trial court, and an order was made vacating the default, setting aside the judgment, and permitting the answer of the respondent to be filed. This order was made conditional upon the payment of $25 by the respondent to counsel for the appellant. The $25 was paid and was received by counsel for the appellant. [1] The appellant makes two contentions here, to the effect: First, that the court had no jurisdiction to set aside the judgment, by motion upon the grounds stated; and, second, that the court abused its discretion | in vacating the judgment. It is argued by the appellant that the proper procedure was the one provided for in section 467, Rem. Code, by petition, and not by motion. In the case of Spokane & Idaho Lumber Co. v. Stanley, 25 Wash. 653, 66 Pac. 92, we had occasion to consider this question, and there held that in cases of this character the court had jurisdiction and that a motion to vacate a judgment upon the grounds here stated was a proper proceeding. It is unnecessary to further consider this question. [2] It is next argued that the court abused its discretion in setting aside the judgment. The statute, at section 303, Rem. Code, pro 2. MINES AND MINERALS 38(2)—RECOVERY OF MINING CLAIMS-TITLE. mining claims, rule in ejectment cases that In possessory actions to recover unpatented plaintiff must recover on strength of own title, and not weakness of adversary's, does not apply, as in such actions the better title prevails. Department 1. Appeal from Superior Court, Okanogan County; John Truax, Judge. Action by the Oroville International Salts Company, a corporation, against S. Rayburn and others. Judgment for defendants, and plaintiff appeals. Affirmed. J. H. Templeton, of Seattle, and P. D. Smith, of Okanogan, for appellant. Mulligan & Bardsley, of Spokane, and E. A. Williams, of Oroville, for respondents. MITCHELL, J. This action involves conflicting claims to an unpatented mining claim for the purpose of mining. In May, 1917, plaintiff commenced the suit. It alleged in the complaint that since December, 1911, it had been, subject to the paramount title of the United States, the owner of and in the actual possession of one certain placer min Claim," giving a description of it by goving claim known as the "Saline Placer within the last three years, in pursuance of ernmental subdivisions; that defendants, vides that the court may, upon such terms as may be just, and upon payment of the cost, relieve a party from a judgment taken against him through his mistake, inadvert-a conspiracy to defraud plaintiff, received ence, surprise, or excusable neglect. The facts in the case are not disputed, and we think there is no merit in the contention that the court abused its discretion in va cating the judgment. If the appellant did not owe the defendants in the original ac tion, it was clearly the duty of the court, under the. circumstances, which are not disputed, to permit a trial of that question. Another sufficient reason for affirmance is the fact that the judgment was vacated upon condition of the payment of $25. This was paid by respondent and received by counsel for appellant, which was thereby estopped from contesting the order. Affirmed. MAIN, C. J., and HOLCOMB, MACKINTOSH, FULLERTON, PARKER, CHADWICK, TOLMAN, and MITCHELL, JJ., con cur. $3,159 in the way of royalties from a third person on account of epsom salts removed from the property by such third person, who was wrongfully put on the property by defendants. The complaint sets out facts upon which such charge of conspiracy was based not necessary to be further noticed here. with considerable detail and particularity, The complaint demanded judgment in said sum of $3,159. with certain admissions and an affirmative Defendants answered by denials, coupled defense, followed by two cross-complaints, only the first of which need be noticed. In their first cross-complaint they alleged in substance that for many years prior to the commencement of the action they had been the owners, subject to the paramount title of the United States, of the Saline placer claim (describing it), and had been in possession of it, but that plaintiff, within one year prior to the commencement of the action wrongfully, unlawfully, and without right or authority entered upon same, and had taken and removed therefrom, and converted to its OROVILLE INTERNATIONAL SALTS CO. cwn use, a large amount of epsom salts of v. RAYBURN et al. (No. 14645.) (Supreme Court of Washington. Nov. 13, 1918.) 1. JURY 14(9)-RIGHT TO JURY TRIAL-RECOVERY OF MINING CLAIM. In an action for possession of mining claim, where defendants alleged ownership and right of possession, of which they had been wrongfully deprived, defendants were entitled to a jury trial. the reasonable value of $15,000. Plaintiff replied to the first cross-complaint by a general denial only. The case was set for trial at a jury term, and when it was reached plaintiff first moved to dismiss all that part of its complaint asking for damages, and also objected to a jury trial. Defendants insisted on a jury trial. After some colloquy the court held defendants were entitled to a jury trial. Upon further discussing the matter, plaintiff then elected to go to trial on the issues made by the first cross-complaint and reply. There was a jury trial. At the conclusion of defendants' proof plaintiff moved, first, for a nonsuit against defendants W. C. Hancock and G. M. Rayburn; and, second, for a nonsuit against all of defendants, each on the