evil tendencies of the act. The act in ques tion here was framed by a commission composed of men eminent for their ability, who gave to the work extended consideration. It was selected by the Legislature from among a number of proposed acts having a similar purpose submitted for their examination, and this, too, after its evil tendencies had been fully pointed out by the representatives of the different interests to be affected by it. In the light of these facts, the court cannot do otherwise than put it to the test of practice. Moreover, the question becomes one of less importance when it is remembered that the sessions of the Legislature are sufficiently close together to enable that body to correct any evil influence the enforcement of the act may have before it becomes unduly harmful.. In the foregoing discussion we have not referred to the decision of the Court of Appeals of the State of New York in the case of Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 N. E. 431, which holds the workmen's compensation act of that state to be in conflict with the due process of law clause of the state Constitution, and the fourteenth amendment to the Constitution of the United States. The case has, however, been the subject of extended consideration in the briefs of counsel, and it is urged upon by counsel for the auditor as conclusive of the questions at bar. The act the court there had in review is dissimilar in many respects to the act before us, and is perhaps less easily defended on economic grounds. The principle embodied in the statutes is, however, the same, and it must be conceded that the case is direct authority against the position we have here taken. We shall offer no criticism of the opinion. We will only say that notwithstanding the decision comes from the highest court of the first state of the Union, and is supported by a most persuasive argument, we have not been able to yield our consent to the view there taken. We conclude, therefore, that the act in question violates no provision of either the state or federal Constitutions, and that the auditor should give it effect. Let the writ issue. DUNBAR, C. J., and CROW, MORRIS, ELLIS, MOUNT, PARKER, and GOSE, JJ., concur. CHADWICK, J. (concurring). This proceeding is prosecuted by the relator, a simple contract creditor of the state. There is no party in interest before us whose interest it is to challenge the act of the Legislature. This is a moot case, pure and simple, and the right of the relator to recover is in no way affected by the constitutional questions raised by the parties and discussed by the court. The Legislature having created the industrial insurance commission, its power to organize cannot be questioned by any one who is not affected by the terms of the law, and such expenses as it may incur are proper charges against the state and may be collected without reference to the power of the commission to levy a tribute upon certain kinds of business, or to make disbursement of the funds under the provisions of the act. Without questioning or discussing the conclusions of the court upon the first three propositions advanced, with all of which I agree, the fourth proposition should not now be decided for the very palpable reason that our decision is binding upon no one, not even upon the court. No one will contend that it is of any concern to a furniture dealer who is seeking to collect his account whether an injured workman is to be deprived of the right to submit his cause to a jury of his peers. The principle is too important to be mooted by the court, for some day a real party in interest will be before us-either an employer who feels aggrieved at the operation of the law, or a workman who has received injuries which the accepted schedules will not compensate. And we will be put to the duty of deciding the case without reference to our present decision, so that the federal questions involved may pass for final hearing to the Supreme Court of the United States. The right to recover damages for personal injuries suffered in consequence of the negligence of another was an admitted right at common law, so that the question whether the seventh amendment to the Constitution of the United States, which preserves the right of trial by jury in all cases maintainable at common law which are begun in the courts of the United States, would not compel a federal court to ignore our statute, and the consequent question, whether a party assessed could be compelled to contribute to the indemnity fund unless he is to be protected from all suits of like character, becomes most material, and it is to be hoped that we will have an early opportunity to meet these issues in a proper case. That the people of the state of Washington can take away a right of action, or abolish the right of trial by jury, I have no doubt; but whether the Legislature can do so without the warrant of the whole people expressed by way of amendment or repeal of sections 3 and 21 of article 1 of the state Constitution is a grave question which is not discussed in the opinion of the court. The right of trial by jury has ever been regarded as the very sinew of liberty. It was the cardinal principle of the great charter, and "it is worthy of note that all that is extant of the legislation of the Plymouth Colony for the first five years consists of the single regulation that all criminal facts, and also all manner of trespasses and debts between man and man, shall be tried by the verdict of twelve honest men, to be impaneled by authority, in form of a jury upon their oath.' 1 Palfrey's New England, 340." Cooley's Const. Limitations (6th Ed.) p. 389, note. tion involves only alleged errors occurring in the cause in which the judgment is rendered. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 83 758-785; Dec. Dig. § The right is asserted in every state Constitution. Section 21, supra, provides that "the right of trial by jury shall remain inviolate." No distinction is made between civil and criminal cases; indeed, the addi-2. APPEAL AND ERROR (§ 113*)-ORDERS AP tional text would indicate that no distinction was intended. This guaranty has been held by this court to apply to all civil-law actions maintainable at common law. State ex rel. Mullen v. Doherty, 16 Wash. 382, 47 Pac. 958, 58 Am. St. Rep. 39. I am a firm believer in trial by jury and am of equal faith that the will of the people as declared in their written Constitution is binding upon Legislatures as well as courts, until the people by like adoption express a contrary will. We should not decide otherwise except at the suit of a proper party. The present law seems to be greatly to the advantage of the employer for whom an easy method of discharging an obligation to his injured employé is provided, but whether the Legislature can take from the workingman his right to have the amount of his compensation fixed by an authority less than the very people, who have said "the right of trial by jury shall remain inviolate," is for future hearing. I have not advanced these observations in the way of objections, for the result of the court's opinion is a consummation for which I have devoutly hoped; but to indicate merely that our decision upon the fourth proposition-the right of trial by jury-is not settled by this decision and should not be so regarded, and further, in the event that it be finally held that a jury trial cannot be dispensed with, under our present Constitution, that the objection may be easily overcome without doing violence to the purpose or principle of the act, and without amendment to the Constitution, by providing that, in the event of a dispute as to the amount of com pensation, a jury shall be called to try that issue, and that its verdict shall be conclu 113.*] PEALABLE-REFUSAL TO MODIFY FINAL DE CREE. An order denying a motion to modify a final decree is not appealable where the motion is based on alleged errors committed in the cause in which the decree is rendered. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 758-785; Dec. Dig. § 113.*] Department 1. Appeal from Superior Court, King County; C. H. Neal, Judge. Action by the Robertson Mortgage Company against the Magnolia Heights Company and others. From an order denying an application for a modification of a final foreclosure decree, defendants appeal. Dismissed. John T. Condon, for respondent. PARKER, J. This cause is before us upon motions of respondent to dismiss the appeals attempted to be taken by the defendants Magnolia Heights Company, W. H. B. Thomas, and wife, and Westmoreland Company from an order of the superior court for King county, denying their applications for modification of a final foreclosure decree theretofore rendered against them in that court. [1] A careful reading of the applications seeking modification of the final decree fails to disclose any grounds for modification as prayed for, other than such as are based upon alleged errors committed by the superior court in the proceedings upon which that final decree rests. It has been repeatedly held by this court that an order denying a motion to vacate a final judgment, when the motion involves only alleged errors occurring in the cause in which the judgment is rendered, is not appealable, but that a review of such errors must be sought in this court by a direct appeal from the final judgment. Sound Investment Co. v. Fairhaven Land Co., 45 Wash. 262, 88 Pac. 198; State of Washington v. Tenney, 115 Pac. 1080. [2] An application to modify a final decree, based alone upon alleged errors committed by the court in the cause in which the decree was rendered, is the same in principle as an application to vacate a final judgment or decree because of such errors. Each is equally an effort to have reviewed mere errors occurring in the cause, otherwise than by an appeal from the final judgment or decree. If errors could be reviewed by such method, the time limit for taking appeals would be rendered practically ineffectual. The appeals are dismissed. DUNBAR, C. J., and CROW, MOUNT, and GOSE, JJ., concur. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 117 P.-71 (59 Or. 603) BOWMAN v. SHERILL et ux. (upreme Court of Oregon. Oct. 3, 1911.) L. FRAUDULENT CONVEYANCES (8 241*)-PRO CEEDINGS-EXECUTION-NECESSITY. Where one is insolvent or has been adjudged a bankrupt, when he conveys land in fraud of creditors, the issuance of an execution is not necessary to entitle creditors to set aside the conveyance. [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. 720; Dec. Dig. 8 241.