notes being in words and figures as set out in | A. 405, 3 L. R. A. (N. S.) 954, 5 Ann. Cas. 314, plaintiff's amended complaint. "VI. That on the 2d day of May, 1916, in this court a judgment was duly given and entered in favor of this plaintiff and against the Taylor Mill Company, a corporation, in an action on file and record in this court in cause No. 113684, wherein plaintiff herein was plaintiff and the Taylor Mill Company and Cornelius Manny and Hattie Manny were defendants, which action was founded upon the same and identical promissory notes mentioned and alleged in finding No. V; that at said time, upon the motion of plaintiff therein, the court dismissed the action as to the defendants Cornelius Manny and Hattie Manny without prejudice; that then and thereupon said notes were marked and stamped 'Canceled.' "VII. That on the 14th day of November, 1916, plaintiff filed in this court his amended complaint by adding the fourth, fifth, and sixth causes of action to the original complaint; that said causes of action set out and alleged the execution and delivery of said notes to Cornelius Manny and the indorsing of the same to plaintiff; that said notes are due and unpaid, and are the same notes as sued upon in the former action and reduced to judgment therein. "VIII. The court finds that plaintiff made presentment and demand for the payment of said promissory notes against the maker Taylor Mill Company, bringing an action in cause No. 113684, and plaintiff gave notice to the indorser Cornelius Manny by telling him of the dishonor of these notes on the part of the Taylor Mill Company, and asking defendant to pay said notes. "IX. That there are provided in said notes reasonable attorneys' fees in case of suit thereon, and that a reasonable amount to be allowed is $16% in each note. "X. That on November 10, 1916, defendants filed herein their redelivery bond in attachment with the London & Lancashire Indemnity Company of America as surety." "III. That plaintiff is entitled to judgment against the defendants on the fourth, fifth, and sixth causes of action in the sum of $250, with interest thereon at the rate of 8 per cent. from date of execution of said respective notes until paid, and for the sum of $50 as attorney's fee, and for his costs and disbursements. "IV. That plaintiff is entitled to have his judgment declared to be a judgment against the defendants Cornelius Manny and Hattie Manny, his wife, and against the marital community consisting of these defendants, and also against the London & Lancashire Indemnity Company of America." [1-3] The first contention of appellants is that the judgment on the notes rendered in a prior action against the maker was such a merger of the notes in the judgment that a subsequent action could not be maintained on them against the indorser. The doctrine of merger by judgment as applied to promissory notes relates only to such parties as are jointly liable thereon, or to cases where a judgment is rendered against both the maker and parties secondarily liable with him. The judgment pleaded as a bar here was one which had been obtained in an action in which the Mannys were parties defendant, but from which they had been dismissed without prejudice, and judgment taken against the maker alone. Their liability upon the indorsement still remained, if the judgment was not satisfied. Both of these questions were passed upon in the case of Harrison v. where it was held that, while a judgment upon promissory notes merges them therein so that the owner of the judgment may not maintain an action against the judgment debtor upon them, they still remain competent evidence of the existence of the debt which they represent in all other actions. And, further, a judgment dismissing an action without prejudice "determines that the parties are left as free to litigate every issue in the action dismissed as they would have been if it had never been commenced." See, also, Bates v. Drake, 28 Wash. 447, 68 Pac. 961. In Eaton & Gilbert, Commercial Paper, p. 543, it is said: "When a judgment is obtained on a note or bill, the bill or note is thereby extinguished and merged in the judgment. But this doctrine only applies to the relation between the plaintiff actual satisfaction, is no extinguishment as and defendant. The judgment alone, without between the plaintiff and other parties not jointly liable with the original defendant, whether those parties be prior or subsequent to the de fendant." The law regards the liability of makers and indorsers of promissory notes as a several one, and that a judgment against either, if unsatisfied, is no bar to a subsequent action against the other. Rice v. Groff, 58 Pa. 116; Morrison v. Fishel, 64 Ind. 177; Russell & Erwin Mfg. Co. v. Carpenter, 5 Hun (N. Y.) 162. In the case of Still v. Lombardi, 8 Tex. Civ. App. 315, 27 S. W. 845, this doctrine is carried to the extent of holding that, where, in an action against the maker and indorser of a note, judgment is obtained against the indorser alone, the note is not merged in the judgment so as to prevent an action on it by the indorser. Our own statute (Rem. Code, § 192) allows either a joint or separate action against parties severally liable upon promisSory notes. Accordingly, a joint action against maker and indorser and a dismissal without prejudice as to the indorser would not prevent a subsequent action against the