execution issue thereon, but, when otherwise, power to render judgment is limited to property brought before the court by valid attach ment. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 25-33, 1431, 1432; Dec. Dig. 88 17, 807.*] run in the name of the state of Oregon, and be signed by the officer issuing the same; and if such process be issued by a clerk of a court, he shall affix thereto his seal of office." B. & C. Comp. § 1227. The writ of attachment in the action brought by Law Appeal from Circuit Court, Douglas Coun- rence was issued by the clerk of the cirty; J. W. Hamilton, Judge. Suit by Frank F. Starkey against James H. Lunz. From a judgment dismissing the action, plaintiff appeals. Reversed. cuit court for Douglas county, who omitted to affix any seal to the instrument. Some contrariety of judicial expression exists respecting the efficacy of process to which the This is a suit by Frank F. Starkey against officer issuing it has neglected to attach his James H. Lunz, to determine an adverse in- seal when he has one, and is required by terest in 160 acres of land in Douglas coun- law to affix it. We think these decisions can ty, the complaint being in the usual form. be reconciled when the statutes severally The answer denies the material averments construed are examined. If by such enactof the complaint, and alleges that on Au- ments process can be amended before or gust 19, 1904, John Brown was the owner after a judgment has been rendered, the of the real property in controversy, and, be- failure of a clerk of court to attach to a ing indebted to David H. Lawrence, the lat- writ his official seal, when so required by ter commenced an action against him in the law, will be regarded as a remedial irregcircuit court for the above-named county, ularity; but, if the statute does not authorand, having made and filed the necessary ize such a change of process, the neglect to affidavit for an attachment and given the affix the seal makes the writ void. Thus in requisite undertaking therefor, a writ was Gates v. Reynolds, 13 Iowa, 1, the opinion issued pursuant to which the land was at- announced, as subsequently explained by tached on the day named; that a judgment the Supreme Court of that state, illustrates was rendered in that action and the land the characteristic difference here attemted to ordered to be sold; that a sale thereof was be made. That was an action to recover made to Lawrence, the sale confirmed, and unliquidated damages for false representaa sheriff's deed executed to the purchaser tions, and a writ of attachment having been who conveyed all his interest in the prem- issued without presenting to a court or ises to the defendant herein; and that, by judge the complaint for allowance of the virtue of such proceedings, the latter became amount and value of the property to be seizand is the owner in fee of the property. The ed, as required by the Code of 1851, it was reply put in issue the allegations of new held that an error was committed by the matter in the answer, and, the cause having trial court in denying the defendant's mobeen tried, the court found that the attach- tion to dissolve the attachment. Referring mert proceedings were in substantial com- to the decision in that case, Mr. Justice Seevpliance with the requirements of the staters in Magoon v. Gillett, 54 Iowa, 54, 55, 6 ute in such cases, and dismissed the suit, N. W. 131, says: "At that time there was whereupon the plaintiff appeals. no statute as there is now authorizing the S. D. Allen, for appellant. A. M. Craw-proceedings in the attachment to be amendford, for respondent. MOORE, C. J. (after stating the facts as above). The plaintiff asserts title from Brown by a subsequent attachment of the land, a judgment, a sale, and a sheriff's deed, and by a deed from such former owner. It is maintained that in the action instituted by Lawrence the writ of attachment was void, and that as Brown was not a resident of Oregon, nor found therein, and did not appear or answer in that action, the judgment directing a sale of the premises was rendered without jurisdiction, and, such being the case, an error was committed in dismissing the suit. The defect which, it is insisted, makes the writ ineffectual, is the failure of the officer issuing it to attach his seal. The statute prescribing the style of writs is as follows: "All process authorized by this Code, to be issued by any court or officer thereof, shall ed, and strict construction of the attachment law was the rule." After setting out the statute permitting amendments of writs of attachment or other proceedings, it is further observed: "In Foss v. Isett, 4 G. Greene, 76 [61 Am. Dec. 117], it was said that a writ of attachment issued without the seal of the court had no more force and efficiency than a piece of blank paper, and that it was void and could not be amended. This case was followed in Shaffer v. Sundwall, 33 Iowa, 579. In the subsequent case of Murdough v. McPherrin, 49 Iowa, 479, it was held that a writ which issued from the district court, to which the seal of the circuit court had been attached, could be amended by placing thereon the seal of the court whence it issued. It was urged in that case that a writ without the seal of the proper court was