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3. MORTGAGES (§ 544*)-"WRIT OF ASSISTANCE"-REMEDY.

The writ of assistance is a writ in aid of a decree of a court of equity issuable only when the right is clear, and it runs in aid of a mortgage foreclosure decree against one in privity with the mortgagor, but it does not run against one asserting an independent title. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1573; Dec. Dig. § 544.*

For other definitions, see Words and Phrases, vol. 8, pp. 7531, 7532.]

4. BANKRUPTCY (§ 188*)-TITLE OF TRUSTEE -NOTICE OF EXISTING LIENS.

A trustee in bankruptcy takes with notice of an existing lien on the bankrupt's property. [Ed. Note.-For other cases, see Bankruptcy, Dec. Dig. § 188.*]

5. PROHIBITION (§ 3*)—ADEQUACY OF OTHER REMEDY.

Where a trustee in bankruptcy appointed

was

after the institution of a suit to foreclose a mortgage executed by the bankrupt brought into the case on order to show cause why a writ of assistance in aid of the decree of foreclosure should not be issued against him, he had a right of appeal from an adverse order, and prohibition did not lie to restrain the court from issuing the writ.

The relator seeks to sustain this proceeding upon the theory that, inasmuch as he is in possession and was not made a party to that proceeding, the court cannot now issue a writ commanding him to obey its decree because of a lack of jurisdiction, and that, not having been made a party to the original action, he cannot appeal therein, and is hence forced to the writ of prohibition. We think this position is untenable.

[1, 2] The foreclosure was a proceeding in rem. The court had jurisdiction of the Subject-matter, and the rights of the plaintiff against Hawley and wife and of all those claiming by, through, or under him were or might have been adjudicated in that proceeding. If for any reason one asserting an interest in the property was not made a party, he might have been brought in at any stage of the proceedings and his rights adjudicated.

[3] The writ of assistance being a writ in aid of the order or decree of a court of 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 mortgagee, the writ will run. If it appear that he is not so in privity, or asserts an independent title, it should be denied; the issuance of the writ resting in the sound discretion of the court, and the test being that "it will be used only when the right

CHADWICK, J. On March 24, 1911, this court, upon petition of the relator, issued an order directing the superior court of King county, Hon. John F. Main, judge, to show cause why writ of prohibition should not issue prohibiting and restraining him from 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. Sulli- possession." Hagerman v. Heltzel, 21 Wash. van was plaintiff and H. W. Hawley was defendant. The foreclosure proceeding was begun on August 18, 1910. The property was sold and bid in by the plaintiff Sullivan, who received a certificate of sale entitling him to the possession thereof. He found George R. Biddle in possession as trustee in bankruptcy of the estate of H. W. Hawley. A petition in bankruptcy had been filed in July, 1910, and Biddle was appointed as trustee on August 20th, and qualified as such on August 24, 1910. Upon this state of facts the court below issued an order to show cause why a writ of assistance should not run, whereupon the trustee, Mr. Biddle, came to this court. May 12, 1911, was fixed as the return day upon our order to show cause, and in the meantime respondent, the superior judge, has appeared and moved to quash the proceeding upon the ground, among others, that the relator has a plain, speedy, and adequate remedy at law-the right of appeal.

444, 58 Pac. 580. In Debenture Corporation v. Warren, 9 Wash. 312, 37 Pac. 451, the court said: "In our opinion the purchaser was entitled to possession upon demand any time after confirmation of the sale, upon presentation of a certificate from the sheriff, and that such being his right, and it being derived solely from the process of the court, it had jurisdiction to entertain a proceeding in the original action by which such rights could be secured." So in the case of Hagerman v. Heltzel the writ was issued in aid of a redemptioner and against one holding under the certificate of sale. Neither of the parties had been a party to the original foreclosure suit, and neither had acquired any interest in the land prior to the sale under the decree. It was there contended that the parties should litigate their differences in an independent proceeding, and it was insisted that it was a deliberate attempt to substitute for the usual action at law a summary process issuing from a court