*] 2. HOMESTEAD (§ 180*)-RIGHT. The right of either the husband or wife to claim a homestead in property is not defeated by its conveyance from one of them to the other for the purpose of keeping the property from creditors. [Ed. Note.-For other cases, see Homestead, Cent. Dig. §§ 349-350; Dec. Dig. § 180.*] 3. HOMESTEAD (§ 189*)-EXEMPTION-CLAIM IN CREDITORS' SUIT-RIGHT. Since a decree sought in a suit by creditors to have property claimed to have been fraudulently conveyed sold, and the proceeds applied upon the debts, would practically operate as an execution, the debtor may claim a homestead exemption in the property sold in such suit. [Ed. Note.-For other cases, see Homestead, Cent. Dig. 358; Dec. Dig. § 189.*] Appeal from Circuit Court, Washington County; J. U. Campbell, Judge. judged a bankrupt, the issuance of an execution is not necessary. [2, 3] We are satisfied from the testimony that both the conveyances were made or procured with intent to defraud creditors, and that Mrs. Sherill did not contribute anything toward the purchase of either tract. Either of the defendants had a right to claim a homestead in the property on the Moore claim, and this right is not defeated by a conveyance from one to the other. A decree, such as is sought in this case, would operate practically as an execution, and we see no reason why this exemption should not be claimed and urged in this proceeding. The decree should be so modified as to provide that plaintiff should have a lien upon the tract in the Moore claim for the amount of the proved debts, subject to the right of defendants or either of them to occupy it as a homestead, with leave to apply to the court for an order of sale whenever it shall cease to be so occupied. In all other respects the decree will be affirmed. Neither party will recover costs in this court. DAVIS v. REDDY. (60 Or. 354) Action by Benton Bowman, trustee in HAFER v. MEDFORD & C. L. R. CO, et al. bankruptcy of the estate of W. E. Sherill, against W. E. Sherill and wife. From a (Supreme Court of Oregon. Oct. 3, 1911.) judgment for plaintiff, defendants appeal. 1. APPEAL AND ERROR (§ 414*)- ADVERSE Affirmed as modified. In January, 1909, W. E. Sherill was adjudged a voluntary bankrupt, and plaintiff was appointed his trustee in bankruptcy. Prior to this, on October 28, 1908, Sherill, without consideration, conveyed to W. P. Dyke certain land described in the complaint and hereinafter called, for convenience, "a part of the Moore claim." On the same day Dyke conveyed the land without any actual consideration to Mrs. Sherill. On the 13th of November, 1908, Sherill traded a team of horses to one Weisenbeck for lot 6, in block 37, South Coast addition to the city of Hillsboro, taking a deed therefor in his wife's name. Plaintiff brings this suit to have the deed declared fraudulent as to creditors, and praying that the property be sold and the proceeds applied upon the proved debts of W. E. Sherill. Defendants answered, denying all allegations of intent to cheat or defraud creditors, and further set up that the land situated in the Moore claim is a home stead, and therefore exempt from execution and sale. John A. Jeffrey (M. B. Bump, on the brief), for appellants. W. G. Hare (Bagley & Hare, on the brief), for respondent. PARTIES-NOTICE OF APPEAL. A party to a judgment, within the rule that every party to litigation who is interested adverse party and must be served with notice in sustaining the judgment appealed from is an of appeal, must be one who was made a party at the commencement of the case, or brought in thereafter by order of court, or became a party in some manner recognized by law. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 2137-2138; Dec. Dig. 414.*] 2. APPEAL AND ERROR (8 424*) — ADVERSE PARTIES-NOTICE OF APPEAL. ing a claim against a corporation in the hands One appealing from a judgment disallowof a receiver, appointed at the suit of a stockholder who appeared and contested the allow ance of the claim, must serve notice of appeal on the stockholder, who is an adverse party, and service on the receiver is insufficient. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2152-2154; Dec. Dig. § 424.*] Appeal from Circuit Court, Jackson County; F. M. Calkins, Judge. Action by Edgar Hafer against the Medford & Crater Lake Railroad Company and others. From a judgment disallowing a claim of defendant A. A. Davis against the corporation, he appeals, making the receiv er of the corporation respondent. Dismissed. com Defendants Davis, Adkins, Whitehead, Keene, and Vawter, as promoters and inMCBRIDE, J. (after stating the facts as corporators, incorporated defendant above). [1] Where a party, fraudulently con- pany for the purpose of constructing a railveying land, is insolvent or has been ad-road from Medford to Crater Lake, in JackFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes George H. Durham and William M. Colvig, for appellant. A. E. Reames, for respondent. son county, Or., with a capital stock of corporation to the amount of his claim. The no500,000 shares, of the par value of $1 per Davis appeals from this decision. share. In the complaint it is alleged that tice of appeal is directed to J. F. Reddy, rethe original incorporators issued to them-ceiver, and Reames, his attorney, due service selves, as fully paid, 60 per cent. of the of which notice was accepted by Reames. stock