ground that they had failed to prove title in themselves. Both motions were denied. A verdict for defendants, that they were the owners of and entitled to the possession of the placer claim (describing it), but awarding no damages, was returned by the jury. Plaintiff in due time filed a motion for a new trial on the grounds of insufficiency of the evidence to justify the verdict and that the verdict was against the law and the evidence, and also filed a motion for judgment notwithstanding the verdict for the same reasons. Both motions were denied, and judgment entered for defendants on and according to the verdict. Plaintiff appeals. Errors, as assigned, are: (1) The court erred in refusing to discharge the jury; (2) the court erred in refusing to grant appellant's motion for nonsuit against respondents Hancock and G. M. Rayburn; (3) the court erred in refusing to grant appellant's motion for nonsuit against all of the respondents; (4) the court erred in denying appellant's motion for judgment notwithstanding the verdict; (5) the court erred in denying appellant's motion for a new trial. other person except the United States. With such view it then proceeds to argue that the placer location notices of respondents were fatally defective, and contends, therefore, that the judgment is erroneous. Appellant misconceives the character of the burden in this case. The rule is declared in the case of National Milling & Mining Co. v. Piccolo, 54 Wash. 617, 622, 104 Pac. 128, 130, to be: "And in determining this question it must be remembered that in possessory actions to recover unpatented mining claims the rule of ejectment, namely, that the plaintiff must recover on the strength of his own title, and not the weakness of his adversary's, does not apply. In actions of this sort the better title prevails." There is ample testimony in this case to satisfy a jury of compliance on the part of respondents with the requirements of the statute as to their filing on the property as a placer claim and doing all subsequent assessment work, and there is no testimony to show that respondents have ever parted with any interest to the appellant. In the trial it does not appear that appellant requested a single instruction to the jury, and on the other hand the law of the case was quite fully covered by instructions given, none of which was excepted to by the appellant. Judgment affirmed. MAIN, C. J., and TOLMAN, FULLERTON, and PARKER, JJ., concur. [1] As to the first assignment of error, it is apparent respondents were entitled to a jury trial. They alleged ownership and right of possession, and that they had been wrong-1. fully deprived of the latter by appellant, which had committed waste. As to the second, third, fourth, and fifth assignments of error, they may properly be considered together-a plan suggested and adopted by appellant in its brief. There had been a former location of both lode and placer claims on this same property by parties who sold to respondent S. Rayburn a one-fourth interest and the remainder to a corporation, other than appellant, that years ago became defunct and abandoned all claim to the property. Respondent S. Rayburn never abandoned or disposed of his rights, so far as appellant is concerned, and later on, with the other respondents, filed a placer claim on the property, and afterward performed all the annual assessment work. [2] Appellant proceeds in presenting the cause upon the theory that in such case as this respondents must recover, if at all, on the strength of their own title, and not on the weakness of their adversary's title, or, as counsel state it, respondents are burdened to show title against appellant and every NELSON v. INDUSTRIAL INSURANCE (Supreme Court of Washington. Nov. 20, 1918.) MEN'S COMPENSATION - Workmen's Compensation Act, evidence held to NESSES. In a proceeding under Workmen's Compensation Act, the allowance of $45 to an expert med1915, § 6604-20, authorizing the court to allow ical witness was not justified under Rem. Code fees of medical and other witnesses out of the administration fund. 3. Cosrs 3-DEPENDENT ON STATUTE. Costs and witness fees are not allowable in absence of a positive or permissive statute. Department 2. Appeal from Superior Court, Clarke County; R. H. Bach, Judge. Proceedings under the Workmen's Compensation Act (Laws 1911, p. 345) by N. E. Nelson. From an order of the Industrial Insurance Department, granting an award as for permanent partial disability, the Insurance Department appeals. Modified and affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes W. V. Tanner, of Olympia, and Howard, dent he was with respondent when he was Waterman, Asst. Atty. Gen., for appellant. Henry Crass, of Vancouver, for respondent. shooting hogs and that he could shoot from one shoulder as well as the other, and that he never complained about his eyesight. [1] One of the first inquiries made by oculists in cases of atrophy of the optic nerve is whether the patient has ever been afflict CHADWICK, J. This case comes to us on appeal from a judgment of the superior court overruling an order of the Industrial Insured with lues or any germ-carrying disease. ance Department, granting respondent an allowance for a permanent partial disability. Respondent was injured in an accident on a logging railroad. He claims the loss of the sight of one eye. The court made findings as follows: "That prior to the accident plaintiff's eyesight was good, and he was not afflicted with optic