void, and could not be amended, but it was held otherwise. The same point was made in Lowenstein v. Monroe, 52 Iowa, 231 [3 N. W. 51], where the causes for the attachment had been verified by an attorney. These cases are decisive of that at bar, so far as the objection under consideration is concerned." In Insurance Co. v. Hallock, 6 Wall. 556, 18 L. Ed. 948, in construing a statute of Indiana requiring an execution to be sealed, it was determined in a collateral suit that an "order of sale" in proceedings for the foreclosure of a mortgage came within the functions and supplied the purpose of an execution, which, if issued without a seal, was void. In State v. Davis, 73 Ind. 359, 360, it was held that a summons was not void because not attested by the seal of the court, and that the court had the right to order the clerk to affix the seal nunc pro tunc after judgment had been entered and the term closed. In deciding that case Mr. Justice Elliott, speaking for the court, says: "The case of Insurance Co. v. Hallock, 6 Wall. 556 [18 L. Ed. 948], does decide that an order of sale issued by a court of this state was void because not attested by the seal of the court. It has also been held by this court that, where there is no statute to the contrary, a writ or record must be attested by the seal of the court from which it comes." Further in the opinion, it is said: "The liberal provisions of our statute, respecting the summons, would take such writs from under the old common-law rule, even if it were conceded that it is the rule which must be adopted respecting other writs. The provisions of the Code upon this subject are contained in article four, and the provision which directly bears upon this point is found in section 37, and is as follows: 'No summons, or the service, shall be set aside, or be adjudged insufficient, where there is sufficient substance about either to inform the party on whom it may be served, that there is an action instituted against him in court. We think it very clear that the omission to affix the seal does not prevent the writ from imparting to the parties against whom it is issued, and that very fully and distinctly, information that an action is instituted against them." In Choate v. Spencer, 13 Mont. 127, 32 Pac. 651, 20 L. R. A. 424, 40 Am. St. Rep. 425, it was ruled that a summons issued without the seal of the court was void, and could give no jurisdiction where the statute demanded that such process "must be issued under the seal of the court," although the statute also provided that the court should disregard any error or defect in the proceedings which did not affect the substantial rights of the parties. Our statute authorizing changes in promotion of right is as follows: "The court may, at any time before trial, in furtherance of justice, and upon such terms as may be proper, allow any pleading or proceeding to be amended by adding the name of a party, or other allegation material to the cause; and in like manner and for like reasons it may, at any time before the cause is submitted, allow such pleading or proceeding to be amended, by striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or when the amendment does not substantially change the cause of action or defense, by conforming the pleading or proceeding to the facts proved." B. & C. Comp. § 102. A defect in an affidavit for an attachment may be amended. Id. § 311. The right to correct an error being thus limited to an affidavit, it would seem necessarily to follow that the power to change a writ of attachment did not exist, since no provision has been made by statute for amending any process. We do not think the word "proceeding" as employed in section 102, supra, is comprehensive enough to embrace process, for the means by which a class of rights are enforced are denominated special proceedings. Id. tit. VIII. It is a well-recognized principle that a court of general jurisdiction can exercise authority over all property within its territorial limits when brought before it by due process of law, and may dispose of such property by judgment or decree, though its owner is a nonresident, not found within the jurisdiction of the court, and neither appears nor answers in the action. The provisional remedy whereby a court's dominion over property in Oregon is obtained is by attachment, which control is secured by a compliance with the requirements of the statute granting the ancillary remedy. If judgment be rendered in the action and the property subjected to a lien for the payment of a debt has not been discharged from the attachment, the court is required to order and adjudge that the property be sold to satisfy the plaintiff's demand. B. & C. Comp. § 309. If personal service of the summons has been made upon the defendant within the state, or if he has appeared or answered in the action, a personal judgment may be rendered against him, and a general execution can be issued thereon. When he has not been served at the place and in the manner indicated, and has not appeared or answered, the power of the court to render a judgment that is of any binding force is limited to the property which by attachment has been brought within its jurisdiction. The judgment therefore may be in personam and quasi in rem, or the latter only, and, if no jurisdiction of the res has been secured, the court is powerless to condemn the property to the satisfaction of any debt, and the attempted attachment necessarily fails. In order to make valid condemnation, the specific property ordered to be sold must be within the territorial limits of the court held by an efficacious writ of attachment, legally issued, properly executed, and duly returned. Our statute expressly demands that process, when issued by a clerk bill of exceptions, original copy, 120 folios, $12.00; to transcript for Supreme Court, 234 folios, $23.40." Our clerk disallowed these charges, and to review his action in that particular this motion was interposed. of court, shall be evidenced by his official, a cost bill, containing, inter alia, the followseal, and no provision is made by statute ing items: "to stenographer's fee, $9.00; to for correcting the defect occasioned by the failure of that officer to affix his seal. The writ herein, being the process by which jurisdiction of the real property was undertaken to be secured, was ineffectual, the attempted levy thereof created no lien, and the judgment against the land is void and subject to collateral attack. It will be remembered that Starkey caused a subsequent attachment of the real property to be made, and thereafter obtained from the former owner a conveyance of all his interest in the premises. The plaintiff's race with the defendant's grantor, Lawrence, was a contest between Brown's creditors for supremacy, and, Starkey having ultimately won, there is no principle of equity intervening to prevent him from keeping what he procured by his vigilance. The decree will therefore be reversed, and one entered here granting to the plaintiff the relief sought by the complaint. (57 Or. 128) DE VALL v. DE VALL. (Supreme Court of Oregon. Sept. 13, 1910.) 1. COSTS (§ 254*) - ON APPEAL - STENOGRAPHER'S FEES. In a legal action, money paid by a party to the official stenographer as legal fees must be taxed in the trial court, and cannot be entered on appeal as disbursements. [Ed. Note.-For other cases, see Costs, Cent. Dig. § 974; Dec. Dig. § 254.*] 2. COSTS (§ 254*)-DISPOSITION ON APPEAL.EXPENSE OF BILL OF EXCEPTIONS. Where a transcript of the testimony is filed below, appellant, in order to review the judgment, must prepare a bill of exceptions, and expenses incident to the clerical work are not a part of the disbursements on appeal. [Ed. Note.-For other cases, see Costs, Cent. Dig. 974; Dec. Dig. § 254.*] 3. COSTS (§ 254*)-ON APPEAL. Only such legal charges as have been paid or promised to be paid to the clerk for preparing a transcript on appeal may be recovered as a disbursement, so that expenses saved by plaintiff's counsel himself preparing the appeal transcript inured to the benefit of the other party upon reversal. [Ed. Note.-For other cases, see Costs, Dec. Dig. § 254.*] Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge. Action by Beatrice De Vall against Thomas De Vall. Judgment for defendant was reversed on appeal, and items of plaintiff's bill of costs were disallowed, whereupon he mov ed to retax costs. Motion denied. See, also, 109 Pac. 755. Considering the several demands in their order, it is settled that in a law action the sums of money paid by a party to the official reporter as his legal fees must be taxed in the lower court and cannot be entered here as a disbursement. Sommer v. Compton, 53 Or. 341, 344, 100 Pac. 289; McGee v. BeckWhen a ley, 54 Or. 250, 255,1 103 Pac. 61. transcript of the testimony has been filed in the lower court, it is incumbent upon the appellant, if he desires to review the judgment, to prepare a bill of exceptions for settlement and allowance by the judge, and the expenses incident to the clerical work form no part of the disbursements on appeal. Ferguson v. Byers, 40 Or. 468, 477, 67 Pac. 1115, 69 Pac. 32; Allen v. Standard Box & Lumber Co., 53 Or. 10, 19, 96 Pac. 1109, 97 Pac. 555, 98 Pac. 509. It satisfactorily appears that plaintiff's counsel personally prepared the transcript on appeal, to which the clerk appended his Certificate, and for which the sum of $1 was paid, and that no other liability was incurred on account thereof. It is only such legal charges as have been paid or promised to the clerk for the labor necessitated in preparing a transcript on appeal that may be recovered as a disbursement. No sum of money was paid to that officer except $1, and that item appears in the cost bill. If plaintiff's counsel undertook the work on his own account, all expenses thereby saved, in case he were defeated, inure to the benefit of the adverse party. The items referred to were properly rejected, and the action of the clerk is approved. That plaintiffs and defendant agreed to use their joint efforts to secure an option on Thomas M. Dill, for appellant. A. S. Cool- certain property and to sell the same, defendant ey, for respondent. to be the active agent of the venture, that plaintiffs assisted in furthering the venture by counsel, introductions, and personal efforts, that it in the profits, that the venture was successful was agreed that the parties should share equally and defendant was to receive stock of a specified value as compensation, that he was attempting MOORE, C. J. This is a motion to retax costs. The judgment herein was reversed, whereupon plaintiff's counsel served and filed For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 110 P.