(182 P.) posited as cash bail in the hands of a justice of the peace is in custodia legis, and for that reason is not subject to garnishment. But it is contended here that a justice of the peace has no authority to accept money In lieu of bail, and if he does accept it, having no authority to do so officially, he holds the funds as an individual and for the owner, who may recover by suit if a voluntary return be denied. It seems to be generally held that "In the absence of statute conferring such right, a magistrate or officer has no authority to accept a deposit of money in lieu of bail." 6 C. J. 1023. To the same effect are 5 Cyc. 114, and Brasfield v. Mayor and Aldermen of Milan, 127 Tenn. 561, 155 S. W. 926, 44 L. R. A. (N. S.) 1150, to which case is appended a note exhaustively reviewing the authorities, the great weight of which supports the text above quoted. Our statute with reference to bail before a magistrate is as follows: "The magistrate before whom such accused person shall be brought, when the offense is bailable, may, at the request of such person, with or without examination, allow him to enter into recognizance, with sufficient sureties, to be approved by the magistrate, conditioned for his appearance in the superior court having jurisdiction of the offense." Nor had we, prior to the act of 1919, hereinafter referred to, any statute relating to bail before a justice of the peace or magistrate, providing any other or different method of giving it. The only statute which we then had on the subject of cash bail in criminal actions was Rem. Code, § 2089, which reads as follows: "The defendant may, in the place of giving bail, deposit with the clerk of the court to which he is held to answer the sum of money mentioned in the order; and upon delivering to the sheriff the certificate of deposit, he must be discharged from custody." A reading of this section, and especially in connection with its context in the act of 1854 (L. 1854, p. 114, § 80), of which it formed a part, at once suggests that it applies only to proceedings in the superior court; and this court has so held in McAlmond v. Bevington, 23 Wash. 315, 63 Pac. 251, 53 L. R. A. 597. Chapter 76 of the Laws of 1919, p. 153, which was enacted after the termination of the proceedings below, and has recently gone into effect, provides that justices of the peace and committing magistrates may accept money as bail; but it has no retroactive effect, and we must therefore hold that, at the time the writs were served, the garnishee defendant held the money described in his answers, in his individual, rather than in his official, capacity. The order appealed from is reversed, with directions to proceed in harmony with the views herein expressed. HOLCOMB, C. J., and MITCHELL and MACKINTOSH, JJ., concur. (107 Wash. 471) BLOMSKOG, ERICKSON & COTTON v. (Supreme Court of Washington. July 2, 1919.) plaintiff's property when a slide started by the grading of an adjacent street invaded the property and carried off part of foundation and walls of a building thereon, it is no defense that the city regraded the street upon request of petitioning property owners, and evidence to that effect should not have been received. 2. MUNICIPAL CORPORATIONS 404(6) GRADING OF STREETS-EVIDENCE. - In an action against a city for injuries to plaintiff's property which was caused by a slide of land started when an adjacent street was regraded, it was improper to allow city officials to testify that they were boring test holes in another street for the purpose of locating the water in the hill lying above plaintiff's property, and that they had intended to drain the water, such expectation not being based on any authoritative official action of any branch of the city government, hence it was improper for the jury to consider such facts in assessing damages. Appeal from Superior Court, King County; Everett Smith, Judge. Action by Blomskog, Erickson & Cotton, against the City of Seattle. From a judgment granting part only of the relief sought, plaintiff appeals; its motion for judgment For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes notwithstanding the verdict or for new trial Į evidence would only tend to confuse the jury having been denied. Judgment reversed, and cause remanded for new trial. O. L. Willett, of Seattle, and John A. Soule, of Kent, for appellant. Walter F. Meier and Frank S. Griffith, both of Seattle, for respondent. and was prejudicial to appellant, in that it allowed the jury to speculate and set off entitled possible benefits that were not in against the damages to which appellant was issue in the case. [2, 3] The error in admitting testimony as to the future intentions of the city and the possible results that might follow to the apMACKINTOSH, J. Appellant is the owner pellant in the event that those intentions of property at the northeast corner of main took the form of performance presents a seristreet and Tenth avenue, in the city of Seat-ous mistake by the trial court of sufficient tle, upon which is located a building used for importance to entitle the appellant to a new residential purposes. In 1909-10 the respond- trial. In this connection the jury was inent regraded Jackson street, which runs in structed thatan easterly and westerly direction, parallel to and one block south of Main street, and in that work made a 72-foot cut south of appellant's property. Following this cut the hill between Main and Jackson streets began to slide, and continued in that condition up to the time of the trial of this case, In 1916 "In reaching your conclusion on this point, you may take into consideration the plans and efforts now undertaken by the city to prevent or relieve the neighboring slide, whether or not this will prove effective for the purpose, so far as it affects the plaintiff's property." City officials were allowed