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144 Wash. 382)

of the commencement of said action until BAIN Y. TIOMS et ux.

he ascertained the same from a clipping (Supreme Court of Washington. Nov. 14, 1906.) from a paper. These affidavits were met by 1. APPEARANCE-SPECIAL APPEARANCE.

affidavits filed on behalf of respondent. The Where defendants, by motion reciting that motion to set aside the judgment was denied. they were “appearing specially herein for the

From the order of denial, this appeal is purposes of questioning the jurisdiction of this court, and for no other purpose,” moved that

taken. "such judgment in the above-entitled action be Appellants urge that the service attempted set aside, that said action be dismissed, and that

to be made was insufficient to give the court defendants have judgment against the plaintiff for their costs and disbursements, and for such

jurisdiction over them. For reasons hereinother relief as to the court might seem just,"

after stated, we deem it unnecessary to pass and sone of the affidavits in support of the mo- upon this question. tion set forth facts going to the inerits of the

In the motion wherein appellants assumed controversy, their appearance must be construed to be general.

to appear specially, they did not ask to have [Ed. Note.-For cases in point, see Cent. Dig.

the service of summons and complaint vol. 3, Appearance, $ 52.]

quashed, nor did they confine themselves to 2. APPEAL AND ERROR DETERMINATION OF a prayer for the setting aside of the default CAUSE-REMAND.

and judgment, but they prayed that the judgWhere, on appeal from an orcier denying a motion to set aside a default judgment, the ap

ment be set aside and that the action be dispellate court holds the service in the case to missed, and that they have judgment for be insufficient, it necessitates the remanding of costs and disbursements and such other re the case, with instructions to the trial court

lief as to the court might seem just, and they to treat appellants as having waived service, their motion having been equivalent to a general

based their motion upon the records, files, appearance.

and certain affidavits, some of the latter setAppeal from Superior Court, King County;

ting forth facts going to the merits of the Geo. E. Morris, Judge.

controversy. We think

We think their appearance Action by Thomas II. Bain against J. C.

must be construed to be general. In the case Thoms and another. From an order deny.

of Teater v. King, 35 Wash. 142, 76 Pac. 688, ing defendant's motion to set aside a default

this court said: "The appearance of appeljudgment, he appeals. Remanded on offer

lant was in form special, for the purpose of of plaintiff.

objecting to the court's jurisdiction over his

person, but in the body of his motion he inGeorge E. Knapp and John B. Shorett, for

voked the jurisdiction of the court below on appellants. Dverett Sinitb and Thos. H.

the merits, when he asked for a dismissal." Bain, for respondent.

In the case of Burdette v. Corgan, 26 Kan.

102, the Supreme Court of Kansas, speaking ROOT, J. Respondent began this action to

through Justice Brewer, said this: 6* * recover certain money's alleged to be with

We remark that this appearance by the moheld by appellant J. C. Thoms. Service upon

tion, though called special, was in fact a defendants was made, or attempted to be

general appearance, and by it this defendant made, by leaving copies of the summons and complaint at the residence of one Mrs.

appeared so far as she could appear. The Treisch, in Seattle, where defendants were

motion challenged the judgment, not merely alleged to have had their usual place of

on jurisdictional, but also on nonjurisdiction

al grounds, and, whenever such a motion is abode. Neither of defendants appeared, and nearly 90 days thereafter default was entered

made, the appearance is general, no matter as to each, and judgment thereupon. Sub

what the parties may call it in their motion.” sequently defendants, by a motion reciting

