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that the ordinance was contractual rather , appellants. Touching a grade separation or than an exercise of the police power, uses dinance it has said: language which plainly shows that whether "The power of the council to pass such an the ordinance was contractual or not was ordinance is not an open question, nor is the

It is from wholly immaterial as between the city and source of its authority doubtful. the owner of abutting property. The court Murphy v. C., R. 1. & P. Ry. Co., 247 Il. 614,

the police power that the council gets its right." said :

617, 93 N. E, 381, 382. "It seems to be thought by counsel for the city that inasmuch as the railroad company has

The mere fact that the railway company been lawfully compelled to abandon its tracks was required to and did accept the terms of on the street and so elevate them as to over-the ordinance and in a sense thus agreed to come the grade crossing, at great loss and expense to it, without compensation, neither do in a certain specified manner what it should the plaintiff, who has suffered loss on could be compelled to do in some adequate account of the construction of the same work, manner, did not change the character of the be allowed to recover damages therefor. The ordinance from an exercise of the police powposition, upon first impression, scems plausible, but when carefully considered is clearly un

er into a mere exercise of the contractual tenable. The relations of the parties to the function of the city. The acceptance was city are entirely different. That which called but an agreement to conform to the police for the exercise of the police power by the mu: mandate of the city in a specified manner nicipality was the operation of the railroad in running its trains across the street. Neither agreeable to both parties—a mere acquiesthe location nor use of the plaintiff's property cence in the exercise of the city's police powendangered the public health or safety, and iter by the railway company. True, the city must be admitted that if the city had attempt: in requiring the separation of grades exered to interfere with that property by obstructing his access thereto under any claim of a cised its police power in the public interest. police regulation, it would have been a flagrant Spokane v. Thompson, supra. The public welabuse of the police power and no defense what- fare is indeed the very basis of the police ever to an action for the resulting damages. The plaintiff bears no relation to the railroad power. But when the requirement was once company. He had nothing to do with the op- made, the duty of performance was that of eration of its road. He makes no claim in his the railway company. That duty was tracedeclaration on account of the elevation of the able to the city's command, not to a mere tracks. His cause of action is against the city for so changing the grade of the street as to contractual assumption by the railway comdamage his property."

pany. In doing the work it was doing its Whatever may be said of the ordinance own work, not that of the city. In fact the there discussed or of that court's views as right of way and roadbed. We are clear that

larger part was the modification of its own to the nature of the power involved, our own

the statute requiring the taking of a bond decisions are controlling here. They dis

from the contractor as security for labor, tinctly hold that the power to compel grade etc., on municipal contracts for public work separation is an incident of the general po (Rem. Code, & 1159 et seq.), has no applicalice power expressly conferred by the Con- ton to such a case as this. The demurrer stitution and statutes upon cities of the first company was liable for the labor and mateclass. State Constitution, 88 10, 11, art. 11; rial furnished by appellants as subcontracRem. Code, $ 7507, subds. 7, 8, and 9. In

tors in the prosecution of the work. It is Spokane v. Spokane & I. E. R. Co., 75 Wash. asserted that the property of an operating 651, 656, 135 Pac. 636, 638, we said:

railroad company cannot be subjected to “The power to be exercised in providing for liens for labor or material furnished in ala separation of grades, as here attempted, is not only attributable to the gencral police pow. of the city was properly sustained. er vested in the city in legislating for the wel- [2] It is next contended that the railway fare and safety of its citizens in dealing with teration or repair;. that this work was a an admittedly dangerous situation, but is ref-work of alteration or repair; that, therefore, erable to another power—that of providing for changes in the grades of streets and locating the railway company was liable because it railroad and street railway lines thereon, pro- failed to take the bond required by statute viding for changes of grade in such locations (Rem. Code, s 1129) to respond in lieu of and other like powers as found in subdivisions 7, 8, and 9 of section 7507, Rem. & Bal. Code such liens. Again the premises are unsound (P. C. 77, § 83).”

and the conclusion correspondingly faulty.

