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described the smaller area only. The court seems to have inclined to the view that the larger area is the tract to be considered, but must have been of the further opinion that the matter presented involved a mere rule of evidence to be determined upon the trial for the ascertainment of damages. Otherwise, it would seem that the court would have passed upon the question as it was squarely presented by the pleadings and evidence upon the hearing for the condemnation. While it does involve a rule of evidence, yet the order of condemnation as made would at least afford the basis for the contention that the inquiry as to damages must be confined to the smaller area. We therefore think the court should have passed upon the point directly, and should have made its order accordingly. In this particular the order should be modified, but in all other respects it is affirmed, and the defendants are entitled to recover their costs upon this review. The cause is remanded, with instructions to proceed in accordance with this opinion, and to ascertain the damages.

MOUNT, C. J., and DUNBAR, ROOT, and CROW, JJ., concur. FULLERTON, J., concurs in the result.

(44 Wash. 68)

KNUDSON-JACOB CO. v. BRANDT et al. (Supreme Court of Washington. Sept. 25, 1900.)

1. APPEAL-EXCLUSION OF EVIDENCE-HARMLESS ERROR.

The exclusion as evidence of a merchant's daybooks containing items involved in the suit was not prejudicial, where his memorandum and delivery slips containing the items were admitted as books of original entry.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4194-4199.] 2. SAME.

Where a mechanic's lien sought to be enforced cannot be sustained, the exclusion of evidence of the amount due is immaterial.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4193.] 3. MECHANIC'S LIEN-PROOF OF FURNISHING

MATERIALS-SUFFICIENCY.

In a suit to enforce a mechanic's lien for materials furnished in the construction of a building, evidence held insufficient to show actual delivery of the materials for the building. 4. SAME.

In a suit to enforce a mechanic's lien for materials furnished for a building, evidence held insufficient to show what amount, if any, should be charged against the building. 5. SAME-BURDEN OF PROOF.

A materialman seeking to enforce a mechanic's lien against a building for materials furnished in its construction, has the burden of proof, and his account must be so kept that it can be clearly ascertained what was chargeable against the building.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Mechanics' Liens, § 556.] 6. SAME-FURNISHING MATERIALS TO CREDIT OF CONTRACTOR-RIGHT TO ENFORCE LIEN.

The absence of intention at the time one furnishes materials for the construction of a building to assert a lien therefor, does not pre

clude the enforcement of a lien afterwards, where the goods were actually sold for the understood purpose of being used in the building and they were so used, unless the right to a lien is waived.

7. SAME-BURDEN OF PROOF.

Where a materialman furnishing materials for the construction of a building did not, at the time of furnishing the same, intend to assert a lien therefor, he must, on subsequently seeking to enforce the lien, clearly show that the materials were used in the building and what amount of the purchase price remained unpaid.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Mechanics' Liens, § 556.]

8. APPEAL-REVIEW-RECORD-SUFFICIENCY.

Where no evidence was introduced in support of the allegations of the complaint against one of the defendants and its answer was not brought up with the record, dismissal of the complaint as to that defendant is not reviewable.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2867-2872.]

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by the Knudson-Jacob Company against A. M. Brandt and others. From a judgment for certain of the defendants, plaintiff appeals. Affirmed.

E. L. Sanders, for appellant. Hamblen, Lund & Gilbert, for respondents.

HADLEY, J. This is an action to foreclose a lien for material alleged to have been used in the construction of a certain building. The material consisted of building hardware and paints, and it is alleged that the plaintiff furnished the same at the special instance and request of the defendant Sly, to be used in the construction of a building on lot 9, block 33, of Second Sinto addition to Spokane Falls, now Spokane. It is also alleged that the defendants A. M. Brandt and wife are the owners and reputed owners of the lot, and that said Sly was the contractor in charge of the construction of the building. The usual averments concerning the filing of a lien notice are made, and a balance of $115.85 is claimed as due and unpaid. The complaint also contains certain allegations concerning a mortgage upon said property said to have been executed by said Brandt and wife to the Netherlands American Mortgage Bank, to secure the sum of $3,250, which it is charged was fraudulently made. Said Brandt and wife answered the complaint, denying the material allegations thereof and affirmatively alleging that the goods were sold to said Sly upon general account with the intention of holding him personally without reference to any particular property upon which the same was to be used and without any intention of claiming a lien therefor. Also that before the commencement of suit, said Sly had fully paid for all materials mentioned in the complaint. It is conceded that the said bank also appeared and answered, but the answer was not brought up with the record and it does not appear what issue

was made thereby. The cause was tried by the court and resulted in a judgment dismissing the action and awarding costs to Brandt and wife and said bank. The plaintiff has appealed.