If we should hold the service in this case that they were “appearing specially herein

to be insufficient it would necessitate the refor the purposes of questioning the jurisdic

manding of the case with instructions to tbe tion of this court, and for no other purpose,”

trial court to treat the appellants as having moved that "said judgment in the above-en

waived service and as being before the court. titled action be set aside, that said action be French v. Ajax Oil & Developinent Co. (de dismissed, and that defendants have judg- cided Nov. 9, 1906) 87 Pac. 359. They would ment against plaintiff for their costs and dis- then be required to interpose whatever bursements herein, and for such other and defense they desired. But the respondent further relief as to the court may seem just." states in this court that he has been willing This motion was based upon the record and at all times that appellants should come into files, and upon affidavits of the defendants the case and make their defense upon the and others, the affidavits setting forth that merits, and that he is at this time willing they did not reside at the home of Mrs. that they should be permitted so to do. In Treisch, and that it was not their usual view of this offer on his part, we remand the place of abode; that they had never been case to the superior court with directions to served ; that plaintiff had no valid claim set aside the judgment if the appellants inagainst them or either of them; that they had terpose a meritorious answer within 20 days a good and sufficient defense to such action;. from the date of the filing of the remittitur, and that plaintiff was indebted to them; and and for such further proceedings as may be J. C. Thoms alleging that he had no notice had in the ordinary course, If no such au

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swer is filed within said time, the judgment shall stand as affirmed. Costs to abide the final result.

DUNBAR, CROW, and HADLEY, JJ., con

MOUNT, C. J., and RUDKIN, J.; not sitting.

(14 Wash. 698)

TIIORP et al. v. THOMS et ux. (Supreme Court of Washington. Nov. 14, 1906.)

Appeal from Superior Court, King County : Geo. E. Morris, Judge.

Action by F. S. Thorp and Everett Smith, for themselves and associates, as the WashIngton Antisaloon League, against J. C. Thoms and another. From a judgment denying a motion to set aside default, defendants appeal. Remanded.

George E. Knapp and John B. Shorett, for appellants. F. S. Thorp and Everett Smith, pro se.

PER CURIAM. This case presents the same questions as that of Bain v. Thoms et al., 87 Pac. 504, just decided. It will take the same course.

(44 Wash. 422)

GATES v. BEKINS. (Supreme Court of Washington. Nov. 15, 1906.) 1. DAMAGES — SUBJECTS OF — OUTRAGING OF

FEELINGS-CARRIERS-REFUSAL TO DELIVER Goods.

In an action against a carrier for conversion of household goods in refusing to deliver then until payment of certain charges claimed to be due for their carriage, recovery cannot be had for the outraging of feelings.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, $ 100.] 2. CARRIERS--REFUSAL TO DELIVER GoodsACTION FOR CONVERSION--TENDER.

Where, on a dispute between a carrier and the owner of certain goods as to the amount due for their carriage, the carrier withheld them until the amount claimed by him to be due should be paid, a tender was not necessary before bringing suit for their conversion, where there was no refusal by the owner to pay what he deemed a proper amount.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, 88 367-369.] 3. TRIAL-INSTRUCTIONS APPLICABILITY TO EVIDENCE.

In an action against a carrier for conversion of goods, an instruction authorizing the recovery of damages for injuries concerning which there was no evidence, is erroneous.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, 88 596–599.]

Craven & Totten, for appellant. Sweeney & Steiner, for respondent.

DUNBAR, J. This was an action for the conversion of household goods of the alleged value of $121 brought by respondent against appellant; the appellant defending upon the ground that the alleged conversion was simply the rightful detention of the goods under a lien belonging to him by virtue of an express contract, and also by virtue of the fact that he was a common carrier, to secure the payment of $20.75 due for carriage charges on the goods and other goods carried at the same time. Appellant was engaged in the business of moving and storing goods in the city of Seattle. The complaint, among other things, alleges that plaintiff has demanded of defendant that he deliver the remainder of said household goods as per agreement, which defendant has refused and still refuses to do; that the plaintiff is ready, and at all times has been ready to ply any and all bills presented to him for such services as per his contract with the defendant, and has so informed the defendant; that, in addition to the value of the household goods appropriated by the defendant to his own use and benefit, plaintiff has been damaged in bis business in the sum of $1,000; and that his feelings have been outraged. We may s:2y here that this is a straight business transaction in which the outraging of feelings necessarily cannot be involved. The case was tried by a jury, and the verdict was rendered in fafor of the plaintiff, the respondent here, for $621. Appellant's motion for a new trial was denied upon condition that the respondent remit $270.75 from the judgment which said reduction was accepted by respondent. Judgment was then rendered for $330.25, from which judgment this appeal is taken.

