the issue raised by the pleadings, would have been final, there can be no doubt, and it is upon this fact the relator founds his argument; and most of the authorities cited by him only hold that a judgment renderea under these circumstances would as finally determine the rights of the parties as one rendered after the issues made by an answer on the merits had been determined in favor of the plaintiff. But it does not follow from the fact that, if a judgment had been rendered, and allowed to stand unreversed, it would be final as to the rights of the parties, the trial court has no power to relieve a party from inadvertence or mistake before or after the entry of such judgment. The court may do this after the issues made by an answer upon the merits have been fully decided. Our statutes clearly contemplate such action. The courts are every day proceeding upon the theory that, upon a proper . showing, they may afford such relief. And there is no reason why the power of the courts should be more restricted after the dedetermination of such an issue as the one raised by the pleadings in this case than upon the determination of other material issues. Our statute as to amendments is very liberal, and, by force thereof, the court, upon a proper showing, and upon such terms as may be just, can furnish relief at almost any stage of the proceedings. If it sets aside a finding or judgment in favor of the plaintiff, without proper cause having been shown therefor, it may constitute such error as will authorize this court to reverse its determination in that regard upon appeal; but no relief could be furnished by way of a writ of certiorari, for the reason that the lower court, having the right to investigate and determine whether or not good cause had been shown for its action, was clothed with jurisdiction to act in the matter. Nothing is made to appear, from the petition in this cause, which satisfies us that the court has even committed error, much less has the fact of its exceeding its jurisdiction been established. The writ must be denied.

ANDERS, SCOTT, and STILES, JJ., con

cur.

DUNBAR, C. J. I concur in the result.

(9 Wash. 355)

HOWARD v. MCNAUGHT et al. (Supreme Court of Washington. July 9, 1894.) RES JUDICATA-FORECLOSURE OF MORTGAGE-ACTION ON BOND.

1. The foreclosure of a mortgage on lands situated in another state to secure a bond is no bar to an action on the bond where the defendants in the foreclosure action were nonresident of the state where the action was brought, and were not served with notice, since no personal judgment was rendered against them.

2. In a subsequent action on the bond, evidence of the value of the mortgaged premises is inadmissible unless fraud is pleaded in the sale of the same.

Appeal from superior court, Skagit county; Henry McBride, Judge.

Action by Charles H. Howard, guardian, against M. S. McNaught and another. There was a judgment for plaintiff, and defendants appeal. Affirmed.

D. M. Woodbury and Wells & Joiner, for appellants. Million & Houser, for respondent.

HOYT, J. This action was brought to recover an amount alleged to be due upon a certain bond. The appellants claimed there was nothing due thereon, for the reason that the debt evidenced by it had been reduced to judgment in the district court of Harper county, Kan. It appeared that there had been a foreclosure of a real-estate mortgage, which had been given to secure the payment of the bond in question, and that certain moneys had been realized upon a sale of the mortgaged property, and applied upon the amount due upon the bond, leaving a balance of $756, for which this action was brought. It further appeared that in such foreclosure suit there was no personal service upon the appellants, that they were nonresidents of the state, and never appeared therein. The alleged errors of the trial court are argued under several heads, but the material question involved in the entire discussion is as to whether or not, under the circumstances above stated, there was such a merger of the original cause of action that no suit could be maintained thereon here. If there was such a merger, then the rulings of the trial court were clearly erroneous, and the judgment should be reversed. If there was no such merger, then the judgment should be affirmed. That a cause of action is merged in a judgment rendered thereon may be stated as a general rule, and it is because of this rule, and of the fact that it is applied as well in the case of foreign as domestic judgments, that the appellants contend that this action could not be maintained. But to this general rule there are well-recognized exceptions or limitations, and one of these is that it is a merger only so far as the judginent determined, or might have determined, the rights of the parties; from which it will follow that the judgment in the state of Kansas was only a merger of the cause of action upon the bond so far as the enforcement thereof against the real estate was concerned. The judgment was only binding to that extent, and had no force against the appellants personally, or their property not covered by said mortgage. The rights of the appellants to make any defense that they might have to said bond were in no manner concluded by such judgment. Hence, under the exception or limitation above stated, there was no merger of the right to maintain a personal action against these defendants upon the original undertaking. See 15 Am. & Eng. Enc. Law, p. 340. § C.; McVicker v. Beedy, 31 Me. 314; Bank v. Butman, 29 Me. 19. Of

course the amount of the bond could be collected but once, and to the extent that money was realized in the proceeding in Kansas it would constitute a payment of the undertaking, and only the balance could be recovered here, and that is all that was sought in this action. The appellants attempted to prove the value of the land against which the foreclosure proceedings were had, and alleged error because they were not allowed to do so, but, in the absence of an allegation of fraud by reason of which the land had been sold for less than its value, it was immaterial whether it was worth more or less than the amount obtained for it. The judgment will be affirmed.

