perform, and, somehow, promises to do the impossible always attract. If the court was right in finding as to the amount in the reserve fund, this finding could not have been deemed important; and, even if the finding were sustained by evidence, it would not be the equivalent of the finding of such a fund, and in this case was relevant to no possible issue.

The finding that there was more than $50,000 in the reserve fund was also unsustained by the evidence. In considering these questions, it must be remembered that the court granted a new trial. The presumption is therefore against the findings, and not in their favor.

The by-laws speak of a reserve fund, and, as we have seen, provide for payments out of the excess of that fund over $50,000. There is, however, no by-law or rule creating a reserve fund, or defining of what it shall consist. Certain moneys are specially devoted to other purposes. Under such circumstances, I think we may treat all the net assets as belonging to that fund which are not specially devoted to other purposes. The assets of defendant for 1894, during which year Lena Brenner died, were not shown. But the assets for 1893 were shown. Waiving the point that this does not meet the necessities of the case, and that the burden of proving that there was an excess in the reserve fund was on plaintiff, we find that the assets of 1893 amounted to $52,312.32. In this list of assets was included $1,483.10 due for interest, which, under the by-laws, is devoted to dividends, and $1,386.22 due for assessments, which belong to the nominees of deceased members, and there is an overdraft of $10,439.77, which must be deducted from bills receivable. Certainly the court properly granted a new trial. Order affirmed.

We concur: HENSHAW, J.; McFARLAND, J.

(9 Colo. App. 519)

OUTCALT v. JOHNSTON.1 (Court of Appeals of Colorado. June 14, 1897.) CONTINUANCE-PROMISSORY NOTES--PLEADING AND PROOF-NEW TRIAL-GROUNDS-LIMITING NUMBER OF WITNESSES.

1. No abuse of discretion in overruling defendant's motion for continuance, on the ground of the absence of witnesses, was shown, where the case was placed on the trial docket on the first day of the term, and was not called for trial until the ninth day thereafter, and it did not affirmatively appear that the required diligence had been exercised, and where the record disclosed that one of the alleged absent witnesses was present and testified, and that there was testimony by other witnesses on defendant's behalf as to the matters which the alleged absent witnesses were expected to prove.

2. Where the note described in the complaint purported to provide for attorney's fees in case of nonpayment at maturity, and the one offered in evidence did not, such variance did not affect

1 Rehearing denied, September 13, 1897.

defendant's substantial rights, it appearing that the execution of the note and defendant's liability thereon were not denied, except as to the claim for attorney's fees, for which no allowance was included in the verdict.

3. Where defendant sought to recover for services, evidence that the work had been done by others than defendant was admissible under the general denial.

4. Under Code, § 224, providing that the entry of judgment shall not prejudice a motion for a new trial made in due time, defendant was not prejudiced, where no stay of judgment was prayed, by the entry of such judgment prior to the hearing of his motion for a new trial.

5. Where plaintiff attempted to impeach the character of defendant by the testimony of two witnesses, and defendant produced and examined four in support of his character, it was not an abuse of discretion to refuse to permit him to introduce more.

6. The fact that defendant was surprised by certain evidence is no ground for a new trial. where such surprise was not indicated at the time of the introduction of such evidence.

7. Alleged newly-discovered evidence, merery cumulative, and which might, with the exercise of reasonable diligence, have been produced at the trial, is not ground for a new trial.

S. It was not error to refuse a new trial for alleged misconduct of the jury, where the preponderance of the evidence was against the truth of such charge, and where nothing appeared from which prejudice could be inferred.

Appeal from district court, Gunnison county. Action by Jane R. Johnston against John B. Outcalt. From a judgment on a verdict in favor of plaintiff, defendant appeals. Affirmed.

Alexander Gullett and Goudy & Twitchell, for appellant. Sprigg Shackleford and S. D. Crump, for appellee.

WILSON, J. This action was begun on a promissory note executed by defendant, Outcalt, to plaintiff, and which reads as follows: "Gunnison, Colo., Aug. 3, 1892. $539.55. Ninety days after date, I promise to pay to the order of Jane R. Johnston five hundred and thirty-nine 55-100 dollars at the office of William W. Outcalt, Gunnison, Colo., with interest at 11⁄2 per cent. per annum from date until paid, and per cent. attorney's fees, if not paid at maturity. Value received. [Signed] John B. Outcalt." Indorsed on back: "September 15, 1894. By cash, $200." The copy was not inserted in the complaint, and it was described as being one which provided for the payment of a certain amount as principal, with interest specified, and also a reasonable attorney's fee, in the event that it was not paid at maturity. The answer admitted the execution of the note so far as concerns the statement of principal and interest due, but denied that it provided for the payment of attorney's fees. Defendant also, by way of cross complaint, alleged that plaintiff was indebted to him in the sum of $1,360, with interest, on an account for work and labor performed, and for money laid out and expended, for the use of plaintiff, and at her instance and request. Plaintiff replied by a general denial of each and every allegation of the answer and cross complaint. Upon trial. verdict and judgment were in favor of plaintiff for the full amount of principal and inter

correct, and none were of such character as to give plaintiff any just or legal cause of complaint.