The first contention in this case is that the court erred in instructing the jury as follows: "If, on the contrary, you find that the agreement was that he should hold a portion of the goods until the charges for the carriage on them should have been paid, then the plaintiff would not be entitled to recover unless you find that the defendant demanded excessive charges—more than he was entitled to under the contract. I instruct you in that respect that if a common carrier of goods demands a sum in excess of the amount due him for freight charges, the assignee or owner of the goods may maintain an action of this kind against him without making a tender of any part of the amount" -the contention of the appellant being that it was necessary as a prerequisite to the commencing of this action, that the respondent should have tendered the amount due for the carriage of the goods. Upon this subject of tender there is a conflict of authority; some courts holding that it is necessary for the consignee to tender the amount which he considers right for the carriage of the goods before he can legally commence an action for

Appeal from Superior Court, King County ; Mitchell Gilliam, Judge.

Action by B. E. Gates against Daniel Bekins, doing business as the Bekins Moving & Storage Company. From a judgment for plaintiff, defendant appeals Reversed and remanded

recovery, others, that a tender is not neces- tort.” The case at bar presents this identisary, especially where there is a controversy cal state of facts. A controversy arose beas to the amount of freight which is due tween the appellant and the respondent as to the carrier, and where the carrier has de- the amount which was due the appellant clined to take less than the charges which under the contract for the carriage of the he has presented, or where by his actions and goods. There was no refusal on the part of claims it is ma ifest that it would be use- the respondent to pay what he deemed was less for the consignee to tender any amount the proper amount for the service rendered. less than that which was claimed by the A greater amount was claimed by the appelcarrier. This court held, in Moran Bros. Co. lant, and the goods were withheld from the v. Northern Pacific R. R. Co., 19 Wash. 266, possession of the respondent until that great53 Pac. 49, 1101, that: "Where the carrier de- er amount was paid, and it would have been mands a sum in excess of the sum due for useless, as shown by the undisputed testifreight charges, the consignee need not ten- mony in this case, for the respondent to der any sum before bringing suit." This de- have tendered any less amount than that cision is criticised by the appellant, for the which was claimed by the appellant, so that reason that the statement of law announced the respondent had a right to bring this acin that case was not necessary to the de- tion and submit this question, together with cision on the issues involved, and there is the other disputed questions in the case to some merit in this criticism. To sustain the court. In Long v. Mobile & Montgomery that doctrine we cited Adams v. Clark, 9 Railroad Co., 51 Ala. 512, a case cited by the Cush. (Mass.) 215, 57 Am. Dec. 41; Isham v. appellant, it seems to us the proper rule is Greenham, 1 Handy (Ohio) 3.57. It is also laid down, namely, that the payment of the contended by the appellant that Adams v. freight and the delivery of the goods are Clark does not sustain the law as announced concomitant or concurrent acts; and, if the by the court. But an examination of that consignee is ready and willing to pay the case convinces us that while there were freight due, on having the goods delivered to some other features in the case which were him, and the carrier refuses to deliver them incidentally passed upon by the court, the unless he will pay more than is due, the law on this question was announced to the consignee may maintain detinue for the effect that tender is not necessary. The goods, or trover for their conversion, without court, in passing upon the question at issue making a formal tender, or paying the money said: "If the defendants illegally withheld into court. The amount of freight actually the goods from the plaintiff, he might have due to be adjusted by the court. The court brought an action of assumpsit against them, in this case however instructed the jury as as well as this action of trover. And, in follows: "If you find in addition that the dethat action, all that it would have been 'fendant has been otherwise damaged by reanecessary for him to aver and prove would son of the taking and detention of these have been his readiness to pay the freight, goods directly, then you should award him upon delivery of the goods.

