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der authority of the said judgment rendered against said Alf H. Turner in favor of said W. V. Rinehart in said cause numbered 16,254 of the superior court of King county, Wash., or under any execution issued by authority of said judgment until the further orders of this court; and that said defendant W. V. Rinehart be, and hereby is, cited to appear before this court upon the 5th day of December, 1893, at 9:30 a. m., to show cause why this injunction should not be made perpetual." That the foregoing order has never been vacated. That although the injunction has never been made permanent, it is still in full force and effect. That on June 17, 1905, the defendant Rinehart appeared in the injunction suit and filed and served his answer, since which time no further proceedings have been had. That the injunction suit is still pending. That on March 7, 1905, Alf H. Turner conveyed the land to the plaintiff Frank J. Heman, who took the same with notice of the judgment lien of the defendants. That the sum of $12,200 remains due and unpaid on the judgment. That to preserve the judgment lien it became necessary to pay the taxes on the land. And that the defendants had paid such taxes, amounting to $221.20, the last payment made being taxes for the year 1904. For their second affirmative defense the defendants Rinehart and Hollenbeck alleged that, since the rendition of the judgment in favor of Rinehart and against Turner, he, the said Turner, has been absent from and resided out of the state of Washington for periods of time equal to eight years in all. To each of these affirmative defenses the plaintiff Heman interposed a general and special demurrer, the grounds of special demurrer being (1) that the action has not been commenced within the time limited by law; and (2) that several causes of action have been improperly joined. The demurrers being sustained to both defenses, the defendants declined to plead further. Thereupon judgment was entered in favor of the plaintiff, quieting his title, and the defendants have appealed.

The appellants contend that the restraining order pleaded in their answer is still in full force and effect, that by reason thereof they have been continually enjoined from taking any steps or proceedings whatsoever to enforce or collect their judgment, that they have been unable to proceed by execution or by a motion to revive. They further contend that the respondent, Heman, bought the land during the pendency of the injunction suit; that by the injunction they have been continuously prevented from instituting any proceeding whatever on the judgment, and that their judgment lien on respondent's land, which formerly belonged to Turner, has therefore continued until the present time. On the other hand, the respondent contends that, under section 5132, Ballinger's Ann. Codes & St., the judg

ment against Turner ceased to be a lien after five years from the date of its rendition. He further contends that the appellants Rinehart and Hollenbeck have not been enjoined from reviving the judgment against Turner, and that having neglected to do so, they now hold no lien whatever against the land. The restraining order above set forth seems to have been granted without notice, upon the allegations of the complaint, as an emergency order. It directed that the appellant Rinehart be cited to appear on December 5, 1893, and show cause why the injunction should not be made perpetual. There is no allegation that the order was ever served on the appellant Rinehart, or that he was cited to appear and show cause why the injunction should not be made perpetual. His first appearance was made by answer on June 17, 1905, more than 11 years after the entry of the restraining order, and nothing further has been done. We then have before us an emergency restraining order, granted on November 23, 1893, on the allegations of a complaint without notice, and are called upon to determine its present legal effect. Section 5435, Ballinger's Ann. Codes & St.. 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. Evidently the Legislature intended that such emergency restraining order should be granted to preserve the existing status for such a reasonable time as might be required to give notice to the party restrained and secure him a hearing. It surely could not have been the legislative intent that such an ex parte emergency order should continue in full force and effect for an indefinite period, or, as is now contended by the appellants, for more than 11 years, simply because the party restrained was not cited, or failed to appear and move for a dissolution. In State ex rel. v. Lichtenberg, 4 Wash. 407, 410, 30 Pac. 716, this court, in construing section 270, Hill's Ann. St. & Codes (section 5435, Ballinger's Ann. Codes & St.) said: "The provisions of section 270 show a clear intent on the part of the Legislature that no injunction shall be granted without notice to the adverse party. The only power that is conferred upon the court by said section is to grant an order to remain in force long enough to enable the required notice to be given. And should the court, without notice, grant an order for a longer time, its action in so doing would be irregular. So long as notice can be given and an opportunity had for the party to present his application for an injunction, aided by such notice, the restraining order granted without such notice has served its purpose, and should, if necessary, be set aside by the court. It may well be held, however, that no action of the court in that regard is required, as such order

would expire by its own force as soon as the parties were before the court upon notice of the application for an injunction. The only purpose of such restraining order is to keep things in statu quo until the matter can be brought regularly before the court. And whether such order terminates by its own force or is terminated by order of the court, the clear intent of the Legislature appears in said section to protect the rights of a party from other than a temporary interference without first giving him an opportunity to be heard. The court gets no jurisdiction in the matter for the purpose of interfering with the rights of either party until the giving of notice as required by statute. The temporary order provided for in said section is not the result of the formal action of the court, with proper jurisdiction, to determine whether or not the defendant's rights should be interfered with, but only the exercise of extraordinary power vested in the court from the necessities of the case to prevent a failure of justice. Such being the evident intent of the Legislature, it will not be presumed to have placed it in the power of the moving party, against the will of the court, to keep in force indefinitely an order which was only intended to remain in force until regular action of the court could be had in the matter." See, also, Coleman v. Columbia, etc., R. R. Co., 8 Wash. 227, 35 Pac. 1077; Rockford Watch Co. v. Rumpf, 12 Wash. 647, 42 Pac. 213; Larsen v. Winder, 14 Wash. 109, 44 Pac. 123, 53 Am. St. Rep. 864; In re Groen, 22 Wash. 53, 60 Pac. 123.

The allegations of the first affirmative defense of the answer fail to show that the appellant Rinehart ever appeared in the injunction suit prior to June 17, 1905, or that the order was ever served upon him. Assume, however, that it was served, and that he wished to proceed with the collection of his judgment, or desired to institute proceedings for its revival, and that he did not intend to take any chance of being in contempt of court, he could have directed the attention of the superior court to the restraining order which had been granted on the allegations of the complaint, and to the fact that no further showing had ever been made. Had he done this, he would undoubtedly have secured an order dissolving the injunction, and permitting him to proceed in such lawful manner as he might desire. He is now in no position to plead the order for the purpose of showing that he has been continually enjoined, or that his judgment lien has been preserved until the present time. Nor can the fact that no further action was taken by Turner, the plaintiff in the injunction suit, excuse him for his own laches and delay. The answer fails to show a judgment lien on the respondent's land. The first af firmative defense does, however, allege the payment of $231.20 of general taxes by the appellants, which they made for the purpose of protecting their asserted lien. These pay

ments were not voluntary, but were made in good faith. The judgment was an actual lien for the period of five years after its rendition, and the appellants have in good faith, although erroneously, believed and insisted that they have continued to hold a lien until the present time. Under the previous decisions of this court, they are entitled to an equitable lien on the land for the total amount of taxes paid by them, with interest from the several dates of payment. Packwood v. Briggs, 25 Wash. 530, 65 Pac. 846; Dunsmuir v. Port Angeles, etc., Power Co., 30 Wash. 586, 71 Pac. 9; Rothchild Bros. v. Rollinger, 32 Wash. 307, 73 Pac. 367; Ball v. Clothier, 34 Wash. 299, 75 Pac. 1099. As the first affirmative defense pleaded facts showing the appellants to be entitled to an equitable lien on the land for taxes paid by them, and as some of these taxes were paid as late as for the year 1904, the trial court erred in sustaining the respondent's demurrer to such first affirmative defense. The demurrer to the second affirmative defense was properly sustained. Under section 5132, Ballinger's Ann. Codes & St. the judgment ceased to be a lien at the expiration of five years from the date of its rendition. Brier v. Traders' Ntl. Bank, 24 Wash. 711, 64 Pac. 831, Hardin v. Day, 29 Wash. 664, 70 Pac. 118. The existence, validity, and extent of a judgment lien are entirely dependent upon statutory enactments. There is no statute in this state providing that absence of a judgment debtor from the state shall extend the duration of a judgment lien beyond the statutory period. The lien expired by limitation without regard to the presence of Turner within the state, or his absence therefrom.

The judgment is reversed, and the cause remanded, with instructions to the honorable trial court to overrule the demurrer to the first affirmative defense.

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Const. art. 4, § 23, provides for the appointment of court commissioners with authori ty to perform the duties of a judge of the superior court at chambers. Laws 1891, p. 92, c. 54, § 5, declares that a judge may exercise out of court all the powers expressly conferred on a judge as contradistinguished from a court, and 6884, requires that a defendant must be arnot otherwise. Ballinger's Ann. Codes & St. § raigned "before the court." Section 6901 declares that a plea of guilty can only be put in by defendant himself in open court, and section 6975 that the court must render judgment where defendant is found guilty. Held, that a court commissioner had no power to accept a

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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. He 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 in 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 intimated 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 define 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 necessarily 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 POWER 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 a 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 dangerous elements and substances, the duty of exercising the highest degree of care to protect persons from danger in all places where the general public may rightfully go for purposes of business and pleasure.

[Ed. Note. For cases in point, see Cent. Dig. vol. 18, Electricity, § 8.]

2. NEGLIGENCE-PLACES ATTRACTIVE TO CHIL

DREN.

The fact that a public bridge over a river was attractive to boys did not render an electric company liable for injuries to a boy received while climbing up a pier, and caused by his touching one of the company's live wires, where he was not lured to the place of the injury by reason of any attraction connected with any property of the company.

beams and around the top of said bridge, said bridge and the supports thereof were attractive to small boys, and that small boys frequented same for playing and climbing thereon, and had done so for a long time, and that appellant knew, or should have known. thereof. It is further alleged that on March 10, 1905, respondent climbed one of said piers, and, when about 30 feet high, something touched his coat, and he involuntarily put out his hand, and took hold of a live wire, and received the shock and injury complained of, and that as respondent fell he came in contact with other wires; that his fingers and thumb had to be amputated. A

[Ed. Note. For cases in point, see Cent. Dig. demurrer was interposed to the complaint vol. 37, Negligence, § 55.]

3. SAME-ANTICIPATION OF INJURY.

An electric company was not liable for injuries to a boy received while climbing up a pier of a public bridge, caused by his touching a live wire strung upon the electric company's poles, over 30 feet above the ground, under the rule that one must so use his own property as not to injure another, since the company could not reasonably be expected to anticipate such injury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, § 72.]

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Action by Philip L. Graves, by Marie L. Graves, as guardian ad litem, against the Washington Water Power Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

II. M. Stephens, for appellant. O. C. Moore and F. T. Post, for respondent.

ROOT, J. This appeal is from a judgment against appellant for personal injuries sustained by respondent, a boy of 15 years of age. The complaint sets forth that respondent was injured by reason of contact with the wires of appellant, which were charged with electricity; that the power house of appellant is immediately east of what is known as the "Monroe Street Bridge," which spans the Spokane river, and connects Monroe street on the north and south sides of said river; that said bridge is a public thoroughfare, and is the property of the city of Spokane; that the driveway, roadway, and footpaths of said bridge are at the height of about 100 feet from the water in said river; that said bridge is supported by piers built by means of plates of steel at a slight angle, with strips to and from such plates, set at an angle, so that same can be used as a ladder, which alleged ladders are inviting and attractive to small boys to climb and play thereon; that some of said piers and alleged ladders are near the power house of appellant; that appellant's electric wires are in close proximity to one of said piers; that by reason of the construction of said piers in said ladder-like form, in close proximity to said river, and that at certain seasons of the year pigeons are in the habit of nesting and rearing their young on the

and overruled. Appellant answered, denying the material allegations of the complaint, except formal matters, and those covered by the following admissions: "That respondent was at least 15 years old at time of accident; that appellant is a corporation, and engaged in manufacturing electricity, and furnishing and selling same; that its power house is on the south bank of the Spokane river, immediately east of the piers of the Monroe Street Bridge; that the top of said bridge is used as a public thoroughfare; that the roadway or top of said bridge is at a great height from the ground and water underneath same; that said bridge is held in position by a series of steel supports of great height; that the said supports, in some places, are held together by steel plates or slats of steel, which slats or plates are run from one support to another on an angle; that on and prior to March 10, 1905. poles and wires were maintained at the place complained of, and that some of the wires were constantly charged with electricity." The defense of contributory negligence was pleaded, and it was alleged that appellant had used the best means of insulation known to science.

There is but little controversy between the parties as to the character of the bridge. and the location and use of the electric wires. It appeared from the evidence that pigeons were in the habit of nesting about the bridge, and that boys sometimes climbed the piers in order to catch the pigeons, or find their nests, and sometimes as a matter of sport, and in playing such games as "follow the leader." It appears that near the foot of the piers on the other side of the river there were good play grounds, but such was not the case on the side where respondent was injured, although boys were frequently about there. It was in evidence that boys were seen playing about the bridge at different times during the period of two or three years immediately prior to this accident. It does not appear that they were in the habit of climbing the pier near which the wires were, and from which respondent fell. The evidence does not show that appellant had actual knowledge of boys climbing these piers, nor that there was such

