the plaintiff for an attorney's fee equal to one-parties of the first part, Mary Jeffs as party half of the value of the property, which they of the second part, and the relators, as trusmight recover in the action, "it is agreed that [Ed. Note.-For other cases, see Courts, Dec. Dig. § 25.*] 6. COURTS (§ 37*)—JURISDICTION-WAIVER OF OBJECTIONS TO JURISDICTION. Objections to the jurisdiction of a court may be waived, and hence where a party stipulated that a visiting superior judge shall hear and determine a motion to vacate a decree in a county other than the one where the decree was entered, or where parties stipulate for jurisdiction upon an agreed statement of facts, or where parties appear without objection in a court having jurisdiction of the subject-matter, the court has jurisdiction, and may adjudicate with respect to such parties. The whatever attorney's fees are allowed or estab- tees of "the Jeffs Orphans' Home," the parlished in their favor * * ** shall be paid by ties of the third part. So far as pertinent the said parties of the third part as such trus- to the present inquiry, the agreement protees." On a hearing after the agreement, the court refused to dismiss the suit, and consider- vides that Sicade and wife shall convey to ed the allowance of attorney's fees, and made the relators as such trustees three-fourths an order directing their payment by relators. of the value of the property in controversy Held, that this clause, while meaning that rela- in that action. It also contains the following tors as trustees would pay the attorney's fees when determined by an action brought for that clause: "The suit now pending in behalf of purpose, did not give the court jurisdiction over the party of the second part against the parthe relators to award counsel fees in the pend- ties of the first part in the superior court of ing suit. King county, state of Washington, shall be dismissed without costs to either party. attorneys for the plaintiff having an agreement with the party of the second part for an attorney's fee equal to one-half of the value of the property which they might recover in this action, it is agreed that, whatever attorney's fees are allowed or estab lished in their favor for the party of the second part in such suit, shall be paid by the said parties of the third part as such trustees." The Sicades thereupon executed deeds to the relators as trustees conformably to the agreement, and the deeds were placed in escrow for delivery upon the dismissal of the action. At the time of the execution of the agreement of settlement, Jay C. Allen and James Hart were present as attorneys for the plaintiff Mary Jeffs, and approved it. After several adjournments, and on February 23, 1911, the suit of Jeffs against Sicade was caled for trial before the court; the respondent Judge Tallman presiding without a jury. The record shows that at the hearing had on that date the only question considered or determined by the court was the amount of attorney's fees to be awarded to the plaintiff's attorneys. This hearing was had without other or different pleadings, and without the service of summons, notice, or other [Ed. Note.-For other cases, see Courts, Cent. Dig. $$ 147-151; Dec. Dig. § 37.*] 7. COURTS (§ 39*)-DETERMINATION AS TO Ju RISDICTION-CONCLUSIVENESS. Where a court having jurisdiction of an action assumes jurisdiction of parties joining in an agreement between the plaintiff and defendant basing such jurisdiction on statements made to the court at the time, and upon such agreement between the parties, and the record shows that the court had no jurisdiction, its determination as to its own jurisdiction is not con clusive. [Ed. Note. For other cases, see Courts, Dec. Dig. § 39.*] Department 1. Prohibition by the State, on the relation of W. H. Bogle and others, against the Superior Court of King County and Boyd J. Tallman, as judge thereof. Writ made peremptory. Bogle, Merritt & Bogle, for plaintiffs. Jay process. The plaintiff's attorneys claimed the C. Allen, for respondents. GOSE, J. In September, 1910, one Mary Jeffs, an Indian woman of the full blood, commenced an action against Henry Sicade and Alice Sicade, his wife, in the superior court of King county, for the purpose of canceling and setting aside certain deeds which she had theretofore executed to Henry Sicade. It was alleged in the complaint that the deeds were obtained by means of fraud and without consideration. The defendants' answer joined issue upon the question of fraud, and affirmatively alleged that they had made valuable improvements upon the property. The reply put the affirmative matter in issue. The case was thereafter set for trial. [1] Thereafter, and on February 14, 1911, the plaintiff, the defendants, and the relators entered into an agreement for the settlement of the action. In this agreement Henry Sicade and his wife were named as right to appear for both the plaintiff and themselves. Mr. Merritt, one of the relators' attorneys in this proceeding, asserted the right to appear for the plaintiff Jeffs and contest the amount of the attorney's fees, and also repeatedly protested against the jurisdiction of the court over the relators. Mr. Bogle, one of the relators, and one of their present counsel, united in the latter protest. Counsel