BEERS v. WALKER designated with reasonable certainty in the notice. 430(2)—FAILURE TO 4. APPEAL AND ERROR E. C. Dailey, of Everett, and Saunders & Nelson, of Seattle, for appellant. J. A. Coleman, of Everett, for respondents. 861 tice is clearly not sufficient under the stat- "The appellant in his notice of appeal shall designate with reasonable certainty from what judgment or orders, whether one or more, the appeal is taken, and if from part of any judgment or order, from what particular part." There were two final judgments in this case; one upon the 27th day of September, 1917, in favor of 15 of the defendants; and another upon October 1st, as to the remaining defendants. Neither of these judgments is described in the notice of appeal. The only order described is the one which was made and filed on the 13th day of October, 1917. That was the order described in the for a new trial. The words, "said plaintiff notice, namely, the order denying the motion hereby appeals from said final order and all proceedings had in said cause," refer specifically to the order of October 13, 1917, which was the order upon the motion for a new trial. order. The orders from which appeals might This was not an appealable have been taken were not described in the notice. MOUNT, J. Respondents move to dismiss this appeal because the order appealed from is not appealable. The action was brought to recover against 17 defendants on account of personal injuries. Upon issues made the case was tried to the court and a jury. After the plaintiff had introduced his evidence all the defendants moved the court for a directed verdict. This motion was granted by the court as to all of the defendants except Donald B. McRae, the sheriff of Snoho- section 1734, Rem. Code, which provides that [3, 4] Counsel for the appellant refers us to 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 were dismissed from the case, and the trial proceeded as to the other two defendants. The case was finally submitted to the jury as to the defendant Donald B. McRae and the United States Fidelity & Guaranty Company, the surety upon his official bond; and on the 1st day of October, 1917, the jury returned a verdict in favor of these two defendants. Upon the filing of that verdict on that day, a judgment was entered by the clerk in accordance with the verdict. On October 3, 1917, the plaintiff filed a motion for a new trial. This motion was heard and determined by the trial court on the 13th day of October, 1917. At that time the motion was denied. Thereafter, on the 11th day of January, 1918, the plaintiff served upon the defendants a notice of appeal to this court, which, omitting formal parts, reads as follows: "You and each of you are hereby notified that the plaintiff Oscar Carlson above named, intends to and does hereby appeal to the Supreme Court of the state of Washington, from the order of the court denying his motion for a new trial herein, which order was made and filed on the 13th day of October, 1917. Said plaintiff hereby appeals from said final order and all proceedings had in said cause." [1] We are satisfied that the motion to dismiss must be granted. The order here appealed from is the order denying a motion for a new trial. This is not appealable. Rem. Code, § 1716. [2] If the appellant intended to appeal from the final judgment in the case the no justice shall be secured to the parties, etc. It is plain to be seen that this notice was. not defective in form. It is defective in substance if the appellant intended to appeal from either of the final judgments in the tended to do away with notice within time, case. Section 1734, Rem. Code, was not inand it was not intended to cure defects in substance as well as form. not being an appealable order, and the notice and CHADWICK, JJ., concur. (101 Wash. 683) BEERS v. WALKER et al SAME v. BEERS. April 29, (Supreme Court of Washington. HABEAS CORPUS 34 CUSTODY OF CHIL1918.) DREN-DEFENSES. Where the wife secured divorce with custody give the husband custody of his daughter, of both children, and the decree was modified to whereupon the wife removed from the state with the child in order to defeat the order as to custody, and on her return to the state the husthe wife could not, on application to modify band brought habeas corpus to enforce the order, 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 give the child proper care, training, and education; and that she was in a position to care for the child and its best interest demanded that it should remain with her. The child at that time was at the age of eleven years. When the petition in habeas corpus came on to be heard before the court, it was agreed that the petition to modify the decree should be taken up with the petition for habeas corpus. The trial court was of the opinion that the father was