It is assigned that the court erred in refusing the admission in evidence of appellant's daybooks, containing the items involved in the suit and in holding that appellant's memorandum and delivery slips were books of original entry and the best evidence. Appellant was, however, able to produce, and did produce, the memorandum slips showing all the items claimed except certain small items amounting to $6.40. Moreover the record sufficiently shows that the remaining items were included in the daybooks. If appellant were entitled to enforce this lien for any amount, the competency of the evidence as to the somewhat inconsiderable amount of $6.40 should be considered, but, inasmuch as we think the lien cannot be sustained for other reasons, the competency of this evidence becomes immaterial for the determination of the appeal.

Some technical reasons are urged by respondents against the enforcement of the lien by way of informality in the notice of lien, variance as to ownership, and the inclusion of nonlienable articles. We shall, however, pass over these and discuss what we consider more serious matters affecting the essence of appellant's claim for a lien. We think the proof is not satisfactory as to the actual delivery of the material at the property in question, and that it was actually used thereon. The testimony of the president of the appellant corporation upon that subject was that he knew nothing more about the delivery than that some of the goods were given to appellant's deliveryman with slips specifying the property in question at the place of delivery. The deliveryman did not testify. The larger part of the material was delivered to one Fuller by direction of Sly. Fuller was a subcontractor of Sly's for painting. Sly was at the time engaged in constructing a number of other houses to which appellant was sending materials on his account. Fuller did not testify, so that it does not appear what painting material went to this building. We think the evidence upon this subject is too indefinite and uncertain to charge the property with a lien. Moreover the goods sold for the different houses were all charged to Sly in one general account. There were here and there extending through the account certain notations indicating that materials were delivered to different houses, and many items are shown to have been delivered at Sly's shop, for what purpose does not appear. Sly's credits for payments were, however, entered generally in the account. No separate account for payments applicable to each building was kept. There was some evidence of the special application of some payments, but they were in any event entered as credits

upon the general account. We therefore find it impossible to determine satisfactorily to ourselves what, if any, amount should be charged against this property. The burden of proof was upon appellant, and the account should have been so kept that it could have been clearly ascertained what was chargeable against the property. The court found that appellant furnished materials to Sly upon various building contracts of which this was one, and that they were sold upon general account to Sly upon his sole responsibility and without any intention on the part of appellant of claiming liens upon the property. Under the later decisions of this court the absence of intention, at the time the goods were sold, to assert a lien would not have precluded its enforcement afterwards if the goods were actually sold for the understood purpose of being used in the building, and if they were so used, unless the right to a lien was waived. Stringham v. Davis, 23 Wash. 568, 63 Pac. 230; Blumauer v. Clock, 24 Wash. 596, 64 Pac. 844, 85 Am. St. Rep. 966. But in such event it must be clearly shown that the material was used in the building, and what amount of the purchase price remains unpaid.

It is assigned that the court erred in dismissing the complaint against the Netherlands American Mortgage Bank. No evidence was introduced in support of the allegations of the complaint against the bank, and its answer was not brought up with the record. There is, therefore, nothing here for our consideration upon that subject. The judgment is affirmed.

MOUNT, C. J., and FULLERTON, ROOT, CROW, and DUNBAR, JJ., concur.

(44 Wash. 72) CREECH et al. v. CITY OF ABERDEEN. (Supreme Court of Washington. Sept. 25, 1906.)

1. APPEAL-EXCEPTION-DENIAL OF CONTIN

UANCE.

Denial of continuance for an amendment changing the cause of action cannot be reviewed in the absence of exception.

[Ed. Note. For cases in point, see vol. 2, Cent. Dig. Appeal and Error, § 1496.]

2. CONTINUANCE-DISCRETION OF COurt.

It cannot be said that there was an abuse of discretion in refusing a continuance for absence of a witness, where the opposing party before the trial offered to allow the witness' deposition to be taken, waiving all formalities, and the facts which it was alleged were expected to be proved by him were testified to by many others.

[Ed. Note. For cases in point. see vol. 10, Cent. Dig. Continuance, §§ 17, 18.] 3. APPEAL HARMLESS ERROR CHALLENGES.

ALLOWING

Error in allowing an extra peremptory challenge will be held harmless, it not appearing that the jury was rendered partial thereby.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4124.]

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by F. E. Creech and others against the city of Aberdeen. Judgment for plaintiffs, and defendant appeals. Affirmed.

See 84 Pac. 623.

R. E. Taggart and Ben Sheeks, for appellant. John C. Hogan and W. H. Abel, for respondents.

DUNBAR, J. This is an action to recover upon a contract for laying water pipe under the Chehalis river, and for damages alleged to have been caused by the city having furnished defective material. Under the contract the work was to be done by the respondents, and the material to be furnished by the city, the appellant.

It is difficult to tell from appellant's brief exactly what the contentions are, as there is no statement of the case, and the assignments are not regularly made. The first contention seems to be that the court erred in refusing to grant a continuance. It is asserted that four days before the date set for the trial the plaintiffs were permitted by the court to amend their complaint, changing the nature of the second cause of action; that this amendment was allowed over the objection of the defendant, and without any other notice than that given to Mr. Taggart, one of the attorneys for the appellant at the time, who happened to be in attendance on the court. Conceding, without deciding, that the amendment did change the nature of the cause of action, it seems that there was no exception taken to the ruling of the court in denying the motion for continuance. The attorneys for the appellant made an affidavit of certain things which he expected to prove by a Mr. Wilson, who was not able to attend court at the time of the trial, and this affidavit was the basis of the motion for continuance. But an investigation of the record shows that one of the attorneys for the respondents, who was first advised by Mr. Wilson that he would not like to attend the court on the day the trial was set for, advised him to report to Mr. Taggart, and informed Mr. Taggart of Mr. Wilson's communication, and suggested that Wilson's deposition be taken, and that he would waive all formalities. This was not done, nor, upon an examination of Mr. Taggart, would he assert that the testimony which he expected to adduce by the witness Wilson was not cumulative; and the record shows that the facts which he indicated that he would prove by Mr. Wilson were sworn to by a great many other witnesses whom the appellant produced at the trial. Under all the circumstances, we cannot say that the court abused the discretion which is vested in it in such cases. Nor can we find any abuse of discretion of the court in refusing motion for new trial upon the showing made.

It is also contended that the court com

mitted error in allowing respondents to exercise a fourth peremptory challenge. It seems that in impaneling the jury one James Phillips, a juror, was called, who was challenged by the appellant for cause, and the challenge was sustained. After this the court permitted the respondents to exercise a fourth peremptory challenge, to the allowance of which appellant excepted. It does not appear that the jury was rendered partial by this mistake on the part of the court, the juror who took the place of the juror who was challenged being examined and passed for cause. All that the appellant can claim is the right to have its case tried by an impartial jury. It was said by the Supreme Court of Mississippi, in the case of State v. Dalton (Miss.) 10 South. 578: "The action of the court in permitting to appellees a fifth peremptory challenge was erroneous, but the error is not reversible. The plaintiff, as has long been held in this state, had no vested right in any particular juror. He had a right to an impartial jury, and this right seems to have been enjoyed by him." It has fréquently been decided by this court that litigants had no vested right in any particular juror, and in passing upon the laws in relation to the selection of jurors it was said, in State v. Straub, 16 Wash. 111, 47 Pac. 227: "This court has held so many times that it seems that we ought not to be called upon to further discuss this character of questions, that these conditions in regard to the selection of jurors are directory, and that no litigant has a vested right in the procedure. Certainly, in the absence of a showing that a material interest had been affected, the judgment would not be reversed for an irregularity so far as the procedure is concerned."

An examination of the record leads us to conclude that no prejudicial error was committed by the court in the admission or rejection of testimony, or in the giving of instructions.

The judgment is affirmed.

MOUNT, C. J., and ROOT, CROW, and HADLEY, JJ., concur.

(44 Wash. 99)

STRUNZ et ux. v. HOOD et al. (Supreme Court of Washington. Sept. 27, 1900.)

1. BOUNDARIES-ACTION TO ESTABLISH-NATURE OF REMEDY.

In an action under Ballinger's Ann. Codes & St. $$ 5667-5669, providing for the establishment of lost boundaries, and, in the court's discretion, the appointment of commissioners to survey the boundaries, neither the court nor commissioners can correct the government surveys or establish government corners at points other than those fixed by the government sur

veyors.

[Ed. Note. For cases in point, see vol. 8, Cent. Dig. Boundaries, § 258.]

[blocks in formation]

In an action under Ballinger's Ann. Codes & St. §§ 5667-5669, providing for the establishment of lost boundaries, on a motion for a new trial on the ground of newly discovered evidence tending to show that an original government corner could be located other than where established by the commissioners, the proposed evidence must be clear and convincing in order to sustain the motion.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. New Trial, §§ 226-229.]

4. JUDGMENt-Default-OPENING AS MATTER OF RIGHT.

Ballinger's Ann. Codes & St. § 4880, providing that where a defendant without the state has not been served personally, he shall, on application and sufficient cause shown, at any time before judgment, be allowed to defend, does not authorize the setting aside of a default as a matter of right.

[Ed. Note. For cases in point, see vol. 30, Cent. Dig. Judgment, § 251.]

5. NEW TRIAL-MATTER OF RIGHT-ACTION INVOLVING REAL ESTATE.

Ballinger's Ann. Codes & St. § 5518, giving a defendant served by publication in an action for the recovery of real estate a new trial as a matter of right, has no application to an action to establish a lost boundary line under sections 5667-5669.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. New Trial, § 353.]

6. COSTS APPORTIONMENT - ACTION TO ESTABLISH LOST BOUNDAry.

In an action to re-establish a lost boundary line under Ballinger's Ann. Codes & St. §§ 56675669, the cost should be equally divided between the parties.

[Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Boundaries, 261; vol. 13, Cent. Dig. Costs, § 272.]

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Wenzel Strunz and wife against Frank Hood and others. From a judgment in favor of plaintiffs, defendant James Sullivan appeals. Modified and affirmed.

R. J. Danson, for appellants Strunz and wife. P. C. Shine, for appellant Sullivan. Munter & Jesseph, for respondents.

CROW, J. This action was instituted by the plaintiffs Wenzel Strunz and Mary Strunz, his wife, under sections 5667-5669, Ballinger's Ann. Codes & St., to re-establish certain lost corners and a lost boundary line between two sections of land in Spokane county. The plaintiffs alleged that said line between sections 2 and 3 of township 26 north, of range 45 E., W. M., had been lost and was uncertain; that plaintiffs are the owners of certain subdivisions constituting the fractional southwest quarter of section 2; that the defendant Joseph Sullivan is the owner of the northwest quarter of said section 2; that the defendants Hood and wife are the owners

of lots 1, 4, 5, and 6, of section 3; being the only portion of said section which can be affected by said boundary line. The defendants Rebecca E. McCall, Joseph L. Rose, Nancy J. Rose, and the Pennsylvania Mortgage & Investment Co., who were alleged to be the owners of the east half of section 2, made default. The defendant James Sullivan was served by publication and defaulted for nonappearance. The defendants Hood and wife denied that said dividing line was lost or uncertain. On October 4, 1904, a trial was had to determine whether said line had become lost and uncertain. Both parties conceded that the government corner post at the northeast corner of section 3 and the northwest corner of section 2 was in existence and could be accurately located. The evidence disclosed that a portion of the southwest quarter of section 2, and the south and west line of that part of section 3 here involved were bounded by Lake Newman, a meander line having been run along said lake at said points by the United States government surveyors. It further appeared that when the original government survey was made, a meander corner post had been established on the shore of said lake at the point where the line between sections 2 and 3 intersected said meander line, but that this monument had been lost. At the trial the plaintiffs produced numerous witnesses to show that this monument could not be found or located, while the defendants Hood and wife attempted to show that said corner had been located at the south end of a dividing line run in 1903 by one Stolzenberg, a surveyor employed jointly by plaintiffs and said defendants Hood and wife. The trial court made findings of fact, from which it appears that said adjoining sections 2 and 3 both abut upon that body of water known as "Newman Lake," which so cuts them as to cause the north and south dividing line between them to be less than one mile in length; that said sections were included in a survey made by the United States government in August, 1880; that in said survey a corner post was established at the northwest corner of section 2, being the northeast corner of section 3, and that the field notes of said survey also show that a quarter post was established on said line, 40 chains south of said initial corner; that said field notes further show that a meander post was also fixed and established where said dividing line ran into said Newman Lake, and that said dividing line between said sections 2 and 3 connected said three posts and was and is the dividing line between said two sections; that said quarter post and said meander corner post had both been lost and obliterated, and that their location cannot be ascertained; that the plaintiffs and said defendants Hood and wife cannot agree upon the location of said lost quarter post and meander corner post, and that one competent surveyor would be ample as a commissioner to establish said boundary. Up

At the preliminary hearing, the appellants Strunz and wife earnestly endeavored to show that no monuments locating the quarter section corner or the meander corner could be found, also that the lines previously run by various surveyors, one of whom had been jointly employed by themselves and the respondents Hood, were incorrect. After the report of the commissioner had been filed, and the appellants Strunz and wife had interposed their exceptions, they asked permission to introduce further evidence, for the purpose of showing that their exceptions were well taken, and that the locations of said original government quarter post and said original government meander corner post could be respectively found, ascertained, and established at points about 170 feet and 356.65 feet west of the points reported by Commissioner Snow, and they now contend that the trial court erred in refusing said offer. The evidence which appellants then tendered was afterwards specifically detailed in the affidavits presented in support of their motion for a new trial. The issue as to whether the monuments and boundaries were lost had been previously tried, and there is nothing in the report of the commissioner inconsistent with the findings then made. Under some circumstances it might be proper to admit additional evidence, when the report of the commissioner and the exceptions thereto come on for hearing, but we fail to see any reason for doing so in this case, and conclude that the trial court did not err in refusing the offer made by the appellants. The report of the commissioner explicitly detailed the methods adopted by him for discovering the true location of the government monuments and for re-establishing the lost quarter section corner and meander corner. Were we to consider the additional evidence offered by the appellants as disclosed by the affidavits presented in support of their motion for a new trial, our conclusion would nevertheless be that the meander corner and the quarter section corner were both lost, and could only be established in the manner adopted by the commissioner

on said findings the court entered a prelimin- | boundary line as marked by said commisary order appointing Joseph M. Snow, a com- sioner. petent and practical surveyor, as a commissioner to survey, erect, establish, and properly mark the quarter corner post, and the meander corner post, on the dividing line between said sections. On April 14, 1905, the commissioner made a written report, from which it appears that he did not succeed in finding the original government quarter post or the original government meander post; that he did find the original government post at the northwest corner of section 2, and the northeast corner of section 3; that from this point he ran a random line in a southerly direction to the shore of Newman Lake; that having done so, he made a careful search along this random line for a distance of 200 feet on each side, but that said search failed to show any trace or mark to indicate that the section line had ever been run or marked on the ground; that afterwards he ascertained the true course of the random line by a solar observation, and then established a true line running due south from said corner of sections 2 and 3, on the north boundary of the township; that at a point 2,640 feet south of sald section corner, he established a quarter section corner between sections 2 and 3, and marked the same by setting a granite stone; that at a point 4,880 feet south of said corner of sections 2 and 3 and at a point 20 feet north of highwater mark on the shore of Newman Lake, he established the meander corner, and marked the same by setting a granite stone. The plaintiffs filed written exceptions to this report. On July 7, 1905, the defendant Sullivan moved the court to vacate the default entered against him, supporting his motion by affidavits which appear in the record. Afterwards, the report of the commissioner, the exceptions of the plaintiffs thereto, and the motion of the defendant Sullivan to vacate the default came on for hearing, at which time the trial court confirmed and approved the report of the commissioner and denied the motion to vacate said default. The plaintiffs' motion for a new trial having been overruled, judgment was entered establishing the boundary line, the quarter section corner, and the meander corner, as shown and fixed by said commissioner's report. The plaintiffs Strunz and wife have appealed from said final judgment, and the defendant Sullivan has also appealed from said final judgment, and from the order denying his judgment to vacate said default.

The appellants Strunz and wife make numerous assignments of error involving the following contentions: (1) Error of the trial court in refusing to admit additional evidence after the commissioner's report had been made; (2) error in overruling appellants' exceptions to said report; (3) error in denying appellants' motion for a new trial; (4) error in taxing all costs against the appellants; and (5) error in establishing the

Appellants correctly contend that a court or a court commissioner cannot correct the United States government surveys, or establish government corners at points other than those fixed by the government surveyors; that in any attempt to re-establish an original survey the purpose should be to follow the footsteps of the government surveyor as nearly as possible, and that when there is any variance between field notes and monuments, as set up by the United States government surveyors, the monuments must prevail. It was undoubtedly the duty of the commissioner to ascertain, if possible, where the original government monuments had been actually located and established, rather

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