The questions presented upon the defend- the verdict. There was evidence which, if ant's appeal are as follows: First, Does the believed by the jury, would support the versecond amended complaint state two distinct dict. causes of action, one for an alleged breach of a written contract, and the other for an alleged tort, without separately stating them? and, second, Did the court err in overruling the appellant's motion for judgment non obstante veredicto? [3] Neither would the special finding of the jury justify a judgment for nominal damages only. The contract was claimed to be breached in a number of particulars. The evidence as to the damages gave it in a lump sum. There was no segregation as to the amount of damages which might have been sustained by reason of the plaintiff's failure to properly care for the ditches, as found by the jury in its special verdict, and the amount of damages which resulted, for instance, from failure to construct the fences, crossings, and approaches as provided in the contract. Hence, if the judgment in its entirety could not be sustained, it would only result in a new trial. This the defendant does not ask. In a colloquy which occurred between the trial court and the defendant's counsel, when the motion for judgment non obstante was being heard, the court, believing that it had committed error in the giving of a certain instruction which had been re I. The defendant claims that the facts pleaded in the second amended complaint constitute more than one cause of action, and that the complaint is demurrable because the several causes of action are not separately stated. In support of this contention an engaging argument is made. It must be admitted that there are certain expressions in the complaint which, if removed from their setting, would support this view. But when the complaint is read in its entirety, we think it is sufficiently plain that the plaintiff was predicating his action upon a breach of the terms contained in the right of way deed. This deed, as already noted, is attached to the complaint and is made a part thereof, and in each paragraph of the com-quested by the plaintiff, stated that if the plaint, where the facts upon which the right of action is based are stated, the contract is referred to. The [1] But if it were assumed that the facts stated constitute two or more causes of action, the fact that they are not separately stated would not justify the relief which the appellant asks. For an error of this nature would only result in a reversal of the judgment and not a dismissal of the cause. defendant, in concluding its argument upon this branch of the case, "asks for an order reversing the judgment and dismissing the case," apparently being content with the judgment unless a dismissal can be secured upon the record or a judgment for nominal damages entered. defendant were asking for a new trial, it should be granted. In response to this the defendant's counsel said, "Well, we do not ask it." Upon the plaintiff's appeal it is claimed that the court erred in the giving of certain instructions. Without reviewing these in detail, it may be said that this claim of error is not well founded. The judgment will be affirmed. CROW, C. J., and ELLIS, CHADWICK, and GOSE, JJ., concur. (82 Wash. 330) STATE ex rel. SHATTUCK, Sheriff, v. FRENCH, Superior Court Judge. (No. 12455.) (Supreme Court of Washington. Nov. 18, 1914.) CERTIORARI (§ 16*) - DECISIONS REVIEWABLE-FINALITY OF DETERMINATION. Certiorari will not lie to review a threatened order discharging a prisoner on habeas the prisoner has yet been entered. corpus, where no judgment or order discharging [2] II. The motion for judgment non obstante veredicto is based upon the claim: (a) That there was no evidence as to the amount of damages; and (b) upon the special find-1. ings of the jury that the plaintiff had not exercised ordinary care to keep open the drains and ditches upon his land. As appears from the facts stated, the judgment was entered by the clerk upon the verdict immediately upon its return, and the motion for judgment non obstante veredicto was not made until the day following. Under the holding of the recent case of Forsyth v. Dow, 142 Pac. 490, this motion was not timely. It was there held that a motion for judgment non obstante, made after judgment was entered upon the verdict, came too late. It may be said, however, that since this case was pending here when the decision in the Forsyth Case was rendered, we have looked into the record, and find that the trial court committed no error in overruling the motion for judgment notwithstanding [Ed. Note.-For other cases, see Certiorari, Cent. Dig. §§ 31, 32; Dec. Dig. § 16.*] 2. CERTIORARI (§ 5*) — EXISTENCE OF OTHER REMEDY-ADEQUACY. Under Rem. & Bal. Code, § 1002, authorizing the issuance of certiorari where there is no plain, speedy, and adequate remedy at law, and appeal, nor, in the judgment of the court, any section 1716, authorizing appeals by the state in criminal actions where the error complained of is some material error in law not affecting the acquittal of the prisoner on the merits, certiorari will not lie to review the discharge of a prisoner on habeas corpus for failure to bring him to trial within the statutory period of 60 days, even though habeas corpus is not a proper has a remedy by appeal which the Legislature remedy to procure his discharge, since the state has, in effect, declared an adequate remedy, not withstanding the possibility that the prisoner | herein, which return is not controverted, may abscond pending the appeal. [Ed. Note. For other cases, see Certiorari, Cent. Dig. §§ 5, 6; Dec. Dig. § 5.