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3. MorTGAGES (8 544*)—"WRIT OF ASSIST The relator seeks to sustain this proceedANCE'-REMEDY. The writ of assistance is a writ in aid of in possession and was not made a party

ing upon the theory that, inasmuch as he is a decree of a court of equity issuable only when the right is clear, and it runs in aid of to that proceeding, the court cannot now a mortgage foreclosure decree against one in issue a writ commanding him to obey its deprivity with the mortgagor, but it does not run

cree because of a lack of jurisdiction, and against one asserting an independent title.

[Ed. Note.--For other cases, see Mortgages, that, not having been made a party to the Cent. Dig. & 1573; Dec. Dig. & 544.*

original action, he cannot appeal therein, For other definitions, see Words and Phrases, and is hence forced to the writ of prohibivol. 8, pp. 7531, 7532.]

tion. We think this position is untenable. 4. BANKRUPTCY (8 188*)_TITLE OF TRUSTEE [1, 2] The foreclosure was a proceeding -NOTICE OF EXISTING LIENS.

in rem. The court had jurisdiction of the A trustee in bankruptcy takes with notice of an existing lien on the bankrupt's property. subject-matter, and the rights of the plain

[Ed. Note: --For other cases, see Bankruptcy, tiff against Hawley and wife and of all Dec. Dig. & 188.*]

those claiming by, through, or under him 5. PROHIBITION ($ 3*)-ADEQUACY OF OTHER were or might have been adjudicated in that REMEDY.

proceeding. If for any reason one assertWhere a trustee in bankruptcy appointed ing an interest in the property was not made after the institution of a suit to foreclose a mortgage executed by the bankrupt

a party, he might have been brought in at brought into the case on order to show cause any stage of the proceedings and his rights why a writ of assistance in aid of the decree adjudicated. of foreclosure should not be issued against him, he had a right of appeal from an adverse or

[3] The writ of assistance being a writ in der, and prohibition did not lie to restrain the aid of the order or decree of a court of court from issuing the writ.

equity, there can be no difference in princi[Ed. Note.-For other cases, see Prohibition, ple whether the one asserting an interest is Cent. Dig. $$ 4-19; Dec. Dig. $ 3.*]

brought in as an additional party, before Department 2. Prohibition by the State of decree or thereafter, on an order to show Washington, on the relation of George R. Bid- cause why the decree should not foreclose dle, against the Superior Court of King Coun- his asserted right. In either event, he has ty. Motion to quash writ allowed.

his day in court, and his right can be as Bausman & Kelleher, for plaintiff. A. A. fully adjudicated as if he had been made Booth, for defendant.

an original party. The result is the same.

If it appear that he is in privity with the CHADWICK, J. On March 24, 1911, this mortgagee, the writ will run. If it appear court, upon petition of the relator, issued an that he is not so in privity, or asserts an order directing the superior court of King independent title, it should be denied; the county, Hon. John F. Main, judge, to show issuance of the writ resting in the sound cause why writ of prohibition should not discretion of the court, and the test being issue prohibiting and restraining him from that “it will be used only when the right issuing a writ of assistance in aid of a de- is clear and there is no appearance of equity cree of foreclosure rendered by him in a | in the defendant, or where there is not a certain case then pending in the superior bona fide contest relative to the right of court of King county, wherein J. T. Sulll- possession." Hagerman v. Heltzel, 21 Wash. van was plaintiff and H. W. Hawley was 444, 58 Pac. 580. In Debenture Corporation defendant. The foreclosure proceeding was v. Warren, 9 Wash. 312, 37 Pac. 451, the begun on August 18, 1910. The property court said: "In our opinion the purchaser was sold and bid in by the plaintiff Sulli- i was entitled to possession upon demand any van, who received a certificate of sale en- time after confirmation of the sale, upon prestitling him to the possession thereof. He entation of a certificate from the sheriff, found George R. Biddle in possession as and that such being his right, and it being trustee in bankruptcy of the estate of H. W. derived solely from the process of the court, Hawley. A petition in bankruptcy had been it had jurisdiction to entertain a proceeding filed in July, 1910, and Biddle was appointed in the original action by which such rights as trustee on August 20th, and qualified as could be secured.” So in the case of Hagersuch on August 24, 1910. Upon this state man v. Heltzel the writ was issued in aid of facts the court below issued an order to of a redemptioner and against one holding show cause why a writ of assistance should under the certificate of sale. Neither of not run, whereupon the trustee, Mr. Biddle, the parties had been a party to the origioal came to this court. May 12, 1911, was fixed foreclosure suit, and neither had acquired as the return day upon our order to show any interest in the land prior to the sale cause, and in the meantime respondent, the under the decree. It was there contended superior judge, has appeared and moved to that the parties should litigate their differquash the proceeding upon the ground, ences in an independent proceeding, and it among others, that the relator has a plain, was insisted that it was a deliberate atspeedy, and adequate remedy at law—the tempt to substitute for the usual action at right of appeal.

