpetual. His first apther proceedings have been had. That the pearance was made by answer on June 17, injunction suit is still pending. That on 1905, more than 11 years after the entry of March 7, 1905, Alf H. Turner conveyed the
the restraining order, and nothing further land to the plaintiff Frank J. Heman, who
has been done. We then nave before us an took the same with notice of the judgment emergency restraining order, granted
, on lien of the defendants. That the sum of
November 23, 1893, on the allegations of a $12,200 remains due and unpaid on the judg
complaint without notice, and are called ment. That to preserve the judgment lien upon to determine its present legal effect. it became necessary to pay the taxes on the Section 5135, Ballinger's Ann. Codes & St.. land. And that the defendants had paid
provides that no injunction shall be granted such taxes, amounting to $221.20, the last
in the absence of reasonable notice, except payment made being taxes for the year that in cases of emergency, to be shown by 1.904. For their second affirmative defense the complaint, the court may grant a rethe defendants Rinehart and Hollenbeck al- straining order until notice can be given leged that, since the rendition of the judg- and a hearing had thereon. Evidently the ment in favor of Rinehart and against Tur
Legislature intended that such emergency ner, he, the said Turner, has been absent restraining order should be granted to prefrom and resided out of the state of Washing- serve the existing status for such a reasonton for periods of time equal to eight years
able time as might be required to give noin all. To each of these affirmative defenses tice to the party restrained and secure him the plaintiff Heman interposed a general and
a hearing. It surely could not have been the special demurrer, the grounds of special de
legislative intent that such an ex parte murrer being (1) that the action has not emergency order should continue in full force been commenced within the time limited by
and effect for an indefinite period, or, as is law; and (2) that several causes of action now contended by the appellants, for more have been improperly joined. The demur- than 11 years, simply because the party rers being sustained to both defenses, the
restrained was not cited, or failed to appear defendants declined to plead further. There- and move for a dissolution. In State ex upon judgment was entered in favor of the rel. v. Lichtenberg, 4 Wash. 407, 410, 30 Pac. plaintiff, quieting his title, and the defend- 716, this court, in construing section 270, ants have appealed.
Hill's Ann. St. & Codes (section 5435, BalThe appellants contend that the restraining linger's Ann. Codes & St.) said: “The proorder pleaded in their answer is still in full
visions of section 270 show a clear intent on force and effect, that by reason thereof they the part of the Legislature that no injunction have been continually enjoined from taking shall be granted without notice to the adany steps or proceedings whatsoever to en- verse party. The only power that is conforce or collect their judgment, that they ferred upon the court by said section is to have been unable to proceed by execution or grant an order to remain in force long enough by a motion to revive. They further con- to enable the required notice to be given. tend that the respondent, Heman, bought
And should the court, without notice, grant the land during the pendency of the injunc- an order for a longer time, its action in so tion suit; that by the injunction they
doing would be irregular. So long as notice have been been continuously prevented
prevented from can be given and an opportunity had for instituting any proceeding whatever on the party to present his application for an the judgment, and that their judgment injunction, aided by such notice, the restrainlien on respondent's land, which formerly be- ing order granted without such notice has longed to Turner, has therefore continued served its purpose, and should, if necesuntil the present time. On the other hand, sary, be set aside by the court. It may well
. the respondent contends that, under section be held, however, that no action of the court 5132, Ballinger's Ann. Codes & St., the judg- in that regard is required, as such order
would expire by its own force as soon as ments were not voluntary, but were made the parties were before the court upon no- in good faith. The judgment was an actual tice of the application for an injunction. lien for the period of five years after its renThe only purpose of such restraining order is dition, and the appellants have in good faith, to keep things in statu quo until the matter although erroneously, believed and insisted can be brought regularly before the court. that they have continued to hold a lien until And whether such order terminates by its the present time. Under the previous deown force or is terminated by order of the cisions of this court, they are entitled to an court, the clear intent of the Legislature ap- equitable lien on the land for the total pears in said section to protect the rights | amount of taxes paid by them, with interest of a party from other than a temporary in- from the several dates of payment. Packterference without first giving him an oppor- wood v. Briggs, 25 Wash. 530, 65 Pac. 846 ; tunity to be heard. The court gets no ju- Dunsmuir v. Port Angeles, etc., Power Co., 30