* For other definitions, see Words and Phrases, First and Second Series, Certiorari.] Department 2. Certiorari by the State, on relation of. J. Howard Shattuck, Sheriff of Kitsap County, against Walter M. French, Judge of the Superior Court for Kitsap County, to review an order discharging a prisoner on habeas corpus. Proceeding dismissed. F. W. Moore, of Bremerton, for plaintiff. Garland & McLane, of Bremerton, for respondent. the trial court was advised, not only by the two informations that the same offense was charged and in the same language in both cases, but that it was so stated by the prosecuting attorney in open court upon the hearing. The trial court thereupon expressed the opinion that the prisoner should be released for the reason that the crime charged was a misdemeanor, and that the prisoner had been confined in jail for more than 60 days and had been discharged for that reason by order of the court, and that the state was barred from any further prosecution for the same offense. On request of the prosecuting attorney the trial court took the matter under the prosecuting attorney should have time to apply to this court for a writ of review. The statute (Rem. & Bal. Code) declares: formed against for an offense, whose trial has "Sec. 2312. If a defendant indicted or innot been postponed upon his own application, be not brought to trial within sixty days after the indictment is found or the information filed, the court shall order it to be dismissed, unless good cause to the contrary is shown." "Sec. 2315. An order dismissing a prosecution under the provisions of sections 2311, 2312, or 2314 shall bar another prosecution for a misdemeanor or gross misdemeanor where the proseIcution dismissed charged the same misdemeanor or gross misdemeanor, but in no other case shall such order of dismissal bar another prosecution." ELLIS, J. This case is here upon the re-advisement and withheld his decision until turn to an alternative writ of certiorari to review a threatened order of the superior court of Kitsap county, discharging a prisoner upon the sheriff's return to a writ of habeas corpus issued from that court. The facts are not disputed. On August 18, 1914, one James Stewart was arrested upon a warrant founded upon an information charging him with the crime of lewdness, under the provisions of the statute defining lewdness, and declaring it a gross misdemeanor. Rem. & Bal. Code, § 2458. He was confined in the county Jail for more then 60 days. No steps were taken to bring him to trial. After the expiration of the 60 days the prisoner applied to the superior court for his release by writ of habeas corpus. The matter came on for hearing on October 20, 1914, when the court signified an intention to discharge the prisoner for the reason that he had not been brought to trial within 60 days from the filing of the information, and that no postponement had been requested by the prisoner or by any one in his behalf. The prosecuting attorney then asked leave to dismiss the proceeding upon the original information and to file a new information. The court thereupon entered an order in the original cause, dismissing the same and granting leave to the prosecuting attorney to file a new information. The prisoner was immediately rearrested by the sheriff on a warrant founded on a new information filed with the court, which charged the same offense and in the same language as in the original information. The prisoner thereupon sued out a second writ of habeas corpus returnable forthwith. The sheriff demurred to the petition for the writ upon the ground that, under the circumstances appearing upon the face of the petition, the issuance of the writ of habeas corpus is prohibited by statute. The demurrer was overruled. For return to the writ the sheriff set up the fact that he held the prisoner by virtue of an information and a warrant of arrest issued thereon, copies of which were attached to the return. An immediate It is elementary that certiorari lies only hearing was had, and as appears from the where there is no appeal nor any plain speedy trial judge's return to the alternative order or adequate remedy at law. Rem. & Bal. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes [1, 2] Under the conceded facts the trial court clearly had both the jurisdiction and the statutory authority to determine the matter in some sort of proceeding. This is conceded, but it is urged that this power can only be invoked by motion to dismiss the prosecution. The relator advances a number of grounds upon which it is claimed the action of the trial court should be reversed, all of which are referable to the one fundamental contention that habeas corpus will not lie to discharge a prisoner who has not been brought to trial within the statutory period of 60 days, but that the prisoner's remedy is by motion in the criminal action itself. This is an interesting question, but can we determine it in this proceeding? We are confronted at the outset with that preliminary question which, although not raised by either side, must be determined in the interest of sound and orderly procedure: Was the alternative writ of review