to show that this land has ever been used as a base for the selection of other property on the public domain. Plaintiff is entitled to have this property restored to it. 7. HIGHWAYS 30(6)—COUNTY ROAD-PROCEEDING IN REM-NOTICE. A proceeding to lay out a county road is in its essence a proceeding in rem, except that the In correction of this and other errors, the de- application may be defeated by a remonstrance cree should provide for the dismissal of this pursuant to L. O. L. § 6288, so that the notice suit without prejudice as to the southeast quar-is process to the whole world. ter of section 36, township 1 south, range 8 8. HIGHWAYS 42-COUNTY ROAD-PROeast, and the dismissal with prejudice as to the CEEDING TO ESTABLISH-NECESSITY. east half of section 36, township 2 south, range 10 east. The state deeds should be canceled, and plaintiff adjudged to be the owner of the north half of section 36, township 1 south, range 10 east; section 16, township 1 south, range 10 east; the west half of section 36, township 2 south, range 10 east, and the southwest quarter, the northwest quarter of the southeast quarter and the south half of the southeast quarter of section 36, township 1 south, range 10 east. The former opinion, when modified as above, is adhered to. (88 Or. 144) MORTON et al. v. HOOD RIVER (Supreme Court of Oregon. March 19, 1918.) Notice of intention to present petition for establishment of a county road states definitely the beginning and terminal points as required by L. O. L. 6279, it giving a definite government corner as the terminus, and it being easy by retracing the description, given by courses and distances, to arrive at the starting point. 2. EVIDENCE 82-PRESUMPTION-ACTS OF COURT. While the county court, in acting on a petition for establishment of a county road, is one of special and limited jurisdiction, yet when that jurisdiction is obtained the same applies to its acts as to a court of general and superior jurisdiction. 3. HIGHWAYS 29(1) ESTABLISHMENT COUNTY COURT-JURISDICTION. The county court obtains jurisdiction in a proceeding to establish a county road, on the filing of the petition and proof of posting of the notices required by law. 4. EMINENT DOMAIN 240-ESTABLISHMENT OF COUNTY ROAD-DAMAGES-PRESENTING CLAIMS. necessity or utility of a proposed county road, That owners of land through which a county road was established on sufficient notice were minors, and did not make themselves parties and present their claims for damages, did not make the proceeding void. 10. PLEADING 8(6)-LEGAL CONCLUSION. Allegation of petition for writ of review of proceedings to establish a county road, that the board of county road viewers did not mark the trees on the proposed road "in accordance with the statute," is a mere legal conclusion. 11. HIGHWAYS 50-COUNTY ROAD - EsTABLISHMENT-MARKING TREES. Compliance with the requirement of the statute that the board of county road viewers mark the trees on the proposed road is not ju risdictional in a proceeding to establish a county road. 12. PLEADING 8(6)-LEGAL CONCLUSIONS. 13. HIGHWAYS 55-COUNTY ROAD-PRO- not invalidated by the county court, at the same Proceedings to establish a county road were term, ordering the road viewed, receiving the viewers' report, and making the order of establishment; no statute being violated. Department 2. Appeal from Circuit Court, Hood River County; Fred W. Wilson, Judge. Petition by J. W. Morton and others against Hood River County and others for writ of review in proceeding to establish county road. From judgment quashing the After the county court obtains jurisdiction in a proceeding to establish a county road, persons claiming to be landowners along the route must seasonably present their claims for damages, stating the facts as to their ownership. 5. EMINENT DOMAIN 240-ESTABLISHMENT writ, plaintiffs appeal. Affirmed. OF COUNTY ROAD-CLAIMS TO LANDS AND DAMAGES ROAD VIEWERS. It is no part of the road viewers' duties in proceeding to establish a county road to settle or even investigate conflicting claims to the lands through which the road passes, but they in a general way. assess the damages to the tracts, and the owners, being constructively in court by reason of the posting of the notices of the application, should file their claim for damages in the county court, or by appeal to the circuit court litigate the question of ownership, as well as of damages. 