DUNBAR, C. J., and SCOTT, ANDERS, and STILES, JJ., concur.

(9 Wash. 357)

TUCKER v. BROWN et al.

SAME v. MASTICK.

(Supreme Court of Washington. July 9, 1894.) EJECTMENT-PLEADING.

In ejectment by an heir at law, a complaint which alleges that plaintiff's ancestor had never been a resident of the United States, had never done any business therein, that all debts owing by him at the date of his death had been fully paid, and that there was no necessity for administration, is not demurrable on the ground that the action should have been brought in the name of the ancestor's administrator, as the facts alleged show that no administration of the estate was pending, and that there was no possibility of any administration thereof being required in this state. Hill v. Young, 34 Pac. 144, 7 Wash. 33, followed.

Appeal from superior court, Jefferson county; R. A. Ballinger, Judge.

Action in ejectment by Benjamin James Tucker against S. H. Brown and the Hastings Estate Company.

Action in ejectment by Benjamin James Tucker against E. B. Mastick, Jr.

The defendants demurred to the complaints, and judgment in each action was rendered in favor of defendants, and plaintiff appeals. The court on appeal heard the cases together. Judgments reversed.

Arthur, Lindsay & King and H. H. Eaton, for appellant.

HOYT, J. The judgments from which these appeals were taken were rendered upon the sustaining of demurrers to the complaints. In the brief of the appellant it is stated that the ground upon which the complaints were held insufficient was that it appeared therefrom that the plaintiff was suing as heir, when there had been no administration or distribution of the estate of his ancestor. The respondents have made no appearance in this court, and we shall assume that the only fault found with the complaints by the lower court was as above stated. It is alleged in the complaint that the ancestor under whom the plaintiff claimed had never

been a resident of the United States, had never done any business therein, that all the debts owing by him at the date of his death had been fully paid, and that there was no necessity for administration. These statements are relied upon to take the cases out of the rule announced by this court in Balch v. Smith, 4 Wash. 497, 30 Pac. 648, and Hill v. Young, 7 Wash. 33, 34 Pac. 144, or, rather, to bring the plaintiff. within the exceptions suggested in the opinions in those cases. The facts alleged show that no administration of the estate of the ancestor was pending, and that there was no possibility of any administration thereof being required in this state. Under these circumstances we can see no reason why the heir should not be allowed to maintain his action as such. To so hold in no manner contravenes what was said in the cases above cited. On the contrary, those cases, when fairly interpreted, tend strongly to show that a complaint setting. out such facts would state a cause of action. The judgments will be reversed, and the causes remanded, with instructions to overrule the demurrers.

Notice of appeal from a judgment dis missing plaintiff's complaint in an action to foreclose a mechanic's lien, wherein like liens of other claimants on the same property were foreclosed, must be served on such claimants, and payment of their claims after service of such notice on defendant will not obviate the necessity of notice to them.

Appeal from circuit court, Multnomah county; Loyal B. Stearns, Judge.

Action by T. F. Osborn against Charles Logus to foreclose a mechanic's lien. From a judgment dismissing his complaint, plaintiff appeals. Dismissed.

Wallace McCamant, for appellant. J. H. Hall, for respondent.

PER CURIAM. This is a motion to dismiss an appeal. A decree having been rendered, dismissing plaintiff's complaint, in a suit to foreclose a mechanic's lien, wherein like liens of other claimants upon the same property were foreclosed, the plaintiff attempted to appeal by serving the notice thereof upon the owner of such property only. Appeals are taken by causing a notice to be served upon the adverse party, and filing the original, with proof of service indorsed thereon, with the clerk. Hill's Code, § 537. An adverse party is one whose interests in relation to the judgment or decree appealed from are in conflict with the modification or reversal sought by the appeal. The Victo‐

rian (Or.) 32 Pac. 1040. If the decree should be reversed, and one entered here foreclosing plaintiff's alleged lien, the interests of the other lien claimants would necessarily be in conflict with such decree, in case the property sought to be charged with the lien was upon a sale thereof insufficient to pay the whole amount decreed against it. Hill's Code, § 3677. In such case they would be compelled to share pro rata with the plaintiff, and hence the other lien claimants were or might thus become adverse parties.