for the defendants Sicade appeared, and asked that the case be dismissed conformably to their construction of the quoted clause of the agreement. The court, however, proceeded to hear evidence as to the value of the property set apart to the trustees, and entered a judgment that Jay C. Allen and James Hart are entitled to one-half such property, and, in case the relators as trustees do not on or before the 6th day of March, 1911, pay to them the sum of $43,125. that they be awarded an undivided one-half in value of all the property set apart to the trustees, and appointed commissioners to discloses that there was a distinct agreement partition it between them and the trustees to dismiss the Jeffs-Sicade suit. The lanequally. The decree further provided that guage relied upon by the plaintiff's attorin default of payment upon the report of neys and the respondent in support of juristhe commissioners and its approval the ac- diction is that "it is agreed that whatever tion be dismissed. The court denied the attorney's fees are allowed or established in right of Mr. Merritt to appear for the plain- their favor for the party of the second part tiff Jeffs and litigate the amount of the at- [Mary Jeffs] in such suit shall be paid by torney's fees on the ground that he had not the said parties of the third part as such filed any paper in the cause, denied the mo- trustees." This language does not mean that tion of counsel for Sicade for a dismissal of the attorney's fees are to be established in the action, and disregarded the protest of the Jeffs suit. Clearly, however, it does both Mr. Merritt and Mr. Bogle that he was mean that the trustees will pay the attorproceeding without jurisdiction against the ney's fees allowed them for their services relators. The relators declined to pay the to their client Mary Jeffs in her suit against attorney's fee awarded by the court. At the Sicades, when determined in an action this stage of the proceedings we granted the brought for that purpose. Any other view relators an alternative writ of prohibition, would not only be a strained and unnatural which they now seek to have made peremp construction of the language employed, but tory. would nullify the provision for the dismissal of the case. It seems that, if the parties had intended that the clause should be treat should be determined in the then pending case, they would have provided that the Jeffs case should be continued for that purpose. The clause in the agreement did not confer jurisdiction over the relators. Kalb-Glibert Lumber Co. v. Cram, 111 Pac. 1050. It is alleged in the answer to the affidavit for the alternative writ that the court acquired jurisdiction of all the parties "up-ed as a stipulation that the attorney's fees on statements which had been made to the court, and which were made to the court at the time and upon the written agreement between the parties." It is apparent from the facts stated that the court did not acquire jurisdiction of the relators from any act upon their part upon the day of the hearing. On the contrary, as we have seen, while not appearing, two of their present counsel and one of the relators were present in court asserting a want of jurisdiction over the relators. The relator Bogle came into court at the hearing in response to the request of the court. Nor do we think jurisdiction of the relators was obtained at any of the several adjournments. [2] If counsel for the relators made an oral appearance before the day of the hearing they could withdraw it at the hearing. Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403, 22 Sup. Ct. 698, 46 L. Ed. 968. The only issue before the court in the way of formal pleadings was that between the plaintiff Jeffs and the defendants Sicade. That issue was entirely foreign to the question of the compensation of counsel. [3] Jurisdiction is the power to hear and determine. "Jurisdiction of the subject-matter is the power to hear and determine cases of the general class to which the proceeding in ques- | tion belongs." 11 Cyc. 669. [4] Jurisdiction of the person must be acquired by the service of the applicable statutory process, or by the voluntary appearance of the party whose rights are sought to be adjudicated. We do not question the power of a court of general jurisdiction to determine a matter within its jurisdiction without formal pleadings, where the parties in interest appear upon an agreed statement of facts, or appear and submit their evidence and request the court to adjudicate their rights. [5] It follows that, if the court had jurisdiction of the relators, it was acquired by the clause in the tripartite agreement which we have quoted. A reference to that clause The respondents have cited Meisenheimer v. Meisenheimer, 55 Wash. 32, 104 Pac. 159, 133 Am. St. Rep. 1005; Groves v. Richmond, 56 Iowa, 69, 8 N. W. 752; Bedford v. Ruby, 17 Neb. 97, 22 N. W. 76; Hutts v. Martin, 134 Ind. 587, 33 N. E. 676; Randolph County v. Ralls, 18 Ill. 29; Indiana, B. & W. Ry Co. v. Bird, 116 Ind. 217, 18 N. E. 837, 9 Am. St. Rep. 842. [6] In the Meisenheimer Case we held that a visiting superior judge had jurisdiction to hear and determine a motion to vacate a decree in a county other than the one where the decree had been entered, where the parties stipulated