signable. Defendants, in an effort to overhrow plaintiff's onset, allege facts which they maintain constitute (1) laches; (2) res adjudicata. A decree was entered for defendants. [1] The legal effect of the deed and the rights acquired by the grantees thereunder were determined by this court in Bingham v. Salene, 15 Or. 208, 14 Pac. 523, 3 Am. St. Rep. 152; Salene v. Isherwood, 55 Or. 263, 106 Pac. 18; and Isherwood v. Salene, 61 Or. 573, 123 Pac. 49, 40 L. R. A. (N. S.) 299, Ann. Cas. 1914B, 542. The questions decided in the first case and laid to rest were: That the instrument conveyed to the grantees, their heirs and assigns forever, the exclusive right and privilege to shoot, kill, and take any wild fowl upon and in any of the lakes, sloughs, or waters situated upon the land defined in the deed with the right of ingress and egress for such purposes to and from the waters mentioned. For the purpose of showing the extent of the matters adjudicated, we quote from Mr. Chief Justice Lord in Bingham v. Salene, 15 Or. 216, 14 Pac. 526, 3 Am. St. Rep. 152: that matters once litigated and decided by a court of competent jurisdiction should not be stirred again. [2] Well might we close this case here, but we will comment on another defense which must necessarily operate as an insuperable barrier to further litigation and; that is, the defense of a stale equity. We acknowledge the dogma that no arbitrary rule exists for determining when a matter becomes stale, and that the question of laches is to be decided upon the particular circumstances of each case. Therefore a careful scrutiny of the record becomes obligatory and reveals that of the four parties to the deed, all, save plaintiff, have died; that the time intervening between the first case and this, the last one, has covered a period of about 28 years. These two circumstances in themselves are sufficient to inspire a court of equity to look with disfavor upon this suit and to deny the application for relief. Neppach v. Jones, 20 Or. 491, 26 Pac. 569, 849, 23 Am. St. Rep. 145; Wilson v. Wilson, 26 Or. 257, 38 Pac. 185; Froebrich v. Lane, 45 Or. 13, 76 Pac. 351, 106 Am. St. Rep. 634; Wills v. Nehalem, 52 Or. 70, 96 Pac. 528. [3] We observe in this case that the ab "We come now to consider the defenses of the defendants. Substantially, they are divisible into two parts; and, briefly, are: (1) That the defendants, being unable to read and write, sign-stract does not contain any assignments of ed the deed, relying upon the representations error. Rule 12 of this court (56 Or. 621, of the plaintiffs that its provisions only created 117 Pac. xi) provides: a personal license to come down to the farm of the defendants to shoot and hunt wild fowl; and (2) that at the time the deed was executed, the plaintiff's were acting as the attorneys for the defendants, and availed themselves of the confidence arising from that relation to procure their consent to grant them such privilege on the representations stated. It is sufficient to say, without going much into detail, that we do not think that either of these defenses are sustained by the evidence." will be examined or considered, except those go"On the hearing in this court, no questions ing to the jurisdiction of the court, or when the pleading does not state facts sufficient to constitute a cause of action or defense, or those arising upon the assignments of error, as contained in the printed abstract." fore, not only of the utmost importance, but an indispensible prerequisite to the consideration of a cause, that the errors claimed be specified. An "assignment of error" is in the nature of a pleading, and its purpose is to point out the specific errors alleged to have been comThus do we find the very matters suggest-mitted by the trial court in order to enable ed by this litigation discussed and decided the appellate court to see on what point a adversely to plaintiff's contention. The judg-reversal of the case is asked, and it is therement rendered therein is a finality as to the claims in controversy, not only as to every matter which was offered to defeat the original conveyance, but as to other admissible matters which might have been offered for [4-6] An appellant omitting to do this, the that purpose. The law as to the conclusive- judgment or decree of the lower court will ness of a judgment is clearly stated by the be affirmed; though this general statement Supreme Court of the United States in Crom- must be qualified in these particulars: Where well v. County of Sac, 94 U. S. 351, 24 L. the appeal is taken from a decree entered on Ed. 195, and the distinction between the the pleadings, formal assignments of error effect of such a judgment as a bar or estop-are not imperatively necessary, though it is pel in the same action and as an estoppel or better practice to have them (Neppach v. bar to another action is most lucidly stated. Jones, 28 Or. 286, 39 Pac. 999, 42 Pac. 519); This court has decided over and over again | that a judgment is conclusive not only upon the questions actually contested and determined, but upon all matters which might have been litigated