The decisions cited by the appellants in this In Spokane v. Thompson, 69 Wash. 650, connection go no further than to hold that 657, 126 Pac. 47, 49, we said:

the lien cannot be enforced by sale of prop“It is also well established that a city in erty essential to the operation and maintethe exercise of its police power over the streets has authority to change the grade of a street nance of the road for the public purposes to avoid a dangerous railroad crossing, and that for which it was established. Buncombe Co. such a change is for the benefit of the public, Com’rs v. Tommey, 115 U. S. 122, 5 Sup. Ct. and is a public use."

626, 1186, 29 L. Ed. 305; Connor v. Tenn. See, also, Detamore v. Hindley et al., 83 Cent. Ry. Co., 109 Fed. 931, 48 C. C. A. Wash, 322, 145 Pac. 462.

730, 54 L, R. A. 687; Pittsburg Testing Lab. In fact the Supreme Court of Illinois in a v. Milwaukee E. R. & L. Co., 110 Wis. 633, more recent case than that above cited has in 86 N. W. 592, 84 Am. St. Rep. 918. Our stat.

cases. Rem. Code, 8 1129, after providing for the estimates due to Hoy under its contract the lien in favor of every person performing with Hoy. But appellants contend that there labor, etc., in the construction, alteration, or was a specific agreement on the part of both repair of any railroad, makes the contractor, the railway company and Hoy to pay for subcontractor, architect, builder, or person the work done by appellants, and to guarhaving charge of the work the agent of the antee future payments. As to whether there owner for the purpose of the establishment was such an agreement, the evidence was of the lien, provides that the railroad compa- voluminous and extremely conflicting. We ny shall exact a bond from the contractor to cannot discuss it in detail within the rearespond in lieu of lien, and declares:

sonable limits of an opinion. An attentive "And if any such railroad company shall examination of the evidence, however, confail to take such bond, such railroad company vinces us that there was nothing more than shall be liable to the persons herein mentioned to the full extent of all such debts so con

an agreement by the railway company's attracted by such contractor."

torney and assistant engineer in charge of We have held that the bond when taken the work for the railway company to adand properly iled dispenses with the agency specific pay roll, which was done, and to

vance money with Hoy's consent to meet a necessary to create the lien. Laidlaw v. Portland, V. & Y. Ry. Co., 42 Wash. 292, si charge the amount to Hoy, who, in turn, Pac. 855; Du Pont de Nemours Powder Co. charged it to Parker, Moran & Parker, and a v. Nat. Surety Co., 94 Wash. 461, 162 Pac.

further promise to arrange for other pay. 866. It is the agency declared by the statments on estimates through Hoy and on orute which creates the privity between the ders of Parker, Moran & Parker. The evirailroad company and the lien claimant

dence is far from convincing that there was which sustains the lien. The failure to take any agreement on the part of the railway the bond required by the statute creates a company or any one in its behalf to pay fustatutory liability enforceable in personam

ture estimates, or to guarantee or make fuagainst the railroad company, but this only

ture payments, except on such estimates and

orders. when a lien has been filed invoking the stat

It appears that this was done utory agency in manner and time as requir- through an arrangement with Hoy until Par. ed by the statute. The filing of the statker, Moran & Parker refused further orders. utory lien notice furnishes the privity be