The unwarranted publication in a newspaper of a list of conditional sales made by a retail dealer taken from memoranda legally filed by him with the county auditor is not libelous per se, and the dealer, to charge a criminal libel under Rem. & Bal. Code, § 2424, defining libel as a malicious publication exposing any person to hatred, contempt, or ridicule, or injuring him in his business, must allege facts to show that the publication produced such results.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 404, 417-427; Dec. Dig. §§ 145, 152.*

of equity. But this court held that, the par-12. LIBEL AND SLANDER (§§ 145, 152*)—CRIMties being each in privity to the original INAL LIABILITY PUBLICATION - LIBELOUS PER SE. parties to the suit, the proceeding was proper, and entertained an appeal. The right to appeal, however, was not raised in that case; but we may assume that, if the court had been impressed with the fact that it had no jurisdiction, it would have so indicated, instead of holding as it did, that its decision did not in any way trench upon the general principle that the "writ will issue only against parties to the suit or their representatives, or those who come into possession under either of the parties while the suit is pending." In State ex rel. Montgomery v. Superior Court, 21 Wash. 564, 58 Pac. 1065, the case of State ex rel. Hartman v. Superior Court, 21 Wash. 469, 58 Pac. 572, which is relied on by the petitioner, was distinguished, the court saying: "The subsequent agreement between herself and her husband was in legal contemplation made with full knowledge of the lien of Clerf's judgment, and therein is the present case distinguishable from State ex rel. Hartman v. Superior Court, supra."

For other definitions, see Words and Phrases, vol. 5, pp. 4116–4125.j

3. LIBEL AND SLANDER (§ 148*)-CRIMINAL RESPONSIBILITY-PRIVILEGED COMMUNICA

TIONS.

The publication of the contents of public records, such as memoranda of conditional sale contracts filed by a retail merchant, is privileged.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 407-411; Dec. Dig. § 148.*]

4. LIBEL AND SLANDER (§ 145*)-CRIMINAL RESPONSIBILITY.

An information does not lie for publishing words charging one with having done that which he may legally and properly do.

[Ed. Note. For other cases, see Libel and Slander, Cent. Dig. § 404; Dec. Dig. § 145.*] 5. INDICTMENT AND INFORMATION (§ 146*)-DEMURRER-ADMISSIONS.

admits facts alleged, and not conclusions of the A demurrer to a criminal complaint only pleader.

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. § 489; Dec. Dig. § 146.*]

[4, 5] We have no hesitation in holding that a trustee in bankruptcy takes with notice of an existing lien. In any event, the proceeding being in rem and the relator having acquired an interest, if any, subsequent to the commencement of the foreclosure proceeding and having been brought before the court by its due process, and in that sense made a party to the original proceeding, he has a right of appeal. "Orders granting or refusing writs of assistance are usually appealable" (2 Ency. Pl. & Pr. 985), or, if the writ be issued ex parte, from an order refusing to vacate it (4 Cyc. 298). While this rule is not universal, it is nearly so, and is certainly consistent with sound reason and orderly procedure. Whatever the 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.

Motion to quash allowed.

Department 2. Appeal from Superior Court, Whatcom County; Mitchell Gilliam, Judge.

L. H. Darwin was charged with criminal libel. From a judgment sustaining a demurrer to the complaint, the State appeals. Affirmed.

CROW, J. The only question in this cause is the sufficiency of a criminal complaint,

DUNBAR, C. J., and MORRIS and CROW, to which the trial judge sustained a demur.

JJ., concur.

(63 Wash. 303)

STATE v. DARWIN.

(Supreme Court of Washington. May 2, 1911.) 1. INDICTMENT AND INFORMATION (§ 63*)-ALLEGATIONS-CONCLUSIONS.

The court must determine whether the facts pleaded in a complaint charging criminal libel sustain the pleader's conclusion that the publication complained of exposed prosecutor to hatred, contempt, or ridicule or injured him in his business, and cannot consider such conclusions in passing on the sufficiency of the complaint.

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. § 185; Dec. Dig. § 63.*]

rer. The state elected to stand upon the complaint, and has appealed from an order discharging the defendant.

The complaint originally filed before a justice of the peace, omitting formal parts, reads as follows:

"T. S. Hamilton, being first duly sworn, on his oath deposes and says: That in Whatcom county, Washington, on or about the 12th day of April, 1910, the above-named defendant, L. H. Darwin, did commit the crime of criminal libel as follows: Then and there being the said defendant, L. H. Darwin, being then and there the business manager of the American Printing Company, a corporation, by which the Morning Reveille,

*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, Washington, and having a general circulation in and about Bellingham, Whatcom county, Washington, is, and was, then and there issued, did then and there unlawfully and maliciously defame and libel the complainant by then and there unlawfully and maliciously making public and publishing in said the Morning Reveille, and by then and there unlawfully and maliciously causing and procuring to be made public and to be published in said the Morning Reveille the defamation and libel of the said complainant, T. S. Hamilton, by words, printing and writing, tending to expose the said complainant to hatred, contempt, ridicule, and obloquy and to injure the said complainant in his business and occupation; that the said publication, printing, and writing was an article then and there published in said the Morning Reveille as aforesaid, and more particularly in substance, language, and words, as follows:

"Conditional Sales.