and decided in the proceeding, unless the failure to urge the point in question was caused by the adversary's fraud and was without negligence of the losing party. Belle v. Brown, 37 Or. 588, 61 Pac. 1024; Krebs Hop Co. v. Livesley, 55 Or. 227, 104 Pac. 3, and cases therein mentioned. nor will the appeal be dismissed for lack of assignments of error where it sufficiently appears that the error complained of is the entering of a certain order which is fully set out with sufficient of the record to make it intelligible (Medynski v. Theiss, 36 Or. 397, 59 Pac. 871); and, where the assignments were inadvertently omitted, they may be filed as a supplemental abstract, where respondent has not been affected by the omission (Fleischner v. Bank of McMinn Pac. 345; Skinner's Will, 40 Or. 571, 575, are to be construed favorably to the insured The decree of the lower court is, in our NISHMENT. To enable a creditor to maintain a garnish- [Ed. Note.-For other cases, see Garnishment, 2. GARNISHMENT (§ 34*)-PROPERTY SUBJECT Under a policy insuring an employer against [Ed. Note.-For other cases, see Garnishment, 3. CONTRACTS (§ 143*)-CONSTRUCTION-STAT- [Ed. Note.-For other cases, see Insurance, An employer's liability insurance policy cre- [Ed. Note.-For other cases, see Insurance, Department No. 1. Appeal from Circuit Action by Jacob Scheuerman against S. George B. Guthrie, of Portland (Wilbur & RAMSEY, J. The Pacific Coast Casualty On July 10, 1912, he commenced an action Said garnishment papers required Under L. O. L. §§ 715, 716, in the absence its hands belonging to the said defendants. 4. INSURANCE (§ 146*) CONSTRUCTION OF return upon said writ of execution, stating er it had any property, money, or credits in its hands belonging to the defendants, etc. When the plaintiff was injured as above stated, he was in the employment of the defendants, and, at that time and prior and subsequent thereto, the defendants were insured with the Pacific Coast Casualty Company, the garnishee, and, by the terms of the policy of insurance issued by said company to the defendants, said company agreed to idemnify the defendants for any loss they might sustain by reason of injuries to any of their employés. Immediately after the plaintiff commenced said action for damages against said defendants, the said company, through its attorneys, took charge of said case for said defendants, and filed the answer therein for the defendants, and conducted said cause for the defendants until the final judgment therein was obtained, as stated supra. The plaintiff caused a writ of execution to be issued upon said judgment and collected thereon only the sum of $124, and said sum of $124 is all that the defendants have paid on said judgment. The garnishee, said casualty company, has not paid the defendants or either of them any part of the said judgment recovered by the plaintiff against the defendants for said personal injuries suffered while in their employment, as stated supra. After alleging inter alia substantially the facts related supra, the plaintiff, by his complaint, demanded judgment against said company, as garnishee, for the sum of $1,604.38 and interest, etc. The plaintiff's complaint and proper interrogatories were served on said company, as garnishee, etc. Said company answered said complaint and interrogatories, admitting portions, and denying other parts thereof, and setting up new matter. The reply denied parts of the new matter of the answer, and set up new matter. The cause was tried by the court without a jury, and findings and a judgment were rendered for the plaintiff, and against the garnishee, for the amount demanded by the complaint. The garnishee appeals, and contends that the court below erred in its sixth finding of fact and in refusing to find the sixth finding of fact requested by the garnishee, and in finding, as a conclusion of law, that the plaintiff was entitled to a judgment against the garnishee for the sum named therein, and in not finding that the garnishee was entitled to judgment against the plaintiff, etc. court in said cause, to the Supreme Court of the state of Oregon, and furnished bond to and upon said cause being affirmed by the Sucover the costs of said appeal, as required by law, preme Court, the said garnishee paid the costs of said appeal; that all of said proceedings were taken in the name of the defendants, but that the defendants had no charge or control over said proceedings, and all of said proceedings were under the exclusive control and charge of the said garnishee." The sixth finding of fact that the garnishee requested and the trial court refused to find is as follows: "That immediately upon the plaintiff being injured, the said garnishee, through its attorneys and agents, as provided in said liability policy, and not otherwise, took charge and control of the case and all negotiations and proceedings therein, and upon this action being commenced, said garnishee, through its attorneys, as provid ed in said liability policy, and not otherwise, and at its own expense, took charge and control of the defense of said action, and conducted the