[3] It is next contended that the evidence tween the company and the lien claimant, shows that Hoy in consideration that appelwhich would not otherwise exist, and with lants continue the work agreed to pay foi out which a personal liability in the absence such work if Parker, Moran & Parker failed of the bond could not be maintained. This to do so. A careful consideration of the eviliability is but a statutory substitute for the dence touching this question impels us to the lien in rem against the specific railroad conclusion that Dunnigan, Hoy's purchasing property. It seems too plain for argument agent, and Holman, Hoy's superintendent, that, though the filling of the lien is not nec promised no more than to get Moran to sign essary where the bond is taken dispensing written orders on Hoy from month to month, with the statutory agency, that if the bond which would justify Hoy in paying to appelbe not taken the liability against the rail- lants the money coming due on monthly esroad company, whether asserted in rem or

timates to Parker, Moran & Parker. This, in personam, cannot be maintained without as before stated, it appears was done on the the filing of the lien creating the agency and next two estimates; one for $6,800, the othsupplying the privity necessary to the main er for $8,000, and the receipts for such paytenance of the liability. Indeed, the creation ments bear the approval of Parker, Moran of the privity by notice of lien would seem & Parker. Appellants filed no lien against to be more imperative where a personal lia- the railway company which would have justibility is asserted than in case of a lien in fied Hoy or the railway company in making rem. In the case before us appellants were such payments without an order from Par. subcontractors of a subcontractor of the ker, Moran & Parker, nor did appellants garprincipal or general contractor. There was nishee Hoy for any amount claimed to be no privity of contract between the railway due from him to Parker, Moran & Parker company and the appellants. That lack of which would have justified Hoy in withholdprivity was not supplied or overcome in the ing pay to the latter. Moreover, the alleged only way in which it could be supplied or promise, even if the evidence justified a findovercome in the absence of the lieu bond; ing that it was made just as claimed by apviz. by filing the notice of lien as required by pellants, being verbal, would have been void Rem. Code, s 1134. It follows that unless under the statute of frauds. Taken in the there was some valid agreement on the part light most favorable to appellants, the promof the railway company to pay or a guaranty ise claimed was no more than that Hoy and of payment for appellants' labor, they can- the railway company would see that appelnot recover as against the railway company. lants were paid, which, as this court has freIn the absence of such an agreement, the quently held, was not sufficient to create an railway company was under no duty to pay original or collateral undertaking on the part appellants or to refuse to pay Hoy any part of of the railway company or of Hoy. Camp

bell v. Weston Basket & Barrel Co., 87, services in making sales of shares of its capiWash. 73, 151 Pac. 103; Goldie-Klenert Dis-tal stock in pursuance of a contract entered trib. Co. v. Bothwell, 67 Wash. 264, 121 Pac. into with him. Trial in the superior court 60, Ann. Cas. 1913D, 849; Pressentin v. for Spokane county, sitting without a jury, Hawkeye Timber Co., 77 Wash. 388, 137 Pac. resulted in findings and judgment in favor 999; Bresler v. Pendell, 12 Mich. 224.

of the plaintiff from which the defendant [4] Finally, appellants argue that the city, has appealed to this court. the railway company and Hoy should all be The contentions here made in appellant's held liable in equity to pay appellants the behall have to do only with questions of fact reasonable value of their work, because it (1) as to the making of the contract; and (2) contributed to the desired result, so that all as to whether or not respondent's efforts of these defendants received its benefit. The were the effectual cause of the sales which same argument might be made in every case were proven to have been made. Both of where a laborer, materialman, or subcon- these questions are to be determined from evtractor has lost his right to a len by failure idence, which was almost wholly oral. We to file the lien notice as required by law. have read all the evidence with care. It is in We know of no principle of equity which serious conflict in so far as the testimony of would sustain a judgment in such a case interested witnesses is concerned. There was, merely because the owner of the property however, testimony given by one or two dishad received the benefit, there being no priv- i interested witnesses throwing some light ity either of contract or in law between the upon both of these questions, which we think party sought to be charged and the party warranted the trial court in rendering the de claiming the relief. Both Hoy and the rail. cision it did. We cannot say that the evi. way company have paid to the persons to dence does not preponderate in support of the whom they were bound by contract to pay trial court's decision. To review the evidence all they agreed to pay.

here would be but to discuss it with a view of One other matter requires notice. The determining the comparative credibility of court found that the amounts due from the witnesses. This we deem unnecessary. Parker, Moran & Parker to appellants be it is not contended that the contract was came due on November 1, 1915, but allowed illegal. Apparently the shares of stock were interest on those amounts only from the date held by the company under such conditions of the judgment. This was apparently an that it had a lawful right to secure their oversight. The judgment should be modified sale in this manner.' so as to allow interest on the sums found due from November 1, 1915. In other re- ELLIS, a. J., and MOUNT, HOLCOMB, spects the judgment is affirmed.

and CHADWICK, JJ., concur.

