remand, but was limited either to a dismissal | incorporating the city of Carson (St. 1875, of the appeal or to a trial of the case anew. The orders under review are annulled. SWEENEY and TALBOT, JJ., concur. (33 Nev. 1) BARNES v. CITY OF CARSON. (No. 1,885.) (Supreme Court of Nevada. July 30, 1910.) MUNICIPAL CORPORATIONS (§ 755*)-EXCAVATIONS IN STREETS-LIABILITY OF CITY. In an action against a city for personal injuries resulting from plaintiff's falling into an excavation made in a street, although the act of incorporation of the city may have given to the city trustees exclusive power to regulate its streets, drains, etc., yet where it appeared that for some years the city had paid the bills which were approved by the city trustees for street work done by the city marshal and had permitted him to do such work, it must be presumed that it authorized him to make the excavation in question rendering the city liable for his negligence. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1587; Dec. Dig. § 755.*] Appeal from District Court, Ormsby County. Action for personal injuries by Theresa Barnes against the City of Carson. Judgment for plaintiff, and defendant appeals. Affirmed. Roberts & Sanford and Summerfield & Curler (Robert Richards, of counsel), for appellant. Samuel Platt and Alfred Chartz, for respondent. SWEENEY, J. Respondent obtained a judgment against the appellant in the sum of $5,000 for personal injuries on account of falling into an excavation made in one of the public streets of the city of Carson, which excavation was alleged to have been made by the appellant and negligently left unprotected. From the judgment, and from an order denying the defendant's motion for a new trial, defendant has appealed. It is the main contention of appellant that the proofs failed to show that the excavation was made under the authority of the city trustees or that they, with knowledge, ratified the acts of the persons who performed the work. It is the contention of appellant that the evidence shows, without conflict, that the work was done under the direction of the city marshal acting independently of the city trustees, and that there was no proof that he was authorized by the said city trustees to perform such work, nor was his act ratified by the said trustees with knowledge of the circumstances. It is further contended upon the part of appellant that the said city marshal, by virtue of his office, had no power to make the excavation, nor did he possess, by virtue of his office, any supervision over the streets and alleys of the city of Carson. Section 10 of the act c. 43, as amended by St. 1907, c. 29) provides: "The board of trustees shall have the following powers: * 3. To lay out, extend or change the streets and alleys in said city and provide for the grading, draining, cleaning, widening, lighting or otherwise improving the same; also to provide for the construction, repair, preservation, grade and width of sidewalks, bridges, drains and sewers and for the prevention and removal of obstructions from the streets, alleys and sidewalks, drains and sewers of said city. * * It may be conceded, under this provision of the statute, that the control of the streets, sidewalks, and alleys of Carson City is exclusively in the hands of the city trustees, and that the city marshal, by virtue of his office, has no power or control over the same. Whatever acts the city marshal may perform in relation to the streets, sidewalks, and alleys of the city must be by virtue of authority from the city trustees, or else they are, in law, but the mere acts of a stranger. The excavation in question was made by one A. Lafreniere, who testified that he was employed by and acting under the general direction of the city marshal. The said Lafreniere testified that he had been in the employ of the city marshal for about four years prior to the accident in question, and that he was paid for his services by the city. It also appears from the record that the said. Lafreniere was the man generally in charge of the street work for the city. While Mr. Lafreniere testified that he was employed by and acting under the direction of the city marshal in the matter of looking after the streets and alleys of the city, and while the marshal's testimony was to the same effect, it can hardly be said, we think, that both the city marshal and Mr. Lafreniere were not working under the direct authority of the city trustees. All claims for services rendered were approved by the city trustees and paid by the city and this condition of affairs is shown by the record to have existed for at least four years prior to the accident in question. It cannot be said, we think, that a long-continued arrangement of this kind was not without the authority and approval of the city trustees who alone had legal authority in the premises. Had the proofs shown that the city marshal and the witness Lafreniere had assumed to act only in the particular case which resulted in the injury to the plaintiff and respondent, it might well be contended that the city would not be bound by their acts unless by proof of special directions in this particular case or by subsequent ratification with full knowledge of all the facts. Where it appears conclusively, however, that the work done upon the streets, which occasioned the accident, 4 110 PACIFIC REPORTER. was in pursuance of a policy in reference to such streets that had existed for a number of years, it must be presumed that such policy was with the approval of the lawfully constituted authority. 'However, whatever question there may be as to whether the work in question was done by lawful authority or was subsequently ratified, the same, we think, is removed from question in the case by the pleadings themselves. The answer of the defendant, appellant herein, sets up the following: "For a third, other, and affirmative answer and defense to plaintiff's complaint, defendant alleges and shows to the court as follows, to wit: That at the time mentioned in plaintiff's complaint, to wit, the 24th day of January, 1906, and for several days immediately prior thereto, a violent storm and precipitation of water occurred in Carson City and the vicinity thereof, necessitating defendant, by and through its employés, in different places to temporarily open drains and ditches in order to allow the flood waters to pass therethrough, and that because of said necessity defendant did on the said 24th day of January, A. D. 1906, at the place mentioned in plaintiff's complaint, partly open the plank covering of a drain ditch, and did temporarily remove therefrom accumulated débris and dirt for the purpose of allowing said flood waters to pass through, but that said act or acts of defendant were rendered necessary by reason of the extraordinary and unusual conditions herein mentioned, and that said removal and deposit of said materials was temporary and was performed and caused to be performed by defendant in as reasonable and safe a. manner as said existing conditions permitted." of the ordinances or in the giving of the instruction, the same were without prejudice. When it was established upon the trial that the excavation was made in the street by the city and negligently left in the nighttime without proper lights to indicate the same, and that by reason thereof the plaintiff was injured, there was nothing left for the court and jury to determine but the amount of damages. As the other alleged errors did not go to the question of the amount of damages, the alleged errors, if any occurred, could not possibly have been prejudicial, hence we have given them no consideration whatever. The judgment and order of the lower court are affirmed. NORCROSS, C. J., and TALBOT, J., con cur. (33 Nev. 44) McKIM v. DISTRICT COURT OF SECOND (Supreme Court of Nevada. Aug. 4, 1910.) Under Civil Practice Act, § 39 (Comp. Laws, § 3133), providing that the only pleadings on the part of the defendant shall be a demurrer or an answer, and section 44 (section 3139) merated in section 40 (section 3135) as grounds providing that when any of the matters enuof demurrer do not appear on the face of the complaint, the objection may be taken by anset up in the answer. swer, matters in abatement or bar can only be see Pleading, [Ed. Note. For other cases, Cent. Dig. § 180; Dec. Dig. § 87.*] 2. TRIAL (8 4*)-PRELIMINARY QUESTIONS— DETERMINATION. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 8-10; Dec. Dig. § 4.*] 3. DIVORCE (§ 175*)-DETERMINATION AS TO JURISDICTION-MODE OF REVIEW. From this alleged appellant's defense, it Where the answer raises a question prelimappears that the city authorities knew, prior to the accident, that a condition existed mak-inary to the right of the court to determine the mine such matter before considering issues going ing it necessary to make repairs in the street merits, it is proper for the court to first deterat the place where the accident occurred, to the merits. and that it did make the excavation which occasioned the accident and resulting injury to the plaintiff, for which a judgment for There damages was recovered in this case. is here a clear admission in the appellant's answer of the only fact that has been argued upon the appeal as being unsupported by the evidence. The evidence is without contradiction that the excavation was left in the evening without lights to warn pedestrians of its existence and that by reason of such negligence, the injury in question occurred. No question is presented upon the appeal that the damages were excessive. The question raised by defendant in divorce as to the sufficiency of the evidence to estabcan be reviewed only by appeal, and not by lish residence on the part of the complainant original proceedings in the Supreme Court, seeking to obtain an order requiring the judge of the divorce should not be permitted to file his the trial court to show cause why defendant in plea in abatement. [Ed. Note.-For other cases, see Divorce, Cent. Dig. § 562; Dec. Dig. § 175.*] In the matter of Smith H. McKim against Error is assigned in the admission of certain city ordinances over defendant's objec- the District Court of the Second Judicial tion and in the giving of one instruction to District of the State of Nevada and others. the jury, but in the view we take of this On a petition praying that respondents be re case, even conceding, without so deciding, quired to permit petitioner to file a certain that the lower court erred in the admission plea in abatement. Proceeding dismissed. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes James Glynn, for petitioner. Boyd & Salis- Section 40 of the civil practice act (Comp. bury (Horatio Alling, of counsel), for respond-Laws, § 3135) enumerates the grounds of de ents. murrer to the complaint. Section 44 of the act (Comp. Laws, § 3139) provides: "When any of the matters enumerated in section forty do not appear upon the face of the complaint, the objection may be taken by answer." NORCROSS, C. J. An action for divorce was instituted by Margaret E. McKim, as plaintiff, against Smith H. McKim, as defendant, in the Second judicial district court of the state of Nevada, in and for the county of Washoe, before Honorable W. H. A. Pike, district judge. The said defendant, petitioner herein, through his attorney, James Glynn, served notice upon the plaintiff, Margaret E. McKim, that upon a time certain he would move the said district court for an order permitting him to appear specially in the action for the purposes of filing a plea in abatement, raising the question of the jurisdiction of the said district court to try the action for divorce, upon the ground that the plaintiff, the said Margaret E. McKim, was not at the time of the filing of her complaint, nor for six months immediately prior thereto, nor at all, a bona fide resident of the said county of Washoe or of the state of Ne-ing action as matter in bar, and to say that vada, as alleged in her complaint. The motion came on regularly to be heard and was denied by the court. The said defendant has instituted this original proceeding in this court and prayed for an order requiring the respondent to appear and show cause why the plaintiff should not be permitted to file his said plea in abatement, and to appear specially for such purpose; and further, that the said district court be restrained from rendering a default in said action against said defendant, and from proceeding further to try the said action upon the merits thereof, or to render any judgment therein upon the merits, until the further order of this court. Our practice act does not permit the filing of a plea in abatement as a pleading separate or distinct from the answer. Matters in abatement or in bar may only be set up in the answer. Bliss on Code Pleadings, § 345, says: "In common-law pleadings we have the rule that 'pleas must be pleaded in due order;' that is, the dilatory pleas must be first made and disposed of, to be followed by pleas in bar. The Code requires the defendant either to demur or answer, and in his answer he is allowed to set up as many defenses as he may have. Only one answer is contemplated, and all the defenses which he elects to make must be embraced within it. Matter in abatement is as much a defense to the pend the defendant may reserve the latter until a trial shall have been had upon the issues in regard to the former would interpolate what is not in the statute-would be inconsistent with its plain and simple requirements." Sutherland on Code Pleadings, vol. 1, § 459, says: "Pleas, by that name, are unknown to the Code. The only pleadings, on the part of the defendant, are demurrer and answer. See, also, Preston v. Culbertson, 58 Cal. 198; Wells v. Patton, 50 Kan. 732, 33 Pac. 15. The defendant, petitioner herein, may set up in his answer such defenses to the plaintiff's alleged cause of action as he may have. It is not entirely clear from the face of It is well settled in states having a code prothe petition whether counsel regards this cedure like ours, that the defendant only has proceeding as one in mandamus to compel two pleadings, a demurrer to the complaint, and an answer. Where the answer raises a the trial court to permit him to appear specially and to file his plea in abatement, or question which is preliminary to the right one in prohibition to prohibit the court from of the court to determine the merits of the further proceeding, until the defendant is action, the better procedure would be for the permitted to file such plea. We think it may trial court to determine it first before proseriously be questioned whether the proceed-ceeding to consider the issues which go to ing in this court may be regarded as an ap- the real merits of the action. plication for either of such writs. The petiIt is the duty of courts in divorce proceedtion, however, presents a question of consid-ings to see that the proof of residence is clear erable importance and we prefer to determine it upon the merits, rather than upon a mere technicality of procedure. Our Civil Practice Act provides: "Sec. 37. All the forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed in this act. Comp. Laws, 3132. "Sec. 39. The only pleadings on the part of the plaintiff shall be the complaint, or demurrer to the defendant's answer; and the only pleadings on the part of the defendant shall be the demurrer, or the answer. Comp. and convincing, and that a fraud is not being perpetrated upon the court. Phillips v. Welch, 11 Nev. 187. Having attempted to attack the validity of the plaintiff's residence, although in a manner not recognized by our procedure, the trial court will doubtless permit the defendant a reasonable opportunity to file an answer in the case. A question as to the sufficiency of the evidence to establish residence upon the part of the complainant in a divorce proceeding must be taken by appeal, and not by original proceeding. People v. Surrogate's Court, 36 Hun (N. Y.) 218; People v. Surrogate of Putnam, 16 Abb. N. S. W. 318; State v. Superior Court, 11 Wash. |icy was issued is not shown. Soon after the 111, 39 Pac. 818. This proceeding is dismissed. SWEENEY and TALBOT, JJ., concur. (59 Wash. 411) BECKMAN v. EDWARDS. (Supreme Court of Washington. July 25, 1910.) 1. INSURANCE (§ 103*)-INSOLVENCY OF COмPANY-LIABILITY OF AGENT. An insurance agent may become liable to one insured, where the insurance is placed in a company known to be insolvent or not authorized to do business in the state. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 130; Dec. Dig. § 103.*] 2. INSURANCE (§ 103*)-INSOLVENCY OF COмPANY-LIABILITY OF AGENT. Where an insurance agent provides a policy in a company which is solvent or generally considered so, he is not personally liable for a loss which occurs when the company subsequently becomes insolvent. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 130; Dec. Dig. § 103.*] 3. FRAUDS, STATUTE OF (8 23)-PROMISE TO ANSWER For DefaulT OF ANOTHER. policy was issued, the same employé of the respondent called again upon the appellant and took away the first policy and left another, and said to the appellant: "You see the policy is changed, but it is the same name put in the policy, and we are back of it, and if the company is no good, we are good for it," or words to that effect. The policy was one issued by the Pacific Mutual Fire Ins. Company for $1,000, on new and secondhand goods, in favor of the appellant. This company was authorized by the insurance commissioner of the state to transact the business of fire insurance in the state until December 31, 1907, and a certificate was regularly issued to that effect on January 2, 1907. The policy in question was issued on September 19, 1907. On March 18, 1908, the respondent resigned his agency for the company. The reason therefor does not appear. On July 24, 1908, the insurance company was adjudged insolvent, and a receiver was appointed therefor. On August 3, 1908, the stock of goods owned by the appellant and insured by the policy above referred to was damaged by fire, and it appears that the company refused to pay the loss. It is not shown that the insurance company was in In a suit against an insurance agent because of loss resulting from the insolvency of his company, the statement of the agent's employé to the policy holder that "you see the policy is changed, but it is the same name put in the pol-solvent at the time the policy was issued, icy, and we are back of it, and if the company is no good, we are good for it," was made after the policy was issued, and was not in writing. Held, that no liability could thereby be cast on the agent. and there is no evidence that the respondent knew, or should have known, that the company was insolvent at that time, except the mere fact that some nine months after [Ed. Note.-For other cases, see Frauds, Stat- the policy was issued the company was adute of, Cent. Dig. §§ 18, 19; Dec. Dig. § 23.*] judged insolvent. The appellant offered to Department 2. Appeal from Superior introduce in evidence certain copies of Best's Court, Spokane County; J. D. Hinkle, Judge. Insurance Reports for 1908, but the evidence Action by E. Beckman against A. C. Ed- shows that the respondent had not seen wards. Judgment for defendant, and plain-these reports prior to the time the company tiff appeals. Affirmed. was adjudged insolvent, and the reports did Samuel R. Stern, for appellant. Nuzum & not show the insolvency of the company. Nuzum, for respondent. They did, however, say that "the company's condition is very weak." MOUNT, J. Appellant brought this action to recover from the respondent the sum of $1,000, because of the alleged negligence of the respondent in insuring the appellant in an insolvent insurance company, and in permitting such insurance to remain in said insolvent company after the company had been placed in the hands of a receiver. At the close of plaintiff's evidence, the trial court directed a nonsuit, and dismissed the action. This appeal followed. While it is true that an agent may become liable to one insured, where the insurance is placed in a company known to be insolvent or not authorized to do business in the state, no such facts appear in this case. The facts shown here are that the company was both authorized to do business in the state and was solvent at the time the policy was issued, and remained so for nine months thereafter. The authorities cited by the appellant do not therefore apply to this case. Where which is solvent or generally considered so, he is not personally liable for a loss which occurs when the company subsequently becomes insolvent. Gettins v. Scudder, 71 Ill. 86. It was not shown that the respondent knew of the statements made by his employé after the policy was issued, or that the employé was authorized to make such stateBut if respondent did know of such It appears that the respondent was an in-au agent provides a policy in a company surance agent, ard, in the year 1907, he represented the Pacific Mutual Fire Insurance Company, a local company doing business in this state. In August, 1907, an employé of the respondent called upon the appellant and solicited insurance upon a certain stock of goods in Spokane. The appellant applied for, and a policy of insurance was issued. The name of the company by which this pol-ments. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes statements, they were made after the policy was issued, and were not made as an inducement to the appellant to take the policy, and the statements were not made in writing. It is clear therefore that no liability was shown against the respondent. The judgment must be affirmed. RUDKIN, C. J., and CROW, PARKER, and DUNBAR, JJ., concur. (59 Wash. 529) Ex parte RAINEY. (Supreme Court of Washington. Aug. 6, 1910.) BAIL ($52*)-CRIMINAL PROSECUTION - AsSAULT IN SECOND DEGREE-EXCESSIVE BAIL. In view of Rem. & Bal. Code, § 2414, punishing assault in the second degree by imprisonment in the penitentiary for not more than 10 years, or by a fine of not more than $1,000, or by both, where the assault was an atrocious one and without provocation, and the assaulted person was severely injured, $5,000 bail was not excessive. [Ed. Note.-For other cases, see Bail, Cent. Dig. 209; Dec. Dig. § 52.*] Rudkin, C. J., and Gose, J., dissenting. En Banc. Habeas corpus by S. R. Rainey. Writ denied. (59 Wash. 436) JOHNSTONE v. PEYTON et al. (Supreme Court of Washington. Aug. 1, 1910.) 1. PROCESS (§ 149*)-SUBSTITUTED SERVICEKNOWLEDGE OF DEFENDANT'S RESIDENCEEVIDENCE. Evidence held to show that plaintiff, who brought foreclosure proceedings, serving defendant by publication and mailing a copy of the summons and complaint to P., knew or by the exercise of reasonable diligence should have known that defendant at the time resided at C. [Ed. Note.-For other cases, see Process, Cent. Dig. § 205; Dec. Dig. § 149.*] 2. APPEAL AND ERROR_ (§ 1011*) — REVIEW - FINDINGS OF FACT-CONCLUSIVENESS. Findings of fact of the trial court on conflicting evidence are conclusive on appeal. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*] 3. LIMITATION OF ACTIONS (§ 100*)-ACCRUAL OF CAUSE OF ACTION-FRAUD. An action for relief against a decree of foreclosure on the ground of fraud does not accrue until the discovery by the aggrieved person of the facts constituting the fraud; and one having no notice of the judgment or sale until a few months prior to the commencement of his action would not be barred. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 480-493; Dec. Dig. Frank Kelley, for relator. F. G. Remann, 100:* Judgment, Cent. Dig. § 864.] for respondent. PER CURIAM. This is a proceeding by habeas corpus. It appears that the petitioner is charged with the crime of assault in the second degree. His bail bond was fixed in the sum of $5,000, which he alleges is an excessive and unreasonable amount, and that he is unable to give the same. The assault appears to have been made without provocation, and was an atrocious one, and the person assaulted was and is severely injured. The maximum penalty for this offense is imprisonment in the penitentiary for a period of not more than 10 years, or by a fine of not more than $1,000, or by both. Section 2414, Rem. & Bal. Code. In view of this punishment, and of the atrocity of the offense, of which the court fixing the amount of the bail appears to have been advised, we are of the opinion that the bail is not so unreasonable or éxcessive in amount as to warrant a reduction. The writ is therefore denied. RUDKIN, C. J. (dissenting). The amount of bail to be exacted depends upon the circumstances of each case and necessarily rests to a large extent in the discretion of the court or committing magistrate, but I am nevertheless of opinion that bail in the sum of $5,000 for a laboring man accused of a common felony where he has no means except his daily wages is grossly excessive and should be materially reduced. I therefore dissent. GOSE, J., concurs. 4. LIMITATION OF ACTIONS (§ 100*)-ACCRUAL OF CAUSE OF ACTION-FRAUD. Notice of the entry of the judgment should not be imputed to plaintiff, especially where he met the foreclosing mortgagee after entry of the judgment, and the fact of the foreclosure was not disclosed to him, though the subject-matter of their conversation was the mortgage indebtedness, and called for such a disclosure by the mortgagee. Actions, Dec. Dig. § 100.*] En Banc. Appeal from Superior Court, Action by Thomas K. Johnstone against I. N. Peyton and others. Decree for plaintiff, and defendants appeal. Affirmed. Wakefield & Witherspoon, for appellants. W. C. Jones and Wm. T. Stoll, for respondent. CHADWICK, J. Some time prior to the 1st day of June, 1892, the plaintiff, who was a resident of the city of Chicago, purchased from the defendants, who were residents of the city of Spokane, certain real property in Spokane county. On the above date the defendants executed a deed of the property thus purchased in favor of the plaintiff, and took back a purchase-money mortgage in the sum of $1,675. On the 25th day of March, 1893, the plaintiff paid to the defendants the sum of $182.75, by check on a Chicago bank, to cover the interest on the mortgage indebtedness up to June 1, 1893, and the 1892 taxes date no further payments have been made against the mortgaged property. Since that on account of principal, interest, or taxes. At or about the date of the execution of the mortgage the plaintiff removed from Chicago |