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(230 P.) ings. Appellant, at all times up to the ren struction upon the demand and offer which dering of the judgment of this court modify- was made by respondents, until after the ing the judgment of the superior court, re- rendering of the judgment in the former forefused to recognize the claim of rescission closure action and the modification of that made by respondents, and have at all times judgment by this court; nor did it even then refused to pay to respondents any portion make any offer of reimbursement to respond. of the sum paid by them for freight. Man- ents for freight paid by them, which at all ifestly, the judgment of the superior court in events would have been a condition to be the former action was modified by this court performed by appellant. It seems plain to upon the theory that the engine failed to ful- us that from any point of view it cannot be fill the warranty, and to that extent the con- successfully claimed that the sale of the ensideration for the notes failed, though the gine alone was ever effectually rescinded by plow did fulfill the warranty.

any of the acts of the parties, or even that [1,2] Was there an effectual rescission of it was ever attempted to be so rescinded. the sale of the engine by respondents' de We conclude therefore that, in so far as we mand and offer made to appellant before the are concerned with this branch of the case, commencement of the action by appellant for it must be held that respondents have suthe full purchase price of the engine and perior title to the engine, and are entitled to plow? Of course, there was no such effec- judgment for its value as was awarded by tual rescission as to the sale of the plow. the trial court. The judgment in the former action conclu [3, 4] Was there in legal effect an adjudisively negatives that by the awarding to the cation of a rescission of the sale of the enappellant recovery of the agreed purchase gine by the judgment rendered in the former price of the plow. This, of course, became an action? We think not. The judgment of adjudication that respondents did not have this court, while modifying that judgment the right to rescission of the sale of the plow. by reducing the amount of recovery, left the Now the only demand and offer made by the foreclosure provisions thereof in full force respondents looking to rescission was the de- and effect as against both the engine and the mand and offer made before the commence- plow; thus plainly recognizing title to both ment of the former action looking to a re- the engine and the plow as being in respondscission of the sale of both the engine and ents. The judgment of this court made no the plow, and incidental thereto the reim- determination whatever touching the quesbursement of them by appellant for the tion of reimbursement of respondents by apamount paid by them for freight, which it pellant for the amount paid by them for seems plain respondents would be entitled to freight upon the engine, which manifestly as an incident of rescission if they were en respondents would be entitled to in some titled to rescind at all, to the end that they be

from appellant before it could 'made whole and saved from loss by reason rightfully reclaim from respondents possesof having entered into the sale contract. It sion of the engine. We are unable from any seems to us that it cannot be rightfully held viewpoint to see in the judgment of this that respondents ever made any demand or court, modifying the judgment of the suoffer looking to the rescission of the sale of perior court rendered in the former action, the engine alone. They did not say to appel- any adjudication, express or implied, of a lant, “Acknowledge satisfaction of so much rescission of the sale of the engine from apof the indebtedness evidenced by the notes

pellant to respondents. It follows that at as represents the agreed price of the engine the time the engine was taken from the posand pay to us the amount of freight we paid session of respondents by appellant following upon the engine and take the engine back.” the beginning of this action, respondents had Had such on offer been made, we think re superior title thereto, and it being admitted spondents would have had the right to have in the pleadings that the engine was then appellant not only satisfy such portion of the worth $1,400, and it being estabished that total purchase price evidenced by the notes the engine cannot now be restored to reas constituted the price of the engine, but al- spondents, the judgment of the superior so have appellant make reimbursement for

court must be affirmed. the amount of freight paid by them upon the

It is so ordered. engine, before appellant would be entitled to return of the engine in pursuance of any such offer. But, as we have said, no such of MAIN, C. J., and HOLCOMB, TOLMAN, fer was ever made; nor did appellant at any BRIDGES, FULLERTON, MITCHELL, and time ever indicate that it put any such con- | PEMBERTON, JJ., concur.

1

measure

! C. H. Carpenter, against the Superior Court STATE ex rel, CARPENTER v. SUPERIOR for Lewis County and W. A. Reynolds, Judge. COURT FOR LEWIS COUNTY.

Writ issued. (No. 18977.)

Elmer Smith, of Centralia, and Alexander (Supreme Court of Washington. Nov. 24, Mackel, of Seattle, for relator. 1924.)