* And that amount. Your verdict for the goods alwe are of opinion that all which it was nec- leged to have been taken must not exceed essary for the plaintiff to prove, in order to $121 and for the remainder must not exceed maintain this action, was his readiness to $1,000; in arriving at a verdict you are to pay freight on the goods, upon their being find a verdict in one lump sum." delivered to him, and the defendants' refusa! The giving of this instruction was error, to deliver them unless something more should for the reason that there was not a scintilla be first paid.” In Isham v. Greenham, 1 of testimony offered showing any damage Handy (Ohio) 358, it was held that the du- whatever to the business of the respondent, ties of the carrier and consignee are cor- nor was there any attempt on the part of relative; the one to deliver, and the other to the respondent to make any other proof pay the freight being mutual acts. In that whatever than the value of the goods decase the court said: "On general principles, tained by the appellant. And that it was whenever the act of one party to whom an- prejudicial is plainly shown by the verdict other is bound to tender money, services, or of the jury in returning a larger verdict than goods, indicates clearly that the tender, if the alleged value of the goods detained. On made, would not be accepted, the other party account of this error, it becomes necessary is excused from the technical performance of to reverse this cause for the reason that his agreement. The law never requires a this court cannot determine what conclusion vain thing to be done. *

* It would the jury came to concerning the value of the have been useless, then, for the plaintiff to goods detained, as the proof as to their value have tendered the amount due as freight was conflicting, and it is not ascertainable when he had already been told that it would whether the jury, if it had been proper to

ot be accepted. The claim asserted by exclude all damages excepting the value of defendant was illegal, and having refused to the goods detained would have found that deliver the cargo, unless that claim was paid, the goods were worth the sum of $121. the plaintiff had nothing to do but to regard For this reason, the judgment will have to the carrier's acts as unlawful, and hold him be reversed, and the cause remanded, with responsible for the value of the property in instructions to grant a new trial.

MOUNT, C. J., and CROW, RUDKIN, Appeal from Superior Court, King County; FULLERTON, HADLEY, and ROOT, JJ., John B. Yakey, Judge. concur.

Action by W. Moeller against Matt H. Gormley as treasurer of the county of King.

From a judgment for plaintiff, defendant (44 Wash. 464)

appeals. Affirmed. STATE V. ROURKE.

Kenneth Mackintosh and R. W. Prigmore, (Supreme Court of Washington. Nov. 21, 1906.)

for appellant. E. H. Guie, for respondent. CRIMINAL LAW -- APPEAL — RECORD - QUESTION REVIEWABLE. On appeal from a conviction, questions con

ROOT, J. In 1899 plaintiff leased from the cerning the instructions given will not be considered where it does not appear from the tran

state of Washington for a period of 30 years script that the instructions contained therein

certain Seattle tide lands. Thereafter the were the only ones given, or that any exceptions assessor of King county caused the leasehold were taken to any of them.

interest of respondent in said tide lands to [Ed. Note.-For cases in noint, see Cent. Dig. vol. 15, Criminal Law, $$ 2940-2943.)

be assessed as personal property, and the tax

was accordingly levied against such leaseAppeal from Superior Court, Kitsap Coun

hold interest, and entered upon the personal ty; John B. Yakey, Judge.

tax rolls of the county for the year 1901. James Rourke was convicted of cattle This action was instituted for the purpose stealing, and he appeals. Dismissed.

of enjoining and restraining appellant from Sayre & Brinker, for appellant. C. D. Sut- collecting said taxes. A demurrer to the ton and Thomas Stevenson, for respondent. complaint was overruled by the court. Ap

pellant electing to stand upon his demurrer, PER CURIAM. This appeal is taken from and refusing to plead further, judgment a judgment of conviction for the crime of was entered dismissing the action. From cattle stealing. Judgment was entered on this judgment the present appeal is taken. the 17th day of February, 1906. Notice of