law a summary process issuing from a court

TIONS.

of equity. But this court held that, the par- 12. LIBEL AND SLANDER (88 145, 152*)-CRIMties being each in privity to the original

INAL LIABILITY — PUBLICATION LIBELOUS

PER SE. parties to the suit, the proceeding was prop

The unwarranted publication in a newspaer, and entertained an appeal. The right to per of a list of conditional sales made by a reappeal, however, was not raised in that tail dealer taken from memoranda legally filed case; but we may assume that, if the court by him with the county auditor is not libelous had been impressed with the fact that it had per se, and the dealer, to charge a criminal libel

under Rem. & Bal. Code, § 2424, defining libel no jurisdiction, would have so indicated, as a malicious publication exposing any person instead of holding as it did, that its de- to hatred, contempt, or ridicule, or injuring him cision did not in any way trench upon the in his business, must allege facts to show that

the publication produced such results. general principle that the "writ will issue

(Ed. Note.-For other cases, see Libel and only against parties to the suit or their Slander, Cent. Dig. $$ 404, 417–427; Dec. Dig. representatives, or those who come into pos- $$ 145, 152.* session under either of the parties while For other definitions, see Words and Phrases, the suit is pending." In State ex rel. Mont- vol. 5, pp. 4116-4125.) gomery v. Superior Court, 21 Wash. 564, 3. LIBEL AND SLANDER (8 148*)—CRIMINAL

RESPONSIBILITY-PRIVILEGED COMMUNICA58 Pac. 1065, the case of State ex rel. Hartman v. Superior Court, 21 Wash. 469, 58

The publication of the contents of public Pac. 572, which is relied on by the petitioner, records, such as memoranda of conditional sale was distinguished, the court saying: “The contracts filed by a retail merchant, is privi

leged. subsequent agreement between herself and

[Ed. Note.-For other cases, see Libel and her husband was in legal contemplation Slander, Cent. Dig. 88 407-411; Dec. Dig. 8 made with full knowledge of the lien of 148.*] Clerf's judgment, and therein is the pres- 4. LIBEL AND SLANDER (8 145*)-CRIMINAL ent case distinguishable from State ex rel.

RESPONSIBILITY. Hartman v. Superior Court, supra."

An information does not lie for publishing

words charging one with having done that which [4, 5] We have no hesitation in holding he may legally and properly do. that a trustee in bankruptcy takes with notice [Ed. Note.-For other cases, see Libel and of an existing lien. In any event, the pro- Slander, Cent. Dig. $ 404; Dec. Dig. $ 145.*] ceeding being in rem and the relator having 5. INDICTMENT AND INFORMATION (8 146*) acquired an interest, if any, subsequent to

DEMURRER-ADMISSIONS. the commencement of the foreclosure pro- admits facts alleged, and not conclusions of the

A demurrer to a criminal complaint only ceeding and having been brought before the pleader. court by its due process, and in that sense [Ed. Note.-For other cases, see Indictment made a party to the original proceeding, he and Information, Cent. Dig. § 489; Dec. Dig. has a right of appeal. "Orders granting $ 146.*] or refusing writs of assistance are usually Department 2. Appeal from Superior appealable” (2 Ency. Pl. & Pr. 985), or, if Court, Whatcom County; Mitchell Gilliam, the writ be issued ex parte, from an order Judge. refusing to vacate it (4 Cyc. 298). While L. H. Darwin was charged with criminal this rule is not universal, it is nearly so, libel. From a judgment sustaining a demurand is certainly consistent with sound rea- rer to the complaint, the State appeals. Afson and orderly procedure. Whatever the firmed. rights of the parties may be held to be in

George Livesey, Brown, White & Peringer, this or any other proceeding, we are satis- and Craven & Greene, for the State. Neterfied from the record before us that an up-er, Pemberton & Sather, for respondent. peal lies from the order of the court granting the writ of assistance.