John H. Dunbar and M. H. Wight, both of 1. Evidence 41-Judicially noticed that only

Olympia, for respondent. one department of superior court in county. Courts will judicially notice that there is

HOLCOMB, J. An alternative writ of only one department of the superior court in mandamus was issued herein, directed to Lewis county.

respondent, and is before us on application 2. Judges, www 51(1)-Judge disqualified for

for a peremptory writ. prejudice must designate another to try case, On August 9, 1924, an affidavit of prejudice Where affidavit of prejudice and motion for

was filed by Mackel, one of the attorneys change of judges was filed under Rem. Comp. for Mrs. Carpenter in a proceeding before Stat. $ 209—1, thus disqualifying judge, it was the department of labor and industries, inhis duty to designate another as soon as he dustrial insurance division, which had been could find one who would consent to try case. appealed to the superior court, of which re3. Judges Own 51(1)-Order for change of judg. spondent is the presiding judge, to disqualify

es, and transfer of case made by judge dis. respondent. The motion and affidavit for qualified for prejudice, held too indefinite. change of judge was noted for hearing on

Where affidavit of prejudice and motion for August 18, 1924, at 9:30 o'clock a. m. No change of judges was filed under Rem. Comp. resistance was made to the motion for Stat. $ 209–1, thus disqualifying judge, his or change of judges, and the court made the der, containing provision that "case transferred following order, as appears by journal entry to any visiting judge the court is able to secure, in the cause: probably Judge S.," held too indefinite.

“Mrs. C. H. Carpenter, Plaintiff, vs. Depart4. Judges On 51(1)--Judge designated in place ment of Labor and Industries of Washington,

of one disqualified for prejudice has entire Defendant. Cause came on regularly for hearing jurisdiction.

on motion of plaintiff for change of judge. A. Where judge is disqualified for prejudice, Mackel appearing for plaintiff and in support of under Rem. Comp. Stat. § 209—1, judge desig- said motion; defendant not appearing or being nated to hear and determine case has jurisdic- represented by counsel. Case referred to any tion in all matters and things pertaining there- visiting judge the court is able to secure, probto.

ably Judge Simpson.

“[Signed] W. A. Reynolds, Judge." 5, Judges Om51 (1)-Judge disqualified for

prejudice cannot arbitrarily name judge of Respondent judge has filed a return to . another court to try case.

the alternative writ, setting forth among Where judge has been disqualified for preju- ) other things that, immediately upon the dice, under Rem. Comp. Stat. $ 209—1, he can conclusion of the hearing upon the motion not arbitrarily name judge of another court to docket that day, he communicated with try case and order him to come at any stated Judge George B. Simpson, superior judge time to take charge thereof, but must secure consent of designated judge.

at Vancouver, Wash., who said he would

hear the motion and other motions at Che6. Judges On 51(1)-Judge disqualified for halis on August 21, 1924, in the forenoon;

prejudice should order transfer of case and that thereupon respondent at once notified give notice thereof to parties or their attor. Attorney Mackel that Judge Simpson would neys.

be present on the morning of August 21, Where a judge has been disqualified for prejudice under Rem. Comp. Stat. $ 209–1, and 1924, to hear his motions, and to notify the a visiting judge obtained, an order should be defendants of the hearings; that on August made, transferring case to such judge and 21, 1924, Judge Simpson was present in the notice given to parties or their attorneys of courthouse at Chehalis, ready to hear the such designation and transfer.

motion, and did hear motions in two other

cases, and tried and determined another 7. Mandamus ww44-Will lie to compel judge case; that neither Mackel nor Smith, the

disqualified for prejudice to designate judge other attorney in the matter, made any ap to try case and to transfer it to such judge. Where judge was disqualified for prejudice, pearance; that later in the day of August

Mackel in the under Rem. Comp. Stat. § 209–1, mandamus 21, 1924, respondent saw will lie to compel him to properly designate an

courtroom and inquired why he had not other judge to try case and to transfer case to appeared to call up his motions to be heard; designated judge.

that Judge Simpson was in the courthouse

ready to consider the same; that Mackel Department 2.

thereupon informed respondent that he had Application for peremptory writ of man been in the courthouse, but could not find damus by the State, on the relation of Mrs. I Judge Simpson, and supposed he was not