entitled to the care and custody of the child under the modified decree, and refused to consider the application for modification, apparently because the order modifying the original decree had been affirmed by this court and no permission had been obtained from this court to modify it. The trial court there for granted the petition for habeas corpus, and this appeal followed. MOUNT, J. This appeal is from an order of the lower court granting a writ of habeas corpus to the respondent for the possession of a minor child and denying to the appellants the right to modify a decree of di- pellants is that the court erred in refusing vorce. The admitted facts are substantially as follows: In April 1909, a decree was entered in the superior court of King county granting to Irene Beers a divorce from her husband, Fred E. Beers. The decree awarded the custody of the two minor children, Evelyn and Gladys Beers, to their mother. Afterwards, in the year 1912, Fred E. Beers filed a petition to modify the de I cree as to the custody of the children. Upon a hearing of this petition the court granted the modification and awarded the custody of one of the children, Gladys Beers, to her father. Upon appeal to this court that order of modification was affirmed. Beers v. Beers, 74 Wash. 458, 133 Pac. 605. Prior to the affirmance of that order Mrs. Beers took the child and was out of the state. She afterwards was married to a man by the name of Frallicciardi, and she has practically retained the custody of the child ever since and has not complied with the order of the court awarding the custody of the child to its father. In July, 1917, when the child was brought back to King county in this state, Fred E. Beers, its father, filed a petition for a writ of habeas corpus, basing his right to the child upon the decree affirmed by this court in Beers v. Beers, 74 Wash. 458, 133 Pac. 605. Upon the day after this petition was filed, Mrs. Frallicciardi filed a petition in the original action for a modification of the decree, praying to be allowed to have the custody of the child, and, in her answer to the application for writ of habeas corpus, alleged in substance that conditions had changed since the last modification of the decree; that the father had never supported the child, had not paid the alimony, and was not in a position to The only question presented by the ap to modify the decree because no permission had been obtained from this court therefor. It we deem it unnecessary to enter into a discussion of that question at this time. clearly appears from the record before us that Mrs. Beers, now Mrs. Frallicciardi, has retained possession of the child ever since the modification in 1916, has kept the child out of the jurisdiction of the court most of that time, and has failed and refused to comply with the order of modification. We When are satisfied that under those circumstances she was not entitled to be heard upon her petition for modification as a defense to the writ of habeas corpus. The writ of habeas corpus was sued out to enforce the order of modification made in the year 1916 awarding the custody of this child to its father. He it is shown that Mrs. Frallicciardi has conwas clearly entitled to that relief. tinuously violated the order and has kept the child away from the jurisdiction of the court, she ought not to be heard to say in answer to a petition for habeas corpus that she is now a fit and proper person to have the care of the child, especially where she has designedly avoided the jurisdiction of the court. We are of the opinion therefore that the court arrived at a correct conclusion, even though permission of this court was not necessary to a modification of the modified order. "The question before us is not whether the lower court arrived at a correct conclusion by an incorrect process of reasoning, but whether, considering all the evidence, its decision was the proper one to be entered. v. Dawson, 52 Wash. 411, 100 Pac. 837. The order appealed from is therefore affirmed. * Kane ELLIS, C. J., and CHADWICK and HOLCOMB, JJ., concur. (102 Wash. 51) CITY OF EVERETT v. McCULLOCH, Sheriff. (No. 14592.) BAILMENT 18(5)—FOREclosure. * Department 2. Appeal from Superior Action by the City of Everett against James M. McCulloch, Sheriff, to recover possession of a taxicab. From that part of the decree awarding damages in case return could not be had, the city appeals, and from that part of the judgment to the effect that the city was entitled to possession, defendant appeals. Reversed and remanded, with directions to dismiss action. Wm. A. Johnson, of Everett, for appellant. Ogden & Clarke and Joseph Oakland, all of Seattle, for respondent. MOUNT, J. This action was brought by the city of Everett to recover possession of a certain Ford taxicab which was taken by the sheriff from