CROW, J. The only question in this cause Motion to quash allowed.

is the sufficiency of a criminal complaint, DUNBAR, C. J., and MORRIS and CROW, to which the trial judge sustained a demur. JJ., concur.

The state elected to stand upon the

complaint, and has appealed from an order (63 Wash. 303)

discharging the defendant. STATE v. DARWIN,

The complaint originally filed before a jus(Supreme Court of Washington. May 2, 1911.)

tice of the peace, omitting formal parts,

reads as follows: 1. INDICTMENT AND INFORMATION (8 63*)-ALLEGATIONS-CONCLUSIONS.

“T. S. Hamilton, being first duly sworn, The court must determine whether the facts on his oath deposes and says: That in pleaded in a complaint charging criminal libel Whatcom county, Washington, on or about sustain the pleader's conclusion that the pub- the 12th day of April, 1910, the above-named lication complained of exposed prosecutor to hatred, contempt, or ridicule or injured him in defendant, L. H. Darwin, did commit the his business, and cannot consider such conclu- crime of criminal libel as follows: Then and sions in passing on the sufficiency of the com- there being the said defendant, L. H. Darplaint.

[Ed. Note.--For other cases, see Indictment win, being then and there the business manand Information, Cent. Dig. $ 185; Dec. Dig. ager of the American Printing Company, a $ 63.*]

corporation, by which the Morning Reveille,

rer.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key'No. Series & Rep'r Indexes

a newspaper published at Bellingham, Wash-, port and statement of the filings in the office ington, and having a general circulation in of the said auditor of Whatcom county, and about Bellingham, Whatcom county, Washington, for the day or days immediateWashington, is, and was, then and there is- ly preceding the publication of said items, sued, did then and there unlawfully and ma- and that the publication of said filings for liciously defame and libel the complainant said day or days is and was made under the by then and there unlawfully and malicious- heading in said publication entitled 'Court ly making public and publishing in said the House Record,' and that only items and filMorning Reveille, and by then and there un- ings of recent date were and are published lawfully and maliciously causing and procur- in said list. That on said 12th day of April, ing to be made public and to be published 1910, the said defendant, L. H. Darwin, did in said the Morning Reveille the defamation unlawfully and maliciously publish, cause to and libel of the said complainant, T. S. Ham- be published, and procure the publication of ilton, by words, printing and writing, tend- the libel above set forth, and did on said ing to expose the said complainant to hatred, date unlawfully and maliciously publish, contempt, ridicule, and obloquy and to in- cause to be published, and procure the pubjure the said complainant in his business lication of said libel in a place in said paper and occupation; that the said publication, separate and apart from the publication of printing, and writing was an article then said report of filings in the said auditor's and there published in said the Morning Re- office and under heading in bold-faced type veille as aforesaid, and more particularly in entitled 'Conditional Sales,' and inserted substance, language, and words, as follows: therein as a part of said filing record the

words 'B. B. Furniture Company. That no "'Conditional Sales.

sales other than as made by complainant are “'T. S. Hamilton (B. B. Furniture Com- set forth in said libel. That all of the items pany) to Mrs. Emily Sarlund, go-cart, $10.

set forth in said libel are, and were, con“ T. S. Hamilton (B. B. Furniture Com-'tracts for sales that had been made and filed pany) to Mrs. C. R. Halladay, go-cart, $15. in said auditor's office by said T. S. Hamil.

“'T. S. Hamilton (B. B. Furniture Com- , ton approximately two years prior to the pany), to Miss Sophia Anderson, oil stove publication of said libel, and that in said and oven, $12.

libel so published neither the dates of said ""T. S. Hamilton (B. B. Furniture Com- contracts nor the date of the filing thereof pany), to W. J. Hammons, twenty-five yards was set forth, and that in the publication of of carpet, $12.50.

said 'Court House Record' the said dates are “'T. S. Hamilton (B. B. Furniture Com- and were given. That said conditional sales pany), to William Mullin, furniture, $12.60. lication had all been fully paid and satisfied

contracts so mentioned in said libelous pub“'T. S. Hamilton (B. B. Furniture Com long prior to the publication of said libel. pany), to Mrs. E. Huefner, range, $60.'