"T. S. Hamilton (B. B. Furniture Company) to Mrs. Emily Sarlund, go-cart, $10. ""T. S. Hamilton (B. B. Furniture Company) to Mrs. C. R. Halladay, go-cart, $15. "T. S. Hamilton (B. B. Furniture Company), to Miss Sophia Anderson, oil stove and oven, $12.

""T. S. Hamilton (B. B. Furniture Company), to W. J. Hammons, twenty-five yards of carpet, $12.50.

"T. S. Hamilton (B. B. Furniture Company), to William Mullin, furniture, $12.60. "T. S. Hamilton (B. B. Furniture Company), to Mrs. E. Huefner, range, $60.'

"That the complainant herein now is, and for a number of years last past has been, engaged in the sale of furniture at retail in Bellingham, Whatcom county, Washington; and his said business was, and is, known and designated as the 'B. B. Furniture Company.'

That in connection with his said business complainant has made, and does now make, conditional sales contracts with his various patrons. That in said contracts the said T. S. Hamilton was, and is, named as the vendor and the various purchasers or customers as vendees, and that said conditional sales contracts at all times have been, and now are, filed in the office of the auditor of Whatcom county, Washington, and indexed therein in the name of T. S. Hamilton as vendor and the several purchasers as vendees. That the name 'B. B. Furniture Company' does not appear upon the index in the records in the office of said auditor of Whatcom county, Washington, and that none of said contracts are filed or indexed in the name of said B. B. Furniture Company. That the said defendant, L. H. Darwin, publishes and causes to be published in said the Morning Reveille, and on the 12th day of April, 1910, did publish and cause to be pub

port and statement of the filings in the office of the said auditor of Whatcom county, Washington, for the day or days immediately preceding the publication of said items, and that the publication of said filings for said day or days is and was made under the heading in said publication entitled 'Court House Record,' and that only items and filings of recent date were and are published in said list. That on said 12th day of April, 1910, the said defendant, L. H. Darwin, did unlawfully and maliciously publish, cause to be published, and procure the publication of the libel above set forth, and did on said date unlawfully and maliciously publish, cause to be published, and procure the publication of said libel in a place in said paper separate and apart from the publication of said report of filings in the said auditor's office and under a heading in bold-faced type entitled 'Conditional Sales,' and inserted therein as a part of said filing record the words 'B. B. Furniture Company.' That no sales other than as made by complainant are That all of the items set forth in said libel. set forth in said libel are, and were, contracts for sales that had been made and filed in said auditor's office by said T. S. Hamil ton approximately two years prior to the publication of said libel, and that in said libel so published neither the dates of said contracts nor the date of the filing thereof said 'Court House Record' the said dates are was set forth, and that in the publication of

contracts so mentioned in said libelous puband were given. That said conditional sales lication had all been fully paid and satisfied long prior to the publication of said libel. That the publication of said libel, as specified, and the publication of the names of the purchasers named in the said conditional sales referred to and mentioned in said libel, tended to expose, and did expose, complainant to the hatred, contempt, ridicule, and obloquy of the persons named as the vendees or purchasers in the conditional sales designated and mentioned in said libel, and tended to expose, and did expose, complainant to the hatred, contempt, ridicule, and obloquy of the public, and tended to injure complainant in his business and occupation, in that it tended to deter, and did deter, complainant's 'customers and the public and the persons named as vendees or purchasers in said libel from further dealing or transacting business with complainant to his financial loss. That the said defendant, L. H. Darwin, did make said libelous publication, and cause and procure same to be made thus unlawfully, willfully, and maliciously, knowing that the same would tend to expose the complainant to hatred, contempt, ridicule and obloquy, and knowing the same would tend to injure the complainant in his business and occupation, and the said defendant did thereby intend to expose the said T. S. Hamilton to public hatred, contempt, ridicule, and ob

dees, who had then made full payment, but the respondent is not charged with having libeled them. Although the complaint fol lows the language of the statute in making its charges, the statements upon which appellant relies are simply conclusions of the pleader deduced from the facts alleged.

[1] It is for the court to determine wheth

in his business and occupation." Respondent | fected by so late a publication were the venwas convicted on this complaint before the justice of the peace, and appealed to the superior court, where the demurrer was sustained. Appellant's only assignment is that the trial judge erred in sustaining the demurrer and discharging respondent. The prosecution is based upon section 2424, Rem. & Bal. Code, which reads as follows: "Every malicious publication by writing, printer the facts pleaded sustain such conclusions. ing, picture, effigy, sign or otherwise than by mere speech, which shall tend: (1) To expose any living person to hatred, contempt, ridicule or obloquy, or to deprive him of the benefit of public confidence or social intercourse; or (3) to injure any person, corporation or association of persons in his or their business or occupation, shall be a libel.