! risdiction in the matter for the purpose of Wash. 586, 71 Pac. 9; Rothchild Bros. v. interfering with the rights of either party | Rollinger, 32 Wash. 307, 73 Pac. 367; Ball v. until the giving of notice as required by stat- Clothier, 34 Wash. 299, 75 Pac. 1099. As the ute. The temporary order provided for in first affirmative defense pleaded facts showsaid section is not the result of the formal ing the appellants to be entitled to an equiaction of the court, with proper jurisdiction, table lien on the land for taxes paid by them, to determine whether or not the defendant's and as some of these taxes were paid as rights should be interfered with, but only the late as for the year 1901, the trial court erred exercise of extraordinary power vested in the in sustaining the respondent's demurrer to court from the necessities of the case to i such first affirmative defense. The demurprevent a failure of justice. Such being the rer to the second affirmative defense was evident intent of the Legislature, it will not ' properly sustained. Under section 5132, Balbe presumed to have placed it in the power linger's Ann. Codes & St. the judgment ceased of the moving party, against the will of the to be a lien at the expiration of five years court, to keep in force indefinitely an order from the date of its rendition. Brier V. which was only intended to remain in force Traders' Ntl. Bank, 24 Wash. 711, 64 Pac. until regular action of the court could be had | 831, Hardin v. Day, 29 Wash. 664, 70 Pac. in the matter." See, also, Coleman v. Colum- 118. The existence, validity, and extent of bia, etc., R. R. Co., 8 Wash. 227, 35 Pac. a judgment lien are entirely dependent up1077; Rockford Watch Co. v. Rumpf, 12 on statutory enactments. There is no statute Wash. 617, 42 Pac. 213; Larsen v. Winder, 14 in this state providing that absence of a Wash. 109, 44 Pac. 123, 53 Am. St. Rep. 861; judgment debtor from the state shall extend In re Groen, 22 Wash. 53, 60 Pac. 123.
the duration of a judgment lien beyond the The allegations of the first affirmative de- statutory period. The lien expired by limitafense of the answer fail to show that the tion without regard to the presence of Turappellant Rinehart ever appeared in the in- ner within the state, or his absence tterejunction suit prior to June 17, 1905, or that from. the order was ever served upon him. As- The judgment is reversed, and the cause sume, however, that it was served, and that remanded, with instructions to the honorable he wished to proceed with the collection of
trial court to overrule the demurrer to the his judgment, or desired to institute pro
first affirmative defense. ceedings for its revival, and that he did not intend to take any chance of being in con
DUNBAR, HADLEY and ROOT, JJ., contempt of court, he could have directed the
cur. MOUNT, C. J. and RUDKIN, J., not attention of the superior court to the re. straining order which had been granted on
sitting. the allegations of the complaint, and to the fact that no further showing had ever been
(44 Wash. 615) made. Had he done this, he would undoubt
STATE V. PHILIP. edly have secured an order dissolving the injunction, and permitting him to proceed in (Supreme Court of Washington. Dec. 8, 1906.) such lawful manner as he might desire. He
CRIMINAL LAW COURT COMMISSIONERS-JUis now in no position to plead the order for
RISDICTION. the purpose of showing that he has been con
Const. art. 4, § 23, provides for the aptinually enjoined, or that his judgment lien pointment of court commissioners with authori. has been preserved until the present time.
ty to perform the duties of a judge of the superi
or court at chambers. Laws 1891, p. 92, c. 54, Nor can the fact that no further action was
§ 5, declares that a judge may exercise out of taken by Turner, the plaintiff in the injunc- court all the powers expressly conferred on a tion suit, excuse him for his own laches and judge as contradistinguished from a court, and
not otherwise. Ballinger's Ann. Codes & St. delay. The answer fails to show a judgment
6884, requires that a defendant must be arlien on the respondent's land. The first af. raigned before the court." Section 6901 defirmative defense does, however, allege the clares that a plea of guilty can only be put in payment of $231.20 of general taxes by the
by defendant himself in open court, and section
6975 that the court must render judgment appellants, which they made for the purpose
where defendant is found guilty. Held, that a of protecting their asserted lien. These pay- court commissioner had no power to accept a
plea of guilty on an information for a felony and sentence the defendant to imprisonment thereon.
Appeal from Superior Court, Okanogan County; Frank H. Foster, Commissioner.
One Philip, an Indian, was convicted of horse stealing, and he appeals. Reversed.
Perry D. Smith, for appellant.