latter. [4] The final contention of appellants is that the entry of judgment against the London & Lancashire Indemnity Company, the surety upon the bond dissolving the attachment, was erroneous. As we have said, at the time of bringing his action against the appellants Manny upon which the respondent issued a writ of attachment, his complaint was based upon but three causes of action. The appellants Manny secured the release of their attached property by filing a bond therefor secured by the indemnity company. Thereafter the respondent amended his complaint by adding three additional causes of action, in no wise related to those upon which his suit was originally founded. The three original causes were disposed of by the deposit in the registry of the court of money sufficient to meet the admitted claim in respondent's first cause of action, and by lowance." In Warren Bros. v. Kendrick, so far from denying the principle contended for, the court stated the general rule in the following language: other two. Upon the three new causes of ac- | had originally assumed by letting in a new cause tion added after the discharge of the attach- of action, he is not released because of its alment, the court found that the surety was liable under the provisions of Rem. Code, §§ 671, 672, declaring that the dissolution bond shall be conditioned to perform the judgment, and that "such bond shall be part of the record, and if judgment go against the defendant, the same shall be entered against him and sureties." The case principally relied upon to support the holding is Brady v. Onffroy, 37 Wash. 482, 79 Pac. 1004. In that case it is said: It is "Our statute provides that the bond of the defendant in an attachment proceeding shall contain a promise to perform the judgment of the court. The filing of the bond shall be deemed an appearance in the action, and, if judgment goes against the defendant, it shall also be entered against the surety. # almost universally held that, under such statutory provisions, the bond becomes an unconditional contract or promise to pay whatever judgment shall be rendered against the defendant upon the merits of the case. * * * It follows that the surety upon the bond given in this case is liable upon the judgment rendered against the defendant, and that the court erred when it struck from the judgment that portion thereof which awarded recovery against the surety." As addressed to the issues then before the court this case is undoubtedly right. But it must be remembered that no new cause of action had been added by amendment subsequent to the execution of the delivery bond, and that the court did not have in mind the altered condition such an amendment implies. The intent of the statute clearly is that the bond given to perform the judgment of the court merely contemplates such a judgment as shall follow from the cause of action pleaded at the time of its execution. The defendant and his surety could not be chargeable with having executed a bond to cover any greater liability than that existing at the time release of the attached property was sought. While the authorities hold that an amendment of the complaint to cure defects after the execution of such a bond would not defeat a right of recovery on the bond, they just as emphatically hold that such amendment of the complaint cannot subject the liability on the bond to the burden of any new causes of action brought in by way of amendment. This is the purport of the decisions cited by respondent as upholding the trial court, viz.: Townsend National Bank v. Jones, 151 Mass. 454, 24 N. E. 593; Warren Bros. Co. v. Kendrick & Roberts, 113 Md. 603, 77 Atl. 847, 140 Am. St. Rep. 445; Bierce v. Waterhouse, 219 U. S. 320, 31 Sup. Ct. 241, "The general rule * is that 'sureties upon a bond to dissolve an attachment are not tion, unless its effect is to let in a new cause of discharged by an amendment of the declaraaction, and thus to impose upon them a liability greater than that which they assume by signing the bond.'" In Bierce v. Waterhouse, it was held that pending litigation was subject to the power of Congress to make a change in procedure, and that a redelivery bond was not discharged by such change so long as it did not affect the contractual rights of the parties. The first two of these cases clearly imply that an amendment introducing a new cause of action which increases the liability of the surety discharges the surety. The third implies that such an effect would follow from a statutory change of procedure having a like result. The principle is also supported by the authorities holding that amendments of original affidavits in attachment are not permissible, if thereby the cause of action on which the affidavit was founded was changed as the result of such amendment. Westover & Co. v. Van Dorn Iron Works Co., 70 Neb. 415, 87 N. E. 598; Holway v. American Exch. Nat. Bank, 64 Neb. 67, 89 N. W. 382; Jaf fray & Co. v. Wolf, 1 Okl. 312, 33 Pac. 945. In Brandt on Suretyship (3d Ed.) p. 1006, it is stated that: of an attachment are held not bound for an in"Sureties on a bond given for the dissolution crease of plaintiff's claim made by amendment after the bonding"-citing Prince v. Clark, 127 Mass. 599. For other authorities holding that sureties on such bonds dissolving attachments are discharged by amendments of the complaint materially changing the cause of action, see Hyer