the possession of the police officers of that city. On the trial of the case the court found that the value of the taxicab was $250; that the only interest which the city had was the right of possession during such reasonable time as might be necessary to determine what disposition should be made of the taxicab; and that the city had no authority to confiscate the taxicab, other than to require the owner to put up a bond conditioned that the taxicab would not be used for the unlawful sale or disposal of intoxicating liquor for the period of one year. The court concluded that the city was entitled to the return of the taxicab, and, in case return could not be had, to damages in the sum of $1. The city has appealed from that part of the decree awarding damages, and the defendant has appealed from that part of the judgment to the effect that the city was entitled to the possession of the taxicab. demanded the taxicab from the police department of the city of Everett, claiming that he had a chattel lien upon the taxicab for work previously done thereon. Delivery was refused, and he thereupon proceeded to foreclose his chattel lien by notice and sale under the provisions of sections 1104 to 1109, Rem. Code. The sheriff took possession of the taxicab, served notice of sale upon the mayor, the commissioner of public safety and the chief of police of the city of Everett; and on the 11th day of April the taxicab was sold at public auction. The proceedings for the foreclosure of the lien were not removed to the superior court of Snohomish county, but prior to the sale of the taxicab and on or about the 5th day of April the plaintiff began this action against the defendant to recover possession of the taxicab. This case is controlled by the case of Mack v. Doak, 50 Wash. 119, 96 Pac. 825. That was a case where property was mortgaged, and after the mortgage became due the mortgagee proceeded to foreclose his mortgage. The mortgagors did not contest the foreclosure in the superior court, but permitted the sheriff to proceed with the sale, as was done Thereafter the mortgagors atin this case. tempted to recover damages for the wrongful taking of the property described in the mortgage. In that case we said: "The foreclosure here involved was commenced and conducted by notice and sale in exact com- 99 We think that rule is controlling in this The facts are as follows: In January, case. Here the city attempts to maintain an 1917, three persons brought the taxicab to action in replevin against the sheriff, who the city of Everett. These persons escaped seized the property under the foreclosure from the taxicab. Two of them were arrest proceeding and sold it by authority of that ed, and the other was never apprehended. proceeding. The city now attempts to mainWithin the taxicab was found a large tain that the sale was irregular because of amount of bottled whisky. The men who some minor defects in the recording of the were arrested forfeited their bail, and were lien notice and the dates fixed for the sale; never brought to trial. The cases are still but these were matters which should have pending in the police court of the city or been determined by the superior court of Everett. Two months later one A. D. Scott that county if the city claimed any interest For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes in the taxicab. The city did not seek that remedy, and it is now too late to claim ownership or the right of possession of the taxicab. The only interest which the city could possibly have in this taxicab under the city ordinance is the right to require a bond that the taxicab shall not be used for the purpose of sale of intoxicating liquors for a period of one year. The city apparently did not require that bond to be given prior to seizure by the sheriff. The trial court therefore should have dismissed the action. The judgment is reversed and remanded, with direction to dismiss the action. times; and in the case as now presented the appellant has in his complaint attempted to avoid the errors upon which the decisions were rendered against the appellant in the several cases referred to, found in Collins v. Kinnear, 37 Wash. 453, 79 Pac. 995; Hotchkin v. Bussell, 46 Wash. 7, 89 Pac. 183, and 67 Wash. 206, 121 Pac. 455. For the sake of brevity, a quality increasingly to be desired in judicial opinions, those cases are referred to for the history and issues involved in the former cases as well as in this. As will be seen by reference to the former cases, the litigation has been pending in various forms since as early as 1903. On July 27, 1903, Mrs. Hotchkin, then living, filed her petition or motion to vacate the judgment in the first case wherein judgment was rendered in favor of McNaught-Collins Improvement Company in the superior court on appeal from the board of state