RUDKIN, J. The defendant in this action was arraigned before a court commissioner appointed by the judge of the superior court for Okanogan county on a charge of horse stealing. lIe entered a plea of guilty to the information filed against him, and was thereupon sentenced to imprisonment in the penitentiary at hard labor for the term of one year. From this judgment and sentence the present appeal is prosecuted.
The only question discussed in the briefs is this: Under the Constitution and laws of this state has a court commissioner power to take the arraignment of a prisoner charged with a felony, accept a plea of guilty, and render judgment thereon? The constitutional provision relating to court commissioners is as follows: "There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number, who shall have authority to perform like duties as a judge of the superior court at chambers, subject to revision by such judge, to take depositions and to perform such other business connected with the administration of justice as may be prescribed by law." Const. art. 4, § 23. An act was approved March 19, 1895, providing for the appointment of court commissioners and defining their powers and duties (Laws 1895, p. 164, c. 83); but, inasmuch as that act does not attempt to confer upon court commissioners any such powers as were exercised in this case, its provisions need not be further considered. Under our present system of courts there seems to be a confusion of ideas as to the powers or functions of superior judges at chambers. In Peterson v. Dillon, 27 Wash. 78, 67 Pac. 397, the court used the following language: “Under our present system, when an act of a judicial nature is performed by a judge, it is, in contemplation of law, done in open court, although the act may in reality be done ir: the private room or office of the judge.” If the above is a correct statement of the law, and our Constitution means what it says when it declares that court commissioners have authority to perform like duties as a judge of the superior court at chambers, it is scarcely necessary to add that court commissioners are entirely eliminated from our judicial system. Realizing this, the court in. timated rather than decided in the above case that court commissioners have like powers as were exercised by territorial district judges at chambers at the time of the adop
tion of the state Constitution. This is certainly a strained construction of very plain language, and we cannot believe that the framers of the Constitution intended to de fine the powers of important judicial officers by reference to the legislation of a government which was about to pass out of existence forever. There may be little necessity for conferring any considerable power on a judge at chambers, when the court over which he presides is always open. Yet the fact that a court is always open is not nec“essarily incompatible with the exercise of certain judicial functions by the judge of that court at chambers—at least the framers of the Constitution did not so consider it. Nor has the Legislature. Section 5 of the act of February 26, 1891 (Laws 1891, p. 92, c. 54), defines the powers of superior judges at chambers as follows: "A judge may exercise out of court all the powers expressly conferred upon a judge as contradistinguished from a court and not otherwise.” Laws 1891, p. 91, c. 54. Here is a legislative recognition and definition of the powers of superior judges at chambers, and we see no reason why it is not controlling. In the case before us it matters little whether the powers of court commissioners are regulated by section 2138 of the Code of 1881, defining the powers of territorial district judges at chambers, or by the act of 1891, supra, defining the powers of superior judges at chambers, or by the act of 1895, supra, providing for the appointment of court commissioners and defining their powers and duties. Under section 6884, Ballinger's Ann. Codes & St., a defendant must be arraigned before the court. Under section 6901, Id., "the plea of guilty can only be put in by the defendant himself in open court." Under section 6975, Id., the court must render judgment where the defendant is found guilty. In the face of these mandatory provisions of the statute judges at chambers and court commissioners are alike powerless.
The judgment is therefore reversed, and the cause is remanded for further proceedings.
MOUNT, C. J., and ROOT, HADLEY, DUNBAR, and CROW, JJ., concur. FUL LERTON, J., concurs in result.
(44 Wash. 675) GRAVES v. WASHINGTON WATER POW
ER CO. (Supreme Court of Washington. Dec. 13, 1906.) 1. ELECTRICITY – PERSONAL INJURIES – TRESPASSERS.
A boy who was injured while climbing on a pier of a public bridge, by touching a live wire å short distance from such pier, and who was not an agent or employé of the city, having some duty in connection with the bridge, was not in a place where the general public may rightfully go for purposes of business or pleasure, but was a trespasser, and hence the electric company was not liable for the injury under the rule that the law imposes on persons manu.
facturing and dealing in or handling highly , beams and around the top of said bridge, said dangerous elements and substances, the duty of bridge and the supports thereof were attractexercising the highest degree of care to protect
ive to small boys, and that small boys frepersons from danger in all places where the general public may rightfully go for purposes of quented same for playing and climbing business and pleasure.