v. Smith, 3 Cranch, C. C. 437, Fed. Cas. No. 6,979; Wood v. Denny, 7 Gray (Mass.) 540; Fish v. Barbour, 43 Mich. 19, 4 N. W. 502; Cassidy v. Saline County Bank, 7 Ind. T. 543, 104 S. W. 829; Willis v. Crooker, 1 Pick. (Mass.) 204; Bryan v. Bradley, 1 N. C. 177. In Wood v. Denny, supra, it is said: "In the first of these actions, the new count on a guaranty of a debt due from a third perof action as the money counts, and could not son to the plaintiffs was not for the same cause have been given in evidence on those counts. Whether, as between the parties to the action, the filing of that count was properly allowed, is not now in question. As to the bail, we are of opinion that it discharged him from his unIn Townsend National Bank v. Jones, the dertaking. He became bail in an action for court upheld the power to allow an amend-money had and received, money lent and money ment of the complaint, but in doing so used paid, as set forth in the writ and declaration against the principal, and not in an action on a this language: guaranty, by the principal, of the plaintiffs' claim on another." 55 L. Ed. 237. "The surety cannot take advantage of formal defects made by the plaintiff in stating his case. Unless the effect of the amendment would be to impose on him a greater liability than he 170 P.-9 The rule by which the court is to decide whether an amendment discharges bail is stated by Mr. Justice Wilde, in Haven v. (husband and wife, residing in the state of Snow, 14 Pick. (Mass.) 28, 33, as follows: * * * * Amendments in form merely will not dissolve an attachment, or discharge bail. To have this effect the amendment must be such as may let in some new demand, or new cause of action." We are satisfied on both principle and authority that, even under a statute as rigorous in its terms as our own, any amendment of a complaint adding entirely new causes of action subsequent to the giving of a bond dissolving an attachment sued out in the action operates as a release of the surety upon such bond against that portion of the judgment based upon the new counts. The judgment is reversed as to the London & Lancashire Indemnity Company, and affirmed as to the other defendants. Nevada; Coral Emeline Oar, a minor child of the age of three years, being the issue of this marriage. On that date, by a decree of the district court of Nevada, the parties were divorced, the custody of the minor child being awarded to the mother and father respectively, for alternate periods of six months following the entry of the decree. Thereafter the relator married and removed with the minor child to Pierce county, Wash., where she now resides. After the expiration of the first period provided in the decree, the father, who still resides in Nevada, made application to the superior court of Pierce county by habeas corpus proceedings for the custody of the child, and upon the hearing thereof the court found that the father was a suitable person to have the care and cus ELLIS, C. J., and PARKER, MAIN, and tody of the child, and announced its decision WEBSTER, JJ., concur. ERS. that the child, which had been in the custody of the court during the pendency of the proceedings, be forthwith delivered to the petitioner therein. Whereupon relator applied for an order fixing the amount of a supersedeas bond to stay the judgment pending appeal to this court, which being denied, relator filed an original application in this court setting forth, in substance, the foregoing facts, and in addition thereto alleging that she is desirous of obtaining a review of the habeas corpus proceeding by appeal, and that, unless prevented, the father will remove the minor child from the jurisdiction of this court, thereby depriving relator of the fruits of such appeal in the event the same is successful. Relator prays that an order be issued by this court requiring the superior court to fix the amount of such supersedeas bond, and that it be prohibited from entering a judgment delivering the custody of the child to its father pending the hearing of this application. An alternative writ issued as prayed, and on the return of the relief sought. 3. COURTS 209(2)-SUPREME COURT-POW-day respondent demurred to the petition upon the ground that the facts therein statThe Supreme Court cannot in aid of its ap-ed are not sufficient to warrant the granting pellate jurisdiction grant an application for an order requiring the superior court to fix the amount of a supersedeas bond in habeas corpus proceeding and prohibit entry of judgment awarding custody of child pending hearing on application where there has been no notice of appeal or filing of appeal bond. Department 1. Original proceedings by the State, on the relation of Mabel I. McGhee, against the Superior Court of the County of Pierce and Hon. Ernest M. Card, one of the Judges thereof. Demurrer to the petition sustained, and alternative writ quashed. A. O. Burmeister and Carroll A. Gordon, both of Tacoma, for relator. Henry Conger, of Tacoma, and A. L. Haight, of Fallon, Nev., for respondents. WEBSTER, J. Prior to June 8, 1917, L. D. Oar and relator, Mabel I. McGhee, were [1] In support of the application relator contends that upon the execution of a supersedeas bond the judgment in the habeas corpus proceeding is stayed, and the custody of the child transferred to the relator, in whose custody it was when the proceeding was instituted. view. We