defense of the trial of said action in this bility' policy, and not otherwise, took an appeal court, and thereafter, as provided in said liafrom the judgment rendered in this court in said cause to the Supreme Court of the state of Oregon." The garnishee in its answer set out in full the policy of insurance upon which this proWe set out only the porceeding is based. tions thereof bearing on the questions raised on this appeal. The portions of said policy referred to are as follows: "Pacific Coast Casualty Company of California. "In consideration of the warranties herein and of twenty-five and 00/100 dollars ($25.00) (deposit premium) estimated premium, the Pacific Coast Casualty Company, of San FrancisCo, California, herein called the company, here by insures Mathison & Anderson, and/or Mount Hood Brewery Company of the county of Multnomah, state of Oregon, hereinafter called the assured, against loss and expense arising from claims upon the assured for damages on account of bodily injuries or death accidentally suffered or alleged to have been suffered during the period of this policy by any employé of the assured by reason of the prosecution of the work described herein. "If a suit is brought on account of an accident, the assured shall forward immediately to the company, or to its duly authorized agent, every process and paper served on him. The company, at its own expense, will settle or defend said suit, whether groundless or not; the moneys expended in said defense shall not be included in the limits of the liability fixed under this policy. The assured shall not assume any liability, nor interfere with any negotiation for settlement or any legal proceeding, nor incur any expense nor settle any claim except at his own cost,, without the written consent of the company." "L. No action shall lie against the company for any loss or expense under this policy unless it shall be brought for loss or expense actually sustained and paid in satisfaction of a final The sixth finding of fact to which the gar- judgment, within ninety days from the date of nishee objects is as follows: "That immediately upon the plaintiff being injured, the said garnishee, through its agents and attorneys, took exclusive charge and control of the case, and all negotiations and proceedings therein, and, upon this action being commenced, said garnishee, through its attorneys, and at its own expense, took exclusive charge and control of the defense of said action, and conducted the defense of the trial of said action in this court, and thereafter, upon its own initiative, took said judgment and after trial of the issue." There appears to be no controversy as to the material facts, but the parties differ widely as to the effect of those facts, or as to the rights of the parties on the facts, found by the court below. The trial court found that the copy of the policy annexed to the answer is a true copy of the policy that the garnishee issued to the firm defendants, of insurance. If the assured could not have maintained such an action, the plaintiff, as an attaching creditor, is not entitled to a judgment against the garnishee, the casualty company. We conclude that this is the law. contents of that instrument. The firm de-, begun, could have maintained an action fendants held that policy at the time that against the said company on the said policy the plaintiff received the personal injuries referred to supra, and he was in the employment of said firm when he received those injuries. He obtained the judgment against said firm mentioned above on account of said injuries, and garnished the casualty company for the amount supposed to be due from that company to the defendants by reason of the injuries that he had received. Said policy undoubtedly covered said injuries. [2-4] 2. Sections 715 and 716, L. O. L., declare the rules by which we are to be guided in construing this policy of insurance. The former of said sections is: particulars, such construction is, if possible, to be adopted as will give effect to all. "In the construction of a statute or instru[1] 1. In order that a creditor may main- ment, the office of the judge is simply to ascer tain a garnishment proceeding there must tain and declare what is, in terms or in substance, contained therein, not to insert what has be a subsisting right of action at law by the been omitted, or to omit what has been insertdefendant in his own right against the gar-ed; and where there are several provisions or nishee, and a garnishee cannot be held liable to garnishment, unless it is shown that he is indebted to the defendant at the time of the commencement of the garnishment proceedings. 