providently issued on a state of facts such as here presented? Is there a right of review by certiorari on application by the state in such a case as this? We think not for two reasons: (1) Because no judgment or order discharging the prisoner has yet been entered; hence, there is nothing to review. (2) Because, even had the order been entered, the state would have an adequate remedy by appeal. Code, § 1002. The statute governing appeals | for trial, and had he applied for the writ of (Rem. & Bal. Code, § 1716) after according review, a different question would be preto any party aggrieved an appeal to the sented. We express no opinion as to the Supreme Court from the final judgment en- adequacy of his remedy by appeal. tered in any action or proceeding, further The proceeding is dismissed. declares in subdivision 7 of the same section: "But an appeal shall not be allowed to the state in any criminal action, except when the error complained of is in setting aside the indictment or information, or in arresting the judgment on the ground that the facts stated in the indictment or information do not constitute a crime, or is some other material er- GOETTER et ux. v. CITY OF COLVILLE ror in law not affecting the acquittal of a prisoner on the merits." CROW, C. J., and MAIN, FULLERTON, and MOUNT, JJ., concur. et al. (No. 11867.) (82 Wash. 305) (Supreme Court of Washington. Nov. 17, 1914.) 1. MUNICIPAL CORPORATIONS (§ 511*)-PUBLIC IMPROVEMENTS - ASSESSMENTS RIGHT OF REVIEW. city council in a local assessment proceeding The right to appeal from the decision of a is special and not inherent or constitutional, and the statute giving such right of appeal must therefore be strictly followed or the court acquires no jurisdiction. [Ed. Note.-For other cases, Corporations, Cent. Dig. §§ 1183, 1184; Dec. see Municipal Dig. § 511.*1 2. MUNICIPAL CORPORATIONS (511*)-PUBLIC IMPROVEMENTS-ASSESSMENTS - APPEAL -TRANSCRIPT. Whatever the proceedings adopted in the trial court for the release of the prisoner, it is obvious that the release, if contrary to law, would involve "material error in law not affecting the acquittal of a prisoner on the merits." It is clear, therefore, that the state would have the right of appeal from the order of release. Such appeals.by the state have been entertained repeatedly by this court when the order of release complained of was based upon the ground here involved or upon cognate grounds. State v. Miller, 72 Wash. 154, 129 Pac. 1100; State v. Poole, 64 Wash. 47, 116 Pac. 468. It will not do to say that the appeal by the state would be in- 1911, p. 453, § 22) giving a right of appeal from Under the Local Improvement Law (Laws adequate because the prisoner would be re- an assessment for local improvements, but released and might abscond before the appeal quiring a transcript containing the assessment could be heard. The Legislature, by its roll,, the objections thereto, the ordinance confirming the assessment, and the record of the failure to provide for a stay of the order dis- council, and section 23, providing that the ascharging a prisoner in any case on an ap- sessment shall be conclusive upon all parties peal by the state, has, in effect, declared the who do not appeal in the manner and within the remedy by appeal an adequate remedy, not-tain the record of the council is insufficient to time specified, a transcript which failed to conwithstanding the prisoner's release. If we give the court jurisdiction over the appeal. entertain the writ of review in this case on [Ed. Note.-For other cases, see Municipal the ground of inadequacy of the state's reme- Corporations, Cent. Dig. §§ 1183, 1184; Dec. Dig. § 511.*} dy by appeal, then we must, for the same reason, entertain it in every case where a prisoner is discharged on demurrer to an information, or for lack of jurisdiction, or for any other reason involving, "material error in law not affecting the acquittal of a prisoner on the merits." The Legislature by giving the right of appeal in all such cases must be presumed to have considered that remedy adequate in at least some case to which it would apply. If we entertain this writ, we would in effect abrogate the statute giving an appeal to the state in such cases by holding the remedy by appeal inadequate in every case to which the statute can apply. As we said in State ex rel. Quigley v. Superior Court, 71 Wash. 503-505, 129 Pac. 83, 84: "It is, in effect, to repeal the statute and declare a policy contrary to that expressly declared by the Legislature upon a subject clearly within its province." 3. MUNICIPAL CORPORATIONS (§ 511*)-PUBLIC IMPROVEMENTS-ASSESSMENTS - APPEAL -AMENDMENT OF TRANSCRIPT. Since the defect was jurisdictional, the transcript cannot be amended to supply the missing record after the expiration of the time within which it was required to be filed. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1183, 1184; Dec. Dig. § 511.