1. Abatement by Death-New Suit by Representative-
Construction of Statute. Under Bal. Code, § 4837, which
provides that "no action shall abate by the death
of action survive or continue; but the court may at any
time within one year thereafter, on motion, allow the
action to be continued by or against his representatives
or successors in interest," an action abates upon the
death of plaintiff, where more than one year elapses
thereafter without any disposition being made of it, and
therefore it would not be a bar to the commencement of
a second action by the administrator of decedent.--
Overlock v. Shinn...
2. Suits in Equity. Under the statute of this state (Bal.
Code, § 4793) abolishing forms of actions, the common-
law rule relating to the abatement of actions on the
death of a party is applicable to suits of equitable cog-
nizance.-Id.
ACTIONS. See ABATEMENT AND REVIVAL; APPEAL, 8, 19, 20;
JURY; LIMITATION OF ACTIONS, 4.
As Against Railroad Right of Way. Where a homestead
entry was made upon land through which the Northern
Pacific Railroad Company was entitled to a right of way
400 feet in width by the act of congress of 1864, the land
inclosed and cultivated by the entryman, and the in-
closure forcibly broken by the railroad company for
the construction of its line of railway, the attitude of
the parties was hostile from the inception of the right,
and the occupation and cultivation thereafter by the
entryman of such portions of the right of way as were
not in actual use by the railway would constitute ad-
(737)
ADVERSE POSSESSION-CONTINUED.
verse possession. (Northern Counties Investment Trust
v. Enyard, 24 Wash. 366, limited).-Northern Pacific
Ry. Co. v. Hasse...
See LIMITATION OF ACTIONS, 2.
AGENCY. See PRINCIPAL AND AGENT.
1. Mandamus-Amount in Controversy. The supreme
court has jurisdiction on appeal of a proceeding by
mandamus to compel the issuance of a warrant for sal-
ary to a city officer, although the amount in controversy
may be less than $200.-State ex rel., Dudley v. Daggett..
2. Exceptions to Findings. Exceptions to findings of fact
are only necessary in case a review of such findings is
sought on appeal.-Cathcart v. Bryant
3. Briefs-Rule Requiring Findings to Be Printed. Rule
8 of the supreme court, which requires findings of fact
and conclusions of law to be printed in the appellant's
brief, does not contemplate the printing of such findings
and conclusions when no question is sought to be raised
4. Harmless Error-Refusal to Strike Pleadings. The re-
fusal of the court to strike out a paragraph of a com-
plaint alleging the insolvency of a bank was not prej-
udicial error, where such insolvency was shown without
objection during the trial of the cause.-Rattelmiller v.
Stone
5. Discretion of Trial Court-Review on Appeal. An order
granting a new trial, although a matter resting largely
in the sound discretion of the trial court, is reviewable
on appeal; and its reversal is authorized when it is
granted on the ground of accident or surprise, and it
appears that the surprise was due to neglect or inatten-
tion on the part of the party surprised, and that he had
not used all reasonable efforts to overcome the evidence
which worked the surprise.-Reeder v. Traders' National
Bank
6. Appealable Order-Voluntary Dismissal of Action. An
order granting plaintiff's motion for the voluntary dis-
missal of his action is an appealable one, where prior to
such dismissal he has obtained an order of the court
vacating a decree of foreclosure and sale thereunder in
the same action, since the dismissal was a final order to
the extent of entitling defendants to a review of the
errors alleged in setting aside the decree.-Dane v.
Daniel
7. Record-Contradiction by Appellant. Where appellants
bring up a record on appeal they cannot contradict it in
the supreme court by affidavits.-Washington Liquor Co.
v. Alladio Cafe Co.....
8. Amount in Controversy-Action at Law-Enforcement
of Partial Assignment. The assignment of part of a
claim for a pecuniary demand being a legal assignment,
enforcible at law under the provisions of our Code,
which declare (Bal. Code, § 4835) that any assignee of
choses in action for the payment of money may main-
tain an action in his own name, notwithstanding the
assignor may have an interest in the things assigned,
and which require all parties interested to be joined
(Id. § 4833), and that where a party who should be a
plaintiff refuses he may be made a defendant, no
equitable feature is presented from the mere fact that
an assignee attempts to enforce the assignment of a
part of a claim, and hence the supreme court cannot
take jurisdiction of an appeal in such a case, where the
amount in controversy is less than $200.-Barto v.