atrophy. "That at the time of the injury plaintiff complained of severe pain in his head over the left eye, which pains continued for some time, and to a certain degree up to the time of the trial. "That shortly after the injury, the sight of the left eye began to fail and decrease rapidly, and at the time of the trial plaintiff was practically blind in the left eye. "That shortly before the accident plaintiff could use one eye as well as the other, and there was no difference in the sight of either. "That as a result of the injury, plaintiff has sustained the practical total loss of vision in the left eye." There is no evidence that respondent was ever so afflicted. He denies that he was ever the victim of any such condition. These physical facts, coupled with the opinion of reputable oculists that the condition may have resulted from the accident is enough to sustain the judgment of the court below. [2] The trial judge allowed a fee of $45 to one of the medical witnesses who came from Portland, Or., to attend the trial. It is the contention of respondent that this allowance is proper under Rem. Code, § 6604-20, which provides that the court may allow an attor ney's fee, "and the fees of medical and other witnesses and the costs shall be payable out of the administration fund, if the accident fund is affected by the litigation." There is no provision of the law that will warrant the payment of extraordinary fees It was forto expert witnesses as such. merly provided in section 25 of the original act of 1911 (Laws 1911, p. 371) that— decision of the department affecting the extent of "Upon the appeal of any workman from any his injuries or the progress of the same, the court may appoint not to exceed three physicians to examine the physical condition of the appellant, who shall make to the court their report thereon, and they may be interrogated before the court by or on behalf of the appellant in relation to the same. The fee of each shall be fixed by the court, but shall not exceed ten dollars per day each." This section was expressly repealed by section 10, c. 188, Laws 1915, p. 691, so that the only statute that remains is that part of section 20 of the original act providing "the fees of medical and other witnesses and the costs shall be payable out of the administration fund." The physicians called in behalf of the department testify positively that the loss of the sight of respondent's eye could not have resulted from the injury received in the accident; that respondent is suffering from a primary optic atrophy; that primary atrophy is not due to inflammatory processes, nor is it the result of an injury; that if there has been an atrophy of the optic nerve due to such causes it is called secondary atrophy; that it is likely that respondent, being afflicted with true or primary optic atrophy was not aware of his condition, which must have existed for some time before the accident although not discovered until after he had been injured. On the other hand, professional men testifying on behalf of respondent advance the opinion that there may have been some injury of the optic nerve; that it is almost impossible to make We think it is hardly within any rule of a positive diagnosis in a case like this; that statutory construction to say that it was the no one can say definitely whether an atrophy intention of the Legislature to leave the fixing of the optic nerve is primary or secondary, of witness fees to the discretion of the court. without considering the history of the case, "At common law costs were not recoverable eo nomine. * * Costs can therefore be recov. and that there is no specific rule to positive-ered only in cases where there is statutory auly determine what has caused the condition. One of the doctors suggests that the learned discourse about primary and secondary atrophy is "dictionary definition pure and simple," and that the term "primary atrophy" is often used for convenience to cover ignorance of the true causes. The doctors, as is sometimes the case, have disagreed. Their opinions cannot be reconciled. The testimony of the respondent is that he was a carpenter by trade, that up to the time of the accident he used either eye as convenience dictated, and that there had been no trouble "Sums paid for compensation of expert witwith or diminution of his vision. A neighbor nesses beyond ordinary fees authorized by stattestified that about a year before the acci-ute for witnesses generally are not taxable as thority therefor." 15 C. J. 21. "It is settled in this state that costs are purely statutory, and can only be awarded when the statute gives them." Eggerth v. Spokane, 91 Wash. 221, 157 Pac. 859. [3] Being dependent upon the statute, costs and witness fees are never to be allowed in the discretion of the trial judge, in the absence of a positive or permissive statute. In re Queen, 82 N. J. Eq. 588, 89 Atl. 860; Struthers v. Christal, 3 Daly, 327; Wallace v. Sheldon et al., 56 Neb. 55, 76 N. W. 418. So it is held that— costs." 