But,

in order to show that the other claimants would not in fact be affected by such a decree, the appellant filed affidavits, and a copy of the decree, with marginal indorsements thereon, from which it appears that the amounts awarded to the several lien claimants have been paid. The proofs, however, are silent as to when these payments were made, except as to one of them, the acknowledgment of which was entered on the margin of the decree after the notice of appeal was served. Jurisdiction must be determined from the conditions existing when the appeal was taken, and could be acquired in this case only by service of the notice of appeal upon all the adverse parties. Hamilton v. Blair, 23 Or. 64, 31 Pac. 197; Moody v. Miller (Or.) 33 Pac. 402. And, plaintiff having failed to serve the other lien claimants with such notice, the appeal must be dismissed.

(26 Or. 152)

FINNEGAN v. PACIFIC VINEGAR CO. (Supreme Court of Oregon. July 30, 1894.) CORPORATIONS-CONTRACT OF DIRECTORS-RATIFI

CATION.

Where two of three directors of a corporation, without authority from the board, make a contract of employment, and the third director, after hearing of its terms, allows the employé, without objection, to continue work for four months, it will be presumed that the directors ratified the contract.

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Action by Thomas S. Finnegan against the Pacific Vinegar Company for damages for breach of contract of employment. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

F. R. Strong, for appellant. A. L. Frazer, for respondent.

BEAN, C. J. This is an action to recover damages for the breach of an alleged contract of employment. The complaint sets forth, in substance, that on November 1, 1892, the plaintiff was employed by the defendant corporation to act as its salesman and solicitor until October 14, 1893, under an agreement by which he was to receive for his services $100 a month in cash during the time stipulated, and $700 in the capital stock of the defendant; that the services were rendered according to the contract until June 7,

1893, when he was discharged without cause; that defendant has failed to pay him for such services since May 1, 1893, and has refused to deliver the promised stock, although demanded, to his damage in the sum of $960. The answer denies the contract as alleged, but admits that plaintiff worked for defendant as its salesman and solicitor from about November 1, 1892, and that he was paid at the rate of $100 per month while so employed, and alleges that such employment was during the pleasure of the defendant, and subject to be terminated by it at any time. The jury returned a verdict in favor of plaintiff, thus finding the contract as alleged by him; and, judgment being rendered accordingly, defendant appeals.

It appeared upon the trial that at the time the contract was made the officers of the defendant corporation were Gideon Stolz, president; John Sealy, vice president and general manager; and Frank Sealy, secretary,-and that these three persons composed the board of directors. The contract was entered into on behalf of the corporation by John Sealy, its vice president and manager, and Frank Sealy, its secretary, but without formal authority from the board of directors, or knowledge of the president. In pursuance of the contract, plaintiff worked for the defendant until June, 1893, without objection from any one, although the president, Mr. Stolz, as the evidence tended to show, knew of the terms of the contract at least as early as the preceding February. An objection was made to the admission of this testimony, which be ing overruled, it is now contended that it was incompetent because the contract was not authorized by the board of directors, nor any authority shown in the vice president to bind the company thereby. It is not necessary to decide whether the vice president, as general manager, had authority to bind the company by the contract as claimed by plaintiff. If he had no such authority the company is liable, if the contract was acquiesced in and ratified by its directors. It is well settled that a principal, who, after knowledge of the facts, neglects to promptly disavow the act of an agent who has exceeded his authority, makes such act his own, and such acquiescence is equivalent to a previous authority. This rule is as applicable to a corporation as an individual. Mechem, Ag. §§ 158, 167, 178. It was formerly the rule that a corporation could only appoint an agent by a formal resolution of its board of directors, and under its corporate seal; but this doctrine has long since been abandoned, and the authority of an agent to make the contract may now be shown, as in the case of individuals. It may be by showing an express appointment, or implied from the adoption or recognition of his acts by the corporation. Calvert v. Stage Co. (Or.) 36 Pac. 24. And such ratification need not be by a formal vote or resolution of the board of directors. Mo. 468, 10 S. W. 187.