IDENCE.

WEBSTER, MAIN, PARKER, and FUL

(102 Wash. 75) LERTON, JJ., concur.

CARLSON V. VASHON NAV. CO. et al.

(No. 14659.) (102 Wash. 178) COURTIS V. FREEBURN COAL CO.

(Supreme Court of Washington, April 30,

1918.) (No. 14403.) (Supreme Court of Washington. May 7, 1918.) 1. APPEAL AND ERROR 110_ORDERS AP

PEALABLE-MOTION FOR NEW TRIAL. APPEAL AND ERROR 1011(1) REVIEW- An order denying a motion for a new trial TRIAL BY COURT-PREPONDERANCE OF Ev- is not appealable under Rem. Code 1915, $

1716, designating orders from which appeals Where it cannot be said that the evidence will lie. does not preponderate in support of the trial 2. APPEAL AND ERROR 419(1)-NOTICE OF court's decision based upon conflicting evidence,

APPEAL-SUFFICIENCY. the judgment will not be set aside.

A notice that a party would appcal from Department 2. Appeal from Superior an order denying his motion for a new trial Court, Spokane County; E. H. Sullivan, not sufficient notice of an appeal from the

"and all proceedings had in said cause" was Judge.

judgment or other prior order, under Rem. Action by T. K. Courtis against the Free-Code 1915, § 1719, providing that the appelburn Coal Company. Judgment for plaintiff, lant in his notice of appeal shall designate and defendant appeals. Affirmed.

with reasonable certainty from what judgment

or orders the appeal is taken. Robertson & Miller, of Spokane, for appel- 3. APPEAL AND ERROR 422 NOTICE OF lant. Nuzum, Clark & Nuzum and Geo. H. APPEAL-AMENDMENT, Armitage, all of Spokane, for respondent. that the Supreme Court shall upon terms al

Under Rem. Code 1915, $ 1734, providing

low amendments in matters of form, a notice PARKER, J. The plaintiff, Courtis, com- of appeal from an order denying a 'new trial menced this action seeking recovery from the "and all proceedings had in said cause" was defendant company of compensation claimed deficient in substance, and could not be amend

ed to make it notice of appeal from the judgto have been earned by him in the form of ment, in view of section 1719, providing that commissions agreed to be paid to him for his orders or judgments appealed from should be

designated with reasonable certainty in the tice is clearly not sufficient under the statnotice.

ute, because at section 1719, Rem. Code, it 4. APPEAL ẢND ERROR 430(2)-FAILURE TO is provided that: FILE NOTICE. Rem. Code 1915, §. 1734, providing that

“The appellant in his notice of appeal shall no appeal shall be dismissed by reason of for designate with reasonable certainty from what mal defects in the notice of appeal, was not judgment or orders, whether one or more, the intended to do away with notice within time. appeal is taken, and if from part of any judg

ment or order, from what particular part.” Department 2. Action by Oscar Carlson

There were two final judgments in this against the Vashon Navigation Company, a

case; one upon the 27th day of September, corporation, and others. Judgment for de 1917, in favor of 15 of the defendants; and fendants, and from an order denying a mo another upon October 1st, as to the remaintion for a new trial, plaintiff appeals. On ing defendants. Neither of these judgments motion to dismiss. Appeal dismissed.

is described in the notice of appeal. The E. C. Dailey, of Everett, and Saunders & only order described is the one which was Nelson, of Seattle, for appellant. J. A. Cole- made and filed on the 13th day of October, man, of Everett, for respondents.