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(230 P.) coming, and that he had returned to his designated would have jurisdiction in all office in Centralia; that respondent there matters and things pertaining thereto. upon informed Mackel that Judge Simpson [5, 6] Of course the presiding judge of a was in respondent's chambers ready to hear county cannot arbitrarily name some other his motions; that available visiting judges judge of another court to try a case, and were hard to obtain, and that when a judge order him to come at any stated time to take was obtained it was the business of attor- charge of the case. It is necessary for him to neys to be in attendance and have their cases secure the consent of some other judge. heard; that Judge Simpson had gone away, When the visiting judge has been obtained, and respondent was not informed as to an order should be made transferring the whether he had left Chehalis permanently or case to such judge and notice given to the not, and that respondent did not know when parties to the cause, or their attorneys, of he could again be in Chehalis; that he com the designation and transfer to the visiting municated with Judge Simpson as to whether judge to take charge of the case. The judge he could come to Chehalis to hear the mat- so selected has entire jurisdiction of the ter, and Judge Simpson replied that he was cause, and can be applied to for any order so burdened with business of his own court in any matter by any of the parties or atthat he would be unable to fix upon a time torneys in the case. when he would be at liberty to come to [7] What we have said in the cases cited Chehalis; that no application or request by respondent (State ex rel. Dusinberre v. has been made by attorneys for relator to Hunter, 4 Wash. 651, 30 P. 642, 32 P. 294; procure any other judge or to obtain a hear- State ex rel. Bremerton v. Yakey, 68 Wash. ing of the cause.

284, 123 P. 13; State ex rel. O'Phelan v. The Attorney General, who represents the Superior Court, 88 Wash. 669, 153 P. 1078; Department of Labor and Industries, and the State ex rel. Giles v. french, 102 Wash. 273, industrial insurance division thereof, and 172 P. 1156) in no way militates against who represents respondent in this matter, these views, which are in the interest of takes the position that the petition should definite and orderly procedure. be denied (1) because respondent has not re The peremptory writ will issue. fused to act as required by section 209—1 Rem. Comp. Stat., and is not in default, but MAIN, C. J., and TOLMAN, MACKIN. on the contrary has fully complied there- TOSH, and FULLERTON, JJ., concur. with; (2) relief by mandamus is not necessary, and would be ineffectual.

It is contended by respondent, first, that he has in effect complied with section 209

FULLER et ux. V. FRIEDMAN et ux, 1, supra, which reads in part as follows:

(No. 18432.) "In such case the presiding judge shall forth

(Supreme Court of Washington. Nov. 18, with transfer the action to another department

1924.) of the same court, or call in a judge from some other court, or apply to the governor to Appeal and error w 554(2)—Appeal from or. send a judge, to try the case; or, if the con der granting motion for new trial for er. venience of witnesses or the ends of justice will roneous instructions dismissed, in absence of not be interfered with by such course, and the statement of facts. action is of such a character that a change of

In absence of statement of facts, appeal venue thereof may be ordered, he may send the from order granting plaintiffs' motion for new case for trial to the most convenient court."

trial after verdict for them in unsatisfactory

amount, for erroneous instructions on contribu[1, 2] It will be observed that the respond-tory negligence, must be dismissed, though such ent, being disqualified under the statute, by instructions were not prejudicial to plainthe affidavit of prejudice and motion for a tiffs, who received substantial verdict; it being change of judge, the timeliness of which is defendants' duty to show that motion should not denied, elected to call in another judge not have been granted on any of grounds stated

therein. from some other court. We are judicially aware that there is no other department of

Department 2. the same court in Lewis county. Having

Appeal from Superior Court, Spokane elected to call in a judge of another court,

County; Blake, Judge. it was his duty to designate a judge as soon as he was able to find one who would consent

Action by D. B. Fuller and wife against to try the case, who would thereafter have David D. Friedman and wife. From order jurisdiction over the entire case.

granting plaintiffs' motion for new trial, aft[3, 4] According to the return the order er

verdict for them in unsatisfactory made is too indefinite. It leaves the case, amount, defendants appeal. Motion to dislike Mohammed's coffin, suspended in mid- miss appeal granted. air. After the designation of a judge to Danson, Williams & Danson, and R. E. hear and determine the case, the judge so Lowe, all of Spokane, for' appellants.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Tustin & Chandler, of Spokane, for re-, ed, and the adverse party appeals, the par. spondents.