land commissioners. The motion was denied. Appeal was taken to this court and decided in 37 Wash. 453, 79 Pac. 995, Rem. Code 1915, §§ 155-157, 159, 165, and dismissing the appeal because of failure to other provisions limiting period within which properly prosecute it. As shown in the presactions shall be prosecuted, are intended to cov-ent complaint, she then on about May 4 er every form of action maintainable either in 1905, filed a complaint again praying the sulaw or equity, in view of section 153, abolishing perior court to vacate and annul the decree all distinctions between actions at law and actions in equity. entered in the previous matter, which com2. EQUITY 87(1) FOLLOWING LIMITA- plaint being dismissed she again appealed to ELLIS, C. J., and FULLERTON, CHADWICK, and HOLCOMB, JJ., concur. (102 Wash. 161) HOTCHKIN v. McNAUGHT-COLLINS IM- TIONS. Courts of equity in case of concurrent jurisdiction consider themselves bound by the statutes of limitation which govern courts of law in like cases. 3. EQUITY TIONS. 87(1) FOLLOWING LIMITACourts of equity apply a statute of limitations as it would have been applied at law, and give it the same effect and operation in one court as in the other. 4. TRUSTS 365 (3)—EXPRESS TRUSTS - AC TION-LIMITATIONS. Where trustees asserted their adverse claim over 10 years ago, and the fact was made known to the cestui que trust, who thereupon began to assert her claims, and litigated them to decisive and final judgment, the action is barred by laches as well as limitations, although it be conceded that statute does not run during existence of a trust which is exclusively within the jurisdiction of equity. Department 2. Appeal from Superior Court, King County; R. B. Albertson, Judge. Action by A. L. Hotchkin, administrator of the estate of Delia M. Hotchkin, deceased, against the McNaught-Collins Improvement Company and others. Judgment for defend ants, and plaintiff appeals. Affirmed. James Epler, of Seattle, for appellant. Ballinger, Battle, Hulbert & Shorts and Peters & Powell, all of Seattle, for respondents. HOLCOMB, J. In this case appellant in his brief makes a comprehensive statement that the action is brought by him as administrator of the estate of his deceased wife, in whose lifetime the action, substantially as here presented, was before this court three this court. That case is decided and reported in 46 Wash. 7, 89 Pac. 183. In that case, as in this, she alleged that the decree taken in the original proceeding was taken without notice to her, and was in violation of a contract with Collins, and that respondents had notice, actual and constructive, of her preference right to purchase the lands in question. Upon the decision of that case Mrs. Hotchkin commenced another action against these respondents and one Trimble, which, being decided against her, was appealed to this court, and is reported in 67 Wash. 206, 121 Pac. 455, and after the decision by this court the court below dismissed the action as to all the other defendants in the case. These for mer cases are mentioned and referred to in the complaint in the present case, and, for the purpose of avoiding recurrence of certain deficiencies pointed out in the complaint before the court in 67 Wash, 206, 121 Pac. 455, the present complaint contains an allegation that the former decree was rendered by agreement of all parties to the proceeding who or which were in court and was render ed, as plaintiff is informed, simply upon such agreement and without the rights of the several parties being shown by testimony, and that defendant Trimble and the heirs of Collins acting for themselves and for Mrs. Hotchkin, deceased, joined in the agreement for and in consideration of the money paid to them by the McNaught-Collins Improvement Company for the preference right to purchase the tidelands claimed by Collins and Mrs. Hotchkin. A further allegation is included in this complaint that the motion, upon which the decision of the Supreme Court sustaining the decision of the superior court in dismissing the case as to Trimble only on the ground that the complaint did not show that Trimble shared in the proceeds of the sale of Mrs. Hotchkin's preference right to purchase, in no way affected the other defendants, and that the order dismiss ing that action as to the other defendants was without any proper reason and decided nothing. In the case reported in 67 Wash. 206, 121 Pac. 455, and in this case, the prayer of the complaint is that defendants, and each of them, be adjudged to pay the plaintiff such sum of money as the testimony upon the hearing of the action may show Mrs. Hotchkin's interest in said lands to be worth, and for such other and further relief as to equity may belong. In that case it was decided that, notwithstanding the prayer of the complaint, the action as to Trimble