that he should so hear it, and appeared at the hearing. In the Groves Case the question determined was that the transfer of a certiorari proceeding from the district court to the circuit court upon stipulation conferred jurisdiction upon the latter court in a case where the law gives exclusive jurisdiction to the circuit court in that class of cases. reaching that conclusion, the court said: "But, where the court has general jurisdiction over the subject-matter, the parties may waive the ordinary process and voluntarily submit the question to the adjudication of the court." And that: "The mere fact that the petition and return were filed in the district court before they were filed in the circuit court certainly cannot affect their legal operation." In the Bedford Case it was held that the court had jurisdiction to determine a case upon the stipulation of the parties upon an agreed statement of facts. In the Randolph County Case it was held that, where the court has jurisdiction of the subjectmatter, full appearance of the parties without objection confers upon the court juris In 916 114 PACIFIC REPORTER part of said judgment and decree, except in so far as they award plaintiff said life insurance policy. Appeal dismissed. Ellis, Fletcher & Evans, for appellant. Marshall K. Snell and Bertha M. Snell, for respondent. It is the property is ancillary to the power to tition in a suit for a divorce where the main It is true that in State ex rel. Holcomb v. Yakey, 48 Wash. 419, 93 Pac. 928, we held that an appeal would lie from that part of a decree of divorce making a partition of the property, basing it upon the general statute relating to appeals. But while the ground on which the decision was rested may not have been well taken, the decision itself was sound, as the statute relating to the granting of divorces expressly provides for an appeal from that part of a decree of divorce which disposes of the property or awards the children, without appealing from the entire decree. Rem. & Bal. Code, § 996. But this On January 20, 1909, FULLERTON, J. the appellant, Carry Wilkinson, brought an action in the superior court of Pierce county against the respondent, Howard Wilkinson, for maintenance, alleging abandonment and failure to support on the part of the respond-purpose of the statute to permit such a parent, and praying that the respondent be required to pay a fixed sum monthly for her The respondent answered, setting support. forth facts tending to show inability to pay the sum demanded, and want of necessity therefor on the part of the appellant, and by way of affirmative relief filed a crosscomplaint, praying for an absolute divorce from the appellant. The cross-complaint was put in issue by an answer and a trial was had on all of the issues made, resulting in a decree awarding the respondent an absolute divorce as prayed for in the cross-complaint. The decree also directed the respondent to pay to the appellant the sum of $30 per month for her support, and awarded her as her own separate property a life insur-case is the reverse of that. Here the appeal The ance policy on the life of the respondent for the sum of $1,000 then fully paid up. appellant thereupon gave notice of appeal from the decree as follows: "You and each of you, will please take notice that the above entitled plaintiff, Carry Wilkinson, appeals to the Supreme Court of the state of Wash-ordered. ington from the judgment and decree made, rendered, and entered in the above-entitled cause by the above-named court on the 18th day of March, 1910, and to each and every part of said judgment and decree, except in so far as said judgment and decree awards to said plaintiff the life insurance policy for one thousand dollars ($1,000) described and mentioned in said decree." The respondent moves to dismiss the appeal, basing his motion on the ground that an appeal will not lie from that part of a decree in a divorce proceeding granting a divorce, where the decree as a whole not only grants a divorce, but partitions the property of the spouses between themselves. divorce, without appealing from the part of The appeal must be dismissed, and it is so DUNBAR, C. J., and PARKER, MOUNT, and GOSE, JJ., concur. (63 Wash. 136) WILSON et ux. v. CLARK. TO TRANSFER MORTGAGE. [Ed. Note-For other cases, see Damages, Dec. Dig. $120.*] Where a contract called for the assignment to plaintiffs of a mortgage of the face value of $658. and no mention was made of any note or under the evidence, considered by the par ties, and the plaintiffs failed to get the more or personal obligation in connection with it, It has seemed to us that the motion is well, gave. their measure of damages is the amount taken. The Code (Rem. & Bal. § 989) pro- of the mortgage. vides that in granting a divorce the court' shall also make such disposition of the propin an action for damages for failure to de liver a mortgage as agreed, which mortgage erty of the parties as shall appear just and 2. FRAUD (§ 22*)-FALSE REPRESENTATIONS. equitable, having regard to the respective merits of the parties and to the condition in was stated by defendant to cover certain de which they will be left by such divorce, etc. scribed land in another state, which represents ing the public records of such other state. It is plain that by this section of the statute tics were false, plaintiffs were entitled to re Ed Note-For other cases, see Fraud, Cent power to partition the property between the on such representations without consuit parties exists only where the divorce is granted. In other words, the power to partition D. $ 19-23; Dec. Dig. § 22.