Campbell v. Pope, 96 "If this were not so,"

as said by Mr. Justice Redfield, "It would lead to very great injustice, for it is notorious that the transaction of the ordinary business of railways, banks, and similar corporations, in this country, is without any formal meetings or votes of the board. Hence, there follows a necessity of giving effect to the acts of such corporations according to the mode in which they choose to allow them to be transacted." Bank of Middlebury v. Rutland & W. R. Co., 30 Vt. 159. Now, in this case the defendant having suffered the plaintiff to work for it, under a contract made with its vice president, for the period of eight months, without protest or objection, and without in any way signifying its dissent, the jury was justified in finding that it had ratified the act of its agent, and therefore could not be heard to impeach the validity of the contract on the pretense that it was made without authority. If it desired to disavow the contract, it was its duty to have been active in doing so as soon as the fact came to its knowledge. Two of the directors had notice of, and knew the terms of, the contract, at the time it was made, and the other, as the jury could properly have found, more than four months before any attempt was made to disavow it; and, having remained silent during this time, their assent and ratification will be presumed. Kelsey v. Bank, 69 Pa. St. 426; St. James Parish v. Newburyport & A. H. R. Co., 141 Mass. 500, 6 N. E. 749; Jourdan v. Railroad Co., 115 N. Y. 380, 22 N. E. 153. We are of the opinion, therefore, that the evidence was competent, and the judgment must be affirmed.

(26 OT. 145)

FRIESE v. HUMMEL et al. (Supreme Court of Oregon. July 30, 1894.) JUDGMENT-ACTION TO SET ASIDE WHEN LIES. A decree of the supreme court will not be set aside for perjury and fraud unless the perjury and fraud are collateral to the questions examined and determined in the action.

Appeal from circuit court, Multnomah county; Loyal B. Stearns, Judge.

Action by Louise Friese against W. F. Hummel and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Frank B. Jolly, for appellant. F. A. E. Starr, for respondents.

PER CURIAM. This is a suit to set aside a former decree of this court, rendered March 29, 1892, in the case of Hummel v. Friese, 29 Pac. 438, and for a new trial, on account of the alleged perjury of a witness. The plaintiff, for cause of suit, alleges, inter alia: "That by perjury and fraud the plaintiff in the suit above named in this answer [referring to the answer in the former decree] had sufficient testimony to warrant the court in ordering and entering the decree above set forth. That C. G. Hummel, by whose testimony alone it was established that the con

veyance named in said answer described all the property purchased by plaintiff from him in said block, perjured himself in the oath he took, in this: In 1879, by writing made and signed by him, and delivered to one -, he agreed, for $1,200, to be paid within one year, to deed all the land within said inclosure to said W. Beutelspacher. That, in order to enable himself to convey all such land to plaintiff, said Hummel, by agreement with said W. Beutelspacher, and payment to him of $25, canceled such agreement, and it was returned to him, with said understanding, in the presence of another party. That after testifying, and before said decree, said Hummel died. That, since said decree was given, plaintiff discovered said testimony, not knowing of it before. That, on a new trial of said suit, plaintiff will introduce such testimony, and prove said facts by said witnesses." The court having sustained a demurrer to the complaint for the reason that it did not state facts sufficient to constitute a cause of suit, and the plaintiff refusing to further plead, a decree was rendered dismissing the suit, from which decree the plaintiff appeals.

Did the complaint state sufficient facts to entitle the plaintiff to the equitable relief de manded? is the question involved in this suit. A court of equity may, by an original bill in the nature of a bill of review, set aside a decree obtained by the fraud of the prevailing party, where the acts or conduct constituting such fraud were not involved in the consideration of the merits. 2 Freem. Judgm. (4th Ed.) § 485. A judgment or decree procured by perjury is doubtless a fraud, and such as would induce equity to grant relief, were it not for the fact that its existence can rarely or never be ascertained otherwise than by trying anew an issue tried in a former proceeding. Id. § 489. Frauds for which a court of equity will set aside a judgment or decree must consist of extrinsic, collateral acts, not involved in the consideration of the merits. The credibility of testimony given on the trial of a cause, bearing upon the issue, is intrinsic, and has been considered in reaching the conclusion sought to be impeached; and the case is not the less tried on its merits, and the judgment is none the less conclusive, by reason of the false testimony produced. U. S. v. Flint, 4 Sawy. 42, Fed. Cas. No. 15,121. "Relief," says Allen, J., in Ross v. Wood, 70 N. Y. 8, "can only be granted upon some new matter of equity, not arising in the former case. Equity will not take cognizance, on the same grounds, of the very point which another court of competent authority in the case has considered and decided." In Tebbets v. Tilton, 31 N. H. 273, it was held that fraud in a judgment might be shown by a party when it may be done without showing any participation in the fraud, and where it does not involve a re-examination of the merits of the case. In Folsom v. Folsom, 55 N. H. 78, it was held,

