(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 respondof 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successfully claimed that the sale of the ensideration for the notes failed, though the gine alone was ever effectually rescinded by plow did fulfill the warranty. any of the acts of the parties, or even that it was ever attempted to be so rescinded. We conclude therefore that, in so far as we it must be held that respondents have suare concerned with this branch of the case, perior title to the engine, and are entitled to judgment for its value as was awarded by the trial court. [1, 2] Was there an effectual rescission of the sale of the engine by respondents' demand and offer made to appellant before the commencement of the action by appellant for the full purchase price of the engine and plow? Of course, there was no such effectual rescission as to the sale of the plow. The judgment in the former action conclusively negatives that by the awarding to the appellant recovery of the agreed purchase price of the plow. This, of course, became an adjudication that respondents did not have the right to rescission of the sale of the plow. Now the only demand and offer made by the respondents looking to rescission was the demand and offer made before the commencement of the former action looking to a rescission of the sale of both the engine and the plow, and incidental thereto the reimbursement of them by appellant for the amount paid by them for freight, which it seems plain respondents would be entitled to as an incident of rescission if they were entitled to rescind at all, to the end that they be made whole and saved from loss by reason of having entered into the sale contract. It seems to us that it cannot be rightfully held that respondents ever made any demand or offer looking to the rescission of the sale of the engine alone. They did not say to appellant, "Acknowledge satisfaction of so much of the indebtedness evidenced by the notes as represents the agreed price of the engine and pay to us the amount of freight we paid upon the engine and take the engine back." Had such on offer been made, we think respondents would have had the right to have appellant not only satisfy such portion of the total purchase price evidenced by the notes as constituted the price of the engine, but also have appellant make reimbursement for the amount of freight paid by them upon the engine, before appellant would be entitled to return of the engine in pursuance of any such offer. But, as we have said, no such offer was ever made; nor did appellant at any time ever indicate that it put any such con cation of a rescission of the sale of the en[3, 4] Was there in legal effect an adjudigine by the judgment rendered in the former action? this court, while modifying that judgment We think not. The judgment of by reducing the amount of recovery, left the foreclosure provisions thereof in full force and effect as against both the engine and the plow; thus plainly recognizing title to both the engine and the plow as being in respondents. The judgment of this court made no determination whatever touching the question of reimbursement of respondents by appellant for the amount paid by them for freight upon the engine, which manifestly respondents would be entitled to in some rightfully reclaim from respondents possesmeasure from appellant before it could sion of the engine. We are unable from any viewpoint to see in the judgment of this perior court rendered in the former action, court, modifying the judgment of the suany adjudication, express or implied, of a rescission of the sale of the engine from apthe time the engine was taken from the pospellant to respondents. It follows that at session of respondents by appellant following the beginning of this action, respondents had superior title thereto, and it being admitted in the pleadings that the engine was then worth $1,400, and it being estabished that the engine cannot now be restored to respondents, the judgment of the superior court must be affirmed. MAIN, C. J., and HOLCOMB, TOLMAN, BRIDGES, FULLERTON, MITCHELL, and PEMBERTON, JJ., concur. STATE ex rel. CARPENTER v. SUPERIOR (Supreme Court of Washington. Nov. 24, 1. Evidence 41-Judicially noticed that only one department of superior court in county. Courts will judicially notice that there is only one department of the superior court in Lewis county. ! C. H. Carpenter, against the Superior Court for Lewis County and W. A. Reynolds, Judge. Writ issued. Elmer Smith, of Centralia, and Alexander Mackel, of Seattle, for relator. John H. Dunbar and M. H. Wight, both of Olympia, for respondent. HOLCOMB, J. An alternative writ of mandamus was issued herein, directed to respondent, and is before us on application for a peremptory writ. 2. Judges 51(1)-Judge disqualified for On August 9, 1924, an affidavit of prejudice prejudice must designate another to try case. was filed by Mackel, one of the attorneys Where affidavit of prejudice and motion for 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 51(1)—Order for change of judg-spondent is the presiding judge, to disqualify The motion and affidavit for es, and transfer of case made by judge dis- respondent. qualified for prejudice, held too indefinite. change of judge was noted for hearing on No Where affidavit of prejudice and motion for August 18, 1924, at 9:30 o'clock a. m. made to the motion for change of judges was filed under Rem. Comp. resistance was 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. 