15 C. J. 131; 5 Standard Encl. Proc. | son, Hugh C. Todd, Van Dyke & Thomas, 951. Walter S. Fulton, Jay C. Allen, and Roberts, Wilson & Skeel, all of Seattle, for respondents. It will be observed that the only discretion given to the court in the allowance of costs on appeal from an order of the department, is that the trial judge may fix a reasonable attorney's fee and "such [reasonable] fee, and the fees of medical and other witnesses * * shall be payable" etc., plainly indicating that it was the intent of the Legislature to associate medical witnesses with "other witnesses" and not with the attorney whose service is independent of the witnesses, and for which no fee is provided by law. We have heretofore refused to extend the terms of this statute by construction. O'Brien v. Industrial Insurance Department, 100 Wash. 674, 171 Pac. 1018. It follows that the judgment of the lower court should be modified to this extent. In all other respects it is affirmed. PARKER, J. This action was commenced by the plaintiff, Andersonian Investment Company, in the superior court for King county, seeking foreclosure of a mortgage executed by the defendants John Parry Jones and wife upon a lot and apartment house thereon in Seattle, owned by them, purporting to secure an indebtedness of $25,000 owing by them to the plaintiff. The foreclosure was sought upon the ground that there was default in the payment of interest on the part of Jones and wife at the time of the commencement of this action, entitling the Investment Company to declare the whole indebtedness due. The foreclosure was resisted by Jones and wife, claiming that there was no default on their part in the payment of interest; that but $13,125 of the MAIN, C. J., and HOLCOMB, MOUNT, loan had been advanced by the Investment and MACKINTOSH, JJ., concur. Company, on which the interest had been paid in full at the time of the commencement of this action; and that the failure of the Investment Company to advance the ANDERSONIAN INV. CO. v. JONES et al. balance of the $25,000 loan was in violation (No. 14794.) (Supreme Court of Washington. Nov. 14, 1918.) 1. MORTGAGES 25(6)—CONSIDERATION-EVIDENCE. In an action to foreclose a mortgage on land for $25,000, evidence held to show that the mortgagee had only furnished about $15,000, and that $10,000 claimed to have been furnished was furnished to a third person solely upon the latter's credit, and mortgagors were not liable therefor. 2. MORTGAGES 151 (3)-PRIORITY - ARCHITECT'S LIEN. Under Rem. Code 1915, § 1132, an architect's lien is superior to the lien of a subsequent mortgage, where the mortgagee had knowledge that the architect had commenced work on the plans and specifications. 3. MECHANICS' LIENS 151(3)-PRIORITY MORTGAGES. Where a mortgagee at the time of the execution of his second mortgage understood that he was taking it subject to a mortgage for $25,000, to be used in paying for materials and labor, the second mortgage was inferior to labor and material liens, where only about $13,000 had been advanced under the first mortgage, and the labor and material liens amounted to several thousand dollars. Department 1. Appeal from Superior Court, King County; Ralph C. Ball, Judge. Action to foreclose a mortgage by the Andersonian Investment Company against John Parry Jones and wife and others. There were various interveners. From a decree denying foreclosure and fixing certain rights, plaintiff and various other parties appeal. Modified and affirmed. of its contract to advance the same from time to time to be applied in payment of bills incurred in the construction of an apartment house, which violation of its contract resulted in enforceable mechanics' and materialmen's liens to the extent of several thousand dollars being filed against the property. These several lien claimants assert their rights by cross-complaints, seeking foreclosure of their several liens. The GermanAmerican Mercantile Bank by its cross-complaint seeks the foreclosure of a second mortgage upon the same property executed by Jones and wife to the Central Realty Company to secure an indebtedness of $5,000 owing by them to that company, which was asForeclosure of that signed to the bank. mortgage is sought upon the ground that there had been default on the part of Jones and wife in the payment of interest thereon which entitled the bank to declare the whole indebtedness due. The bank also resists foreclosure of the $25,000 mortgage by the Investment Company upon the same ground as Jones and wife resist that foreclosure, although it is conceded that the Investment Company's mortgage is superior to the bank's mortgage to the extent of the loan secured thereby which has been actually advanced by the Investment Company. While this case was pending in the superior court the German-American Mercantile Bank passed into the hands of the State Bank Examiner be Edwin H. Flick and Fred D. Fletcher, both couse of its insolvency, who now succeeds of Seattle, for appellants. to all its rights here involved. Douglas & Douglas, H. D. Folsom, Jr., A. H. Wiseman, C. H. Winders, M. M. Richard Trial in the superior court upon the merits resulted in findings and decree: (1) Denying For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 176 P.