6. HIGHWAYS 60-COUNTY ROAD-ESTABLISHMENT-WRIT OF REVIEW. J. W. Morton, of Hood River, for appellants. A. J. Derby, Dist. Atty., of Hood River, for respondents. MCBRIDE, C. J. [1] This is a proceeding to review the action of the county court in the location and laying out of a county road, which, it is alleged in the petition, was attempted without the court having obtained jurisdiction for that purpose. It is claimed first that the notice of intention to present the petition for the establishment of the road was insufficient, by reason of the fact that the beginning and terminal points of the road are not definitely stated, as required Persons have no right to a writ of review of proceeding to establish a county road, on the ground that, not being parties to the record of the road proceeding, they had no right of appeal; but having legal notice of such proceeding, they were required to make themselves by section 6279, L. O. L. The description beparties to the record. gan as follows: cannot be contested in the courts, the county court being the final judge of these mat "Beginning at [state intermediate points] and terminating at a point on the east line of Edgar Locke property, 1734+ north of the center of section 32, township 3 north, range 10 east ters; the object of the notice being: (1) To of the Willamette meridian. Said point being furnish objectors an opportunity to remondesignated as Sta. 1006:30 of the Columbia strate; and (2) to give owners of land an river highway survey; thence easterly along said survey as follows: N. 87 deg. 47 min. E. opportunity to present their claims for damto station 1012:57.6," giving calls, directions, ages. Being a proceeding quasi in rem, the distances, curves and stations, and concluding notice was process against the whole world, as follows: "Thence 50 deg. 36 min. E. to Sta. and the order appropriating the land was ab1081:75, point, of ending 845 ft. west of Sec. solutely conclusive. This being so, the order Cor. common to Secs. 28, 27, 33 and 34, township 3 N. range 10 E. W. M., said road being directing the road to be opened is unassail60 feet wide." able on review. Taken in its entirety this description is ab[9] It is alleged in the petition for the solutely definite and cannot be mistaken. Writ that two of the petitioners were minors The notice was probably prepared upon one at the time the order was made directing the of the blank forms furnished by the counties establishment of the road, and it is contendof the state for the convenience of petition-ed with much plausibility that they have not ers, and there is some want of care mani- had their day in court as to the modicum of fested in filling out the blanks, but the end their damages. As before shown, the notice of the survey is tied to a definite govern- complied with the requirements of the statment corner, and by retracing the description ute, and the taking of the property was it is easy to arrive at the starting point, therefore lawful. The fact that some of the which is thereby made definite. That such petitioners were minors did not render the a description is sufficient is settled in this proceeding void. If, by reason of their mistate by Nelson v. Yamhill County, 41 Or. nority and lack of guardianship, they failed 60, 69 Pac. 678. There is no claim that the to present their claim for damages, it may be petition did not follow the notice; in fact possible that they still have that right by an it is shown that they coincide as to the de- independent action to recover such compenscription. sation. The authorities on this subject are collated with great care and industry in 28 L. R. A. (N. S.) 968, in a note to Boise Valley Const. Co. v. Kroeger, 17 Idaho, 384, 105 Pac. 1070. We express no opinion as to the efficacy of such a remedy here, as the matter is not before us. [2] While the county court, when acting upon a petition for the establishment of a county road, is a court of special and limited jurisdiction, yet when that jurisdiction is once obtained the same presumption applies to its acts as to those of a court of general and superior jurisdiction. 11 Cyc. 693. proposed road in accordance with the requirements of the statutes of the state of Oregon." The allegation states a mere legal conclusion. It does not state that the trees were not marked in some way, but merely that they were not marked in "accordance with the statute." Waiving this objection to the pleading, we are of the opinion that this requirement in this respect is not jurisdictional, and no substantial right of plaintiffs has been invaded by such omission. [10, 11] It is also urged that the proceed[3-5] The court obtained jurisdiction by ing is void because "the board of county the filing of the petition and proof of post-road viewers did not mark the trees on said ing the notices required by law. Thereafter it was the duty of the appellants, who claim to be landholders along the route of the proposed road, to have seasonably presented their claim for damages, stating the facts as to their ownership. It is no part of the road viewers' duties to settle or even investigate conflicting claims to the lands through which the road passes. In a general way they assess the damages to the tracts, and the owners, being constructively in court by reason of the posting of the notices of the application, should file their claim for damages in the county court, or by appeal to the circuit court litigate the question of ownership, as well as the amount of damages. [6-8] It is claimed that the petitioners in the writ were not parties to the record, and therefore had no right of appeal, but it was their duty, having legal notice of the proceeding, to make themselves parties to the record, and if they have failed so to do, this of itself does not give them a right to review the proceedings. A proceeding to lay out a county road is in its essence a proceeding in rem, except that the application may be defeated by a remonstrance, as provided in section 6288, L. O. L. The necessity or utility of the road, or the right of the county to condemn and appropriate lands for that purpose, [12] Another alleged error is "that said county court met on the 15th day of March, 1917, without notice to said plaintiffs, and out of the regular order provided by law and illegally proceeded to order said county road laid out, opened, and established, to the injury of said plaintiffs." With the exception of the statement that the court met on the 15th day of March without notice to plaintiffs, this allegation contains nothing but a series of legal conclusions. Why a meeting of the court on the 15th day of March, or even the historic 17th day of March, should be "out of the regular order provided by law" is not disclosed. [13] It is complained that the court ordered the road viewed, received the report of the viewers, and made the order establishing the road at the same term, and that thereby the rights of petitioners in this writ were prejudiced. We find no provision of the statute requiring the report to lie over until the next term of the court, and while the proceedings seem to have been carried on with singular and unusual expedition, the law was apparently followed in every particular. Upon consideration of the whole case, we are of the opinion that the petition states no substantial error in the proceedings, and the judgment of the circuit court is affirmed. farm of 12.36 acres, improved with a house and barn. Six acres of this are under cultivation, upon which plaintiff keeps a cow, pig, and some chickens. On account of all this a reduction of $10 was made in her monthly allowance. The applicant and her three children were declared "partly dependent" under section 3 of the act. Because of the reduction made by the order she appealed to the circuit court. Findings of fact and conclusions of law were there made and a decree rendered allowing her and the three children for their support $25 a month from MOORE and BEAN, JJ., concur. McCAM- the date of the application, November 13, ANT, J., concurs in the result. SHARP v. MARION COUNTY. (Supreme Court of Oregon. March 19, 1918.) 1. INFANTS 122, New, vol. 17 Key-No. Series MOTHERS' PENSIONS-PARTIAL DEPENDENCY. 1915. The county of Marion appeals to this court. Max Gehlhar, Dist. Atty., of Salem (Jas. G. Heltzel, of Salem, on the brief), for appellant. Frank A. Turner, of Salem, for respondent. BEAN, J. (after stating the facts as above). [1] There was no objection by the county Under Laws 1913, p. 75, § 2, as amended by to the allowance by the juvenile court of $15 Laws 1915, p. 97, providing that a woman, of certain qualifications, who is herself, and all of a month from September 11, 1916. The difwhose children are, "wholly" dependent on her ference of $10 a month is involved upon this labor for support, shall receive from the county appeal. Section 2 of the act provides that $10 a month for one child and $7.50 a month for each additional child, and Laws 1913, p. subject to the other provisions of the act, a 75, 3, providing that if they are "partly" de- woman, mentioned in section 1, who is herpendent on her labor for support, she shall re-self, and all of whose children are, "wholly” ceive such a sum as added to her other income, dependent upon her labor for support shall other than that derived from her labor shall equal the amount provided by section 2, as receive from the county of their residence amended, they having a home and a small area the sum of $10 a month for one child, and of land to cultivate, a declaration of partial de- $7.50 a month for each additional child rependency, with deduction from the full amount, is proper; the object of the act being to pro- siding with her, not exceeding $40 a month. vide for their necessities, and they by reason of Section 3 directs that if such woman and such property requiring less than they would children are "partly" dependent upon her without it. labor for support, she shall receive such a sum per month as added to her other income, 2. INFANTS 122, New, vol. 17 Key-No. Series MOTHERS' PENSIONS-ALLOWANCE- Where, on application for a mother's pension, the juvenile court held applicant and her children only partly dependent within Laws 1913, p. 75, § 3, and made an allowance, $10 less per month than that provided by section 2, as amended, where they are wholly dependent, and on appeal therefrom by her the circuit court made full allowance, complaint cannot be made by her on appeal by the county from the circuit court that the juvenile court's manner of arriving at the amount to be deducted was not proper, though the decree of the circuit court be reversed. Department 2. Appeal from Circuit Court, Marion County; Wm. Galloway, Judge. Application by Hattie E. Sharp for a mother's pension. From decree of circuit court, on appeal from juvenile court, the County of Marion appeals. Reversed. other than that derived from her labor, shall equal the amount provided for in section 2. The order made by the juvenile court declaring a partial dependency of the applicant and her young children was in perfect accord with section 3 of the act as to the amount of the pension. The purpose of the act is to provide for the necessities of such mother and children, and certainly when they have a home and a small area of land to cultivate they would require a less amount than though they were without such farm. [2] It is contended by counsel for claimant that the manner of arriving at the figure to be deducted was not proper; but this is unimportant. There being no appeal by the. county from the order of the juvenile court, nor any objection thereto made by the county, that order should not be changed and the same is allowed to stand. The decree of the circuit court modifying the order of the juvenile court is reversed. Neither party will be allowed costs in either court. The juvenile court of Marion county made an order allowing the applicant $15 a month for the support of herself and three children under the age of 16 years, under the provisions of the Mother's Pension Act. Chapter 42, Laws 1913, as amended by chapter 90, Laws 1915. This act is superseded by the Law of 1917 (Laws 1917, p. 501). The plain- MCBRIDE, C. J., and BENSON and Mc tiff and her family occupy as a home a small CAMANT, JJ., concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (88 Or. 682) McCARGAR et al. v. MOORE et al. (Supreme Court of Oregon. March 26, 1918.) 1. APPEAL AND ERROR 425-SERVICE OF NOTICE-TIME. Where a judgment was rendered on December 16, 1915, and entered on December 18th, and notice of appeal was served and filed on February 17, 1916, the notice was not served within 60 days, as required by L. O. L. § 550, subd. 5, as amended by Gen. Laws 1913, p. 617; the time for appeal expiring on February 16, 1916. ON COURT'S OWN MOTION. Whenever want of jurisdiction appears, it is the duty of the court, at any stage of the proceeding, even on its own motion, to refuse to proceed further. Department 2. Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge. Action by C. A. McCargar, P. C. Bates, and K. V. Lively, copartners doing business under the firm name and style of McCargar, Bates & Lively, against L. M. Moore, doing business as L. M. Moore & Co., and Illinois Surety Company. Judgment for plaintiffs, and defendant the surety company appeals. Appeal dismissed. Thomas Mannix, of Portland, for appellant. F. S. Senn, of Portland (Senn, Ekwall & Recken, of Portland, on the brief), for respondents. BEAN, J. Counsel for plaintiff, and respondent filed a motion to dismiss the appeal for want of jurisdiction. A statement of the facts and a memorandum of the former consideration of the motion will be found in 157 Pac. 1107. After a review we see no reason for changing the expression therein recorded as to that part thereof relating to judgment being rendered by consent. Further consideration of the motion was permitted by the former opinion. In determining whether nonsuit was properly denied, defendant's evidence as well as that of plaintiff may be considered; and, if defendant's evidence supplies the omission of plaintiff's evidence, the denial of nonsuit will be sustained. Error, if any, in admitting evidence, in such action, that the injuries so caused rendered him incapable of performing work in the position to which he was about to be promoted, was not prejudicial, since the verdict was not excessive. 5. MUNICIPAL CORPORATIONS ~706(1)— STREET ACCIDENTS - PLEADING-INITIATIVE CHARTER. legislative charter of the city of North Bend, Sp. Laws 1903 (Sp. Sess.), p. 97, being the authorized the city to regulate the speed of auto ́mobiles upon its streets, and therefore, in an acendangers life or limb, it was not necessary to tion under an ordinance prohibiting speed which plead the initiative charter, since it will not bo presumed that the legislative charter has been changed. 6. EVIDENCE 474(8)-OPINION EVIDENCEADMISSIBILITY. A passenger on the automobile which struck plaintiff, who stated that he afterwards rode in automobiles and observed the speedometers, automobile which hit plaintiff. was competent to say what was the speed of the 7. WITNESSES 350(5) IMPEACHMENT WHAT CONSTITUTES. - It was not impeachment, but mere refreshing of memory, for counsel to ask his own witness whether he had previously stated the speed of an automobile to have been greater than he then said it was, and it was within the discretion of the trial court to permit such form of question in order to refresh his recol8. EVIDENCE 268-DECLARATIONS-PERSONAL INJURIES. [1, 2] An additional question which was not specifically mentioned in the motion to dismiss was urged upon our attention at the argument of the case and is in the brief. Counsel for plaintiff and respondent submit that the notice of appeal was not served and filed within 60 days from the entry of the judgment appealed from, as required by subdivision 5 of section 550, L. O. L., as amended by General Laws of Oregon for 1913, p. 617. The judgment was rendered on December 16, 1915. The same was entered, as we understand the record, on December 18, 1915. The notice of appeal was served and filed on February 17, 1916. Counting from the later date of the judgment entry the time for serving and filing the notice of appeal, in order to give this court jurisdiction to determine the cause, expired on February 16, 1916. It was therefore not served or filed within the 9. EVIDENCE 268- DECLARATIONS-PERSONAL INJURIES. time specified by the Code. Hutchison v. A physician or attendant may testify to the Crandall, 82 Or. 27, 160 Pac. 124; Stanfield injured party's statement as to his symptoms, lection. In an action for personal injuries when struck by an automobile, declarations of plaintiff on the following day were properly admitted in evidence to show the condition of his health. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Rehearing denied April 9, 1918. ERROR. 882(12)—INVITED In action for injuries when struck by an automobile, defendant's counsel cannot complain of an instruction on contributory negligence of the same purport as the one which he requested, although such defense was not pleaded. 11. APPEAL AND ERROR 1033(5)—HARMLESS ERRor. In action for injuries when struck by automobile, where the defense of contributory negligence was not pleaded, a charge submitting contributory negligence was advantageous to the defendant, and he could not assign it as error. Department 2. Appeal from Circuit Court, Coos County; G. F. Skipworth, Judge. Action by L. C. Weygandt against Ira, B. Bartle. Judgment for plaintiff, and defendant appeals. Affirmed. The defendant appeals from a judgment for $750 damages, based upon a jury verdict. The gist of the complaint is that on December 30, 1914, while the plaintiff was lawfully walking along Railroad avenue, a regularly traveled public highway used by pedestrians in the city of North Bend, Coos county, Or., the defendant carelessly ran his automobile onto him, injuring him; that the defendant at the time was operating his car at a