That the publication of said libel, as speci"That the complainant herein now is, and fied, and the publication of the names of the for a number of years last past has been, purchasers named in the said conditional engaged in the sale of furniture at retail in sales referred to and mentioned in said libel, Bellingham, Whatcom county, Washington; itended to expose, and did expose, complainand his said business was, and is, known ant to the hatred, contempt, ridicule, and and designated as the 'B. B. Furniture Com-obloquy of the persons named as the vendees pany.' That in connection with his said or purchasers in the conditional sales desbusiness complainant has made, and does ignated and mentioned in said libel, and now make, conditional sales contracts with tended to expose, and did expose, complainhis various patrons. That in said contracts ant to the hatred, contempt, ridicule, and the said T. S. Hamilton was, and is, named ' obloquy of the public, and tended to injure as the vendor and the various purchasers or complainant in his business and occupation, customers as vendees, and that said condi- in that it tended to deter, and did deter, comtional sales contracts at all times have been, plainant's 'customers and the public and the and now are, filed in the office of the auditor persons named as vendees or purchasers in of Whatcom county, Washington, and index- said libel from further dealing or transacted therein in the name of T. S. Hamilton as ing business with complainant to his finanvendor and the several purchasers as ven- cial loss. That the said defendant, L. H. dees. That the name 'B. B. Furniture Com- Darwin, did make said libelous publication, pany' does not appear upon the index in the and cause and procure same to be made thus records in the office of said auditor of What- unlawfully, willfully, and maliciously, knowcom county, Washington, and that none of ing that the same would tend to expose the said contracts are filed or indexed in the complainant to hatred, contempt, ridicule and name of said B. B. Furniture Company. obloquy, and knowing the same would tend That the said defendant, L. H. Darwin, pub- to injure the complainant in his business and lishes and causes to be published in said the occupation, and the said defendant did there. Morning Reveille, and on the 12th day of by intend to expose the said T. S. Hamilton April, 1910, did publish and cause to be pub- to public hatred, contempt, ridicule, and ob

in his business and occupation." Respondent | fected by so late a publication were the venwas convicted on this complaint before the dees, who had then made full payment, but justice of the peace, and appealed to the su- the respondent is not charged with having perior court, where the demurrer was sus-libeled them. Although the complaint fol. tained. Appellant's only assignment is that lows the language of the statute in making the trial judge erred in sustaining the de- its charges, the statements upon which apmurrer and discharging respondent. The pellant relies are simply conclusions of the prosecution is based upon section 2424, Rem. pleader deduced from the facts alleged. & Bal. Code, which reads as follows: “Ev [1] It is for the court to determine whethery malicious publication by writing, printer the facts pleaded sustain such conclusions. ing, picture, effigy, sign or otherwise than Conceding the publication to have been unby mere speech, which shall tend: (1) To warranted and at the same time irritating expose any living person to hatred, contempt, and annoying to Hamilton, yet it only states ridicule or obloquy, or to deprive him of the facts taken from public records, the truth of benefit of public confidence or social inter- which is not questioned. The alleged pubcourse; or

(3) to injure any per- lication contains no words libelous per se. son, corporation or association of persons in [2] Appellant insists that extrinsic circumhis or their business or occupation, shall be stances have been pleaded as inducement ina libel. ** * "