of the corporation, namely, 260,000 The receiver now moves the court to dismiss shares, when, in fact, nothing was paid for the appeal, for the reason that the notice it, except it was shown by the minutes of was not given to or served upon the adverse the corporation that a resolution was adopt- party in the decree. ed to purchase from one of their number all the rights of way, surveys, estimates, and franchises for the sum of $260,000, and made it appear on the stock books and record that the $260,000 had been paid on the stock EAKIN, C. J. (after stating the facts as subscribed by them, and that amount paid above). [1, 2] The rule is that every party for the rights of way, estimates, etc., that to a litigation who is interested in sustainthe whole proceeding was a device on the ing the judgment or decree appealed from is part of the promoters to secure a majority an adverse party, and must be served with of the stock, fully paid up, without expense notice. Moody v. Miller, 24 Or. 179, 33 Pac. to them; and that thereafter plaintiff and 402. A party to a judgment must be one other citizens of Jackson county were in- who was made a party at the commenceduced by the promoters to, and they did, ment of the case, or brought in thereafter subscribe for stock in the corporation, and by order of the court, or became a party in paid the face value thereof to the amount some manner recognized by law. Medynski of $21,000; that, after spending in con- v. Theiss, 36 Or. 397, 399, 59 Pac. 871; Instruction work the said $21,000, $35,000 bor-man v. Sprague, 30 Or. 321, 47 Pac. 826. At rowed by the company and secured by mort-least Hafer, plaintiff in the case, who apgage upon the property of the company, and peared and protested against the allowance certain moneys advanced by Davis, as man- of the claim of Davis, is an adverse party. ager of the company, the work was abandoned. The motion to dismiss is allowed. (59 Or. 565) He is directly interested in sustaining the decree, and therefore must be served with Plaintiff, as a stockholder, commenced notice thereof. Whether the other stockthis suit on behalf of himself and such other holders who appeared at the hearing of this stockholders as should ask to be joined with proceeding are parties, within the decisions him as plaintiffs, to have a receiver appoint- last above cited, need not now be decided. ed to take charge of the property of the cor- The only person served was the receiver, poration, to collect the unpaid subscription who is not a party to the suit nor interested of stock, and to settle its affairs. A receiver in the subject of the litigation, other than was appointed, who sold the property of as an officer of the court, and interested in the corporation for the sum of $82,500, $46,- protecting the creditors and stockholders. 457.52 of which amount was paid in satis-Therefore the notice was not served on any faction of the mortgage debt of the company. adverse party. After the sale of the property of the company by the receiver, defendant A. A. Davis presented to the receiver a claim against the corporation for $21,753.42, for money advanced by him to the company and applied in construction work, which claim was disallowed by the receiver. Plaintiff and other stockholders, who had paid for their stock, filed with the clerk of the court their formal appearance in writing, and protested against the allowance or payment of the claim of Davis, which came on for hearing before the court, the protestants appearing by their counsel, and after the evidence was heard the court adjudged that the claim of Davis cannot be allowed as an indebtedness against the corporation, for the reason that, at the time Davis advanced to the corporation the money which makes up the claim, he was indebted to the corporation in a sum greater than the amount so advanced, and that his claim should be set off against his debt to the corporation, but that he be considered as having paid-up stock in the MOORE . LACHMUND et al. (Supreme Court of Oregon. Sept. 26, 1911.) 1. INJUNCTION (§ 243*) - BONDS - JOINT OR SEVERAL OBLIGATION. Where an injunction bond recited that "plaintiffs undertake and promise to pay all costs and disbursements that may be decreed to defendants, and such damages as they may sustain by reason of the injunction, if it be wrong. ful," the undertaking creates a liability running in favor of any one of the defendants. [Ed. Note.-For other cases, see Injunction. Cent. Dig. 88 553-556; Dec. Dig. § 243.*] 2. INJUNCTION (§ 250*) LIABILITIES ON BONDS-ACTIONS-VARIANCE. the defendants, was an obligation to each one For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes tween the allegations of the complaint and the proof of the bond first mentioned, for L. O. L. $37, allows the real party in interest to sue alone on any undertaking. [Ed. Note. For other cases, see Injunction, Dec. Dig. § 250.