4. Judges 51(1)—Judge designated in place of one disqualified for prejudice has entire jurisdiction. Where judge is disqualified for prejudice, under Rem. Comp. Stat. § 209-1, judge designated to hear and determine case has jurisdiction in all matters and things pertaining there to. 5, Judges ~51(1)—Judge disqualified for prejudice cannot arbitrarily name judge of another court to try case. Where judge has been disqualified for prejudice, under Rem. Comp. Stat. § 209-1, he cannot arbitrarily name judge of another court to try case and order him to come at any stated time to take charge thereof, but must secure consent of designated judge. 6. Judges 51(1)—Judge disqualified for prejudice should order transfer of case and give notice thereof to parties or their attor neys. Where a judge has been disqualified for prejudice under Rem. Comp. Stat. § 209-1, and a visiting judge obtained, an order should be made, transferring case to such judge and notice given to parties or their attorneys of such designation and transfer. 7. Mandamus 44-Will lie to compel judge disqualified for prejudice to designate judge to try case and to transfer it to such judge. Where judge was disqualified for prejudice, under Rem. Comp. Stat. § 209-1, mandamus will lie to compel him to properly designate another judge to try case and to transfer case to designated judge. "Mrs. C. H. Carpenter, Plaintiff, vs. Department of Labor and Industries of Washington, Defendant. Cause came on regularly for hearing on motion of plaintiff for change of judge. A. Mackel appearing for plaintiff and in support of said motion; defendant not appearing or being Case referred to any represented by counsel. visiting judge the court is able to secure, probably Judge Simpson. "[Signed] W. A. Reynolds, Judge." Respondent judge has filed a return to the alternative writ, setting forth among other things that, immediately upon the conclusion of the hearing upon the motion docket that day, he communicated with Judge George B. Simpson, superior judge at Vancouver, Wash., who said he would hear the motion and other motions at Chehalis on August 21, 1924, in the forenoon; that thereupon respondent at once notified Attorney Mackel that Judge Simpson would be present on the morning of August 21, 1924, to hear his motions, and to notify the defendants of the hearings; that on August 21, 1924, Judge Simpson was present in the courthouse at Chehalis, ready to hear the motion, and did hear motions in two other cases, and tried and determined another case; that neither Mackel nor Smith, the other attorney in the matter, made any ap pearance; that later in the day of August 21, 1924, respondent saw courtroom and inquired why he had not appeared to call up his motions to be heard; that Judge Simpson was in the courthouse ready to consider the same; that Mackel thereupon informed respondent that he had been in the courthouse, but could not find Judge Simpson, and supposed he was not Mackel in the (230 P.) [5, 6] Of course the presiding judge of a county cannot arbitrarily name some other judge of another court to try a case, and order him to come at any stated time to take charge of the case. It is necessary for him to secure the consent of some other judge. When the visiting judge has been obtained, an order should be made transferring the case to such judge and notice given to the parties to the cause, or their attorneys, of the designation and transfer to the visiting judge to take charge of the case. The judge so selected has entire jurisdiction of the cause, and can be applied to for any order in any matter by any of the parties or attorneys in the case. 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 was in respondent's chambers ready to hear his motions; that available visiting judges were hard to obtain, and that when a judge was obtained it was the business of attorneys to be in attendance and have their cases heard; that Judge Simpson had gone away, and respondent was not informed as to whether he had left Chehalis permanently or not, and that respondent did not know when he could again be in Chehalis; that he communicated with Judge Simpson as to whether he could come to Chehalis to hear the matter, and Judge Simpson replied that he was so burdened with business of his own court that he would be unable to fix upon a time when he would be at liberty to come to Chehalis; that no application or request