nuendo, which, coupled with the language Appellant contends the publication tended publisned, are sufficient to show that the pub-. to expose the complainant to hatred, con- lication tended to produce, and did produce, tempt, ridicule, and obloquy; that it was the results which the statute is intended to malicious, was made without justification or prohibit. In support of this contention, apexcuse; that it tended to injure complainant pellant cites with others the following auin his business; that criminal libel is charg- thorities: Denney y. Northwestern Credit ed in the language of the statute; and that Association, 55 Wash. 331, 104 Pac. 769, 25 the complaint is sufficient. While no rea- L. R. A. (N. S.) 1021; State v. Elliot, 10 Kan. sonable excuse appears for making the pub- App. 69, 61 Pac. 981; State v. O'Hagan, 73 lication, and the motive that actuated it may N. J. Law, 209, 63 Atl. 95. An examination not have been commendable, and although it of these cases will disclose that, if pertinent may have annoyed the complainant, yet from at all, they tend to show the insufficiency of the facts pleaded we do not conclude that it this complaint. Denney V. Northwestern amounted to a criminal libel. Although no Credit Association, supra, was a civil action dates of sales were mentioned in the public for damages predicated on an alleged libel. cation, it is nevertheless conceded the sales We there said: "In all charges of this kind, were actually made by Hamilton in the due it is the duty of the court to regard the course of his business. There is no question words spoken or written as might a stranger but that they were conditional sales, and that to the parties, and if they be in themselves, for his own protection he filed memoranda and without the aid of the innuendo, otherthereof with the county auditor under the wise innocent, and if they do not in themauthority of section 3670 et seq., Rem. & selves, and without the aid of the special Bal. Code. Publication at any time there- knowledge possessed by the parties concernafter of the fact that he had made such filed, imply malice, or hold the party out to ings would not tend to expose him to hatred, public contempt or ridicule, or make any contempt, ridicule, and obloquy, nor are we charge involving moral turpitude, or touch able to understand how it would tend to in- him in his business, or subject him to an jure him in his usual business which he was infamous punishment, it is the general rule conducting in the manner stated. If there that they are not libelous per se. If the was any circumstance such as the nature, words do not come within this rule, 'It is value, or quantity of the merchandise sold necessary that the declaration should set which could by any possibility be construed forth precisely in what way the damage reas tending to reflect upon the vendor, and sulted from the speaking of the words. It subject him to contempt and ridicule, that is not sufficient to allege generally that the fact must have been known to him when he plaintiff has suffered special damages, or that made the conditional sales and filed their the party has been put to great costs and memoranda with the county auditor. There expenses.

By special damage in is no intimation that his business methods such a case is meant pecuniary loss.' Pol. or the making of such sales were not legiti-lard v. Lyon, 91 U. S. 225, 237, 23 L. Ed. mate or honorable. The complaint alleged 308. See, also, 5 Ency. Plead. & Prac. 766 ; the publication was made long after the dates 25 Cyc. 455; Dun v. Maier, 82 Fed. 169 [27 of the respective sales, and after payment C. O. A. 100]; Bradstreet Co. v. Oswald, 96 of the purchase price. Of this fact the ven-Ga. 396, 23 S. E. 423; Newbold v. Bradstreet dor, Hamilton, cannot complain. It could in & Son, 57 Md. 38, 40 Am. Rep. 426." no manner injure him in his credit or busi [3, 4] Appellant concedes the publication ness standing. If it could, his methods which here involved is not libelous per se. We find he himself adopted must have been at fault. no allegations sufficient to show that HamThe only possible persons, if any, whose cred-ilton was actually damaged or injured perit or financial standing could have been af. Isonally or in his business. The complaint

only states the pleader's conclusions to that Department 2. Appeal from Superior effect. Hamilton first published the matter Court, King County; C. H. Neal, Judge. set forth in the complaint when he filed the Action by the Robertson Mortgage Commemoranda of the conditional sale contracts, pany against W. H. B. Thomas and others. and caused them to become public records, From a judgment for plaintiff, defendants the publication of which is privileged. An appeal. Appeal dismissed. information will not lie for publishing words See, also, 111 Pac. 795. charging a person with having done that

Shepard & Flett and Brady & Rummens, which he may legally and properly do. It is for appellants. John T. Condon, for re conceded the conditional sales memoranda

spondent. were legally and properly filed. The publication was truthful.

PER CURIAM. Motion to dismiss appeal [5] The demurrer only admitted facts al- and affirm order appealed from. The order leged, and not the pleader's conclusions. The involved in the appeal is one confirming the latter must be ignored in passing upon the sale by the sheriff of property under a desufficiency of the complaint. Thus consider cree of foreclosure of mortgage, and is ing the complaint, we conclude it does not made upon three grounds: (1) That no nostate facts sufficient to charge criminal libel. tice of appeal was served on E. W. Howell; The judgment is affirmed.