* * *

Conceding the publication to have been un-
warranted and at the same time irritating
and annoying to Hamilton, yet it only states
facts taken from public records, the truth of
which is not questioned. The alleged pub-
lication contains no words libelous per se.
[2] Appellant insists that extrinsic circum-
stances have been pleaded as inducement in-
nuendo, which, coupled with the language
published, are sufficient to show that the pub-
lication tended to produce, and did produce,
the results which the statute is intended to
prohibit. In support of this contention, ap-
pellant cites with others the following au-
thorities: Denney v. Northwestern Credit
Association, 55 Wash. 331, 104 Pac. 769, 25
L. R. A. (N. S.) 1021; State v. Elliot, 10 Kan.
App. 69, 61 Pac. 981; State v. O'Hagan, 73
N. J. Law, 209, 63 Atl. 95. An examination
of these cases will disclose that, if pertinent
at all, they tend to show the insufficiency of
this complaint. Denney v. Northwestern
Credit Association, supra, was a civil action
for damages predicated on an alleged libel.
We there said: "In all charges of this kind,
it is the duty of the court to regard the
words spoken or written as might a stranger
to the parties, and if they be in themselves,
and without the aid of the innuendo, other-
wise innocent, and if they do not in them-
selves, and without the aid of the special
knowledge possessed by the parties concern-
ed, imply malice, or hold the party out to
public contempt or ridicule, or make any
charge involving moral turpitude, or touch
him in his business, or subject him to an
infamous punishment, it is the general rule
that they are not libelous per se. If the
words do not come within this rule, 'It is
necessary that the declaration should set
forth precisely in what way the damage re-
sulted from the speaking of the words. It
is not sufficient to allege generally that the
plaintiff has suffered special damages, or that
the party has been put to great costs and
expenses.
By special damage in
such a case is meant pecuniary loss.' Pol-
lard v. Lyon, 91 U. S. 225, 237, 23 L. Ed.
308. See, also, 5 Ency. Plead. & Prac. 766;
25 Cyc. 455; Dun v. Maier, 82 Fed. 169 [27
C. C. A. 100]; Bradstreet Co. v. Oswald, 96
Ga. 396, 23 S. E. 423; Newbold v. Bradstreet
& Son, 57 Md. 38, 40 Am. Rep. 426."

Appellant contends the publication tended to expose the complainant to hatred, contempt, ridicule, and obloquy; that it was malicious, was made without justification or excuse; that it tended to injure complainant in his business; that criminal libel is charged in the language of the statute; and that the complaint is sufficient. While no reasonable excuse appears for making the publication, and the motive that actuated it may not have been commendable, and although it may have annoyed the complainant, yet from the facts pleaded we do not conclude that it amounted to a criminal libel. Although no dates of sales were mentioned in the publication, it is nevertheless conceded the sales were actually made by Hamilton in the due course of his business. There is no question but that they were conditional sales, and that for his own protection he filed memoranda thereof with the county auditor under the authority of section 3670 et seq., Rem. & Bal. Code. Publication at any time thereafter of the fact that he had made such filings would not tend to expose him to hatred, contempt, ridicule, and obloquy, nor are we able to understand how it would tend to injure him in his usual business which he was conducting in the manner stated. If there was any circumstance such as the nature, value, or quantity of the merchandise sold which could by any possibility be construed as tending to reflect upon the vendor, and subject him to contempt and ridicule, that fact must have been known to him when he made the conditional sales and filed their memoranda with the county auditor. There is no intimation that his business methods or the making of such sales were not legitimate or honorable. The complaint alleged the publication was made long after the dates of the respective sales, and after payment of the purchase price. Of this fact the vendor, Hamilton, cannot complain. It could in 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-sonally or in his business. The complaint

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only states the pleader's conclusions to that | effect. Hamilton first published the matter set forth in the complaint when he filed the memoranda of the conditional sale contracts, and caused them to become public records, the publication of which is privileged. An information will not lie for publishing words charging a person with having done that which he may legally and properly do. It is conceded the conditional sales memoranda were legally and properly filed. The publication was truthful.