to answer the question, "What is your intention as regards the Jackson street slide, known as the Blomskog property?" by stating what their hopes and expectations were, which were not based upon any authoritative official action of any branch of the city government. Such testimony invited the jury to browse in a boundless expanse of theoretical conjecture and afforded the appellant no opportunity to close the gates. In re Seattle, 102 Wash. 286, 172 Pac. 1161. The respondent was allowed to ask a real estate expert a hypothetical question based upon such evidence. It needs little citation of authority to demonstrate the impropriety of such a question. more on Evidence, vol. 1, p. 672. this slide invaded the appellant's property and has taken the southern portion thereof and with it a part of the foundation and walls of the building. After having duly presented a claim against the respondent, appellant instituted this action to recover damages, alleging that the rental income of its property had been diminished up to the time of the trial to the extent of $12,518, and that its property had been further damaged in the sum of $19.200. The jury returned a verdict in the sum of $3.500, which the appellant, feeling to be inadequate, asks this court to set aside, insisting that the trial court was in error in denying its motion for judgment notwithstanding the verdict for the full amount prayed for in its complaint, or at least for a new trial on account of various errors claim-spondents had pleaded that the injury to ed to have been committed. [1] At the trial respondent contended and was allowed to prove that it was then boring test holes in Washington street, which is the street parallel to Main and next north of it, for the purpose of locating the water in the hill lying above the appellant's property, and that the city intended, if water was so located, to provide means of draining such water. There was also admitted testimony to the effect that a petition had been circulated and signed by property owners and subsequently filed with the city asking for the regrade of Jackson street. This evidence did not go to the extent of showing that appellant had been a signer of that petition, and, even if it had been so shown, the testimony would not have been admissible for the reason that it is no defense by the city to its unlawful invasion of appellant's property to show that the work which occasioned such invasion had been commenced upon the request of petitioning property holders, who in their petition called upon the city to exercise its legal powers for undertaking the regrade project. Edmonds Land Co. v. Edmonds, 66 Wash. 201, 119 Pac. 192. The introduction of such Wig [4] Among its affirmative defenses, re appellant's property was due to its failure to maintain a sewer. Upon the trial no evidence was introduced in support of this defense, and the appellant requested that the defense be withdrawn from the jury's consideration. This was denied when it should have been granted. Anderson v. Harper, 30 Wash. 378, 70 Pac. 965; Roe v. Standard Furniture Co., 41 Wash. 546, 83 Pac. 1109; Scarpelli v. Washington Water Power Co., 63 Wash, 18, 114 Pac. 870; Marks v. Seattle, 88 Wash. 61, 152 Pac. 706. For these errors, the appellant is entitled, at least, to a new trial, and there only remains for consideration the question as to whether it is not entitled to a judgment for the entire amount sued for. The consideration of this question calls for an examination of the facts which, in our judgment, are such that the court was correct in denying the motion and leaving to a jury the determination of the amount of damages. The judgment is therefore reversed, and the cause remanded for a new trial. HOLCOMB, C. J., and MITCHELL, MAIN, and TOLMAN, JJ., concur. (107 Wash 630) (182 P.) strength or the weakness of the defense of UNION MACHINERY & SUPPLY CO. v. tender of payment. That the affirmative anTHOMPSON. (No. 15232.) swer constituted no defense to the action was urged by objections at the trial which were treated as a demurrer by the court and overruled. In regard to the alleged tender there is a sharp conflict in the evidence, and, with The defense of tender fails, where defend-out deciding, we may assume, as did the ant does not bring into court the amount al trial court, that it was sufficiently establishleged to have been tendered. Department 1. ed, and still it would be no defense to the action. In an action at law, such as this, there must be further allegation and proof of keep Appeal from Superior Court, Kitsap Coun- ing the tender of payment good and of bringty; Walter M. French, Judge. Action by the Union Machinery & Supply Company against Paul L. Thompson. Judg. ment for defendant, and plaintiff appeals. Reversed, with directions. Robert A. Eaton, of Seattle, in pro. per. Philip Tworoger, of Seattle, for respondent. ing the money into court. The record is silent as to both of these things. Upon this subject, in the mortgage foreclosure case of Murray v. O'Brien, 56 Wash. 361, 105 Pac. 840, 28 L. R. A. (N. S.) 998, it was said: "While at law the rule that a tender must be kept good by payment in court is well-nigh universal, it is not so in equity." And, recently, in the case of Vergonis v. Vaseleou, 178 Pac. 463, which was an action in replevin at the instance of the vendor upon default of the vendee in payment of the purchase price of goods sold by a contract of conditional sale, wherein the defendant in his answer alleged tender of payment of the amount due, both prior to and after the commencement of the action, and also offered by his answer to pay such sum as the court should adjudge to be due, but did not bring into court the amount alleged to have been tendered, this court, after discussing the facts concerning the tender, said: MITCHELL, J. Plaintiff by a contract of conditional sale