20 Cyc. pp. 983, 984; Case v. Noyes, 16 Or. 329, 19 Pac. 104; O. R. & N. Co. v. Gates, 10 Or. 514; Drake on Attachment (7th Ed.) 458; Waples on Attachment (2d Ed.) § 472. Waples on Attachment (2d Ed.) § 472, says, inter alia: Said section 716 is as follows: * an instrument the intention of the parties, is to be pursued, if possible; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent shall control a general one that is inconsistent with it." Neither courts of law nor of equity have the right or power to make contracts for parties, or to alter or amend those that the "Standing in the defendant's place, the plaintiff can have no greater rights than he, had the garnishee been sued by the defendant. On the other hand if the garnishee denies indebted-parties have made. It is the intention of the ness, he has the same rights of defense, and no parties, manifested by their words, and not more nor less, than if sued by his creditor. the whim of the court, that must be the guide The proceeding may therefore be called a suit." in construing contracts made by the parties Drake on Attachment (7th Ed.) § 458, says: thereto. In some instances, parties without "A fundamental doctrine of garnishment is exercising due caution, sign contracts that that the plaintiff does not acquire any greater are not in all respects reasonable or fair; rights against the garnishee than the defendant himself possesses. When, therefore, the attach- but when they execute such contracts, they ment plaintiff seeks to avail himself of the rights are, in the absence of fraud, bound by them. of the defendant against the garnishee, his re- It is our office to ascertain and declare what course against the latter is limited by the extent of the garnishee's liability to the defendant. is the meaning of this policy of insurance. This principle is subject, however, to an excep- As contracts of insurance are usually pretion, where the garnishee is in possession of ef- pared by the companies that issue them, they fects of the defendant under a fraudulent transfer from the latter. Then, though the defend- are to be construed favorably to the assured ant would have no claim against the garnishee, when their provisions are ambiguous. But yet a creditor of the defendant can subject the the terms of this policy are not ambiguous, effects in the garnisher's hands to his attach- and it is our office to determine what the ment." parties thereto meant by the provisions set forth therein. In Case v. Noyes, supra, the court says: "The plaintiff by this proceeding against Noyes as garnishee is endeavoring to assert the rights of the Seaside Packing Company against him, and he can assert no other rights unless it appeared that the garnishee had effects of the defendant which he held fraudulently." This policy took effect on April 10, 1912, and the plaintiff was injured about May 27, 1912. Mathison & Anderson, the assured, paid for the policy a premium of $25. The casualty company, in consideration of reIn Burns v. Payne, 31 Or. 100, 103, 49 Pac.ceiving from said firm said sum of money, 884, 885, the court says: "He (the attaching creditor) takes the shoes and asserts the rights of the defendant against the garnishee. 'He sues for property or credits in his own name, but upon the cause of action acquired by such legal subrogation.'" insured said firm "against loss and expense arising from claims upon the assured for damages on account of bodily injuries or death accidentally suffered or alleged to have been suffered during the period of this policy by any employé of the assured by reason of the prosecution of the work describ It is a cardinal principle of the law relating to garnishments that the plaintiff there-ed herein." in cannot, as a general rule, acquire any greater rights against the garnishee than the defendant in the attachment case possesses. In this case, in order that the plaintiff may be entitled to a judgment against the garnishee, the casualty company, he must show that the assured, Mathison & Anderson, at the time that the garnishment proceeding was The insurance is against claims for damages sustained or alleged to have been sustained by any employé of the assured in the prosecution of the work described in the policy. Another paragraph of the policy requires the assured, when sued by any person on account of an accident, to forward to the company immediately every process or paper served on the assured, and the com- vious meaning of the contract. It, contains pany agrees, at its own expenseno ambiguity on this point. "to settle or defend said suit, whether groundless or not; the moneys expended in said defense shall not be included in the limits of the liability fixed under this policy. And the assured shall not assume any liability, nor interfere with any negotiation for settlement or any legal proceeding, nor incur any expense or settle any claim, except at his own cost, without the written consent of the company." This provision of the policy binds the company, at its own expense, either to settle or defend any action for damages, and it inhibits the assured from assuming any liability for any claim, or interfering with negotiations for the settlement of any claim, or from settling any claim, except at their own expense, without the written consent of the company. This provision gives the company full control of all legal proceeding brought against the assured for damages, and prevents the assured's settling or paying any claim prior to judgment, except at their own expense, without the written consent of the company. The company has the right