cannot accede to this While we have held that an appeal will lie from a final judgment in habeas corpus proceedings, we have never held that such judgments may be superseded pending appeal. In State ex rel. Davenport v. Poindexter, 45 Wash. 37, 87 Pac. 1069, we said: "It is contended here by relators that the filing of the supersedeas bond had the effect of leaving all parties in the position they occupied at the commencement of the habeas corpus proceedings before respondent, and that, as they then had the possession and custody of the chil dren, they became immediately entitled thereto again upon the giving of said stay bond, and that a writ should issue requiring respondent to direct the delivery of said minors to relators. We do not think this position tenable. Where minor children are involved a much different consideration is presented than obtains with reference to mere property rights. The welfare of the children is a matter of prime importance and public concern, and must be the subject of careful consideration at all stages of any proceeding wherein their possession, custody or control is involved. In such a proceeding as this we do not think the giving of a supersedeas bond has any effect whatever upon the possession, custody, and control of the minor children in question. It being presumed that the order of the trial judge was correct, and that he was actuated by a consideration for the minors' welfare, it would be against public policy to have that welfare imperiled during an appeal, in the absence of a statute clearly permitting the staying of such orders. The trial court had jurisdiction to take said children into its possession, if it believed that their physical or moral welfare or other substantial interests necessitated such action." In an action for personal injury from an attack by a dog, evidence held to sustain the court's finding that the dog was vicious. 2. ANIMALS 74(5) - PERSONAL INJURY NOTICE OF VICIOUS CHARACTER EVIDENCE. Evidence held to sustain a finding that defendant owners had notice of the dog's vicious 3. APPEAL AND ERROR 1008(1)—WEIGHT OF tendencies. EVIDENCE-REJECTION. The credibility of witnesses where their testimony is not inherently incredible is peculiara question for the trial court. 4. ANIMALS 70-PERSONAL INJURY-NOTICE OF VICIOUS CHARACTER. This language is so apt as not to require further comment. To the same effect see State ex rel. Clark v. Superior Court, 90 Wash. 80, 155 Pac. 398; State ex rel. Martin v. Poindexter, 43 Wash. 147, 86 Pac. 176; State ex rel. Gibson v. Superior Court, 39ly Wash. 115, 80 Pac. 1108, 1 L. R. A. (N. S.) 554, 109 Am. St. Rep. 862, 4 Ann. Cas. 229; Willis v. Willis, 165 Ind. 332, 75 N. E. 655, 2 L. R. A. (N. S.) 244, 6 Ann. Cas. 772; State ex rel. Kirkpatrick v. Kirkpatrick, 54 Iowa, 373, 6 N. W. 588; 12 R. C. L. p. 1258; In re De Lemos, 143 Cal. 313, 76 Pac. 1115. Notice to servants or members of family of the vicious character of a dog is notice to the owner or keeper. 5. ANIMALS 70-PERSONAL INJURY-LIABILITY. The keeper of a vicious dog must observe other manifestations of ferocity short of actual injury, and cannot neglect to keep him in remangled at least one person.' straint until he has "effectually killed and 6. DAMAGES 134(1) PERSONAL INJURY It is insisted, however, that unless relator is permitted to supersede the judgment, the father will remove the child from the state of Washington, thereby depriving the relator of the fruits of her appeal in the event of success. The answer to this contention is that the execution of the supersedeas bond will in no way affect the possession or cus-ity to do usual work, was not excessive. tody of the child pending the appeal, nor prevent its removal from the state. It is not the policy of the law to require the doing of a useless thing or the performance of an act that will be ineffectual for any purpose. [2] Neither can we treat the application as one for a writ of mandate directing the respondent to enter an order suspending the operation of the judgment pending the appeal, or to exercise discretion in making suitable provision for the retention of the Ichild in the state during the pendency of the appeal, for the reason that it does not appear that any such application has been made to respondent or that the superior court has refused to act in the matter. In the absence of such showing the writ will not issue from this court. EXCESSIVE DAMAGES. A judgment for $250 awarded plaintiff, an elderly woman, who was strong and healthy, for an attack by a dog resulting in numerous bruises and in a weak and nervous condition and inabil Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge. Action by Louis P. Mailhot and wife against Joseph J. Crowe and wife. Judgment for plaintiffs, and defendants appeal. Affirmed. D. R. Glasgow, of Spokane, for appellants. Lucius G. Nash and Frank C. Nash, both of Spokane, for respondents. ELLIS, C. J. Action for damages for personal injuries to plaintiff wife inflicted by a dog owned and kept by defendants. The cause was tried to the court without a jury. The court found that the animal was "a vicious, ill-tempered, and dangerous bulldog"; that [3] Nor can we, in the aid of our appel- while the injured woman was passing along late and revisory jurisdiction, grant such re- a public street near defendants' residence lief. It is not shown that relator has given she was attacked by the