transferred to defendant two donkey engines. The terms of the sale were part cash and the balance to be paid in stated amounts at specified dates. The larger part of the last payment being long overdue, plaintiff gave defendant written notice that, unless payment was made on or before a certain day, notice of default would be served and steps taken to obtain possession of the property. Upon the expiration of the time limit thus fixed and nonpayment on the part of defendant, a written declaration of default and demand for the return of the engines was served upon defendant, and shortly thereafter this action in replevin was brought to recover possession of the property. The complaint is in the usual form under our practice in claim and delivery actions. Defendant in his answer denied many of the allegations of the complaint, and by way of affirmative defense alleged that prior to the declaration of default he tendered to plaintiff the balance due on the contract. Plaintiff's reply denied the allegation of tender of payment. In his answer defendant did not keep his alleged ten-spondent having failed to establish any deder good nor bring the money or any portion of it into court. A trial was had before the court, sitting without a jury, and resulted in a judgment in favor of the defendant, from which the appeal has been taken. "But, more than this, the money tendered was not brought into court. It is true that we have held in actions of equitable cognizance, where the plaintiff must rely upon equitable principles to sustain his cause of action, that it is sufficient to plead willingness to pay without an actual bringing of the money into court. But the present action is a legal action, to which the plea of tender is a legal defense, and the rule cited is without application." Appellant having proved its case, and re fense, the judgment is reversed, with direc tions to the trial court to enter judgment for appellant. HOLCOMB, C. J., and TOLMAN, MACKIN The cause must be determined on the TOSH, and MAIN, JJ., concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (107 Wash. 490) (Supreme Court of Washington. July 7, 1919.) all indebtedness then or thereafter incurred which may become due from Hillman to the bank, and that the indebtedness so secured at the time of the service of the writ was $14,338.76. Sturtevant answered, admitting the execution of the note and mortgage for the benefit of Hillman, also alleges the assignment thereof by Hillman to the bank, sets up certain payments, and states the balance 2. GARNISHMENT 170-JOINDER OF ISSUE- owing on the note according to its terms to PROCEDURE. Where judgment debtor in garnishment proceeding to impound a note and mortgage, in his answer to the writ, raised the question of fraud and collusion between the maker of the note and mortgage, a garnishee, and the judgment creditor to have the note and mortgage sold at auction to the judgment debtor's loss and injury, the trial court should have formed issues as to the rights and liabilities of the several parties before ordering the note and mortgage surrendered to the sheriff for sale, in view of Rem. Code 1915, § 702. Department 1. be $94,777.54, but alleges that the consideration for the note has failed in part, and that he (Sturtevant) has certain counterclaims or offsets against the Title Trust Company as trustee and against Hillman, amounting to some $70,000, and denies any liability on the note in excess of $24,000. Hillman and wife also answer, and set out the execution of the note and mortgage, allege the assignment in good faith to the bank, and further allege that there is collusion between respondent and Sturtevant, and that the garnishment writ was procured as a part of a fraudulent scheme to have the Appeal from Superior Court, King County; note and mortgage sold at auction, to their Everett Smith, Judge. loss and injury. Action by E. M. Gordon and others against C. D. Hillman and wife, and the National City Bank and others, as garnishees. From an order granting a motion for an order requiring the delivery of the property to the sheriff for sale, defendants appeal. Reversed and remanded, with instructions. Gay & Griffin and Geo. H. Rummins, all of Seattle, for appellants. Byers & Byers and Aust & Terhune, all of Seattle, for respondents. Upon the writ and several answers, respondent moved for an order requiring the delivery of the note and mortgage to the sheriff of King county for sale on execution, and the trial court entered an order granting such motion, but providing that there first be paid out of the funds of such execution sale $14,338.76 to the bank in full of the amount due it, and that the trust company be paid its claim of $100 for services, from which order this appeal is taken. [1, 2] It is contended that Hillman's interest in the note and mortgage, being an equitable one only, is not subject to sale on execution; and many authorities are cited to show that such was the rule at common law. Our statute has, however, removed this question from the realm of the common law. Rem. Code, § 518, provides: TOLMAN, J. Respondent is a judgment creditor of appellant C. D. Hillman, and heretofore duly caused a writ of garnishment to issue in the cause, directed to the garnishee defendants. The Title Trust Company answered, admitting that it held as trustee a note in the principal amount of $100,755, executed by C. K. Sturtevant and wife, payablement debtor, not exempt by law, shall be liable "All property, real and personal, of the judgto it as trustee, on or before July 1, 1919, to execution." which note is secured by a mortgage also running to it as trustee, on certain real estate in Snohomish county. It further admits that it holds the note and mortgage as trustee for C. D. Hillman, under a written trust agreement, which is made a part of its answer; that payments have