very high and unlawful rate of speed so that he was unable to control and guide it properly, and ran against plaintiff without sounding his horn or giving him any warning; and that defendant was driving at an unsafe rate of speed in excess of 25 miles an hour in violation of an ordinance of the city. The ills, and the locality and character of his pain, the court to grant defendant's motion for a when made for the purpose of medical advice nonsuit made at the close of plaintiff's eviand treatment, as such statements are made dence. with a view to being acted upon in a matter After the denial of the motion, deof grave personal concern, in relation to which fendant introduced evidence in his own bethe injured party has a strong and direct inter- half. It is contended by defendant's counsel est to adhere to the truth. that according to the case of Woods v. Wik10. APPEAL AND ERROR strom, 67 Or. 581, 590, 135 Pac. 192, the testimony on the part of defendant should not be considered in reviewing the ruling as to the nonsuit. In Trickey v. Clark, 50 Or. 516, 519, 93 Pac. 457, the rule was announced by Mr. Chief Justice Bean, following the holding in Bennett v. N. P. Ex. Co., 12 Or. 49, 6 Pac. 160, that, in determining questions arising on a motion for a nonsuit, consideration will be given to the entire testimony; that if there is a want of sufficient evidence to be submitted to the jury when plaintiff rests his case, if defendant afterwards supplies the suit will not be disturbed. That doctrine has omission, the ruling on the request for a nonbeen adhered to in numerous cases, and is our guide now. Jennings v. Trummer, 52 Or. 149, 96 Pac. 874, 23 L. R. A. (N. S.) 164, 132 Am. St. Rep. 680; Dryden v. Pelton-Armstrong Co., 53 Or. 418, 421, 101 Pac. 190; Crosby v. Portland Ry. Co., 53 Or. 496, 502, 100 Pac. 300, 101 Pac. 204; Taylor v. Taylor, 54 Or. 560, 568, 103 Pac. 524; Morrison v. Franck, 59 Or. 429, 435, 110 Pac. 1090, 117 Pac. 308; Vanyi v. Portland Flouring Mills Co., 63 Or. 520, 534, 128 Pac. 830; Hofer v. Smith, 65 Or. 145, 148, 129 Pac. 761; Patton v. Women of Woodcraft, 65 Or. 33, 36, 131 Pac. 521; Caraduc v. Schanen-Blair Co., 66 Or. 310, 313, 133 Pac. 636; Oberstock v. United Rys. Co., 68 Or. 197, 204, 137 Pac. 195; Roundtree v. Mt. Hood R. Co., 168 Pac. 61. In Harding v. Oregon-Idaho Co., 57 Or. 34, 42, 110 Pac. 412, in regard to the rule referred to, Mr. Justice Slater said: "There can be no question about the principle enunciated." It is not a matter of importance as to who introduced the evidence contained in the record. Cunningham v. Friendly, 70 Or. 222, 230, 139 Pac. 928, 140 Pac. 989. The testimony in the record tends to show that on the night of the accident at about 10:30 p. m. plaintiff, Weygandt, was proceeding along the right side of the planked highway to his work on a night shift as a member of the shore gang of a dredge. There was no sidewalk on the roadway. It was planked 18 feet in width and was used constantly by both vehicles and pedestrians and was the main traveled thoroughfare leading from Marshfield to North Bend. The place where limits of North Bend and known as Railroad the accident occurred was within the city avenue. The city maintained street lines and repaired the street. There is a sharp curve at the point which defendant's car was rounding when it struck plaintiff. It was in December when the road was wet and slippery; it was a "greasy road," a dangerous answer denies the averments of the complaint except as therein stated, and asserts in substance that defendant at the time was operating his car in a careful manner, and that plaintiff without any reason carelessly failed to observe his approach and attempted to cross directly from one side of the thoroughfare to the other, and that when he heard the approach of the auto he attempted to retrace his steps and came in contact with it; that, upon observing the plaintiff, defendant immediately turned his machine away from him, cut off the power, and applied the brakes; that the accident was unavoidable as far as he was concerned and was caused by the negligent acts of the plaintiff. The reply put in issue the material portions of the new matter of the answer. C. F. McKnight, of Marshfield (J. P. Brenn, of North Bend, on the brief), for appellant. John D. Goss, of Marshfield (J. C. Kendall and H. S. Murphy, both of Marshfield, on the brief), for respondent. BEAN, J. (after stating the facts as above). [1] The first error assigned is the refusal of |