in a suit to impeach a decree for fraud, that evidence, discovered after the trial, which showed that the decree had been obtained by perjury, was not newly discovered, but cumulative upon the same issues tried before. In Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, and 27 Pac. 537, the facts showed that the plaintiff was over 80 years old, unused to business, and could not speak or understand the English language; that he owned real property of the value of $200,000, upon which there was an incumbrance of $63,000; that, being pressed for payment, he applied to one B. Cohn for, and obtained, a loan of that amount, to secure the payment of which he executed and delivered an absolute conveyance of all his property; that within two months from the time he received the loan he tendered to Cohn $65,000, and demanded a reconveyance, but upon Cohn's refusal to convey he commenced an action to recover said property; that, during plaintiff's negotiations with Cohn, one Pico Johnson was present, and knew that the transaction was a loan and security, and not a purchase and conveyance absolute, and shortly after the execution of the deed so stated to others; that, relying on Johnson's knowledge of the transaction, and his statements concerning it, plaintiff called him as a witness, when, instead of testifying that the transaction was a loan and mortgage, he testified that it was a sale and absolute conveyance, and upon the strength of his evidence a decree was rendered in favor of the defendant. In a suit brought to set aside this decree, it was alleged, in addition to the foregoing facts, that plaintiff had made the discovery that Cohn had paid Johnson $2,000 to testify falsely, which sum was placed in the hands of one Forbes, with directions, given in Johnson's presence, to pay it to him if he testified to an absolute sale, and that immediately after he had so testified he demanded and received the money. A demurrer to the complaint having been sustained by the lower court, the judgment was, upon appeal, affirmed, the court saying: "That a former judgment or decree may be set aside and annulled for some frauds, there can be no question; but it must be a fraud extrinsic or collateral to the questions examined and determined in the action. And we think it is settled beyond controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony." See notes to this case in 13 L. R. A. 336. The reason assigned in support of this rule is that causes once tried by a court having jurisdiction of the subject-matter and the parties should forever be at rest; that the unsuccessful party ought reasonably to expect, if he had an unscrupulous adversary, that perjured testimony would be offered at the trial, and should be prepared to meet it; and that, having gone into a consideration of the merits, he is estopped by the conclusion of the court. U. S. v. Flint, supra. The plaintiff not hay

2 Comp. Laws, § 3641, provides that, when a judgment directs the delivery of possession of real property, its execution cannot be stayed on appeal without giving a bond therefor. Section 3642 provides that, when an appeal is taken and a bond given, all proceedings in the lower court shall be stayed. Held, that where defendant, by means of a ditch, appropriated to his own use the water in a stream, and plaintiff obtained a judgment entitling him to the use of a part of the water, and secured an injunction restraining defendant from taking more than a certain amount, the court erred in refusing to allow a supersedeas bond to stay the injunction pending appeal. Miner, J., dissenting.

Appeal from district court, Salt Lake county; before Justice C. S. Zane.

Action by Lewis A. Scott Elliot against George C. Whitmore and another for an injunction and for damages. From an order refusing to fix the amount of a supersedeas bond, defendants appeal. Reversed.

Brown & Henderson and E. D. Hoge, for appellants. C. S. Varien and Zane & Putnam, for respondent.

MERRITT, C. J. This is an appeal from an order of the third district court refusing the application of the defendants to fix the amount of the supersedeas bond to be given to stay the judgment on appeal from the final decree, and denying a stay of proceedings upon the injunctional order contained in said decree. The complaint in this action was filed in the first district court at Provo, September 8, 1887, and averred that defendants were entitled to a primary right to the waters of Grassy Trail creek, to a certain amount; that the plaintiff, in 1885, appropriated to his own use certain amounts of water from said creek, in excess of the amount conceded to defendants, and that he was the owner of such excess by prior appropriation; that defendants had, in violation of plaintiff's rights, taken possession of all the waters of said stream, and, "by means of dams, flumes, and ditches theretofore dug and made, unlawfully diverted all of the waters of said creek from the channel thereof, and from plaintiff, and refuses to allow the same, or any part thereof, to flow down to or on his said land;" and that defendants. threaten to continue such diversion and appropriation unless restrained,-and prays for an injunction, and that the same may be made perpetual enjoining such diversion by defendants. The answer admits the taking of the water, but denies any appropriation by