been made on the note, and the amount now owing thereon is $94,777.54, to which the makers claim an offset; that the note and mortgage have been assigned by Hillman to the National City Bank; and alleges that there is due to it for its services as trustee the sum of $100. The answer of the National City Bank sets out the assignment of the note and mortgage made by Hillman to it, which provides that it is made to secure the payment of any and Under this statute it was held in Calhoun v. Leary, 6 Wash. 17, 32 Pac. 1070, that an equitable interest in land will be divested by sale under execution; and we are not now disposed to limit the statute. But though appellant's interest in the note and mortgage might pass on execution sale, it does not necessarily follow that the order appealed from must be affirmed. Appellants' answer raised the question of fraud and collusion. For the sheriff to sell with this issue undetermined would no doubt result in loss to appellant Hillman, especially so as his interest in the note, if Sturtevant's offset should not be sustained, greatly exceeds the amount due on the judgment; and no bidder For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) charge this defendant with the commission of any criminal offense." The demurrer was overruled and the trial resulted in a judg ment of conviction and a fine in the sum of $25 and costs. From this judgment the appeal is prosecuted. could be expected, in the light of Sturtevant's he appealed to the superior court, where the undetermined claim, to bid anything ap- complainant was demurred to on the ground proaching what would be the value, with that it failed to state facts "sufficient to Sturtevant's claim eliminated, or even liquidated. The garnishment statute itself provides the remedy (section 702, Rem. Code), to the effect that if the answer of the garnishee be controverted, an issue shall be formed and tried as other cases. As we have seen, the answer of the garnishee defendant Sturtevant is controverted as to the good faith of the proceeding, and the trial court should have proceeded to form issues as to the rights and liabilities of the several parties and try out those issues before ordering the note and mortgage surrendered to the sheriff for sale on execution. Reversed and remanded, with instructions to proceed in accordance with the views herein expressed. HOLCOMB, C. J., and MACKINTOSH, MAIN, and MITCHELL, JJ., concur. 107 Wash. 695) STATE v. RANDALL. (No. 15340.) (Supreme Court of Washington. July 29, 1919.) 1. INDICTMENT AND INFORMATION 110(3) — SUFFICIENCY OF ALLEGATION-LANGUAGE OF STATUTE. It is sufficient, in charging a crime, to follow the language of the statute, where such crime is there defined and the language used is sufficient to apprise the accused with reasonable certainty of the nature of the accusation, so that he may be able to avail himself of his acquittal or conviction as a protection against further prosecution for the same offense. 2. INDICTMENT AND INFORMATION 110(47) SUFFICIENCY OF INDICTMENT AUTOMO - No statement of facts or bill of exceptions has been brought to this court. The only question presented is whether the complaint charges a crime. After specifying the day when and the place where the unlawful driving occurred, the complaint substantially follows the language of section 23, c. 142, Laws of 1915, which provides: "No person driving or operating any motor vehicle shall drive or operate the same in any other than a careful and prudent manner, nor at any greater speed than is reasonable or proper, having due regard to the traffic and use of the way by others, or so as to endanger the life and limb of any person." It will be noticed that under this statute it is made a criminal offense, first, to drive or operate a motor vehicle in other than a careful and prudent manner; second, at a greater rate of speed than is reasonable or proper, having due regard to the traffic and use of the way by others; and, third, so as to endanger the life or limb of any person. Whether this statute falls within the class which defines separate and distinct offenses under the rule stated in Seattle v. Molin, 99 Wash. 210, 169 Pac. 318, or whether it falls within the class of statutes which define but one crime but specify the various ways in which that crime may be committed, it is not necessary here to determine. [1] The demurrer to the complaint was based upon the sole ground that the complaint did not state facts sufficient to charge a crime. The only question then to determine is whether a complaint or information which specifies the day and the place of the offense and embodies substantially the language of the statute charges a crime. Attention here will only be given to that portion of the statute which provides that no person shall drive a motor vehicle at any greater speed than is reasonable and proper, having due regard to the traffic and use of the way by others. If under this provision a crime is charged, it is unnecessary to inquire further. Hayden, Langhorne & Metzger, of Tacoma, It is undoubtedly the rule in this jurisdiction for appellant. Fred G. Remann and J. W. Selden, both of Tacoma, and Elmer E. Healey, of Puyallup, for the State. that it is sufficient, in charging a crime, to follow the language of the statute, where such crime is there defined and the language used is sufficient to apprise the accused, with reasonable certainty, of the nature of MAIN, J. The defendant was charged by the accusation, so that he may be able to complaint, before a justice of the peace, avail himself of his acquittal or conviction as with unlawfully driving an automobile. a protection against further prosecutions for From a judgment of conviction in that court, the same offense. State v. Ryan, 34 Wash. For other cases see same topic and KEY-NUMBER in all Key Numbered Digests and Indexes |