There was much conflict of testimony, and, as usual in litigation between relatives, much bitterness of feeling was exhibited, but the evidence was amply sufficient to sustain the verdict and judgment. In such case, it is well settled that an appellate court will not interfere. This has been so frequently held by this and the supreme court that it is unnecessary to assign the reasons therefor, or to cite authorities.

It is further assigned as error that the judgment was entered prior to the hearing and ruling upon the motion for a new trial. It does not appear that defendant prayed a stay of judgment until the motion could be heard, and Code, § 224, expressly provides that the entry of judgment shall not prejudice any motion for a new trial made in due time. The motion was made, heard, and determined in apt time, and there is no attempt to show that defendant was prejudiced by the previous entry of judgment.

During the trial there was an attempt on the part of the plaintiff to impeach the character of defendant for truth and veracity, and two witnesses were introduced on that point. The defendant, in surrebuttal, produced and examined four witnesses in support of his character. His counsel then announced that three other witness were "on their way to the courthouse, to testify to the reputation of defendant," and that they desired to introduce them. The court announced that it would not hear any more witnesses on that subject, "because four is enough on the question, in view of the fact that that is more than was introduced by the other side." Defendant excepted to this, and assigned such ruling as error. It rests largely in the discretion of the court as to how many witnesses may be allowed to testify on a given point. If it were otherwise, the length of a trial could be protracted to an unreasonable and unwarrantable extent, and the time of the court consumed by the useless and unnecessary reiteration of testimony. There was no abuse of the discretion in this instance, and the court did not err in its action, even if the witnesses had been present in the court room.

It is further urged that the court erred in overruling the motion of defendant for a new trial. All of the grounds set forth in the motion have been referred to in this opinion except three, and these were surprise, newlydiscovered evidence, and misconduct of the jury. The evidence pointed out in the affidavit of defendant in support of his motion as that which was a surprise does not appear to have been very material to the issues, but, even if it had been, defendant did not, at the time of its introduction, indicate to the court that it was a surprise, or ask for time within which to secure evidence to rebut it, or for a continuance. In the opinion in Lee-ClarkAndreesen Hardware Co. v. Yankee (rendered

at the present term of this court) 48 Pac. 1050, it was said: "The plaintiff waived its surprise by its own neglect, failure, or refusal to invoke its proper remedy, and this court will not undertake to interfere with the discretion of the trial court in refusing to grant a new trial in such case." It is well settled that a party cannot avail himself of this plea unless he calls the attention of the court to the matter at the time when it occurs, and asks for proper relief. It is too late for him to manifest his surprise for the first time after the cause has been submitted to the jury, and a verdict rendered against him.

As to the newly-discovered evidence set forth in defendant's affidavit, it was such as he should have been prepared with at the trial, it being pertinent to the issues. Besides, there was on the trial testimony offered and received in his behalf of the same character as that described in his affidavit as newly-discovered evidence. It also does not appear from the affidavit in support of the motion that, with the exercise of reasonable diligence, defendant could not have secured the attendance of the witnesses mentioned, who, he asserts, would have testified to the facts which he terms newly-discovered evidence.

The only allegation of fact to support the charge of misconduct of the jury which merits notice is that one of the witnesses for plaintiff, who seemed to manifest much interest in the suit, did, during a recess of the court during the trial, invite two of the jurors to drink with him at a public bar, and that upon such invitation said jurors did drink intoxicating liquors with him. Without determining the question as to whether this would be sufficient ground upon which to grant a new trial, unless it further appeared, by positive testimony or reasonable inference from the circumstances, that the defendant was prejudiced thereby, it is sufficient to say that the allegation is not supported by the affidavits. The charge was made in the affidavits of two persons, but afterwards one of these, in a subsequent affidavit, modified his statement, to the effect that he did not intend to say that he saw the witness purchase any liquor for any of said jurors, and that in fact he did not see any such occurrence during the trial. Each of the two jurors and the witness who was charged with treating them made affidavit positively denying this statement in toto. The great weight of the testimony being against the truth of the charge of misconduct, and there being nothing in the record from which the court could infer that the defendant was in the slightest degree prejudiced by the conduct of the jurors, or any of them, or of plaintiff's witness, the court did not err in refusing to grant a new trial on this ground.

Being unable to perceive any material error disclosed in the voluminous record before us, we must affirm the judgment, and it is so or dered. Affirmed.

1. The statute providing that notice of trial of a cause shall be given to defendants does not require notice of the time when the cause will be tried, but notice merely that the cause will be set for trial.

2. It is not essential to the validity of a decree or judgment that it be served upon any party to the cause after it is filed.

3. An application to set aside a decree of foreclosure and a sale thereunder cannot be granted if it does not disclose any valid defense in favor of applicant.

Appeal from superior court, Stevens county; Jesse Arthur, Judge.

Action by the Western Security Company against Joseph Lafleur, Douglas Griffitts, and others, to foreclose a mortgage. Default was entered against Lafleur and others, and afterwards judgment was also rendered against Grif. fitts and others, decreeing foreclosure and a sale of the property. From an order granting a motion to vacate the judgment and set aside the sale, plaintiff appeals. Reversed.

Crow & Williams, for appellant.

REAVIS, J. Appellant brought an action against defendants to foreclose a mortgage executed by defendants Lafleur and wife on real estate in Stevens county. Default was entered against defendants Lafleur and wife, Spokane Falls & Northern Railway Company, and Frank C. Sharkey, for failure to appear in the action. Defendants Douglas Griffitts and Nuzum and wife appeared and demurred to the complaint, and afterwards, on January 5, 1897, filed their answer nunc pro tune as of date October 20, 1894. On May 28, 1895, appellant served a notice that the cause would be set for trial on the law day appointed by the rules of the superior court for setting causes for trial. The cause was set for trial on December 9, 1895, and was tried, and findings of fact and conclusions of law filed by the court in accordance with the allegations of the complaint. There was

no appearance of the defendants at the trial. Respondents afterwards objected to signing the decree, but in January, 1896, the decree of foreclosure was entered in conformity to the findings and conclusions. An order of sale was issued on the decree, and the mortgaged premises were sold, and purchased by appellant, which received a certificate of sale from the sheriff. On December 29, 1896, respondents served and filed a motion to set aside the judgment on the ground that it was irregular and improperly granted, and such motion was supported by the affidavit of the attorney. On January 5, 1897, the court entered an order granting the motion, and vacating the decree and judgment, and setting aside the sale which had been made. Appellant excepted to this order, and appeals therefrom.

The complaint is the usual one in a fore closure of mortgage. The only mention of the respondents is in one paragraph, in which it is stated that they claim some interest o lien in or to the mortgaged premises, which lien appellant alleges is inferior and subsequent to the lien of the mortgage. Respondents deny the material facts of the complaint. on information and belief, and admit that they claim some right or interest or lien in the mortgaged premises. They do not set up what their claim or interest is. The only reason assigned by respondents in their application to the court for vacation of the judgment was that no notice of trial or hearing of said cause was given these defendants, or either of them, or their attorneys, at the time said hearing was had and judgment taken, and that no copy of the said decree or judgment has ever been served upon them. The affidavit in support of this motion states: "No notice of bringing this cause to trial at the time it was brought to trial and decree rendered was ever served on myself or said defendant, and no copy of said decree or judgment was ever served upon us, or either of us, or our attorneys, to my knowledge." It may be said upon this motion, and upon the facts. stated in the affidavit, that the statute does not require notice of the time the cause will be tried, but only requires a notice of setting the cause for trial shall be served on the opposite party three days before any time fixed by the rules of the court for setting the cause for trial, and that the case will be brought on for trial at such time as the court shall fix. It is not necessary for the validity of a decree or judgment that it be served upon any party to the cause after the same is filed, and again there was no showing of merits in favor of respondents. or any valid defense disclosed in the application to vacate the judgment. This is essential. The order to vacate the judgment was made without any grounds to sustain it. It is therefore reversed, with directions to the superior court to annul the order of vacation and reinstate the judgment and decree of foreclosure.

SCOTT, C. J., and ANDERS and GORDON, JJ., concur.

(17 Wash. 399) HINCHMAN ▼. POINT DEFIANCE RY. CO. et al. (Supreme Court of Washington. July 19, 1897.) APPEAL-EFFECT OF PART REVERSAL-REHEARING -PROCEEDINGS NOT IN RECORD.

1. When two mortgages are claimed to cover the same property, and a decree is rendered adjudicating the rights of the mortgagees, and ordering a sale of the property, at their united request, a subsequent reversal of the decree as to the rights of the parties will not invalidate the sale, but will merely alter the disposition of the proceeds.

2. The appellate court on rehearing an appeal will not notice proceedings taken in the case in the court below since the appeal was taken.

On rehearing. Modified.
For former decision, see 44 Pac. 867.

GORDON, J. This cause was before the court at the January term, 1896, and was reported in 14 Wash. 349, 44 Pac. 867. A petition for rehearing was filed by the respondent, in which, among other things, it was stated that that part of the former opinion of the court to which the petition for rehearing was directed was "based and predicated upon a mistake of fact, and upon the assumption that the Lewis mortgage covers poles, wires, and electric equipments south of South Ninth street." Continuing, the petition further states: "If such were a fact, then the conclusion reached by your honors would necessarily be correct." Upon consideration of the petition for rehearing the following order was made: "Ordered, that a rehearing be granted in the above-entitled cause on the point as to whether or not the John C. Lewis mortgage covers any other or different line of railroad than that from Point Defiance to South Ninth street, in the city of Tacoma, and that this cause be set for argument at the October term." What the court really intended by the order was to direct argument to the question of whether the Lewis mortgage covered any property which was not covered or embraced within the terms of the Hinchman mortgage; it being the contention of the respondent, throughout his petition for rehearing, that the property embraced within the two mortgages was identical. It may be conceded that, so far as real property was included or embraced within the terms of either mortgage, it was confined to the line of railway north of South Ninth street. At the time when the Hinchman mortgage was executed the maker of that mortgage, the Point Defiance Railway Company, owned no property south of South Ninth street; and, so far as the record discloses, it never was any part of the purpose or intention of that company to secure, by purchase or otherwise, any line of railway extending south of that street. It had, in addition to the line which it was then operating, surveyed and purposed extending its line northerly from the north end of its road as then operated, and this extension was thereafter completed; and we have held in our former opinion, and still adhere to the conclusion reached in that regard, that such extension was fairly included within the terms of respondent's mortgage. But the Lewis mortgage was made at a much later date, by a new company, which had not only acquired all of the property owned by the maker of the Hinchman mortgage, but, in adCition thereto, had in the meantime acquired by purchase an additional line of railway, of several miles in length, known as the "Wapato Park Belt Line," all of which was south of South Ninth street. We quote from the testimony of Stewart Rice, one of respondent's witnesses: "Question. What is the fact about the Point Defiance, Tacoma & Edison Company purchasing certain railways after it bought the railway of the Point Defiance Railway Com

A.

Q.

pany? Answer. We purchased another line of railway at the same time, but none afterwards. Q. What was the other line of railway? That was the Wapato Park line of railway. That road connects with the line of railway we have been discussing here, does it not? A. It does, through the Tacoma Railway & Motor Company's line; yes, sir. Q. That is known as the 'South End'? A. Yes, sir; spoken of as the 'South End.' Q. And the line in controversy here is called the 'North End'? A. Yes, sir." The Wapato Park Belt Line, which was purchased at or about the same time as the other, was at the time of the purchase operated solely by steam power, whereas the Point Defiance railway was at the time of its purchase in part operated as an electric street railway; that is, about 11⁄2 miles was being so operated, and the balance thereof was being equipped for operation as an electric street railway. Shortly after purchasing these two theretofore independent lines of railway, the Point Defiance, Edison & Tacoma Railway Company, the then owner of both roads, entered into contracts with the Northwest General Electric Company and the Edison General Electric Company for cars, motors, and other appliances needful and necessary in operating an electric road, and the construction of a distribution circuit and equipment for 13 miles of track. These contracts were made subsequent to the time of acquiring both roads, and all cars and motors so purchased were afterwards operated upon the entire line of road, both north and south of South Ninth street; in other words, between Edison, the south end of the system, and Point Defiance Park, the north end of the system. Just when this consolidation took place, or when the new company commenced to run its cars over the entire system, is, we think, entirely immaterial. It is enough that it did so prior to the execution of the Lewis mortgage, and that mortgage, contrary to the contention of the respondent, includes within its terms "all passenger cars. both open and closed (supposed to be twelve or more in number), freight cars (of which there is supposed to be one or more), construction cars, flat cars, car bodies, trucks, including both those on which cars are now mounted and those on which none are now mounted, motors now in use for operating said cars, and motors designed for such use, but not now in use therefor, and all trolleys, trolley stands, controllers, rheostats, car wires, car fixtures, lamps, spare parts, tools, and instruments, and in fact everything pertaining to the complete electrical equipment of said cars now owned by said party of the first part, and used or intended for use, wholly or in part, on either or any line or lines of street railway owned, leased, or operated by said party of the first part, whether the line or lines of street railway on which such cars or electrical equipments thereof, or any thereof, are used, lie northerly or southerly of said South Ninth street, in said city of Tacoma, or wheresoever such cars or electrical equipments thereof may lie, or wherever the same may be used." The testimony of