ty seeking to sustain the order may urge in

this court all the grounds which were coverMITCHELL, J. This action was brought ed by his motion, and is not limited to the to recover damages alleged to have been reason given by the trial court, means, when caused by the defendants in the negligent fairly considered, that it is the result, viz., driving of their automobile. The answer de. the granting of a new trial, irrespective of nied negligence, and affirmatively alleged

any specified reason therefor, that controls; contributory negligence. There was a verdict and that it is the duty of the party against for the plaintiffs in the sum of $625. They whom the order was made, upon taking an moved for a new trial upon the grounds: (1) appeal, to bring up a properly settled and Irregularity in the proceedings which pre-certified record of the facts and successfully vented them from having a fair trial; (2) show that the motion for a new trial should misconduct of the defendants and the jury; not have been granted on account of any of (3) inadequacy of the damages appearing to the grounds stated in the motion. It is his have been given under the influence of pas appeal, and he cannot ask that it be entersion and prejudice; and (4) errors in law tained, unless he presents a record that reoccuring at the trial and excepted to at sponds in its fullness and dignity to the the time by the plaintiff. The motion was granted, and in the order it is stated that scope of the review provided for by the rule.

Motion to dismiss the appeal granted. the new trial is ordered "for the reason and upon the ground that the court committed error in improperly instructing the jury as to HOLCOMB, FULLERTON, MACKINwhat constituted contributory negligence." TOSH, and PEMBERTON, JJ., concur. The defendants have appealed and, though not bringing up any statement of facts or bill of exceptions, argue that, if the instruction as to contributory negligence was not correct, it is a case of error without prej. LOFGREN et ux. V. SUPERIOR COURT FOR udice, since the jury found for the plaintiffs KITSAP COUNTY et al. (No. 18859.) in the substantial sum of $625, and that the new trial should not have been granted.

(Supreme Court of Washington. Nov. 25, Notwithstanding former holdings to the

1924.) contrary, we said in Rochester v. Seattle, Eminent domaine 262 (4) Judgment affirmed Renton & S. R. Co., 75 Wash. 559, 135 P.

when evidence does not preponderate against 209:

order and findings that taking was for pub"The correct rule of practice is now

lic use. nounced to be that, where, upon the consid In condemnation proceedings by a municieration of a motion for new trial, the trial pal corporation under Const. art. 1, § 16, and court enters an order granting the motion upon Rem. Comp. Stat. $925, for land abutting a specific ground or for a specific reason stat a wharf, where evidence does not preponderate ed, and the adverse party appeals, the party against order and findings of superior court seeking to sustain the order may urge in this declaring that taking "is for a public use, concourt all the grounds which were covered by venience and necessity,” judgment will be af. his motion, and is not limited to the specific firmed. ground or reason upon which the trial court based the order."

Department 2.

Appeal from Superior Court, Kitsap Coun. See, also, Parkhurst v. Elliott, 103 Wash. ty; French, Judge. 89, 173 P. 731, and Young v. Dille, 127 Wash. 398, 220 P. 782.

Proceedings by S. Lofgren and May Lof. Relying on the rule, the respondents gren, his wife, against the Superior Court for have moved to dismiss the appeal for the Kitsap County and others, to review an orreason that the appellants have not brought der of public use and necessity made by the

Afup any statement of facts or bill of excep

court in condemnation proceedings. tions,

firmed. If appellants' argument that erroneous in Carl J. Smith, of Seattle, for appellants. structions on contributory negligence were

Marion Garland, of Bremerton, for renot prejudicial to the respondents because spondents. they received a substantial verdict be conceded, still we think the motion to dismiss MITCHELL, J. The Port of Eglon, a mu. the appeal must prevail under the rule of nicipal corporation of Kitsap county, being practice above noticed; there being no state- duly authorized so to do, passed a resolument of facts before us. The rule announc- tion finding and declaring that certain real ed in Rochester v. Seattle, etc., supra, that, property consisting of 77 of an acre belongwhere the trial court grants a new trial upon ing to S. Lofgren and May Lofgren, husband a specific ground or for a specific reason stat- and wife, and Carl G. Johnson, abutting on

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

an

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(230 P.) a wharf now owned and operated by the port, claring that the taking "is for a public use, district, was needed and required for the pub-convenience, and necessity." lic use, convenience, and necessity of the port, Judgment affirmed. and directing that condemnation proceedings be had in the superior court of that county MAIN, C. J., and MACKINTOSH, HOL for the taking and condemnation of such | COMB, and FULLERTON, JJ., concur. property. A proper petition for that purpose was filed in the superior court of Kitsap county, and upon service on and appearance

in re ARLAND'S ESTATE. by the property owners the matter was heard, upon whichoan order of public use and ne

ARLAND et al. v. ARLAND et al. cessity was made by the court and entered of record. From that order Lofgren and wife

(No. 18424.) have taken the cause to this court for review.

(Supreme Court of Washington. Nov. 18, The law applicable-to the case is the con

1924.) cluding part of section 16 of article 1 of the state Constitution, and section 925, Rem. 1. Wills 67-Court may do as conscience Comp. Stat. The provision of the Constitu

dictates in case of devise solely to second tion is :

wife contrary to contract with first wife.

Right of testator's children to portion of “Whenever an attempt is made to take pri- estate bequeathed to childless second wife, in vate property for a use alleged to be public, violation of contract with first wife to make the question whether the contemplated use be will giving whatever he had at her death to really public shall be a judicial question, and de- their children, rests entirely on equitable printermined as such, without regard to any legis-ciples, and court is free to do what its conlative assertion that the use is public."

science dictates. The statute referred to says:

2. Specific performance Call 6-Contract to de.

vise property not enforced if superior eq. At the time and place appointed for hear

uities have intervened. ing said petition, or to which the same may Contract to devise property will not be enhave been adjourned, if the court or judge forced, though supported by equities, if superior thereof shall have satisfactory proof that all equities have intervened. parties interested in the land, real estate, premises or other property described in said peti- 3. Specific performance Co 16–Equity will not tion, have been duly served with said notice

enforce contract where result will be harsh as above prescribed, and shall be further sat

and oppressive. isfied by competent proof that the contem Equity will not enforce contract, where replated use for which the land, real estate, sult will be harsh and oppressive. premises or other property sought to be ap; 4. Wills év 67—Widow's equities in third of propriated is really a public use, that the public interest requires the prosecu

estate bequeathed to her held superior to tion of such enterprise,

and that the

those of testator's children by former mar. land, real estate, premises or other property

riage under contract with former wife. sought to be appropriated are required ard nec

Equities of testator's childless widow, to essary for the purposes of such enterprise, whom he bequeathed third of estate in violathe court or judge thereof may make an or

tion of contract with first wife, of which widow der, to be recorded in the minutes of said court, had no knowledge when she married him, to directing the sheriff to summon

make will giving all his property at first wife's jury.”

death to their children, to whom he did de

vise entire remainder, held superior to chil['pon the return made here to the writ of dren's equities in such third, as she would review issued out of this court it appears Stat. , 1341, had testator died intestate, leave

have been entitled thereto under Rem. Comp. that at the hearing in the superior court the ing children by ber, while will provided for in petitioner therein. pursuant to the law above contract would have been avoided under section cited, introduced in evidence the resolution 1999 by second marriage. of the commissioners of the port district here- , in before mentioned, and in addition thereto Department 2. oral testimony to show that the land sought Appeal from Superior Court, Whitman to be taken is necessary in order to widen its County; Blake, Judge. present narrow wharf of sixteen feet in or. der to safely accommodate the travel and

Suit by Josephine E. Arland and others traffic of the patrons vi the port district, against George H. Arland, executor of the and that the property would be used for that : estate of Charles II. Arland, deccau-d, and purpose. On the part of the property owners

another. Judzment for defendants, and there was evidence controverting that of the plaintiffs appeal. Affirmed. petitioner; nevertheless, upon a due consid.' Voorhees & Canfield, of Spokane, for ap eration of all of the evidence we are satis. pellants. fied that it does not preponderate a zainst the Veill & Sanger, of Pullman, for respondorder and finding of the superior court de-, ents.

For other cases see sarre tople and KEY-NCHEER in all Kez-Numbered Digesti and indeza

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