thereon, and had done so for a long time, and [Ed. Note.--For cases in point, see Cent. Dig. that appellant knew, or should have known, vol. 18, Electricity, $ 8.]
thereof. It is further alleged that on March 2. NEGLIGENCE-PLACES ATTRACTIVE TO CIIIL
10, 1905, respondent climbed one of said DREN. The fact that a public bridge over a river
piers, and, when about 30 feet high, somewas attractive to boys did not render an elec- thing touched his coat, and he involuntarily tric company liable for injuries to a boy re
put out his hand, and took hold of a live ceived while climbing up a pier, and caused by his touching one of the company's live wires,
wire, and received the shock and injury comwhere he was not lured to the place of the in- plained of, and that as respondent fell be jury by reason of any attraction connected with came in contact with other wires; that his any property of the company.
fingers and thumb had to be amputated. A [Ed. Vote.-For cases in point, see Cent. Dig. demurrer was interposed to the complaint vol. 37, Negligence, $ 55.]
and overruled. Appellant answered, denying 3. SAME--ANTICIPATION OF INJURY. An electric company was not liable for in
the material allegations of the complaint, exjuries to a boy received while climbing up a cept formal matters, and those covered by pier of a public bridge, caused by his touching the following admissions : "That respondent a live wire strung upon the electric company's poles, over 30 feet above the ground, under ile
was at least 15 years old at time of accident; rule that one must so use his own property as
that appellant is a corporation, and ennot to injure another, since the company could gaged in manufacturing electricity, and furnot reasonably be expected to anticipate such | nishing and selling same; that its power injury.
house is on the south bank of the Spokane [Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, § 72.1
river, immediately east of the piers of the
Monroe Street Bridge; that the top of said Appeal from Superior Court, Spokane bridge is used as a public thoroughfare; County ; Miles Poindexter, Judge.
that the roadway or top of said bridge is Action by Philip L. Graves, by Marie L.
at a great height from the ground and waGraves, as guardian ad litem, against the
ter underneath same; that said bridge is Washington Water Power Company. From
held in position by a series of steel supports a judgment in favor of plaintiff, defendant of great height; that the said supports, in appeals. Reversed and remanded.
some places, are held together by steel plates II. M. Stephens, for appellant. 0. C. Moore or slats of steel, which slats or plates are and F. T. Post, for respondent.
run from one support to another on an an
gle; that on and prior to March 10, 1905. ROOT, J. This appeal is from a judg- poles
poles and wires were maintained at the ment against appellant for personal inju
inju- | place complained of, and that some of the ries sustained by respondent, a boy of 15 wires were constantly charged with electriciyears of age. The complaint sets forth that ty.” The defense of contributory negligence respondent was injured by reason of contact was pleaded, and it was alleged that apwith the wires of appellant, which were pellant had used the best means of insulation charged with electricity; that the power known to science. house of appellant is immediately east of There is but little controversy between what is known as the "Monroe Street the parties as to the character of the bridge, Bridge," which spans the Spokane river, and and the location and use of the electric connects Monroe street on the north and wires. It appeared from the evidence that south sides of said river; that said bridge is pigeons were in the habit of nesting about a public thoroughfare, and is the property of the bridge, and that boys sometimes climbed the city of Spokane; that the driveway, road- the piers in order to catch the pigeons, or way, and footpaths of said bridge are at the find their nests, and sometimes as a matter height of about 100 feet from the water in of sport, and in playing such games as said river; that said bridge is supported by
"follow the leader." It appears that near piers built by means of plates of steel at the foot of the piers on the other side of a slight angle, with strips to and from such the river there were good play grounds, but plates, set at an angle, so that same can be such was not the case on the side where used as a ladder, which alleged ladders are respondent was injured, although boys were inviting and attractive to small boys to frequently about there. It was in evidence climb and play thereon; that some of said that boys were seen playing about the piers and alleged ladders are near the power bridge at different times during the period house of appellant; that appellant's electric of two or three years immediately prior wires are in close proximity to one of said to this accident. It does not appear that piers; that by reason of the construction of they were in the habit of climbing the pier said piers in said ladder-like form, in close near which the wires were, and from which proximity to said river, and that at certain respondent fell. The evidence does not show seasons of the year pigeons are in the habit that appellant had actual knowledge of boys of nesting and rearing their young on the climbing these piers, nor that there was such an aniont of climbing near the wires as spondent was a trespasser toward whom the would impute knowledge to it thereof. Re- appellant owed no duty other than to avoid spondent's witness