-2 to the Investment Company foreclosure of its mortgage upon the same ground, in substance, as such foreclosure was resisted by Jones and wife and the bank, but preserving the Investment Company's mortgage as a first lien superior to all others here involved to the extent of $13,125 advanced by the Investment Company upon the $25,000 loan, and the sum of $1,743.28 additional advanced by the Investment Company to the receiver appointed in this action, for the purpose of finishing the building and putting it in rentable condition in the interest of all parties; (2) awarding foreclosure of the lien claims, all subject to the Investment Company's mortgage to the extent of the amount actually advanced by it upon the indebtedness to be secured thereby as above noticed, but decreeing the liens to be superior to the bank's mortgage; (3) awarding foreclosure of the bank's mortgage as a lien inferior to all others here asserted, such foreclosure being awarded upon the ground of default in payment of interest, entitling the bank to declare the whole indebtedness due. The plaintiff Investment Company has appealed from the decree in so far as it is denied foreclosure of its mortgage for the full amount of $25,000 and interest as a first lien upon the property. John Braida, assignee of William J. Jones, cross-complainant, asserting a lien claim for services rendered by Jones as architect in the construction of the building, has appealed from the decree in so far as it adjudges the lien claim for such services to be inferior to that of the lien of the Investment Company's mortgage. The State Bank Examiner, successor in interest of the German-American Mercantile Bank, has appealed from the decree in so far as it adjudges the bank's mortgage lien inferior to the liens of the laborers and materialmen, conceding that the architect's lien is superior to the bank's mortgage. In August, 1915, and for some time prior thereto, John Parry Jones and wife were the owners of the lot in question, it being then unimproved. The Central Realty Company was then, and until near the time of the commencement of this action, engaged in promoting the construction of buildings upon unimproved property in Seattle by securing loans and entering into contracts for the construction of such buildings, looking to the receiving of commissions upon such loans and profits upon such contracts. On August 5, 1915, the Realty Company entered into a contract with Jones and wife looking to the construction of an apartment house upon their lot for which it was to receive $30,000 in the form of mortgages or the proceeds thereof. It appears that preliminary plans had then been prepared for the building by W. J. Jones, an architect, at the instance of the Realty Company, which plans, though not then completed in detail, were, as viewed nature and size of the building to be constructed, to enable them to contract with reference thereto. In that contract the Realty Company was designated as the party of the first part, and Jones and wife were designated as parties of the second part. So far as we need here notice its provisions, it reads as follows: "It is agreed by and between the parties hereto that for and in consideration of the sum of $30,000 to it paid, in the manner hereafter set forth, by the parties of the second part, the party of the first part agrees to erect upon the above-described property a three-story apartment house, in accordance with the plans and specifications of W. J. Jones, architect, and under his supervision, the plans and preliminary specifications having been agreed upon by the parties hereto. The party of the first part hereby agrees that said sum of $30,000 shall include all expenses in connection with the erection of said apartment house, including the actual cost of the building itself, all commissions for obtaining the money, and all architect fees and in accordance with said plans and specifications, expenses, and that said building will be erected, for said sum. "Said sum of $30,000 is to be secured in the following manner: The parties of the second part are to give mortgages upon said property running to whomever the party of the first part may secure who will furnish said money. The first mortgage to bear interest at the rate of 7% per annum, to be for not less than three years, and to be for whatever amount the party of the first part can secure upon the property. The second mortgage to be for the balance of said $30,000, to bear interest at the rate of 8% per annum, and to be repaid out of the rents and profits derived from the operation of said apartment house; it being understood, however, that operating expenses, including the sum of $60.00 per month paid to the parties of the second part for janitor services, and all taxes and interest, shall be first deducted from the rentals, and the balance applied upon the second mortgage. "As soon as said plans and specifications have been prepared by the architect and approved by the city building department the party of the first part agrees to proceed diligently with the erection of said building, and to complete the same in as short a time as possible, building conditions and the state of the weather permitting. The party of the first part to have the eration of said building until the net income decollection of all rents and the handling and oprived from such rental, after deducting the regular real estate commission for collecting rents,, shall have liquidated the second mortgage." There is no stipulation in this contract as to what the cost of the building should be to the Realty Company, nor as to what its actual value should be when completed, aside from the stipulation that it should be "according to plans and preliminary specifica-. tions" agreed upon. In other words, Jones and wife were to have the completed building in consideration of the execution of the mortgages and the placing of the control and management of the building in the hands of the Realty Company. In pursuance of this contract the Realty Company induced the Investment Company to agree to make a loan of $25,000 to Jones and wife to be secured by a first mortgage upon the property, the money to be advanced from time to time by the In |