*] •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep ́r Indexes Department 1. Appeal from Superior Court, the said plaintiffs, relying upon said repreSpokane County; Wm. A. Huneke, Judge. Action by E. R. Wilson and another against G. H. Clark. From a judgment for plaintiffs, defendant appeals. Affirmed. sentations by the said Clark, were induced to and did enter into the above negotiations and completed their part of the transaction." There never was any formal assignment of O. B. Setters and A. H. Kenyon, for ap- the mortgage delivered by appellant to repellant. A. E. Russell, for respondents. PARKER, J. The plaintiffs commenced this action to recover the face value of a mortgage pretended to have been owned by the defendant, which he agreed to assign to them in part payment of certain land purchased by him from them. Findings were made and judgment rendered in favor of the plaintiffs upon a trial before the court without a jury, from which the defendant has appealed. spondents, though the same was demanded. It is contended that the trial court's findings above quoted, as to representations made by appellant to respondents, are not supported by the evidence. A careful review of all the evidence convinces us that it is ample for that purpose. Its preponderance seems to us to be clearly in respondents' favor. We deem it unnecessary to discuss it in detail here. In The respondent E. R. Wilson entered into a contract with appellant G. H. Clark, doing business as G. H. Clark & Co., as follows: "This agreement, made this 26th day of February, 1908, between G. H. Clark & Co., parties of the first part, and E. R. Wilson, party of the second part. The party of the first part agrees to sign over to the party of the second part a certain mortgage of $658 and balance interest due, 3 horses, and 50 dollars in cash. The party of the second part agrees to deed over to G. H. Clark & Co., a certain tract of land containing 181⁄2 acres legally described as. In compliance with this contract, respondents executed a deed for their land; appellant de[1] It is contended that the measure of relivered the horses and paid the $50 in cash. spondents' damages, if any they have sufFor some reason he did not then make a fered, is the difference between the actual formal assignment of the mortgage, but gave value of the note and its face value. respondents a signed memorandum agreeing | view of the fact that the contract was to asto assign the mortgage, in which memoran- sign a mortgage of the face value of $658, dum there was described certain land in with no mention in the contract of any note Tellar county, Colo., claimed to be covered by or personal obligation in connection therethe mortgage. At the same time he deliver- with, and the evidence which clearly indied to respondents a promissory note, exe- cates that any personal obligation for the cuted by one Lenone and wife to William amount supposed to be secured by the mortMason and W. H. Teel, upon which note gage was not considered by the parties as there was apparently a balance of $658 un- constituting any part of the consideration paid. Appellant did not indorse this note. respondents were receiving, it seems to us This note was probably intended to repre- that when respondents failed to get such a sent the debt which the mortgage was sup- mortgage they were damaged in that sum. posed to secure, though we can only infer It is apparent not only from the face of the such fact from the record. At that time ap- contract, but from the circumstances surpellant also delivered to respondents a cer- rounding its making as shown by the evitain purported assignment of a mortgage, dence, that the respondents were not relying which assignment was apparently executed upon any personal obligation that might go by the payees of this note to appellant, and with the mortgage, but relying entirely upon referred to a purported mortgage covering the procuring of a first lien upon real propthe same land in Colorado described in the erty. This they never received and were memorandum. therefore damaged in that sum. Some contention is made that they did not contract to receive this mortgage as for any particular sum, but we think it clear from the record that they were to receive it in lieu of $658 in money. The trial court found: "That, at the time the negotiations were entered into, the said E. R. Wilson stated to said Clark and his representatives that he knew nothing about the mortgage or its value, and relied upon their representations as to its value, and said Clark and his representatives thereupon represented to the plaintiffs that the said mortgage was a valid first lien mortgage and worth 100 cents on the dollar, and [2] Some contention is made that, since the representations made by appellant as to the mortgage were representations of facts, the truth or falsity of which would necessarily be shown by public records, that re alike, and hence an agreement made in good faith, by which the majority stockholder of a to one who obtained money to operate the busicorporation transferred his stock temporarily pooling such stock with other stock, so as to id; it being for the interest of the stockholders. dominate the election of directors, etc., was val[Ed. Note.