*] 3. ESTOPPEL (§ 78*)-ESTOPPEL IN PAIS. A contract for the sale of hops to be grown on certain land stated that plaintiff's wife was the owner of the land, and was signed by plaintiff, his wife, and the tenant in possession. Plaintiff acquired the land by deed from his wife, bearing date earlier than that of the contract. Held, that if at the time of the execution of the contract the wife had conveyed the land to plaintiff it had no bearing on the contract, as he also was a party to it; and, in an action on a bond given in a suit to enjoin plaintiff and the other parties to the contract, plaintiff was not estopped from setting up that he was the owner of the land and the real party in interest. & Company, and another. From a judgment for plaintiff, defendants appeal. Affirmed. This is an action to recover damages suffered by plaintiff by reason of the breach of an undertaking given on the issuance of a temporary injunction in the case of Lachmund and others against G. J. Moore, Rebecca A. Moore, and C. E. Nash. Plaintiffs in the latter case brought suit against defendants upon the contract, dated March 19, 1906, providing for the cultivation, harvesting, and sale, by defendants to plaintiffs, of 15,000 pounds of hops, and, on September 29, 1906, plaintiffs procured the preliminary injunetion, enjoining defendants from selling the hops pending litigation. On December 21st thereafter, the circuit court rendered a final [Ed. Note.-For other cases, decree in the suit against defendants for the see Estoppel, Cent. Dig. §§ 204-210; Dec. Dig. § 78.*] sum of $900, with interest and costs, and in 4. INJUNCTION (§ 239*) the decree the injunction was made perpetBOND-TIME COVERED BY BOND. ual. The undertaking for the injunction beA bond given for a preliminary injunction, ing in the following words: "Whereas, the in accordance with L. O. L. § 417, requiring above-named plaintiff's commenced suit in the the undertaking to be that plaintiff and surety circuit court for Marion county, Oregon, Dewill pay all costs and disbursements that may be decreed to defendant, and such damages, not partment No. 2, against the above-named deexceeding such amount therein specified, as fendants, and have applied to the circuit defendant may sustain by reason of the injunc-court for a writ of injunction to restrain the tion, if it be wrongful, covers not only the damages until the injunction is made permanent, but all damages up to the time of dismissal by the Supreme Court. LIABILITIES ON [Ed. Note. For other cases, see Injunction, Dec. Dig. 239.*] 5. APPEAL AND ERROR (§ 1033*)-ERROR FAVORABLE TO PARTY COMPLAINING-INSTRUCTIONS-BOND-DAMAGES. defendants from doing certain acts complained of, particularly set forth in their said complaint; and whereas, the plaintiffs are desirous that said writ of injunction should issue as prayed for: Now, therefore, we, Louis Lachmund & Company, plaintiff, as principals, and Russell Catlin, as surety, do hereby undertake and promise that the plaintiffs will pay all costs and disbursements that may be decreed to the defendants, and such damages, not exceeding the sum of $1,750, as they may sustain by reason of the injunction, if the same be wrongful or without sufficient cause. Dated this 29th day of September, 1906. [Signatures.]" A temporary injunction was issued on plaintiff's giving a bond, restraining defendants from selling certain hops. The injunction was made permanent, and on appeal was dismissed. Before the dismissal, the hops were sold under the injunction decree, and defendants in the injunction suit brought an action on the bond. The jury were instructed to allow them the amount of the depreciation in value of the hops between the time of the issuance of the injunction and its dismissal. Held, that the On appeal to the Supreme Court by defendchligors in the bond were not prejudiced by the ants, the decree was reversed, and the ininstructions, as they could not return the hops, they having been sold on execution, and if they junction dissolved on March 17, 1908. Prior were worth more, at the time the original suit to the decision of the Supreme Court, namewas dismissed, than they were at the time of ly, on January 16, 1907, the hops were sold the sale on execution, plaintiffs in the injunc-on an execution issued upon the decree, for tion suit could claim no advantage from it, as the hops had been converted by them. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4056-4058; Dec. Dig. § 1033.*] 6. EVIDENCE (§ 113*)-MARKET VALUE-EXECUTION SALE. Evidence of the price obtained for personal property sold under execution is competent evidence of the value of the property at the time of the sale, if the sale was not made under extraordinary circumstances. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. § 113.*] Appeal from Circuit Court, Marion County; Geo. H. Burnett, Judge. the sum of $1,075, of which $11 were applied upon the expenses of the sale. On May 23, 1908, after the decision of the Supreme Court, $1,064 the proceeds of the hops-were paid to G. J. Moore, who brings this action to refered by reason of the injunction, namely, cover upon the undertaking the damages sufthe value of the hops at the time the injunetion was issued (17 cents a pound), less the amount received by him from the execution sale. At the trial plaintiff offered in evidence a deed, dated March 17, 1906, from Rebecca A. Moore, conveying the land upon which Action by G. J. Moore against Louis Lach- the hops were grown to G. J. Moore, also the mund and Julius Pincus, copartners doing assignment of the lease from C. E. Nash to business under the name of Louis Lachmund G. J. Moore, dated September 10, 1906, the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |