diction. But the rule itself, as well as the reason for its exercise, has no existence in a case where the actions are brought in the same court, and the judgments are rendered by the same tribunal. There is but one superior court in the city and county of San Francisco, and all of the actions brought in that court are within the same jurisdiction. White v. Superior Court (Cal.; S. F. 118) 42 Pac. 480. The assignment of causes to different departments does not take place until after the court has acquired jurisdiction of the cause, and is made in order to expedite the business of the court, by apportioning them to the several judges for trial and judgment. The jurisdiction over a cause, after it has been assigned by the presiding judge to one of the other judges for trial, remains in the same court, and neither the judge to whom it has been assigned, nor the department over which he presides, has any jurisdiction over the cause distinct from that of the court in which the action is pending. The entire procedure, from the commencement of the action to the execution of the judgment, is in one court; and there is `no opportunity for conflict of jurisdiction, either in pronouncing a judgment or in its execution after it has been rendered. When, therefore, a suit is commenced in that court upon a cause of action which is then pending before it in another suit, or which has already been carried into judgment, the procedure to be observed is the same as if the two actions were in a court with but a single judge, before whom all causes therein were to be tried. If the defense of a pending suit, or the estoppel of a former judgment, is not pleaded when such defense is available to the defendant, he cannot, after an adverse judgment, avail himself of this defense, which he neglected to plead when he had an opportunity to do so, any more than he could avail himself of any other defense which he had omitted to plead.

When the present action was commenced, the action of Priest v. Brown was pending in the same court, and had not been tried. The main issue in that action was whether Priest had the right to subject the lands described in the complaint to the payment of his claim against Joseph Brown. After Priest had been made a defendant in the present action, at the instance of the appellants Campbell and Kent, he filed an answer, in which he pleaded the pendency of the former action, and the identity of the issues and parties thereto with those in the present action. There was thus presented to the court for determination the precise question involved in this motion; and if this issue had been tried, and found against the plaintiff, the judgment of the court would have been that the action should abate, and the rights of the parties would have been determined by the judgment in the former action. Instead of taking this course,

the appellants asked the court, and the court at their instance struck this defense from the answer of Priest, and the cause was tried upon the same issues as were presented in the former action, without any objection to a re-examination of them by the court. It is too clear for argument that the appellants cannot, after an adverse judgment upon-issues of their own selection and framing, interpose a defense to the enforcement of that judgment which they had an opportunity to present for the purpose of defeating the respondent's claim, but which they industriously sought not to have presented to the court for its judgment thereon.

When this cause was here upon the former appeal, the appellants urged the reversal of the judgment because of the prior judgment in the case of Priest v. Brown, which they had pleaded as a bar to any further litigation of the issue then determined. In holding that this plea of a former judgment was unavailing, for the reason that the judgment had not become final, the court said: "But while the judgment in Priest v. Brown was not, for the reason stated, a bar to the cause of action alleged in the cross complaint, still the pendency of that action would have been a good ground for the continuance of this until the final determination of the former action, or would have been a sufficient basis for an order dismissing the present action upon motion of the plaintiff, notwithstanding the affirmative relief demanded by the defendant Priest in his cross complaint, and the refusal of the court to have granted either of such motions, would perhaps have been erroneous; but no such motion was made by the plaintiff, and the trial proceeded without objection, the plaintiff still insisting upon the judgment in Priest v. Brown as an estoppel, and as ground for a judgment in his favor." In Harris v. Barnhart, 97 Cal. 546, 32 Pac. 589, it was said: "Where a judgment is ineffectual as evidence in a plea of former adjudication until the time for an appeal therefrom has expired, the true course of a defendant in such a case would be to plead the pendency of the former action in abatement, until the judgment therein became final, when a supplemental answer averring the proper facts in bar of the action would be in order."

The appellants Campbell and Kent urge that, as they are mere stakeholders, they are liable to suffer by reason of the different judgments in the two causes. If, however, they had retained their position as stakeholders, and had complied with the offer made in their original answer to the complaint of the plaintiff by paying the money into court, they would then have been entitled to a judgment discharging them from further liability therefor; but, after Priest had been brought into the action at their instance, they abandoned their position as stakeholders, and defended against his right to receive any of the money. Having thus

they cannot claim any of the consideration due to a stakeholder, but are in the position of any other litigant who has failed to sustain his defense. The order is affirmed.

2. Act March 31, 1891 (St. 1891, p. 195), requires corporations to pay laborers and mechanics wages due weekly or monthly, on such day in each week or month as shall be selected by the corporation; and section 2 gives mechanics and laborers a lien for wages so due and not paid. Held, that a complaint in an action to establish a lien under section 2 must show that the wages for which the lien is sought to be enforced were payable weekly or monthly.

Department 1. Appeal from superior court, Lassen county; W. T. Masten, Judge.

Action by one Keener against the Eagle Lake Land & Irrigation Company on a claim for services, and to have the same declared a lien. From a judgment for plaintiff, defendant appeals. Affirmed in part, and in part reversed.

Goodwin & Goodwin, for appellant. Shinn & Shinn and F. A. Kelley, for respondent.

HARRISON, J. The plaintiff, under an employment by the defendant, performed labor upon certain reservoirs, dams, and ditches belonging to the defendant at different times between May 27, 1892, and June 23, 1893, amounting in the aggregate, according to the agreed rate of compensation, to the sum of $868.75, of which he was paid the sum of $378.82. He brings this action to recover from the defendant the balance thereof, viz. $488.93, and to have that sum adjudged to be a lien upon the property of the defendant. Judgment by default was rendered in his favor, and the defendant has appealed.

1. The appellant urges that the judgment is void by reason of there being no proof of service of the summons upon the defendant. The service was made by a private individual, and in his affidavit he states that "he personally served the same upon J. H. Elledge, the managing agent of the abovenamed defendant, Eagle Lake Land and Irrigation Company, a corporation, on the 13th day of January, 1894, by delivering to sald

1 Rehearing denied.

[corporation] named in said action." It is objected that this affidavit merely shows that the service was made upon Elledge, and does not show that it was made upon the corporation. It would be sacrificing substance to form to hold that this service was not made upon the defendant. It sufficiently appears from the complaint that the defendant is a corporation, and the corporation is the only defendant in the action. The affidavit of service upon one who is named the managing agent of the corporation is prima facie proof that he was such officer, and the statute authorizes the service to be made upon him for the corporation. Rowe v. Water Co., 10 Cal. 442: Golden Gate Min. Co. v. Superior Court, 65 Cal. 187. If Elledge had been a codefendant with the corporation, and the return of service had shown that only one copy of the summons had been delivered to him, there would be some reason for holding that it was a personal service upon him alone; but, as the corporation is the sole defendant, that reason does not exist.

2. The appellant does not contest the amount for which judgment was given, but contends that the judgment was erroneous in declaring that the plaintiff is entitled to a lien therefor upon its property. The plaintiff relies in support of the judgment upon the act passed March 31, 1891 (St. 1891, p. 195). That act is as follows:

"Section 1. Every corporation doing business in this state shall pay the mechanics and laborers employed by it the wages earned by and due them weekly or monthly, on such day in each week or month as shall be selected by such corporation.

"Sec. 2. A violation of the provisions of section 1 of this act shall entitle each of the said mechanics and laborers to a lien on all the property of said corporation, for the amount of their wages, which lien shall take preference over all other liens, except duly recorded mortgages or deeds of trust."

By the terms of the first section of this act, It does not apply to all corporations, but only to those who, while doing business in this state, employ laborers and mechanics by the week or month, whose wages, under the terms of their employment, are payable weekly or monthly. It does not purport to impose upon those corporations any duty or liability towards all the mechanics or laborers whom it may employ, or to create a right in favor of those of its employés whose wages are not earned or payable by the week or by the month. As the remedy sought to be enforced herein exists only by virtue of the statute, it was incumbent upon the plaintiff to bring himself within the terms of the stat

ute, and to show that the wages earned by | him were "due weekly or monthly." His complaint is, however, defective in this respect, and 'contains no allegation concerning the times at which the wages were payable, or that he was employed at weekly or monthly wages; and, from the allegations in reference thereto, it would seem that there was no agreement upon this point,-the greater part of his labor being computed by the day, and at different rates per day for different periods during the year. The plaintiff did not acquire any right to enforce a lien by reason of the notice of mechanic's lien filed by him. As he was employed by the corporation, if he would rely upon the lien given by the provisions of the Code of Civil Procedure, his notice of lien should have been filed within 30 days after the completion of the work or improvement on which he had expended his labor. As it appears from the notice of lien attached to his complaint that the works were incomplete at the time it was filed, his notice was premature, and failed to confer a right of lien. Davis v. McDon. ough (Cal.) 42 Pac. 450. It is conceded by the plaintiff that this notice of lien was insufficient, within the requirements of the mechanic's lien law, but he contends that his lien exists by virtue of the act of 1891. That act, however, makes no provision for filing a claim of lien, but purports to create the lien upon the violation by the corporation of section 1. As the plaintiff is not entitled to avail himself of the provisions of the act of 1891, that provision of the judgment allowing him counsel fees was unauthorized. The judgment in favor of the plaintiff for the sum of $488.93 and costs of suit is affirmed. That portion of the judgment awarding counsel fees, and declaring that the plaintiff is entitled to a lien upon the property of the defendant, and directing a sale of such property, is reversed.

(13 Wash. 335)

STATE v. WILLIAMS. (Supreme Court of Washington. Dec. 30, 1895.)

INFORMATION - PRELIMINARY HEARING-Time of OFFENSE-INDIANS-JURISDICTION OF CRIMINAL OFFENSES.

1. Under 2 Hill's Ann. Code, § 1204, ar thorizing an information when the party is not already under indictment, and the court is in session and the grand jury is not, where an information was set aside it was proper to permit a new information to be filed without preliminary examination.

2. Under 2 Hill's Ann. Code, § 1239, providing that the precise time at which a crime was committed need not be stated, an information charging a murder "on or about" a certain date is sufficient.

3. An Indian who has severed his tribal relations may be prosecuted in the courts of the state, whether the crime was committed within or without the reservation.

4. An Indian who retains his tribal relations may be prosecuted in the courts of a state for a crime committed at a place without the limits of a reservation.

5. An information filed in the superior court of a county containing within its limits an Indian reservation, against a person described in the information as an Indian, need not aver that such person does not sustain tribal relations, or that the offense was not committed within such reservation.

6. Instructions will not be reviewed where no exceptions were taken thereto.

7. It is not the duty of the court to address its instructions to each one of the jury, as individuals.

Appeal from superior court, Skagit county; Henry McBride, Judge.

Joe Williams was convicted of murder in the second degree, and appeals. Affirmed. C. C. Bitting and E. C. Million, for appellant. George A. Joiner, for the State.

GORDON, J. An information was filed in the lower court charging the appellant with the crime of murder in the first degree. Thereafter said information was, upon motion of appellant's counsel, set aside because of imperfect verification, and, against the obJection of the appellant, the court permitted a new information to be filed. To this latter information appellant demurred, and the demurrer was overruled. Thereafter, the appellant refusing to plead, a plea of not guilty was entered by direction of the court, and upon trial the jury returned a verdict of murder in the second degree. Motions for a new trial and in arrest of judgment having been overruled, he was sentenced to imprisonment in the penitentiary for the term of 15 years, and has appealed to this court from the judgment of conviction.

The first error assigned is that the court wrongfully permitted the filing of the new or amended information. Under this head it is urged that no preliminary examination of the defendant was had before a committing magistrate. Unlike that of California and some of the other states, our constitution does not make a preliminary examination necessary. The information upon which the defendant was tried asserts all of the

facts necessary to give the court jurisdiction under the provisions of 2 Hill's Ann. Code, § 120, which authorizes public offenses to be "prosecuted in the superior courts by information in the following cases: * * (4) Whenever a public offense has been committed and the party charged with the offense is not already under indictment therefor, and the court is in session and the grand jury is not in session, or has been discharged."

2. The information upon which the appellant was tried and convicted is as follows: "Joe Williams (an Indian) is accused by Geo. A. Joiner, as prosecuting attorney for Skagit county, state of Washington,-the court being in session and the grand jury of said county not being in session,-of the crime of murder in the first degree, committed as follows: The said Joe Williams (an Indian), in the county of Skagit, in the state of Washington, on or about the 13th day of November, A. D. 1893, did purposely, and of his deliberate and premeditated malice, kill Jimmy Dan (an Indian), by then and there, purposely and of his deliberate, premeditated malice, stabbing and mortally wounding the said Jimmy Dan (an Indian) with a certain knife, to wit, a butcher knife, which he, the said Joe Williams (an Indian), then and there held in his hand." In support of his demurrer, appellant insists that the words "on or about," in the charging part of the information, are indefinite and insufficient. Conceding the allegation insufficient under the common-law requirements, we think the objection is not well taken under the provisions of our Code governing prosecutions by information or indictment. 2 Hill's Ann. Code, §§ 1239,1 1244; Rawson v. State, 19 Conn. 292; State v. Thompson (Mont.) 27 Pac. 349; State v. Harp (Kan. Sup.) 3 Pac. 432; People v. Littlefield, 5 Cal. 355. It is further insisted that the demurrer should have been sustained because it appears from the information that the accused is an Indian, and also that the person alleged to have been killed was an Indian; that the Swinomish Indian reservation lies within the county of Skagit; and that the court will take judicial notice of the existence and boundaries of said reservation. We do not think the objection is well taken. "Prima facie, all persons within the state are subject to its criminal laws, and within the jurisdiction of its courts. If any exception exists, it must be shown." State v. Tachanatah, 64 N. C. 614. And in 1 Bish. Cr. Law, § 154, that learned author says: "But, if the members of an Indian tribe scatter themselves among the people of a state, they become amenable to the

1 Section 1239, 2 Hill's Ann. Code, provides as follows: "The precise time at which the crime was committed need not be stated in the information; but it may be alleged to have been committed at any time before ** the filing of the information, and within the time in which ai action may be commenced therefor, when the time is a material ingredient in the crime."

*

state laws." Our investigation of the authorities leads us to conclude: First, that an Indian who has severed his tribal relations may be prosecuted in the courts of this state, without regard to whether the place of the commission of the offense is within or without the limits of a reservation; second, that an Indian who retains his tribal relations may be prosecuted in the courts of this state for offenses committed at a place not within the limits of an Indian reservation; third, that an information filed in the superior court of a county containing within its limits a part or the whole of an Indian reservation, against a person who is described in the information as an Indian, need not, in order to confer jurisdiction, aver either that sucherson does not sustain tribal relations, or that the offense was not committed within the limits of such reservation. U. S. v. Kagama, 118 U. S. 375, 6 Sup. Ct. 1109; State v. Campbell, 53 Minn. 354, 55 N. W. 553; People v. Antonio, 27 Cal. 404; People v. Ketchum, 73 Cal. 635, 15 Pac. 353; Hunt v. State, 4 Kan. 51. We may properly add, in this connection, that the evidence upon the trial showed that the homicide occurred at a point in the said county of Skagit distant about 50 miles from the reservation referred to, and, further, that the proof tends strongly to show that both the defendant and the deceased had for years lived among the whites, not on any reservation, and that neither of them maintained tribal relations.

3. Various rulings of the trial court, made in the course of the examination of witnesses upon the trial, are assigned as error. It is sufficient to say that upon examination we find that the rulings were not erroneous. 4. Appellant urges that the court erred in instructing the jury in two particulars pointed out in his brief. The record discloses, however, that no exception was taken to the instructions, and in such case we have uniformly held that we would not examine the instruction so assailed. Further, it appears to our satisfaction that no prejudice could have resulted from the giving of the instructions complained of.

5. The appellant requested, and the court refused to give the jury, the following instruction: "If any one of the jury, after having considered all the evidence, and after having consulted with his fellow jurymen, entertain a reasonable doubt of the guilt of the defendant, the jury cannot in such case find the defendant guilty. Each juror must be satisfied beyond a reasonable doubt of the defendant's guilt, before he can, under his oath, consent to a verdict of guilty." This court passed upon a similar request for instruction in State v. Robinson, 41 Pac. 884; holding that "it was not the duty of the court to address its instructions to each one of the jury, as individuals. It was sufficient if the law was correctly stated, as it applied to the duties of the jury as a collective body." We are satisfied with such holding, and no error

was committed by the trial court in refusing to give the instruction asked. The judgment of conviction will be affirmed.

HOYT, C. J., and ANDERS, DUNBAR, and SCOTT, JJ., concur.

(13 Wash. 169)

DOTY et al. v. KRUTZ. (Supreme Court of Washington. Dec. 4, 1895.) APPEAL JURISDICTIONAL AMOUNT-QUESTION AFFECTING VALIDITY OF STATUTE.

1. In an action for damages for removal out of the state of the property subject to liens aggregating $147, though the complaint laid the damages at $250, and demanded judgment for that amount, the amount involved was $147.

2. The questions whether an action is properly brought under a statute, whether a recovery can be had under a statute, and whether there is any statute governing the action, are not questions affecting the validity of a statute, within the constitutional restriction as to appeals in actions involving an amount less than $200.

Appeal from superior court, Walla Walla county; William H. Upton, Judge.

Action by E. H. Doty and others against Harry Krutz to recover damages for the removal out of the state of property subject to plaintiffs' liens. From a judgment for plaintiffs, defendant appeals. Dismissed.

The aggregate amount of plaintiffs' liens on the property alleged to have been removed by defendant was $147, and the ad damnum clause in the complaint alleged the damage to be $250, for which amount judgment was prayed.

B. L. & J. L. Sharpstein, for appellant. J. W. Brooks, for respondents.

DUNBAR, J. The respondents in this case interpose a motion to dismiss the appeal on the ground that this court has no jurisdiction to try the cause, for the reason that the original amount in controversy does not exceed $200. This motion, we think, will have to be sustained. It is evident from the complaint that the amount originally in controversy was less than $200, but appellant insists that the amount alleged in the ad damnum clause in the complaint, and for which judgment was prayed, was the amount involved, so far as the constitutional inhibition on appeals where the amount is less than $200 is concerned. We do not think the constitution can be so construed. If so, any claim for a judgment which could not possibly be obtained under the pleadings would permit an appeal, and destroy the object of the constitutional enactment.

It is further insisted in the reply brief that the action involved the validity of a statute. But we think this position is also untenable, and, if this proposition was raised, it was not raised in appellant's original brief, nor on the trial of the action below, as far as we can ascertain by the record. pellant, it is true, in his original brief claims v.43P.no.1-2

The ap

that this suit was not properly brought under the statute, and that there was no statutory action in this state for eloignment of logs. But this does not raise the question of the validity of the statute. Whether an action is properly brought under a statute, whether a recovery can be had under a statute, or whether there is any statute governing a particular action, are all questions of the construction of statutes, but are not questions which go to the validity of a statute. And this meets the suggestion of the appellant in his reply brief that "we contend that this statute is of no validity so far as farm liens are concerned." We think the case falls squarely within the constitutional restriction in relation to actions where the amount does not exceed the sum of $200, and the appeal will therefore be dismissed.

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

(13 Wash. 171)

GRIESEMER v. BOYER et al. (Supreme Court of Washington. Dec. 4, 1895.) ALLOWANCE TO WIDOW--WHEN PROPER-RESIDENCE OF WIDOW.

1. Code Proc. § 973, provides that, if the amount set aside to the widow and minor children of a decedent as exempt be insufficient for their support, the court shall make such further reasonable allowance out of the estate as may be necessary for the maintenance of the family according to their circumstances during settlement of the estate. Held, that it was no ground for denying an application for such further allowance, the exemption being insufficient, that the widow had abundant means of her own with which to maintain herself.

2. The fact that the widow and children left the state on the death of the husband and father, and continued to reside outside thereof, did not deprive them of the right to the further allowance for their maintenance pending settlement of the estate given by Code Proc. § 973.

Appeal from superior court, Pierce county; Emmett N. Parker, Judge.

Petition by Ella W. Griesemer, widow of Chester F. Griesemer, deceased, against Boyer & Rex and others, creditors of decedent's estate, for an allowance for maintenance of herself and minor children. From a judgment denying the petition, petitioner appeals. Reversed.

Murray & Christian, for appellant. Easterday & Easterday and A. R. Heilig, for respondents.

DUNBAR, J. The appellant is the relict of Chester F. Griesemer, who died intestate at Philadelphia, Pa., October 29, 1892, but who was, at the time of his death, and had been since 1889, a resident of the state of Washington. Appellant and five minor children were also residents of Pierce county, Wash. At the time of his death Griesemer owned unimproved real estate and personal property in said county. The only personal property of the estate consisted of household