[5] The demurrer only admitted facts alleged, and not the pleader's conclusions. The latter must be ignored in passing upon the sufficiency of the complaint. Thus considering the complaint, we conclude it does not state facts sufficient to charge criminal libel. The judgment is affirmed.

Department 2. Appeal from Superior Court, King County; C. H. Neal, Judge.

Action by the Robertson Mortgage Company against W. H. B. Thomas and others. From a judgment for plaintiff, defendants appeal. Appeal dismissed.

See, also, 111 Pac. 795.

Shepard & Flett and Brady & Rummens, for appellants. John T. Condon, for respondent.

PER CURIAM.

Motion to dismiss appeal and affirm order appealed from. The order involved in the appeal is one confirming the sale by the sheriff of property under a decree of foreclosure of mortgage, and is made upon three grounds: (1) That no notice of appeal was served on E. W. Howell; (2) that no notice of appeal was served on F. E. Green; and (3) that appellants Dob

DUNBAR, C. J., and MORRIS and CHAD- son, Connor, Gay, and Harley did not serve WICK, JJ., concur.

(63 Wash. 316)

ROBERTSON MORTGAGE CO. v. THOMAS et al.

or file any appeal bond within the time required by law. We will notice these contentions in their order.

[1] E. W. Howell was not made a party defendant in the foreclosure proceedings. (Supreme Court of Washington. May 3, 1911.) him to be entitled to a deed to one of the lots The court, however, in its decree adjudged 1. MORTGAGES (§ 574*) — FORECLOSURE-NO-involved in the foreclosure, as assignee of TICE OF APPEAL-l'ERSONS TO BE SERVED.

A person not made a defendant to a suit to foreclose a mortgage, but whom the decree holds to be entitled to part of the land involved, becomes a party to the judgment, and a purchaser at the sheriff's sale becomes party to the record, and both must be served with notice of an appeal.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. § 1651; Dec. Dig. § 574.*]

2. MORTGAGES (8 574*) -- FORECLOSURE - NoTICE OF APPEAL-EFFECT OF FAILURE TO GIVE NOTICE.

Failure to serve notice of appeal from a decree for the foreclosure of a mortgage on a person whom the decree holds to be entitled to a deed of one of the lots involved, or on a purchaser at the sale, is fatal to the appeal.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. § 1651; Dec. Dig. § 574.*] 3. APPEAL AND ERROR (8 428*)-NOTICE OF APPEAL-PROOF OF SERVICE.

An affidavit of service of notice of appeal not on file at the time of argument cannot be

considered.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2167; Dec. Dig. § 428.*] 4. APPEAL AND ERROR (8 427*)-NOTICE OF APPEAL-PROOF OF SERVICE.

An affidavit that affiant received notice of an appeal is insufficient, as notice might be had in many ways, but the statute can be satisfied only by formal service of notice.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2165; Dec. Dig. § 427.*] 5. APPEAL AND ERROR (§ 387*)-BOND-TIME TO GIVE.

Where persons who joined in the appeal taken by others gave no bond until after motion to dismiss therefor had been made, some four months after notice, it was fatal to their appeal.

[Ed. Note.-For other cases. see Appeal and Error, Cent. Dig. §§ 2064-2070; Dec. Dig. § 387.*]

L. E. Campbell, one of the defendants. He thereby became a party to the judgment, and as such there can be no escape from holding that he should have been served with notice of the appeal. He was not so served, and, under the established rule of this court, the appeal is, because of such failure, ineffectual for any purpose.

[2] F. E. Green was a purchaser at the sheriff's sale of a portion of the involved property, and as such purchaser became a party to the record, entitling him to service have been adverse to that of the other par of notice of appeal, as his interest might ties to the judgment. He was not so served, and such failure is a fatal defect, invalidating the appeal. McDonald v. Citizens' National Bank, 58 Kan. 461, 49 Pac. 595; Pope V. Amidon, 6 Kan. App. 398, 50 Pac. 1093; Clarkson v. Read, 15 Grat. (Va.) 288; Requa v. Rea, 2 Paige (N. Y.) 339; Wood v. Mann, 3 Sumn. 318, Fed. Cas. No. 17,954; Henderson's Chancery Practice, § 618; Daniell's Chancery Practice, p. 1462.

[3, 4] An affidavit is attempted to be filed, in which this party is made to say that he received notice of the appeal. The affidavit was not served at the time of argument, and hence may not be considered; but, even if it could be given effect, it does not comply with the statute. He may have received notice of the appeal in many ways. The statute, however, is only complied with by the formal service of notice upon all parties who are en

titled thereto.

[5] Appellants Dodson, Connor, Gay, and Harley joined in the notice of appeal given

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