dog suddenly and notice of appeal and filed an appeal bond without notice, warning, or provocation, as required by statute to invest this court thrown down, and severely bruised and con For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes not and did not apprise appellants of the fact that the dog was viciously inclined and should not be permitted to run at large. Notice to servants or members of the family constitutes notice to the owner or keeper. Corliss v. Smith, 53 Vt. 532. tused on her stomach, breast, side, and hips, from which she suffered great pain in body and mind, and still suffers "from nervous shock and injury"; that on several occasions before the time in question the dog had attacked other passers-by without cause or provocation; and that defendants had rea- [5] It is true also that so far as the evison to know that the dog was dangerous, dence shows the dog had never actually bitten vicious, and ill-tempered, but nevertheless any one, but it is well-established law in suffered the animal to go at large, unguard- this state, in common with many others, that ed and unrestrained save for a muzzle. Upon the keeper of a vicious dog is bound to obthese findings of fact and appropriate conclusions of law the court awarded plaintiffs Judgment against defendants for $250 and costs. Defendants appeal. serve other manifestations of ferocity short of actual injury, and is not justified in neglecting to keep him in restraint until he has "effectually mangled or killed at least one [1] Every debatable question presented person." Robinson v. Marino, 3 Wash. 434, by this appeal is a question of fact. It is 438, 439, 28 Pac. 752, 28 Am. St. Rep. 50; first contended that the dog was not shown to Godeau v. Blood, 52 Vt. 251, 254, 36 Am. Rep. be vicious. To this the nature of the attack it- 751; Reynolds v. Hussey, 64 N. H. 64, 5 Atl. self presents a sufficient answer. The victim, 458; Flansburg v. Basin, 3 Ill. App. 531. 536; a woman 65 years old, supported her family Kolb v. Klages, 27 Ill. App. 531, 532; by raising and selling garden produce which Knowles v. Mulder, 74 Mich. 202, 206, 41 N. she peddled through the residence districts W. 896, 16 Am. St. Rep. 627; Rowe v. of Spokane by means of a pushcart. She and Ehrmanntraut, 92 Minn. 17, 18, 99 N. W. 211; three other eyewitnesses testified that she 3 Shearman & Redfield on Neg. (6th Ed.) § was quietly pushing this cart along the public | 632. street in front of appellants' residence when [6] The amount of the recovery was not the dog without any provocation and with-excessive. While the injured woman was out warning rushed out, sprang upon her advanced in years, the evidence shows that side and back, knocked her down, and as she she was strong and healthy and the main supattempted to rise sprang upon her and port of her family prior to the injury. The crushed her to the ground with his feet and evidence also shows that when examined by head, only desisting when appellants' daugh- a physician some two weeks after the injury ter came out, caught him by the collar or her side, hip, and leg were still discolored chain, and pulled him away. A reading of by bruises, and that she was then in a very the evidence leaves scarcely a doubt that had weak and nervous condition, and had so rethe dog not been securely muzzled the old mained up to the time of trial, so much so woman would have been lacerated by his that since the injury she has suffered from teeth. This, coupled with evidence of earli- sleeplessness and has been able to do little er manifestations of ferocity and ill nature, work of any kind. amply sustains the court's finding that the dog was vicious. We are unable to see that the evidence in any particular preponderates against the court's findings. The judgment is affirmed. MOUNT, HOLCOMB, MORRIS, and CHAD. WICK, JJ., concur. (99 Wash. 614) W. F. JAHN & CO. v. PAYNTER. (No. 14345.) [2, 3] It is next contended that appellants had no notice of the dog's vicious tendencies. There was evidence of several specific instances prior to the time in question when the dog without provocation had run after passers-by, growling in a threatening manner. In two instances at least members of appellants' family had interfered by catching the dog by the collar or chain and restraining him. There was also evidence that the animal had the reputation in the neighborhood of being vicious and dangerous, so much so that some of the neighbors habitually used other streets in order to avoid passing appellants' premises. It is true that much Where plaintiff's automobile was upon inof this evidence was contradicted by appel- had the right of way, and defendant was negtersection of street before defendant's, plaintiff lants' witnesses, but the credibility of wit-ligent in not slackening the speed of his autonesses where their testimony is not inherently incredible is peculiarly a question for the trial court. Harrison v. Smith, 98 Wash. 154, 167 Pac. 89. [4] If these things are credited it passes belief that the repeated exhibitions of these tendencies towards other people in the public street in front of appellants' residence would (Supreme Court of Washington. Jan. 21, 1918.) mobile. Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge. Action by W. F. Jahn & Co. against William T. Paynter, in which defendant filed a cross-complaint. Judgment for plaintiff, and defendant appeals. Affirmed. |