1917. That was the order described in the

notice, namely, the order denying the motion MOUNT, J. Respondents move to dismiss for a new trial. The words, "said plaintiff this appeal because the order appealed from hereby appeals from said final order and all is not appealable. The action was brought proceedings had in said cause,” refer speto recover against 17 defendants on account cifically to the order of October 13, 1917, of personal injuries. Upon issues made the which was the order upon the motion for case was tried to the court and a jury. Aft- a new trial. This was not an appealable er the plaintiff had introduced his evidence order. The orders from which appeals might all the defendants moved the court for a have been taken were not described in the directed verdict. This motion was granted notice. by the court as to all of the defendants ex

[3, 4] Counsel for the appellant refers us to cept Donald B. McRae, the sheriff of Snoho section 1734, Rem. Code, which provides that mish county, and the surety upon his official the court shall, upon terms, allow amendbond. Thereupon, on the 27th day of Sep-ments in matters of form, curative of defects tember, 1917, the court entered a judgment in proceedings to the end that substantial for costs in favor of all the defendants who justice shall be secured to the parties, etc. were dismissed from the case, and the trial it is plain to be seen that this notice was. proceeded as to the other two defendants. not defective in form. It is defective in subThe case was finally submitted to the jury stance if the appellant intended to appeal as to the defendant Donald B. McRae and from either of the final judgments in the the United States Fidelity & Guaranty Com

Section 1734, Rem. Code, was not inpany, the surety upon his official bond; and tended to do away with notice within time, on the 1st day of October, 1917, the jury re- and it was not intended to cure defects in turned a verdict in favor of these two de substance as well as form. fendants. Upon the filing of that verdict on

The order attempted to be appealed from that day, a judgment was entered by the not being an appealable order, and the notice clerk in accordance with the verdict. On

not being sufficiently definite as to the orders October 3, 1917, the plaintiff filed a motion which, when made, were subject to be apfor a new trial. This motion was heard and pealed from, the motion must be sustained determined by the trial court on the 13th

and the appeal dismissed. day of October, 1917. At that time the motion was denied. Thereafter, on the 11th

ELLIS, C. J., and PARKER, HOLCOMB, day of January, 1918, the plaintiff served up- and CHADWICK, JJ., concur. on the defendants a notice of appeal to this court, which, omitting formal parts, reads as follows:

(101 Wash. 683) You and each of you are hereby notified that

BEERS V. WALKER et al the plaintiff Oscar Carlson above named, in

SAME V. BEERS. tends to and does hereby appeal to the Supreme Court of the state of Washington, from

(No. 14557.) the order of the court denying his motion for a new trial herein, which order was made and (Supreme Court of Washington. April 29, filed on the 13th day of October, 1917. Said

1918.) plaintiff hereby appeals from said final order | HABEAS CORPUS 34CUSTODY OF CHILand all proceedings had in said cause."

DREN-DEFENSES. [1] We are satisfied that the motion to dis Where the wife secured divorce with custody miss must be granted. The order here ap- give the husband custody of his daughter,

of both children, and the decree was modified to pealed from is the order denying a motion whereupon the wife removed from the state with for a new trial. This is not appealable. the child in order to defeat the order as to cusRem. Code, 1716.

tody, and on her return to the state the hus[2] If the appellant intended to appeal the wife could not, on application to modify

band brought habeas corpus to enforce the order, from the final judgment in the case the no- i the order as to custody as a defense to the writ

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

case.

vorce.

of habeas corpus, be heard to say that she is give the child proper care, training, and eda fit and proper person to have the care of the ucation; and that she was in a position to child and the husband was entitled to custody care for the child and its best interest deof the child.