Two questions are presented. (1) Is such appeal was served and filed on March 20, leasehold interest taxable? (2) If taxable, 1906. No statement of facts has ever been

should it be assessed as realty or personal server or filed, but long after the time had property? Under a Constitution such as ours expired for filing a statement of facts, an

it is the general rule that all property other effort was made to obtain an order extending

than public is assessable, and before any the time for filing such statement, but the exemption can be allowed there must be order was denied.

found unequivocal authority therefor. But The only errors assigned are directed to the the converse of this rule is applicable to pubinstructions which were given by the court | lic property. Before any property, belonging to the jury upon the trial. The transcript

The transcript to the state, can be subjected to taxation, contains what purports to be instructions giv- | clear and unmistakable authority therefor en upon the trial. But it does not appear must be made to appear. It is contended by that these were the only instructions given respondent herein that to impose a tax upon by the court, or that any exceptions were this leasehold, while nominally asserting taxtaken to any of them. Under such circum- ation against the property of an individual, stances, we cannot consider the questions pre- would practically and actually amount to sented.

the levying and enforcement of a tax against The appeal must, therefore, be dismissed.

the state; that as tide lands of this character are leased for a term of years to the highest

bidder, it must be presumed that the state (11 Wash. 465)

obtains the full rental value for the use of MOELLER V. GORMLEY, Treasurer. these lands; that this being true, it naturally

follows that the amount of rental obtainable (Supreme Court of Washington. Nov. 21, 1906.)

from any person willing to pay the full 1. TAXATION-EXEMPTIONS-STATE PROPERTY

rental value of said lands would be increased --LESSEE OF STATE. When a lease is given by the state to an

or decreased to the extent of the tax imposed individual or private corporation, the lessee's accordingly as he should be, or not be, requirrights and privileges are subject to taxation, and

ed to make payment thereof; that the assessare not exempt under Const. art. 7, § 2, which

ment falls upon the right to use the property; exempts from taxation all property of the state. (Ed. Note.-.For cases in point, see Cent. Dig.

that is a right which is vested in the state, vol. 45, Taxation, $$ 304, 351, 353.]

but which the state during a given period per2. SAME--NATURE OF PROPERTY-REAL OR PEB- mits the individual to exercise; that in its SONAL.

last analysis such taxation is upon the propUnder Ballinger's Ann. Codes & St. $ 1656 (Pierce's Code, $ 8592) providing that real prop

erty of the state and consequently not pererty for the purpose of taxation shall be con

missible under section 2 of art. 7 of the state stried to include the land itself and all rights Constitution, which reads as follows: "That and privileges thereto belonging," a leasehold

the property of the United States and of the should be assessed as real estate and not as personal property.

state, couuties and school districts and other [Ed. Note.-For cases in point, see Cent. Dig.

municipal corporations, shall be exempt from vol. 45, Taxation, $ 146.]

taxation.” This argument is plausible, and

,

tion.

the proposition advanced appears sound as a MOUNT, C. J., and DUXBIR, CROW, theory. But we think it cannot, under the IIADLEY, and FULLERTO, JJ., concur. general schenic and purpose of taxation, successfully bear thic test of practical application. RUDKIN, J. I concur in the judgmeut. Doubtless a prospective lessee would bid more for a lease if he knew that his leasehold interest would not be taxed. But the same

(44 Wash. 392) may be said of a prospective purchaser of

MORAN BROS. CO. V. WATSON. state lands. lle would pay more for the (Supreme Court of Washington. Nov. 14, 1906.) fee if he knew it would remain exempt from

1. P'ARTNERSIIIP-ICTION AGAINST PARTNERS taxation. The difference between the two is -EVIDENCE-SUFFICIENCY. in degree only, and not in character. But it is In an action on a note executed by a firm by the policy of our commonwealth that the fee

one of the partners, evidence (onsidered, and

held suflicient to show that the other partuier in any real estate sold by the state shall

had satisfied the execution. thenceforth be assessable. As soon as title [Ed. Note. I'or cases in point, sce Cent. Dig. passes from the state, the land becomes pri- vol. 38, Partnership, $ 287.] vate, and no longer public, property. When 2. SAJE ADMISSIBILITY BOOKS OF ACa lease is given by the state to an individual COUNT. or private corporation, the lessee thereby