-45 1 1 102 Pac. 303. to get possession of all the stock and refused to recognize plaintiffs' rights to any interest in the proceeds of the venture, and that he was outside the state and insolvent, shows plaintiffs' right to recover equal interests in the proceeds under the doctrine of joint adventure. 11. JOINT ADVENTURES ( 4*)-ACCOUNTINGRIGHTS OF Parties. A party to a joint adventure holding the profits may be compelled to account to his associates for their share of the property representing such profits in kind. [Ed. Note.-For other cases, see Joint Adventures, Cent. Dig. §§ 3-6: Dec. Dig. § 4.*] [Ed. Note. For other cases, see Joint Adventures, Cent. Dig. § 3; Dec. Dig. § 4.*] 3. JOINT ADVENTURES ( 1*)-CONSIDERATION 12. JOINT ADVENTURES (§ 1*)-PROFITS-FORM. OF-SUFFICIENCY. a Plaintiffs' suggestion to defendant of scheme for merging properties and advice and counsel to him, and the mutual promise of assistance in promoting the venture, were sufficient consideration to sustain an agreement for an equal division of the profits of the venture, though defendant agreed to do all the other work. [Ed. Note. For other cases, see Joint Adventures, Cent. Dig. § 1; Dec. Dig. § 1.*] 4. JOINT ADVENTURES (§ 4*)-TRUSTEESHIP. Where property or profits are acquired under a joint adventure, a party holding title to the same is a trustee for his associates as to their proportionate shares. The profits of a joint adventure may consist of the unsold portion of the property which was the subject of the venture, or property received as compensation for services rendered in connection with the venture, as well as money. [Ed. Note.-For other cases, see Joint Adventures, Cent. Dig. § 1; Dec. Dig. § 1.*] 13. JOINT ADVENTURES (5*) - RIGHTS OF PARTIES-REMEDIES. While a party to a joint adventure may sue his associate at law for breach of the contract or a share of the profits or losses, or contribution for advances in excess of his share, such remedies do not preclude a suit in equity for an accounting. [Ed. Note.-For other cases, see Joint Ad[Ed. Note.-For other cases, see Joint Adventures, Cent. Dig. § 7; Dec. Dig. § 5.*] ventures, Cent. Dig. §§ 3-6; Dec. Dig. § 4.*1 14. ACTION (§ 25*)-LEGAL AND EQUITABLE RELIEF. 5. JOINT ADVENTURES (§ 4*)-RELATION BETWEEN PARTIES. TIES. That the active agent of a joint adventure did not call upon his associates for the aid they agreed to give does not affect their right to share in the profits. [Ed. Note.-For other cases, see Joint Adventures, Cent. Dig. §§ 3-6; Dec. Dig. § 4.*] 9. JOINT ADVENTURES (§ 4*)-ADVANCES BY PARTY-EFFECT. Advances by one party to a joint adventure are loans to the venture for which he is entitled to reimbursement from the proceeds of the venture, but they give him no other superior rights against his associates. [Ed. Note. For other cases, see Joint Adventures, Cent. Dig. §§ 3-6; Dec. Dig. § 4.*] 10. JOINT ADVENTURES (§ 4*)-DIVISION OF PROFITS. In the absence of an express agreement to the contrary, equal division of the profits of a joint adventure is implied, regardless of inequality of contribution. [Ed. Note. For other cases, see Joint Adventures, Cent. Dig. §§ 3-6; Dec. Dig. § 4.*] Under the Code of Civil Procedure, the district courts in proper cases may administer both legal and equitable relief. [Ed. Note.-For other cases, see Action, Cent. Dig. §§ 146-152; Dec. Dig. 25.*] 15. JOINT ADVENTURES (§ 5*)—SET-OFF. One party to a joint adventure may set off against the demand of another advances or payments in behalf of claimant, and hence, in an action to recover an interest in the proceeds of a venture, expenditures by defendant were properly deducted from recovery awarded against him. [Ed. Note.-For other cases, see Joint Adventures, Dec. Dig. § 5.*] NATURE OF 16. JOINT ADVENTURES ( 1*) ventures, Cent. Dig. § 1; Dec. Dig. § 1.*] Action by L. C. Van Riper and another against Charles H. Botsford and others. From a judgment for plaintiffs and from an order refusing a new trial, defendant Botsford appeals. Affirmed. See, also, 106 Pac. 440. Rufus C. Thayer, C. L. Harwood, James F. Peck, Solinsky & Wehe, and Paul C. Morf, for appellant. Detch & Carney, Thomas, Bryant & Malburn, and R. G. Withers (Mack & Green and Horatio Alling, of counsel), for respondents. SWEENEY, J. This action is brought by the plaintiffs L. C. Van Riper and Joseph Hutchinson to recover from the defendant Charles H. Botsford two-thirds of the profits of a deal whereby the Goldfield Mohawk Mining Company and other mining interests paid as a commission to the defendant, Botsford, 100,000 shares of the Goldfield Consolidated Mining stock then valued at $1,000,000, in consideration of his turning over a For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep's Indexes certain option which he held on the Combination Mines Company, which made it possible to merge the properties now constituting the Goldfield Consolidated Mines Company, and do away with certain threatened apex litigation then pending and other suits about to be started. This commission of $1,000,000 was earned during a period not in excess of 45 days from the time the parties conceived and agreed to carry out their agreement along the lines of merging the properties to avoid litigation, and is but illustrative of the opportunities which are ever present in mining excitements in great mining camps to those who may be quick, able, and fortunate enough to grasp an opportunity and successfully put it through to a termination. Though this action was commenced by the respondents L. C. Van Riper and Joseph Hutchinson as plaintiffs against Charles H. Botsford and other above-named appellants as defendants, the real controversy is between the respondents L. C. Van Riper and Joseph Hutchinson and the appellant, Charles H. Botsford. All the other appellants joined with Botsford are in the case nominally, and so far as this case is concerned do not seem to have any real interest in the dispute. The complaint is one based on the doctrine of joint adventure, a doctrine of modern origin, and in effect alleges, in our judgment, the necessary allegations which, if proved, entitle the plaintiffs to the judgment accorded them. The complaint in effect alleges: "First. That the plaintiffs and defendant Botsford entered into an agreement to use their joint efforts for the purpose of securing a certain option and selling the same. Second. That it was agreed that defendant Botsford should be the active agent of the venture in the securing of the option and the sale of the same. Third. That the plaintiffs assisted in the furtherance of the venture in divers and sundry ways by counsel, introductions, and personal efforts. Fourth. That it was agreed in the event of the consummation of the venture the plaintiffs and the defendant Botsford should share equally in the profits realized. Fifth. That the venture was successfully terminated under said agreement, and that the defendant Botsford was to receive 100,000 shares of stock of the value of $1,000,000 as compensation. Sixth. That defendant Botsford was attempting to get possession and control of all of said shares of stock, and refused to recognize the plaintiffs as being entitled to any portion of the same as compensation for the securing and sale of said option. Seventh. That the defendant was without this state and insolvent. Eighth. Follows then the prayer that the plaintiffs be declared to be the owners of and entitled to a one-third each of any and all compensation either in stock or otherwise, which the defendant was entitled to by virtue of the consummation straining, and so forth." To this complaint a demurrer was filed, and thereafter an answer, which was thereafter amended. The answer denies all of the allegations of the complaint which would in any way connect the plaintiffs with the said defendant Botsford as a co-adventurer in putting through the deal, and denies that there was ever any agreement or contract entered into at any time between the three parties concerning the subject-matter in the suit. The answer squarely raises the issue as to whether such an agreement, as alleged in the complaint, was made, and upon this substantial issue the case went to trial. It appears from the testimony adduced, a record of some 3,000 pages, that Charles H. Botsford, the appellant, a New York promoter, an educated gentleman, and a mining expert of some reputation, and a business man of large affairs, during the fall of 1906 came to Goldfield, Nev., when that camp was at the height of its mining excitement and prosperity. He came there for the purpose of investigating the conditions of a lease controlled by the plaintiff Van Riper, whom he had met in New York. Mr. Botsford had invested $15,000 in this lease, and, more money being required to work said lease, the purpose of his visit to Goldfield was to determine the advisability of saving the investment, which would have been lost providing further capital was not forthcoming. While in Goldfield on this mission, Mr. Botsford met the plaintiff Joseph Hutchinson, a mining engineer and promoter of wide experience and reputation and commendable ability, and learned that litigation had been or was about to be commenced by the Combination Mines Company against the Mohawk properties, claiming that the Mohawk veins apexed in the Combination ground. At this time this threatened litigation, which, unless averted by compromise or otherwise determined, would paralyze the prosperity of the district, then in the throes of the wildest kind of a mining boom, caused the people of the camp of Goldfield the most tense feeling of excitement, apprehension, and anxiety, awaiting and hoping for a peaceful compromise or determination of this gigantic legal battle which seemed imminent, and which litigation would, for some time at least, tie up some of the richest mines in the very heart of the Goldfield mining district. It is contended by Hutchinson, and so alleged in the complaint, and found in the findings of the lower court, which, after a most careful review, owing to the great conflict of testimony on all the material issues, we have concluded not to disturb: That he conceived the idea of having the Combination Mines Company and the Goldfield Mohawk Company merge their interests for the purpose of avoiding threatened litigation over the extralateral and other rights of said com |