McCormick, bridge fore- willful injury; that its wires were being man and inspector for the city, testified that used for a legitimate purpose, in a place the bridge was 138 feet above the water in where they had authority to place them, and the river; that the lattice work was sharp that there is nothing in the circumstances and hard on the feet and hands, and did not alleged or proven sufficient to fix liability make a good ladder; that he had sometimes upon it for the injuries sustained by reseen boys around the bridge, usually at the spondent. Respondent meets these contenother end, and had driven them away; that tions of appellant by the assertion of several he had never seen boys on any of the piers propositions which we will consider seriatim. higher than 23 or 24 feet. This evidence did He urges first: "The law imposes on persons not seem to be disputed in any material part. manufacturing and dealing in or handling Another of respondent's witnesses, one Rog- highly dangerous elements and substances, ers, a policemen of the city of Spokane, tes- such as electricity and dynamite, the duty of tified that his duties required him to be exercising the highest degree of care to pronear this bridge; that he had seen boys play- tect persons from danger in all places where ing about the bridge off and on for two or the general public may rightfully go for purthree years; that he had orders to chase them poses of business or pleasure.” Accepting away, and did so. He had never seen them this as a correct statement of the law, let us climb the piers, but had seen them on top apply it to the facts of this case. Can we of the bridge at each end; that he had or- say that "the general public may rightfully diers to keep the boys away from there. One go for purposes of business or pleasure" up Gannon, a witness for the respondent, had or down the side of a high and almost perseen boys climbing all over the bridge, but pendicular pier of a public bridge across a usually at places other than where this ac- river, climbing upon the diagonally attached (iilent occurred. He worked for the city, slats of steel as did respondent? Was it and was in the habit of chasing the boys ever contemplated that such a use should away. Respondent testified that he
that he was be made of the piers of this bridge by the playing "hookey" from school; that he saw general public? We apprehend not. The soine pigeons flying about the bridge, and bridge was constructed for the purpose of (limbed one of the piers; that he felt some- furnishing the public a means of crossing a thing touch the back of his coat, and reach- goodly sized river. It was intended that ing around and without seeing the wires, in- the public should walk or ride upon the roadvoluntarily took hold of one, and was thrown way at the top of said bridge. The lattice to the ground by the shock, his hand being work upon the sides of these piers was not badly burned; that he could have seen the intended to constitute ladders or furnish wire had he looked. He stated that he had means of access to or from the top of the never previous to that time been under or bridge. The public was not invited nor exclimbed about the bridge. It appears from pected to use such lattice work for such the evidence that the electric wires do not a purpose. No one, other than an employé or run exactly straight or parallel with the agent of the city intrusted with some duty in bridge, but are nearer to this particular pier connection with the inspection, supervision, than to any other. Respondent was 30 or care, or repairing of said bridge, would have more feet from the ground when he fell. any authority to climb up or down said latThe plates or strips of steel were 12 to 15 tice work. This being true, it follows that inches long, 2 or 3 inches wide, one-fourth of respondent as one of the general public had an inch thick, with sharp corners or edges, no authority justifying his presence at the and fastened upon the steel piers so
place where he was injured. It is not preform sharp angles, rather than being at- tended that he was an employé or agent of tached at right angles as is the case with the the city, or that he had any authority thererungs of an ordinary ladder. The wire near- from to be there. He was not even a licensee, est to the pier was 1512 inches distant there- but was a mere trespasser. It will, therefrom, and was on the lowest arm of the fore, be seen that the proposition of law urged electric pole, and was insulated and carried by respondent, as above set forth, cannot comparatively low voltage. The next wire avail him under the circumstances of this above was 18 inches from the pier. From the case. complant and evidence we think it unques- 2. Respondent urges “that it may always tionably appears that respondent took hold be assumed that every person has performed of a wire some distance above those two his duty under the law, and hence that the wires which was heavily charged with elec- placing of wires or other electrical apparatus tricity, and some 30 inches from the bridge in close proximity to places or structures pier.
where persons rightfully go for business or It is urged by appellant that the complaint | pleasure constitutes an implied assurance of does not state a cause of action, and that the safety, and an invitation to take hold of, or evidence introduced is not sufficient to sup- come in contact with, such wires, if such port any verdict or judgment in favor of persons may for any reason choose to do so.” respoudent. It is contended that the re- This proposition of law, even if sound (which