Seattle & International Ry. Co.....
9. Dismissal of Appeal-Sufficiency of Bond-Failure of
Sureties to Justify. An appeal will be dismissed where
the sureties upon the appeal bond have failed to com-
ply with the order of the court to appear and justify
as to their sufficiency, and no new bond has been filed
by the appellant.-Starling v. Burdette..
10. Error in Admitting Evidence-Cured by Instructions.
Error in the admission of improper evidence is cured
by the instruction of the court specially charging the
jury not to consider it in arriving at their verdict.
-Wilson v. West & Slade Mill Co.
11. Same-How Cured. Error, if any, in the admission of
evidence is cured by the court's action in subsequently
striking the same.-Brown v. Pierce County......
12. Supersedeas Bond-Sufficiency. Where a judgment
required a party to pay a certain sum of money and
costs, and, further, to perform certain acts within a
period of thirty days, or in default of such performance
a money judgment in certain sums would be awarded
against the party, on appeal therefrom a supersedeas
bond fixed by the court in a sum larger than double the
amount of the money judgment and $200 additional,
but less than double the amount conditionally required
to be paid, is sufficient, under Bal. Code, § 6506, which
provides that the appeal bond shall be in a penalty of
not less than $200 in any case, and, "in order to effect
a stay of proceedings, the bond, where the appeal is
from a final judgment for the payment of money, shall
be in a penalty double the amount of the damages and
costs recovered in such judgment, and in other cases
shall be in such penalty, not less than two hundred
dollars, and sufficient to save the respondent harmless
from damages by reason of the appeal, as a judge of
the superior court shall prescribe.”—Title Guarantee
& Trust Co. v. McDonald...
13. Appealable Order—Injunction—Sustaining Demurrer to
Complaint. An order sustaining a demurrer to a com-
plaint in injunction is a final order and hence appeal-
able, when the plaintiff refuses to plead further, though
the effect of the court's ruling is the denial of a tem-
porary injunction, since the matter determined is the
sufficiency of the complaint and not the necessity for
the issuance of a restraining order.-Peters v. Lewis 366
14. Statement of Facts-Certification by Judge Pro Tem-
pore after Succeeding to Office. The fact that a state-
ment of facts was certified by one of the judges of the
superior court, while the action was tried oy such
judge as a judge pro tempore, before he succeeded to
the office, would not be ground for striking the state-
ment, since it fully meets the requirement of having
been certified by the judge who tried the cause.-Graton
& Knight Mfg. Co. v. Redelsheimer...
15. Contents of Briefs. The failure of appellant to comply
with the requirements of rule 8 of the supreme court re-
specting the contents of briefs may be cured by the fil-
ing of new briefs fully complying therewith.-Id..... 370
16. Appealable Order-Temporary Injunction-Command-
ing Delivery of Property Pending Action. In an action
by a corporation for a mandatory injunction requiring
one who had been secretary to turn over the books,
papers and money belonging to that office to one claimed
to have been elected his successor, an order of the
court requiring defendant to turn over such property
to the president pending the litigation, owing to a dis-
pute as to who was the legally elected secretary, is a
temporary mandatory injunction and appealable under
Bal. Code, § 6500, subd. 3.-State ex rel. Byers v. Super-
ior Court...
17. Same. Bal. Code, § 5460, which provides that if a party
to an action "has in his possession, or under his control,
any money, or other thing capable of delivery, which,
being the subject of the litigation, is held by him as
trustee for another party, or which belongs or is due
to another party, the court may order the same to be
deposited in court, or delivered to such party, with or
without security, subject to the further direction of the
court," is inapplicable to property held by an officer by
virtue of his office, such as money, books, and insignia
of office, which are held by a tenure different from that
of a mere trustee.-Id..
403
18. Supersedeas. On an appeal from an order awarding a
temporary mandatory injunction, commanding an of
ficer of a corporation to deliver the property belong-
ing to his office to another, the order may be super-
seded in that respect.-Id....
19. Mistake of Plaintiff as to Form of Action-Waiver of
Objections. Where defendants do not raise the objec-
tion until after trial that plaintiffs' form of action
should have been in ejectment instead of one to quiet
title, because they were not in possession of the land,
and the land was not vacant and unoccupied, the ob-
jection must be deemed as waived.-Bates v. Drake.. 447
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