was strictly a law action for money relief only. It was then vigorously contended that the action was an equity action, and should be considered upon that basis. It is now vigorously contended that this action is purely of equitable cognizance for the enforcement of a trust against the respondents, as to which the statute of limitations does not apply, and also as to which it is claimed there was no adjudication in any of the former cases. [1] One of the grounds of demurrer in the instant case, upon which the court sustained the demurrer and dismissed the action, is that the action is barred by the statute of limitations. Appellant insists that it is a general and well-defined principle of law that, when the demand is purely an equitable one, in other words, is one cognizable only in a court of equity, the statute of limitations does not apply, and in such cases courts do not recognize and are not controlled by the period of limitations fixed by statute citing Depue v. Miller, 65 W. Va. 120, 64 S. E. 740, 23 L. R. A. (N. S.) 775, Newberger v. Wells, 51 W. Va. 624, 42 S. E. 625, German v. Heath, 139 Iowa, 52, 116 N. W. 1051, and many other authorities to the effect that equity applies its own limitation. In this state, by section 153, Rem. Code, it is provided that: "There shall be in this state hereafter but one form of action for the enforcement or protection of private rights and redress of private wrongs, which shall be called a civil action." Thus, as the Code states generally, all distinctions between actions at law and actions in equity are abolished. "Actions can only be commenced within the periods herein prescribed after the cause of action shall have accrued, except when in special cases a different limitation is prescribed by statute." This section is general, and applies to any form of civil action, legal or equitable. Section 156, Rem. Code, provides that actions for the recovery of real property or for the recovery of possession thereof shall be commenced within ten years from the accrual of the cause of action. Section 157, Rem. Code, provides that actions upon any judgment or decree of any court of the United States or of any state or territory, and actions upon a contract in writing or liability, express or implied, arising out of a written agreement, shall be commenced within six years from the accrual of the cause of action. Section 159, Rem. Code, provides that actions upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument, and actions for relief upon the ground of fraud, which shall be deemed to have accrued upon the discovery by the aggrieved party of the facts constituting the fraud, shall be commenced within three years after the accrual of the cause of action. Section 165, Rem. Code, provides that actions for relief not thereinbefore provided for shall be commenced within two years after the cause of acThese and other tion shall have accrued. statutory provisions limiting the period within which actions shall be prosecuted are manifestly intended to cover any and every form of action maintainable either in law or equity. The applicability of statutes of limitation to equitable proceedings appears to be unquestioned in those jurisdictions in which distinctions between legal and equitable remedies have been abolished. 17 R. C. L. 736; Patterson v. Hewitt, 195 U. S. 309, 25 Sup Ct. 35, 49 L. Ed. 214; Munson v. Hallowell, 26 Tex. 475, 84 Am. Dec. 582. [2, 3] Courts of equity in cases of concur rent jurisdiction consider themselves bound by the statutes of limitation which govern courts of law in like cases, and this is rather in obedience to the statute than by analHence if the statute would bar an ogy. action at law, it will be equally a bar in equity, the mode of relief making no difference. Courts of equity apply the statute as it would have been applied at law, and give to the statute the same effect and operation in one court as in the other. The periods prescribed by the statute are recognized in such cases as imposing a limitation on the cause of action itself, and not merely on the court in which it may be prosecuted. 17 R. C. L. 736, 737. It is the policy of the law in this state, as manifested by numerous legislative enactments, that periods shall be established when In the above authority an exception is any claim or demand for the enforcement stated where the relationship between the of any kind of rights shall be deemed too parties is that of trustee and cestui que trust. stale for enforcement. These statutes of The statute of limitations will not necessarilimitation are not regarded with disfavor, ly apply, although the remedies at law and being considered statutes of repose. By sec-in equity are concurrent. See, also, 25 Cyc. tion 155, Rem. Code, it is provided that: 1056, 1058. This exception is upon the prin 172 P.-55 |