an amount of climbing near the wires as would impute knowledge to it thereof. Respondent's witness McCormick, bridge foreman and inspector for the city, testified that the bridge was 138 feet above the water in the river; that the lattice work was sharp and hard on the feet and hands, and did not make a good ladder; that he had sometimes seen boys around the bridge, usually at the other end, and had driven them away; that he had never seen boys on any of the piers higher than 23 or 24 feet. This evidence did not seem to be disputed in any material part. Another of respondent's witnesses, one Rogers, a policemen of the city of Spokane, testified that his duties required him to be near this bridge; that he had seen boys playing about the bridge off and on for two or three years; that he had orders to chase them away, and did so. He had never seen them climb the piers, but had seen them on top of the bridge at each end; that he had orders to keep the boys away from there. Gannon, a witness for the respondent, had seen boys climbing all over the bridge, but usually at places other than where this accident occurred. He worked for the city, and was in the habit of chasing the boys away. Respondent testified that he that he was playing "hookey" from school; that he saw some pigeons flying about the bridge, and climbed one of the piers; that he felt something touch the back of his coat, and reaching around and without seeing the wires, involuntarily took hold of one, and was thrown to the ground by the shock, his hand being badly burned; that he could have seen the wire had he looked. He stated that he had never previous to that time been under or climbed about the bridge. It appears from the evidence that the electric wires do not run exactly straight or parallel with the bridge, but are nearer to this particular pier than to any other. Respondent was 30 or more feet from the ground when he fell. The plates or strips of steel were 12 to 15 inches long, 2 or 3 inches wide, one-fourth of an inch thick, with sharp corners or edges, and fastened upon the steel piers so as to form sharp angles, rather than being attached at right angles as is the case with the rungs of an ordinary ladder. The wire nearest to the pier was 151⁄2 inches distant therefrom, and was on the lowest arm of the electric pole, and was insulated and carried comparatively low voltage. The next wire above was 18 inches from the pier. From the complant and evidence we think it unquestionably appears that respondent took hold of a wire some distance above those two wires which was heavily charged with electricity, and some 30 inches from the bridge pier.

It is urged by appellant that the complaint does not state a cause of action, and that the evidence introduced is not sufficient to support any verdict or judgment in favor of respondent. It is contended that the re

Was it

spondent was a trespasser toward whom the appellant owed no duty other than to avoid willful injury; that its wires were being used for a legitimate purpose, in a place where they had authority to place them, and that there is nothing in the circumstances alleged or proven sufficient to fix liability upon it for the injuries sustained by respondent. Respondent meets these contentions of appellant by the assertion of several propositions which we will consider seriatim. He urges first: "The law imposes on persons manufacturing and dealing in or handling highly dangerous elements and substances, such as electricity and dynamite, the duty of exercising the highest degree of care to protect persons from danger in all places where the general public may rightfully go for purposes of business or pleasure." Accepting this as a correct statement of the law, let us apply it to the facts of this case. Can we say that "the general public may rightfully go for purposes of business or pleasure" up or down the side of a high and almost perpendicular pier of a public bridge across a river, climbing upon the diagonally attached slats of steel as did respondent? ever contemplated that such a use should be made of the piers of this bridge by the general public? We apprehend not. The bridge was constructed for the purpose of furnishing the public a means of crossing a goodly sized river. It was intended that the public should walk or ride upon the roadway at the top of said bridge. The lattice work upon the sides of these piers was not intended to constitute ladders or furnish means of access to or from the top of the bridge. The public was not invited nor expected to use such lattice work for such a purpose. No one, other than an employé or agent of the city intrusted with some duty in connection with the inspection, supervision, care, or repairing of said bridge, would have any authority to climb up or down said lattice work. This being true, it follows that respondent as one of the general public had no authority justifying his presence at the place where he was injured. It is not pretended that he was an employé or agent of the city, or that he had any authority therefrom to be there. He was not even a licensee, but was a mere trespasser. It will, therefore, be seen that the proposition of law urged by respondent, as above set forth, cannot avail him under the circumstances of this case.

2. Respondent urges "that it may always be assumed that every person has performed his duty under the law, and hence that the placing of wires or other electrical apparatus in close proximity to places or structures where persons rightfully go for business or pleasure constitutes an implied assurance of safety, and an invitation to take hold of, or come in contact with, such wires, if such persons may for any reason choose to do so." This proposition of law, even if sound (which

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