*] Department 1. Appeal from Superior Court, Stevens County; Henry L. Kennan, Judge. Appeal by Frank B. Goetter and wife against the City of Colville and others from the confirmation by the city council of an asssessment roll for a local improvement. Appeal dismissed by the superior court, and appellants therein appealed to the Supreme Court. Affirmed. Carey & Johnson and S. Douglas, all of Colville, for appellants. F. Leo Grimstead and Stull, Wentz & Bailey, all of Colville, for respondents. We shall pursue the discussion no further, since in any event no order of any kind has yet been made and there is nothing for us to review. We are now clear that, viewing the matter from every angle, the alternative writ of review was improvidently issued. Had an order been entered holding the prisoner MAIN, J. This is an appeal from a judgment of the superior court, which dismissed an appeal from the decision of the city council confirming an assessment roll Since the right to appeal must be given for a local improvement. On April 22, 1913, by an express statutory provision, an appeal the city council of the city of Colville, Wash., is not effective unless it is taken within a municipal corporation of the third class, the time specified and in the manner desigadopted a resolution declaring its intention nated by the statute. In the text of Abbott to order the construction of a sewer system on Municipal Corporations, § 377, the rule for the sewerage of territory embraced with- is stated thus: for its exercise within a certain specified time, or in a designated manner, are generally considered mandatory, and if the right is not so exercised by the property owner, it is forfeited or lost. * Jurisdiction is conferred upon the superior court to hear appeals from decisions of the city council only by complying with the provisions of the statute. In White v. Tacoma, 20 Wash. 361, 55 Pac. 319, it was said: "The council derived jurisdiction to reassess solely by virtue of that chapter (chapter 95, Laws 1893, p. 230) and only by complying with its provisions relating to appeals could the superior court acquire jurisdiction." [2] By section 22 of the Local Improvement Law (Laws 1911, c. 98, p. 453) the right of appeal from the decision of the city council is given to objecting property owners and the method of its exercise is specified. It is there provided: in the boundaries as defined by the resolu- "As the right of appeal and review is a statution. On May 27, 1913, after due and prop-tory one, the provisions requiring or providing er notice and a hearing upon the proposed improvement had been given, the city council passed an ordinance providing for the improvement. Thereafter a contract was let for the construction of the sewer system. In due course an assessment roll was prepared and filed with the clerk of the city. A time and place was then fixed for a hearing upon the roll and notice thereof given. Prior to the hearing upon the roll, the appellants filed with the city clerk written objections thereto. On October 7, 1913, the city council by ordinance confirmed the assessment roll. On October 23, 1913, Frank B. Goetter and wife filed with the city clerk and with the clerk of the superior court for Stevens county their notice of appeal and bond on appeal. On November 1, 1913, the appellants filed with the clerk of the superior court a transcript, which contained, among other things, the assessment roll, the appellants' objections thereto, and the ordinance confirming the roll. This transcript did not contain the record of the city council with reference to the assessment. When the cause came on for trial a motion was made to dismiss the appeal on the ground that the appeal was ineffective because it did not contain the record of the city council relative to the assessment. This motion was sustained. Thereupon the appellants asked leave to supplement the record. This request was denied. Judgment was entered dismissing the appeal. From this judgment Goetter and wife have appealed. The record presents two questions: First, did the transcript as filed in the superior court embody those things which were necessary to confer jurisdiction upon the superior court? And, second, did the court err in declining to permit the transcript to be amended or supplemented? [1] I. An appeal from the decision of the city council in a local assessment proceeding is special, and not a right which is inherent or constitutional. If a right of appeal exists, it must be by virtue of a statute. In the absence of a statute no such right would exist. McQuillan, Municipal Corp., vol. 2, § 2129; Randolph v. Indianapolis, 172 Ind. 510, 88 N. E. 949. In the case last cited it was said: "Statutory provisions for the improvement of streets and other highways, and for the assessment of the costs thereof against the property benefited are special in character, and, unless expressly granted, no appeal lies from any action or decision of the board or tribunal conducting such proceedings." "Such appeal shall be made by filing written notice of appeal with the clerk of such city or town and with the clerk of the superior court in the county in which such city or town is situated within ten days after the ordinance confirming such assessment roll shall have become effective, and such notice shall describe the pellant to such assessment; and, within ten property and set forth the objections of such apdays from the filing of such notice of appeal with the clerk of the superior court, the appeltranscript consisting of the assessment roll and lant shall file with the clerk of said court, a his objections thereto, together with the ordinance confirming such assessment roll, and the record of the council or other legislative body with reference to said assessment. By this statute the appeal becomes effective by giving the notice therein required, and by filing a transcript within