-For other cases, see Corporations, Cent. Dig. § 764; Dec. Dig. § 199.*] Department 1. Appeal from Superior Court, Pierce County; John A. Shackleford, Judge. Action by I. B. Winsor against the Commonwealth Coal Company and others. From the judgment, plaintiff and certain of defendants appeal. Modified, and, as modified, diction of the person, and it may then adjudicate. In Hutts v. Martin, supra, it is said: "It is a general principle of the law that courts have no power to adjudicate mat-ness, the transferee to have the privilege of ters not involved in the issues in causes pending before them. Litigants do not place themselves for all purposes under the control of the court, and it is only the interests involved in the particular suit that can be affected by the adjudication. Over other matters the court has no jurisdiction, and any decree or judgment relating thereto is void. # * An exception to this rule exists, however, where the parties by agreement in open court permit matters to be adjudicated not involved in the issues in the case. In such case the judgment rests upon the agreement of the parties, and not upon the pleadings in the cause." In the Bird Case the same principle is thus stated: "A judgment by agreement will bind those by whose agreement it is entered, notwithstanding the pleadings would not, in a contested case, authorize such a judgment." These views we think are elementary, and they proceed from the principle that, subject to exceptions not necessary to state here, a party may waive any right or privilege which he has. [7] The respondents argue that if there is a question as to whether it was agreed to leave the matter to the court in said action, and the court so found, the finding is conclusive except upon appeal. The vice of this argument is that the answer has set forth the facts relied upon to give the court jurisdiction, and it is expressly alleged in the answer that the judgment of the court is "based upon statements which had been made to the court, and which were made to the court at the time and upon the written agreement between the parties." As we have seen, the record shows that the court proceeded without jurisdiction of the relators. The court had no jurisdiction of the relators, and they are entitled to a peremptory writ of prohibition prohibiting the respondent from further proceeding with the cause, and directing a vacation of the decree. State ex rel. Arthur v. Superior Court, 58 Wash. 97, 107 Pac. 876. affirmed. Sullivan & Christian, Gordon & Askren, and Higgins, Hall & Halverstadt, for appellant Winsor. Bates, Peer & Peterson, for appellants McCormick and others. Jas. F. McElroy and Hayden & Langhorne, for respondents. MOUNT, J. The plaintiff brought this action to annul a contract entered into by himself and Newton H. Peer, and to annul all contracts made by Bates, Peer & Peterson pursuant to the original contract, upon the ground that Bates, Peer & Peterson were attorneys for the plaintiff at the time the original contract was made, and that they overreached the plaintiff, and that, after they and their associates had obtained possession of the property described in the contract, they mismanaged the same so that it was in imminent danger of being wholly lost. The defendants admitted the contract, but denied all the allegations upon which an annulment was based. Upon a trial of the case, the court concluded that Bates, Peer & Peterson at the time of the contract was made were attorneys and confidential advisers of the plaintiff, and, "the contract being in effect between attorneys and their clients, the burden rests upon the attorneys to show the fairness of the agreement, and "the evidence shows that the amount of compensation provided for in the agreement was just, fair, and proper, and it was the purpose of the attorneys in making the contract to deal fairly with their client." The court also found that the attorneys had fully executed the agreement, and that the The writ will be made peremptory. DUNBAR, C. J., and FULLERTON, PAR- provisions in the contract relating to the reKER, and MOUNT, JJ., concur. (63 Wash. 62) tention of the plaintiff as a trustee of the corporation and in regard to the employment of the plaintiff as a sales agent were against public policy and void; and for that reason WINSOR v. COMMONWEALTH COAL CO. concluded that the plaintiff had a right to et al. 1911.) rescind the provisions of the contract relating to the pooling of plaintiff's stock. A decree was thereupon entered to the effect that de (Supreme Court of Washington. April 10, CORPORATIONS (§ 199*)-MANAGEMENT-POOL-fendant Bates, Peer & Peterson and their ING STOCK. Stockholders of a corporation have the unqualified right to combine their interests to secure the management of the corporation when such management is fair to all stockholders associates retain 355,000 shares of the stock of the Commonwealth Coal Company, and that new certificates for 336,589 shares be made out in the name of the plaintiff and |