to settle claims before judgment or to litigate them, but the assured cannot, except at its own expense, settle or pay any claim before it is reduced to judgment, unless the company assents thereto. This provision was inserted in the contract to give the company full control of all settlements prior to judg. ment and to enable the company to contest the claims in the courts as far as it should desire to do so. The said provision of the contract is to be construed in connection with paragraph L thereof, which is as follows: "No action shall lie against the company for any loss or expense under this policy unless it shall be brought for loss or expense actually sustained and paid in satisfaction of a final judgment, within ninety days from date of said judgment, and after trial of the issue." This paragraph of the contract expressly provides that no action shall lie against the company for any loss or expense under the policy, except for loss or expense actually sustained and paid in satisfaction of a final judgment, and after trial of the issue. The only insurance created by the policy is against "loss and expense"; and paragraph "L" provides that no action shall lie against the company for "loss or expense" unless it shall be brought for "loss or expense actually sustained and paid in satisfaction of a final judgment," after trial of the issue, within 90 days from the date of the judgment. By this clause it is provided, that an action against the company will lie only for loss and expenses that have been paid in satisfaction of a final judgment obtained after a trial of the issue of damages. If said provision is valid, it necessarily follows, that the company is not liable to an action on the policy until a final judgment has been obtained against the assured by a person injured, and the assured has paid all or some portion of said judgment, and such action can be maintained for only the amount ac [5] In order, therefore, that the plaintiff may be entitled to a judgment against the casualty company, as garnishee, it is necessary for him to show that he obtained a final judgment against the assured, Mathison & Anderson, and that the assured actually paid said judgment or a part thereof. It was shown that he had obtained a final judgment against the assured, and that $124, had been paid on said judgment by the assured. The seventh finding of fact states that that amount had been collected by a writ of execution upon said judgment and that it was applied thereon. It is obvious that there is no privity between the plaintiff and the garnishee. The company has no contract with the plaintiff. The policy was obtained for the benefit of the assured and not their employés. The company made no promise for the benefit of the plaintiff. In Ford v. Etna Life Ins. Co. of Hartford, 70 Wash. 29, 126 Pac. 69, decided by the Supreme Court of Washington, a part of the syllabus is: "A policy by which insurer agrees to indemsonal injury suffered by any one not employed nify assured against loss from claims for perby assured by reason of assured's business, and which provides that if action is brought against assured on a claim covered by the policy he shall and on behalf of assured, and that no action notify insurer, and it will defend in the name shall lie against insurer to recover for any loss under the policy, unless brought by assured for loss actually sustained and paid in money by him after trial, indemnifies only against loss actually sustained and paid by assured in money, and not against liability. * * Plaintiff by garnishment gets no better right than his debtor has to the debt garnished.' In Fenton v. Fidelity & Casualty Co., 36 Or. 283, 288, 56 Pac. 1096, 1097 (48 L. R. A. 770), the court says: ties between a contract of indemnity against "There is a distinction made by the authoriliability for damages, and a simple contract of indemnity against damages. In the former case, it has very generally been held that an action may be brought and a recovery had, as soon as ter there is no cause of action until there is acthe liability is legally imposed, while in the lattual damage. * *If, therefore, the policy upon which this action is based is a mere concompany (the assignor of the plaintiff) of the tract of indemnity, the payment by this mill liability incurred by it for the services of the plaintiff is a condition precedent to the right of recovery." In Finley v. United States Casualty Company, 113 Tenn. 592, 83 S. W. 2, 3 Ann. Cas. 962, a part of the syllabus is: "Agreements in an employer's liability policy shall immediately forward the process to the that, if suit is brought against the assured, he insurer, which will defend against or settle the claim, do not, when considered with a provision of the policy declaring its purpose to be inbility for damages,' and another agreement that demnity to the assured 'against loss from liano action shall lie against the insurer in refer ence to any loss under the policy unless brought by the assured himself to reimburse him for payder the policy one of indemnity against liabiliment by him in satisfaction of a judgment, ren |