the time specified, which shall contain: (a) The assessment roll; (b) the objections thereto; (c) the ordinance confirming the same; and (d) the record of the council with reference to the assessment. Section 23 of the same chapter provides that whenever the assessment roll for the local improvement shall have been confirmed by the council, it shall be conclusive in all things upon all parties not appealing from the action of the city council in confirming the roll "in the manner and within the time of the city council with reference to the assessment, as required by the statute. The statute not being complied with, the superior court did not acquire jurisdiction. The appellants in this connection cite and rely upon the case of Ahrens v. Seattle, 39 Wash. 168, 81 Pac. 558. That case, how ever, is not in point upon the question here presented. [3] II. Did the court err in refusing to permit the transcript to be supplemented? The general rule is, and this seems to be recognized by the appellants, that those things which go to the jurisdiction cannot be supplied after the time fixed in the statute for taking the appeal has expired, and that only defects in the transcript which are not of a jurisdictional character are amendable, in the discretion of the court. Burchell v. Averill Machinery Co., 55 Or. 113, 105 Pac. 403. Since a compliance with the statute was necessary to confer jurisdiction, the trial court did not err in refusing to permit the amendment. The situation is not analogous to that presented under the general statute of appeals which provides for the filing of a transcript. There the statute (Rem. & Bal. Code, § 1729) expressly makes provision for a supplemental transcript. In addition to that, the general statute of appeals (Rem. & Bal. Code, 1719) provides that the appeal becomes effective by the giving of notice, and may become ineffectual (Rem. & Bal. Code, § 1721) by failing to give a bond within the time specified. In the present case one of the necessary steps in perfecting the appeal was to file a transcript, as required by the statute. The judgment will be affirmed. it not being used as distinct from "impaneled," Department 1. Certiorari by the State, on the relation of H. P. Murphy, against the Superior Court of Whatcom County and Hon. Guy C. Alston, judge thereof, to review a judgment of the said court refusing a motion to quash an indictment for irregularities in the impaneling of the grand jury. Judgment reversed, with directions to quash the indictment. Newman & Kindall, of Bellingham, and C. W. Corliss and John C. Higgins, both of Seattle (Hyman Zettler, of Seattle, of counsel), for relator. Frank W. Bixby, of Bellingham, for respondents. CHADWICK, J. This proceeding is court in and for Whatcom county in the brought to review an order of the superior matter of the drawing of a grand jury. Relator was indicted, and moved to set aside the indictment upon the ground, among others, that the grand jury was not summoned, drawn, or impaneled as provided by law. This motion was denied. [1] The grand jury was selected in the following manner: Seventy-eight names were drawn from the jury lists. Six were not found. A certain number claimed exemption under the statutes, so that about 40 remain CROW, C. J., and GOSE, ELLIS, and ed. From this number the judge presiding CHADWICK, JJ., concur. (82 Wash. 284) STATE ex rel. MURPHY v. SUPERIOR (Supreme Court of Washington. Nov. 16, 1. GRAND JURY ( 8*)-SELECTION-STATUTE. Under 3 Rem. & Bal. Code, § 94-4, providing that petit jurors shall be drawn by chance, and section 94-5, providing that the grand jurors shall be drawn from the jury list as hereinbefore provided, the essential element in the method of selecting grand jurors from the list is that they be selected by chance, and where 78 names were drawn from the lists, of whom about 40 were in attendance, a grand jury selected by the judge from among the 40 without resort to chance was illegally selected. selected 17 to serve as grand jurors. Upon examination some of these were found to be disqualified or were excused; whereupon the judge selected a sufficient number from those remaining to make up the number 17. The remainder, some 18 veniremen, were excused without examination or the chance of being drawn as grand' jurors. It is provided in volume 3, Rem. & Bal. Code, § 94-4, that petit jurors shall be drawn by chance, "and before the drawing is made the boxes shall be shaken up so that the slips bearing the names thereon may be thoroughly mixed, and the drawing of the slips shall depend purely upon chance." Grand jurors are drawn from the jury lists as "hereinbefore provided." "Whenever the judge or judges of the superior court of any county in the state shall desire to summon a grand jury, the names of persons to serve as grand jurors shall be drawn from the jury list, as hereinbefore provided." 3 Rem. The word "drawn," as used in 3 Rem. & & Bal. Code, § 94-5. That it was the policy Bal. Code, § 94-5, requiring grand jurors to of the Legislature to preserve the right to be drawn from the jury list as therein before provided, is not limited to the original drawing have an unbiased and unprejudiced jury and by the clerk from the jury list of the county, grand jury and that no suspicion should at [Ed. Note.-For other cases, see Grand Jury, Cent. Dig. §§ 16-20; Dec. Dig. § 8.*] 2. GRAND JURY (§ 8*)-SELECTION "IMPANELED"-"DRAWN." |