manded that it should remain with her. The Department 2. Appeal from Superior child at that time was at the age of eleven Court, King County; Walter M. French, years. When the petition in habeas corpus Judge.

came on to be heard before the court, it was Habeas corpus by Fred E. Beers against agreed that the petition to modify the decree Horace Walker and others, and petition by should be taken up with the petition for Irene Beers against Fred E. Beers. From an habeas corpus. The trial court was of the order granting the writ and denying the peti- opinion that the father was entitled to the tion, Walker and others and Irene Beers care and custody of the child under the appeal. Affirmed.

modified decree, and refused to consider the Peterson & Macbride, of Seattle, for appel-application for modification, apparently belants. Gay & Griffin, of Seattle, for respond-cause the order modifying the original deent.

cree had been affirmed by this court and no permission had been obtained from this

court to modify it. The trial court thereMOUNT, J. This appeal is from an order fore granted the petition for habeas corpus, of the lower court granting a writ of habeas and this appeal followed. corpus to the respondent for the possession

The only question presented by the apof a minor child and denying to the appellants the right to modify a decree of di- pellants is that the court erred in refusing

to modify the decree because no permission

had been obtained from this court therefor. The admitted facts are substantially as we deem it unnecessary to enter into a disfollows: In April 1909, a decree was entered cussion of that question at this time. It in the superior court of King county grant- clearly appears from the record before us ing to Irene Beers a divorce from her hus

that Mrs. Beers, now Mrs. Frallicciardi, has band, Fred E. Beers. The decree awarded retained possession of the child ever since the custody of the two minor children, Eve the modification in 1916, has kept the child lyn and Gladys Beers, to their mother. out of the jurisdiction of the court most of Afterwards, in the year 1912, Fred E.

that time, and has failed and refused to Beers filed a petition to modify the de

comply with the order of modification. We cree as to the custody of the children. Up

are satisfied that under those circumstances a bearing of this petition the court she was not entitled to be heard upon her granted the modification and awarded the petition for modification as a defense to the custody of one of the children, Gladys

writ of habeas corpus. The writ of habeas Beers, to her father. Upon appeal to this court that order of modification was afirm corpus was sued out to enforce the order of

modification made in the year 1916 awarding ed. Beers v. Beers, 74 Wash. 458, 133 Pac. the custody of this child to its father. He 605. Prior to the affirmance of that order

was clearly entitled to that relief. When Mrs. Beers took the child and was out of it is shown that Mrs. Frallicciardi has conthe state. She afterwards was married to tinuously violated the order and has kept

man by the name of Frallicciardi, and the child away from the jurisdiction of the she has practically retained the custody of court, she ought not to be heard to say in the child ever since and has not complied answer to a petition for habeas corpus that with the order of the court awarding the she is now a fit and proper person to have custody of the child to its father. In July, the care of the child, especially where she 1917, when the child was brought back to has designedly avoided the jurisdiction of King county in this state, Fred E. Beers, its the court. We are of the opinion therefore father, filed a petition for a writ of habeas that the court arrived at a correct conclucorpus, basing his right to the child upon sion, even though permission of this court the decree affirmed by this court in Beers v.

was not necessary to a modification of the Beers, 74 Wash. 458, 133 Pac. 605. Upon the modified order. day after this petition was filed, Mrs. Frallic

“The question before us is not whether the ciardi filed a petition in the original action lower court arrived at a correct conclusion by for a modification of the decree, praying to an incorrect process of reasoning, but whether, be allowed to have the custody of the child, the proper one to be entered.

considering all the evidence, its decision was

Kane and, in her answer to the application for v. Dawson, 52 Wash. 411, 100 Pac. 837. writ of habeas corpus, alleged in substance

The order appealed from is therefore afthat conditions had changed since the last firmed. modification of the decree; that the father had never supported the child, had not paid ELLIS, C. J., and CHADWICK and HOLthe alimony, and was not in a position to COMB, JJ., concur.

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