In an action against two persons as part

ners on a note executed by one of them in the obtains for his or its private use certain

firm name, wherein the other claimed that the rights and privileges in, to and upon such partner executing the note had no authority to real estate. These rights and privileges con- do so, there was no error in refusing to admit

in evidence books of account kept by the partstitute private property over which the lessee

nership at the time of the giving of the note, has, and may exercise, absolute dominion and

for the purpose of showing that the note did ownership within the limitations of his or not appear thereon as a liability of the firin. its lease. Why as such property it should TEd. Note.-For cases in point, see Cent. Dig. not be subject to the general rule of taxation

vol. 38, Partnership, § 423.) we conceive of no reason.

3. SAME--ACTION BETWEEN PARTNERS-CON

TRIBUTION. It is urged, however, that such a leasehold

Where, in an action against two partners interest, if taxable at all, should be assessed

on a firm note, only one was served with process as real estate instead of personal property. and judgment was entered against him, after This was evidently the view entertained by payment of the note by him, he had a right

of action against the other to compel contributhe trial court, and we think it correct. The revenue statute, defining real estate for the

[Ed. Note.-For cases in point, see. Cent. Dig. purpose of taxation, is as follows: “Real

vol. 38, Partnership, SS 155, 171.] property for the purposes of taxation shall

Fullerton, J., dissenting. be construed to include the land itself, whether laid out in town lots or otherwise, and all Appeal from Superior Court, King County: . buildings, structures, and improvements, or

John B. Yakey, Judge. other fixtures of whatsoever kind, thereon,

Action by the Moran

Moran Bros. Company and all rights and privileges thereto belong

against Charles Watson. From a judgment ing, or in anywise appertaining.” Section

in favor of plaintiff, defendant appeals. Af

firmed. 1630, Ballinger's Ann. Codes & St., section 8592, Pierce's Code. This court, in line with

Jerold Landon Finch, for appellant. Janies others, has held that a leasehold for a term Kiefer, for respondent. of years was an "interest in lands." Reilley V. Anderson, 33 Wash. 58. 73 Pac. 799; Chica

CROW, J. The plaintiff, the Moran Bros. go Attachment Co. v. Davis, etc., Co., 142 Ill.

Company, a corporation, instituted this action 171, 31 N. E. 438, 15 L. R. A. 754; Sanford

on December 7, 1901, against the defendants v. Johnson, 24 Minn. 172; McKee v. Howe, Charles Watson and Frank IIanford, copart17 Colo. 538, 31 Pac. 115. It would seem that ners as Watson, Llanford & Co., upon a promthe expression in the statute "all rights and

issory note in words and figures as follows: privileges thereto belonging” would clearly “$250.00. Seattle, Washingtc? . January 16tla, cover a leasehold interest such as we have 1901. If Noran Bros. Coinpany, a corhere. Appellant points out that the present poration, shall bid for and obtain from the revenue law is inadequate to enforce the col- United States government a contract for the lection of the taxes levied, especially those construction of one of the battleships, coliassessed during the last three or five years struction of which is now under consideraof the lease, if the leasehold be taxed as tion of the government, I promise, for value real estate. We are impressed with the force received, to pay to the order of said corporaof this suggestion, and doubt not that the tion, at the bauking house of Puget Sound Legislature will give the matter appropriate National Bank, in the city of Seattle, on the attention if it be called to its attention. This day upon which said battleship shall be court, however, must pass upon the statute launched into the waters of Puget Sound, the as it is found, without importing, by way of sum of two hundred and fifty dollars in gold construction, elements now wanting.

coin of the United States, of the present The judgment of the trial court is affirmed. standard of weight and fineness, with in

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