(2) that no notice of appeal was served on

F. E. Green; and (3) that appellants DobDUNBAR, C. J., and MORRIS and CHAD- son, Connor, Gay, and Harley did not serve WICK, JJ., concur.

or file any appeal bond within the time re

quired by law. We will notice these con(63 Wash. 316)

tentions in their order. ROBERTSON MORTGAGE CO. V. THOMAS

[1] E. W. Howell was not made a party et al.

defendant in the foreclosure proceedings. (Supreme Court of Washington. May 3, 1911.) The court, however, in its decree adjudged 1. MORTGAGES (8 574*) - FORECLOSURE – No him to be entitled to a deed to one of the lots TICE OF APPEAL-PERSONS TO BE SERVED.

involved in the foreclosure, as assignee of A person not made a defendant to a suit to L, E. Campbell, one of the defendants. He foreclose a mortgage, but whom the decree holds thereby became a party to the judgment, to be entitled to part of the land involved, be- and as such there can be no escape from comes a party to the judgment, and a purchaser at the sheriff's sale becomes party to the rec-holding that he should have been served ord, and both must be served with notice of an with notice of the appeal. He was not so appeal.

serverl, and, under the established rule of [Ed. Note.-For other cases, see Mortgages, this court, the appeal is, because of such Cent. Dig. 1651; Dec. Dig. $ 574.*)

failure, ineffectual for any purpose. 2. MORTGAGES (8 574*) - FORECLOSURE - NoTICE OF APPEAL-EFFECT OF FAILURE TO sheriff's sale of a portion of the involved

[2] F. E. Green was a purchaser at the GIVE NOTICE.

Failure to serve notice of appeal from a property, and as such purchaser became a decree for the foreclosure of a mortgage on a party to the record, entitling him to service person whom the decree holds to be entitled to a of notice of appeal, as his interest might deed of one of the lots involved, or on a pur- have been adverse to that of the other par. chaser at the sale, is fatal to the appeal.

[Ed. Note.-For other cases, see Mortgages, ties to the judgment. He was not so served, Cent. Dig. $ 1651; Dec. Dig. $ 574.*]

and such failure is a fatal defect, invalidat3. APPEAL AND ERROR ($ 428*)-NOTICE OF ing the appeal, McDonald v. Citizens' NaAPPEAL-PROOF OF SERVICE.

tional Bank, 58 Kan, 461, 49 Pac. 595; Pope An affidavit of service of notice of appeal v. Amidon, 6 Kan. App. 398, 50 Pac. 1093; not on file at the time of argument cannot be considered.

Clarkson v. Read, 15 Grat. (Va.) 288; Requa [Ed. Note.--For other cases, see Appeal and v. Rea, 2 Paige (N. Y.) 339; Wood v. Mann, Error, Cent. Dig. $ 2167; Dec. Dig. § 428.*] 3 Sumn. 318, Fed. Cas. No. 17,954; Hender4. APPEAL AND ERROR ($ 427*)-NOTICE OF son's Chancery Practice, Š 618; Daniell's APPEAL-PROOF OF SERVICE.

Chancery Practice, p. 1462. An affidavit that affiant received notice of an appeal is insufficient, as notice might be had

[3, 4] An affidavit is attempted to be filed, in many ways, but the statute can be satisfied in which this party is made to say that he reonly by formal service of notice.

ceived notice of the appeal. The affidavit [Ed. Note. For other cases, see Appeal and was not served at the time of argument, and Error, Cent. Dig. $ 2165 ; Dec. Dig. $ 427.*]

hence may not be considered ; but, even if it 5. APPEAL AND ERROR ($ 387*)-BOND-TIME could be given effect, it does not comply with TO GIVE.

Where persons who joined in the appeal the statute. He may have received notice of taken by others gave no bond until after mo- the appeal in many ways. The statute, howtion to dismiss therefor had been made, some ever, is only complied with by the formal four months after notice, it was fatal to their service of notice upon all parties who are enappeal.

titled thereto. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $S 2064-2070; Dec. Dig. 8

[5] Appellants Dodson, Connor, Gay, and 387.*)

Harley joined in the notice of appeal given

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