has been made by attorneys for relator to procure any other judge or to obtain a hearing of the cause. The Attorney General, who represents the Department of Labor and Industries, and the industrial insurance division thereof, and who represents respondent in this matter, takes the position that the petition should be denied (1) because respondent has not refused to act as required by section 209-1 Rem. Comp. Stat., and is not in default, but on the contrary has fully complied therewith; (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 2091, supra, which reads in part as follows: "In such case the presiding judge shall forthwith transfer the action to another department of the same court, or call in a judge from some other court, or apply to the governor to send a judge, to try the case; or, if the convenience of witnesses or the ends of justice will not be interfered with by such course, and the action is of such a character that a change of venue thereof may be ordered, he may send the case for trial to the most convenient court." [1, 2] It will be observed that the respondent, being disqualified under the statute, by the affidavit of prejudice and motion for a change of judge, the timeliness of which is not denied, elected to call in another judge from some other court. We are judicially aware that there is no other department of the same court in Lewis county. Having elected to call in a judge of another court, it was his duty to designate a judge as soon as he was able to find one who would consent to try the case, who would thereafter have jurisdiction over the entire case. [3, 4] According to the return the order made is too indefinite. It leaves the case, like Mohammed's coffin, suspended in midAfter the designation of a judge to hear and determine the case, the judge so air. [7] What we have said in the cases cited by respondent (State ex rel. Dusinberre v. Hunter, 4 Wash. 651, 30 P. 642, 32 P. 294; State ex rel. Bremerton v. Yakey, 68 Wash. 284, 123 P. 13; State ex rel. O'Phelan v. Superior Court, 88 Wash. 669, 153 P. 1078; State ex rel. Giles v. French, 102 Wash. 273, 172 P. 1156) in no way militates against these views, which are in the interest of definite and orderly procedure. The peremptory writ will issue. MAIN, C. J., and TOLMAN, MACKINTOSH, and FULLERTON, JJ., concur. FULLER et ux. v. FRIEDMAN et ux. (No. 18432.) (Supreme Court of Washington. Nov. 18, 1924.) Appeal and error 554 (2)-Appeal from order granting motion for new trial for erroneous instructions dismissed, in absence of statement of facts. In absence of statement of facts, appeal from order granting plaintiffs' motion for new trial after verdict for them in unsatisfactory amount, for erroneous instructions on contributory negligence, must be dismissed, though such instructions were not prejudicial to plaintiffs, who received substantial verdict; it being defendants' duty to show that motion should not have been granted on any of grounds stated therein. Department 2. Appeal from Superior Court, Spokane County; Blake, Judge. Action by D. B. Fuller and wife against David D. Friedman and wife. From order granting plaintiffs' motion for new trial, aftverdict for them in er unsatisfactory amount, defendants appeal. Motion to dismiss appeal granted. Danson, Williams & Danson, and R. E. 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 parspondents. ty seeking to sustain the order ma'y 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 what constituted contributory negligence." 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 prejudice, since the jury found for the plaintiffs in the substantial sum of $625, and that the new trial should not have been granted. Notwithstanding former holdings to the contrary, we said in Rochester v. Seattle, Renton & S. R. Co., 75 Wash. 559, 135 P. 209: "The correct rule of practice is now announced to be that, where, upon the consideration of a motion for new trial, the trial court enters an order granting the motion upon a specific ground or for a specific reason stated, and the adverse party appeals, the party seeking to sustain the order may urge in this court all the grounds which were covered by his motion, and is not limited to the specific ground or reason upon which the trial court based the order." See, also, Parkhurst v. Elliott, 103 Wash. 89, 173 P. 731, and Young v. Dille, 127 Wash. 398, 220 P. 782. Relying on the rule, the respondents have moved to dismiss the appeal for the reason that the appellants have not brought up any statement of facts or bill of exceptions. If appellants' argument that erroneous instructions on contributory negligence were not prejudicial to the respondents because they received a substantial verdict be conceded, still we think the motion to dismiss the appeal must prevail under the rule of practice above noticed; there being no statement of facts before us. The rule announced in Rochester v. Seattle, etc., supra, that, where the trial court grants a new trial upon a specific ground or for a specific reason stat LOFGREN et ux. v. SUPERIOR COURT FOR Eminent domain 262(4)-Judgment affirmed In condemnation proceedings by a municipal corporation under Const. art. 1, § 16, and Rem. Comp. Stat. § 925, for land abutting a wharf, where evidence does not preponderate against order and findings of superior court declaring that taking "is for a public use, convenience and necessity," judgment will be affirmed. Department 2. Appeal from Superior Court, Kitsap County; French, Judge. Proceedings by S. Lofgren and May Lofgren, his wife, against the Superior Court for Kitsap County and others, to review an order of public use and necessity made by the court in condemnation proceedings. Affirmed. Carl J. Smith, of Seattle, for appellants. Marion Garland, of Bremerton, for respondents. MITCHELL, J. The Port of Eglon, a municipal corporation of Kitsap county, being duly authorized so to do, passed a resolution finding and declaring that certain real property consisting of .77 of an acre belonging to S. Lofgren and May Lofgren, husband and wife, and Carl G. Johnson, abutting on (230 P.) a wharf now owned and operated by the port district, was needed and required for the public use, convenience, and necessity of the port, and directing that condemnation proceedings be had in the superior court of that county for the taking and condemnation of such property. A proper petition for that purpose was filed in the superior court of Kitsap county, and upon service on and appearance by the property owners the matter was heard, upon which an order of public use and necessity was made by the court and entered of record. From that order Lofgren and wife have taken the cause to this court for review. The law applicable-to the case is the concluding part of section 16 of article 1 of the state Constitution, and section 925, Rem. Comp. Stat. tion is: The provision of the Constitu "Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public." The statute referred to says: "At the time and place appointed for hearing said petition, or to which the same may have been adjourned, if the court or judge thereof shall have satisfactory proof that all parties interested in the land, real estate, premises or other property described in said petition, have been duly served with said notice as above prescribed, and shall be further satisfied by competent proof that the contemplated use for which the land, real estate, premises or other property sought to be ap: propriated is really a public use, * that the public interest requires the prosecution of such enterprise, and that the land, real estate, premises or other property sought to be appropriated are required and necessary for the purposes of such enterprise, the court or judge thereof may make an order, to be recorded in the minutes of said court, directing the sheriff to summon jury." # and a Equity will not enforce contract, where result will be harsh and oppressive. 4. Wills 67-Widow's equities in third of estate bequeathed to her held superior to those of testator's children by former mar. riage under contract with former wife. Equities of testator's childless widow, to whom he bequeathed third of estate in violation of contract with first wife, of which widow had no knowledge when she married him, to make will giving all his property at first wife's death to their children, to whom he did devise entire remainder, held superior to children's equities in such third, as she would have been entitled thereto under Rem. Comp. Stat. § 1341, had testator died intestate, leaving children by her, while will provided for in contract would have been avoided under section 1399 by second marriage. Department 2. Appeal from Superior Court, Whitman County; Blake, Judge. Upon the return made here to the writ of review issued out of this court it appears that at the hearing in the superior court the petitioner therein, pursuant to the law above cited, introduced in evidence the resolution of the commissioners of the port district herein before mentioned, and in addition thereto oral testimony to show that the land sought to be taken is necessary in order to widen its present narrow wharf of sixteen feet in order to safely accommodate the travel and traffic of the patrons of the port district, and that the property would be used for that purpose. On the part of the property owners there was evidence controverting that of the petitioner; nevertheless, upon a due consideration of all of the evidence we are satisfied that it does not preponderate against the order and finding of the superior court de-, ents. Suit by Josephine E. Arland and others against George H. Arland, executor of the estate of Charles H. Arland, deceased, and another. Judgment for defendants, and plaintiffs appeal. Affirmed. Voorhees & Canfield, of Spokane, for appellants. Neill & Sanger, of Pullman, for respond For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |