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execution issue thereon, but, when otherwise, į run in the name of the state of Oregon, and power to render judgment is limited to prop be signed by the officer issuing the same; erty brought before the court by valid attach- and if such process be issued by a clerk of ment.
[Ed. Note.-For other cases, see Judgment, a court, he shall affix thereto his seal of Cent. Dig: 88 25-33, 1431, 1432; Dec. Dig. $8 | office.” B. & C. Comp. & 1227. The writ of 17, 807.*]
attachment in the action brought by LawAppeal from Circuit Court, Douglas Coun- rence was issued by the clerk of the cirty; J. W. Hamilton, Judge.
cuit court for Douglas county, who omitted Suit by Frank F. Starkey against James to affix any seal to the instrument. Some H. Lunz. From a judgment dismissing the contrariety of judicial expression exists reaction, plaintiff appeals. Reversed.
specting 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 mo. been 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 Seeppliance with the requirements of the stat- ers 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.
ed, and strict construction of the attachment
law was the rule.” After setting out the MOORE, C. J. (after stating the facts as statute permitting amendments of writs of above). The plaintiff asserts title from attachment or other proceedings, it is furBrown by a subsequent attachment of the ther observed: “In Foss v. Isett, 4 G. Greene, land, a judgment, a sale, and a sheriff's 76 [61 Am. Dec. 117], it was said that a deed, and by a deed from such former own- writ of attachment issued without the seal
It is maintained that in the action in- of the court had no more force and efficiency stituted by Lawrence the writ of attachment than a piece of blank paper, and that it was was void, and that as Brown was not a resi- void and could not be amended. This case dent of Oregon, nor found therein, and did was followed in Shaffer v. Sundwall, 33 not appear or answer in that action, the Iowa, 579. In the subsequent case of Murjudgment directing a sale of the premises dough v. McPherrin, 49 Iowa, 479, it was was rendered without jurisdiction, and, such held that a writ which issued from the disbeing the case, an error was committed in trict court, to which the seal of the circuit dismissing the suit.
court had been attached, could be amended The defect which, it is insisted, makes the by placing thereon the seal of the court writ ineffectual, is the failure of the officer whence it issued. It was urged in that case issuing it to attach his seal. The statute that a writ without the seal of the proper prescribing the style of writs is as follows: court was void, and could not be amended, “All process authorized by this Code, to be but it was held otherwise. The same point issued by any court or officer thereof, shall was made in Lowenstein v. Monroe, 52 Iowa,
231 [3 X. W. 51), where the causes for the , and in like manner and for like reasons it attachment had been verified by an attor- may, at any time before the cause is submitney. These cases are decisive of that at ted, allow such pleading or proceeding to bar, so far as the objection under considera- be amended, by striking out the name of tion is concerned.”
any party, or by correcting a mistake in the In Insurance Co. v. Hallock, 6 Wall. 556, name of a party, or a mistake in any other 18 L. Ed. 948, in construing a statute of respect, or when the amendment does not Indiana requiring an execution to be seal. substantially change the cause of action or ed, it was determined in a collateral suitdefense, by conforming the pleading or prothat an "order of sale” in proceedings for ceeding to the facts proved.” B. & C. Comp. the foreclosure of a mortgage came within $ 102. A defect in an affidavit for an attachthe functions and supplied the purpose of an ment may be amended. Id. $ 311. The right execution, which, if issued without a seal, to correct an error being thus limited to an was void. In State v. Davis, 73 Ind. 359, 360, affidavit, it would seem necessarily to follow it was held that a summons was not void that the power to change a writ of attachment because not attested by the seal of the court, did not exist, since no provision has been made and that the court had the right to order by statute for amending any process. We the clerk to affix the seal nunc pro tunc aft- do not think the word "proceeding” as emer judgment had been entered and the term ployed in section 102, supra, is comprehensive closed. In deciding that case Mr. Justice enough to embrace process, for the means by Elliott, speaking for the court, says: “The which a class of rights are enforced are decase of Insurance Co. v. Hallock, 6 Wall. nominated special proceedings. Id. tit. VIII. 556 (18 L. Ed. 948), does decide that an or- It is a well-recognized principle that a court der of sale issued by a court of this state of general jurisdiction can exercise authoriwas void because not attested by the sealty over all property within its territorial of the court. It has also been held by this limits when brought before it by due process court that, where there is no statute to the of law, and may dispose of such property contrary, a writ or record must be attested by judgment or decree, though its owner is by the seal of the court from which it a nopresident, not found within the juris. comes.” Further in the opinion, it is said: diction of the court, and neither appears nor "The liberal provisions of our statute, re- answers in the action. The provisional remspecting the summons, would take such writsedy whereby a court's dominion over propfrom under the old common-law rule, even erty in Oregon is obtained is by attachment, if it were conceded that it is the rule which which control is secured by a compliance must be adopted respecting other writs. The with the requirements of the statute granting provisions of the Code upon this subject are the ancillary remedy. If judgment be rencontained in article four, and the provision dered in the action and the property subjected which directly bears upon this point is found to a lien for the payment of a debt has not in section 37, and is as follows: 'No sum- been discharged from the attachment, the mons, or the service, shall be set aside, or be court is required to order and adjudge that adjudged insufficient, where there is suffi- the property be sold to satisfy the plaintiff's cient substance about either to inform the demand. B. & C. Comp. $ 309. If personal party on whom it may be served, that there service of the summons has been made upon is an action instituted against him in court. the defendant within the state, or if he has We think it very clear that the omission to appeared or answered in the action, a peraffix the seal does not prevent the writ from sonal judgment may be rendered against imparting to the parties against whom it is him, and a general execution can be issued issued, and that very fully and distinctly, in- thereon. When he has not been served at formation that an action is instituted against the place and in the manner indicated, and them.” In Choate v. Spencer, 13 Mont. 127, has not appeared or answered, the power 32 Pac. 651, 20 L. R. A. 424, 40 Am. St. of the court to render a judgment that is of Rep. 425, it was ruled that a summons is any binding force is limited to the property sued without the seal of the court was void, which by attachment has been brought withand could give no jurisdiction where the in its jurisdiction. statute demanded that such process "must The judgment therefore may be in perbe issued under the seal of the court," al- sonam and quasi in rem, or the latter only, though the statute also provided that the and, if no jurisdiction of the res has been court should disregard any error or defect secured, the court is powerless to condemn in the proceedings which did not affect the the property to the satisfaction of any debt, substantial rights of the parties.
and the attempted attachment necessarily Our statute authorizing changes in pro- fails. In order to make valid condemnation, motion of right is as follows: “The court | the specific property ordered to be sold may, at any time before trial, in furtherance must be within the territorial limits of the of justice, and upon such terms as may be court held by an efficacious writ of attachproper, allow any pleading or proceeding to inent, legally issued, properly executed, and be amended by adding the name of a par- duly returned. Our statute expressly dety, or other allegation material to the cause; mands that process, when issued by a clerk
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 bill of exceptions, original copy, 120 folios, failure of that officer to affix his seal. The $12.00; to transcript for Supreme Court, 234 writ herein, being the process by which ju- folios, $23.40." Our clerk disallowed these risdiction of the real property was under charges, and to review his action in that partaken to be secured, was ineffectual, the ticular this motion was inter attempted levy thereof created no lien, and Considering the several demands in their the judgment against the land is void and order, it is settled that in a law action the subject to collateral attack. It will be re sums of money paid by a party to the offimembered that Starkey caused a subsequent cial reporter as his legal fees must be taxed attachment of the real property to be made, in the lower court and cannot be entered here and thereafter obtained from the former own as a disbursement. Sommer v. Compton, 53 er a conveyance of all his interest in the Or. 341, 344, 100 Pac. 289; McGee v. Beckpremises. The plaintiff's race with the de- ley, 54 Or. 250, 255,1 103 Pac. 61. When a fendant's grantor, Lawrence, was a contest transcript of the testimony has been filed in between Brown's creditors for supremacy, the lower court, it is incumbent upon the apand, Starkey having ultimately won, there pellant, if he desires to review the judgment, is no principle of equity intervening to pre- to prepare a bill of exceptions for settlement vent him from keeping what he procured by and allowance by the judge, and the expenshis vigilance.
es incident to the clerical work form no part The decree will therefore be reversed, and of the disbursements on appeal. Ferguson one entered here granting to the plaintiff the v. Byers, 40 Or. 468, 477, 67 Pac. 1115, 69 relief sought by the complaint.
Pac. 32; Allen v. Standard Box & Lumber
98 Pac. 509. (57 Or. 128)
It satisfactorily appears that plaintiff's DE VALL v. DE VALL.
counsel personally prepared the transcript (Supreme Court of Oregon. Sept. 13, 1910.) on appeal, to which the clerk appended his 1. Costs ($ 254*) — ON APPEAL STENOGRA- certificate, and for which the sum of $1 was PHER'S FEES.
paid, and that no other liability was incurred In a legal action, money paid by a party on account thereof. It is only such legal to the official stenographer as legal fees must be taxed in the trial court, and cannot be en-).charges as have been paid or promised to the tered on appeal as disbursements.
clerk for the labor necessitated in preparing (Ed. Note.-For other cases, see Costs, Cent. a transcript on appeal that may be recoverDig. $ 974; Dec. Dig. § 254.*]
ed as a disbursement. No sum of money was 2. Costs ($ 254*)-DISPOSITION ON APPEAI. | paid to that officer except $1, and that item EXPENSE OF BILL OF EXCEPTIONS.
Where a transcript of the testimony is filed appears in the cost bill. If plaintiff's counbelow, appellant, in order to review the judg- sel undertook the work on his own account, ment, must prepare a bill of exceptions, and all expenses thereby saved, in case he were expenses incident to the clerical work are not defeated, inure to the benefit of the adverse a part of the disbursements on appeal. [Ed. Note.-For other cases, see Costs, Cent.
party. Dig. § 974; Dec. Dig. § 254.*]
The items referred to were properly re3. Costs ($ 254*)-ON APPEAL.
jected, and the action of the clerk is apOnly such legal charges as have been paid proved. or promised to be paid to the clerk for preparing a transcript on appeal may be recovered as a
(33 Nev. 156) disbursement, so that expenses saved by plain
BOTSFORD V. VAN RIPER et al. tiff's counsel himself preparing the appeal transcript inured to the benefit of the other par
(No. 1,828.) ty upon reversal.
(Supreme Court of Nevada. Sept. 2, 1910.) [Ed. Note. -For other cases, see Costs, Dec. 1. APPEAL AND ERROR_($ 1011*) — REVIEW Dig. § 254.*]
CONCLUSIVENESS OF FINDINGS. Appeal from Circuit Court, Wallowa Coun The Supreme Court will not disturb find. ty; J. W. Knowles, Judge.
ings on conflicting evidence. Action by Beatrice De Vall against Thom (Ed. Note.-For other cases, see Appeal and as De Vall. Judgment for defendant was re- Error: Cent. Dig. 88 3983–3989; Dec. Dig. §
1011.*] versed on appeal, and items of plaintiff's bill of costs were disallowed, whereupon he mov-2. Joint ADVENTURES (8 4*)—RIGHT TO REed to retax costs. Motion denied.
That plaintiffs and defendant agreed to See, also, 109 Pac. 755.
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
to be the active agent of the venture, that plainey, for respondent.
tiffs assisted in furthering the venture by coun
sel, introductions, and personal efforts, that it MOORE, C. J. This is a motion to retax in the profits, that the venture was successful
was agreed that the parties should share equally costs, The judgment herein was reversed, and defendant was to receive stock of a specified whereupon plaintiff's counsel served and filed / value as compensation, that he was attempting For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep's Indexes 110 P.-45
to get possession of all the stock and refused 11. JOINT ADVENTURES (8 4)— ACCOUNTINGto recognize plaintiffs' rights to any interest RIGHTS OF PARTIES. in the proceeds of the venture, and that he was A party to a joint adventure holding the outside the state and insolvent, shows plaintiffs' profits may be compelled to account to bis asright to recover equal interests in the proceeds sociates for their share of the property repreunder the doctrine of joint adventure.
senting such profits in kind. (Ed. Note. For other cases, see Joint Ad- (Ed. Note.-For other cases, see Joint Adventures, Cent. Dig. $ 3; Dec. Dig. § 4.*] ventures, Cent. Dig. 88 3–6 : Dec. Dig. $ 4.*] 3. JOINT ADVENTURES (f 1*)-CONSIDERATION 12. JOINT ADVENTURES (8 1*)-PROFITS-FORM. OF-SUFFICIENCY.
The profits of a joint adventure may conPlaintiffs' suggestion to defendant of a sist of the unsold portion of the property which scheme for merging properties and advice and was the subject of the venture, or property recounsel to him, and the mutual promise of as-ceived as compensation for services rendered in sistance in promoting the venture, were suffi- connection with 'the venture, as well as money. cient consideration to sustain an agreement for
(Ed. Note.-For other cases, see Joint Adan equal division of the profits of the venture, ventures, Cent. Dig. $ 1; Dec. Dig. $ 1.*] though defendant agreed to do all the other 13. Joint ADVENTURES (8 5*) – RIGHTS OJ work.
PARTIES-REMEDIES. (Ed. Note.-For other cases, see Joint Adven- While a party to a joint adventure may sue tures, Cent. Dig. § 1; Dec. Dig. 1.*]
his associate at law for breach of the contract 4. JOINT ADVENTURES (4*)_TRUSTEESHIP.
or a share of the profits or losses, or contribu
tion for advances in excess of his share, such Where property or profits are acquired un- remedies do not preclude a suit in equity for an der a joint adventure, a party holding title to
accounting. the same is a trustee for his associates as to their proportionate shares.
[Ed. Note.-For other cases, see Joint Ad(Ed. Note.- For other cases, see Joint Adventures, Cent. Dig. $ 7; Dec.' Dig. $ 5.j ventures, Cent. Dig. $$ 3-6; Dec. Dig. § 4.*]
14. ACTION (8 25*)-LEGAL AND EQUITABLE
RELIEF. 5. JOINT ADVENTURES (8 4*)-RELATION BE- Under the Code of Civil Procedure, the disTWEEN PARTIES.
trict courts in proper cases may administer both The relation between the parties to a joint legal and equitable relief. adventure is fiduciary, and the utmost good faith (Ed. Note.-For other cases, see Action, Cent. is required of the trustee to whom matters Dig. 88 146–152; Dec. Dig. $ 25.*] may be intrusted; he not being entitled to any 15. Joint ADVENTURES (8 5*)-SET-OFF. advantage over his associate on account of possession of property or profits.
One party to a joint adventure may set off [Ed. Note. For other cases, see. Joint Ad- ments in behalf of claimant, and hence, in an
against the demand of another advances or pay. ventures, Cent. Dig. 88 3-6; Dec. Dig. & 4.*]
action to recover an interest in the proceeds 6. Joint ADVENTURES (8 5*)—RIGHTS OF PAR- of a venture, expenditures by defendant wero TIES.
properly deducted from recovery awarded against Associates of the trustee of a joint adventure him.
recover from him for any breach of his (Ed. Note.-For other cases, see Joint Adtrust.
ventures, Dec. Dig. $ 5.*] (Ed. Note.-For other cases, see Joint Ad- 16. JOINT ADVENTURES (8 16) NATURE OF ventures, Cent. Dig. $ 7; Dec, Dig. § 5.*] CONTROLLING PRINCIPLES. 7. Joint ADVENTURES (8 1*)-CONSIDERATION apply generally to joint adventures.
The legal principles governing partnerships -SUFFICIENCY. The furnishing of capital by the parties to
(Ed. Note.–For other cases, see Joint Ada joint adventure is not essential to the validity ventures, Cent. Dig. $ 1; Dec. Dig. $ 1.*] of the contract if the original agreement is car- Appeal from District Court, Esmeralda ried out.
County. (Ed. Note. For other cases, see Joint Adventures, Cent. Dig. $ 1; Dec. Dig. § 1.*]
Action by L. C. Van Riper and another
against Charles H. Botsford and others. 8. Joint ADVENTURES ($ 4*)—RIGHTS OF PAB- From a judgment for plaintiffs and from ad TIES.
That the active agent of a joint adventure order refusing a new trial, defendant Botsdid not call upon his associates for the aid ford appeals. Affirmed. they agreed to give does not affect their right See, also, 106 Pac. 440. to share in the profits. (Ed. Note.-For other cases, see Joint Ad
Rufus C. Thayer, C. L. Harwood, James ventures, Cent. Dig. 88 3-6; Dec. Dig. $ 4.*] F. Peck, Solinsky & Wehe, and Paul C. Morf,
for appellant. Detch & Carney, Thomas, 9. JOINT ADVENTURES ($ 4*)-ADVANCES BY PARTY-EFFECT.
Bryant & Malburn, and R. G. Withers (Mack Advances by one party to a joint adventure & Green and Horatio Alling, of counsel), are loans to the venture for which he is entitled for respondents. to reimbursement from the proceeds of the venture, but they give him no other superior rights against his associates.
SWEENEY, J. This action is brought by (Ed. Note.-For other cases, see Joint Ad- the plaintiffs L. C. Van Riper and Joseph ventures, Cent. Dig. $$ 3-6; Dec. Dig. & 4.*] Hutchinson to recover from the defendant 10. JOINT ADVENTURES (8 4*)-DIVISION OF
Charles H. Botsford two-thirds of the profits PROFITS.
of a deal whereby the Goldfield Mohawk In the absence of an
express agreement Mining Company and other mining interests to the contrary, equal division of the profits of paid as a commission to the defendant, Botsà joint adventure is implied, regardless of in- ford, 100,000 shares of the Goldfield Consolequality of contribution.
[Ed. Note.-For other cases, see Joint Adidated Mining stock then valued at $1.000,ventures, Cent. Dig. $$ 3-6; Dec. Dig. & 4.*] 000, in consideration of his turning over a
'Fos other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexa
certain option which he held on the Com-, straining, and so forth.” To this complaint bination Mines Company, which made it a demurrer was filed, and thereafter an anpossible to merge the properties now consti- swer, which was thereafter amended. The tuting the Goldfield Consolidated Mines Com- answer denies all of the allegations of the pany, and do away with certain threatened complaint which would in any way connect apex litigation then pending and other suits the plaintiffs with the said defendant Botsabout to be started. This commission of $1,- ford as a co-adventurer in putting through 000,000 was earned during a period not in the deal, and denies that there was ever any excess of 45 days from the time the parties agreement or contract entered into at any conceived and agreed to carry out their time between the three parties concerning agreement along the lines of merging the the subject-matter in the suit. The answer properties to avoid litigation, and is but il- squarely raises the issue as to whether such lustrative of the opportunities which are an agreement, as alleged in the complaint, ever present in mining excitements in great was made, and upon this substantial issue mining camps to those who may be quick, the case went to trial. able, and fortunate enough to grasp an op- It appears from the testimony adduced, a portunity and successfully put it through to record of some 3,000 pages, that Charles H. a termination. Though this action was com- Botsford, the appellant, a New York promenced by the respondents L. C. Van Riper moter, an educated gentleman, and a minand Joseph Hutchinson as plaintiffs against ing expert of some reputation, and a busiCharles H. Botsford and other above-namerl ness man of large affairs, during the fall of appellants as defendants, the real controver- | 1906 came to Goldfield, Nev., when that sy is between the respondents L. C. Van camp was at the height of its mining exRiper and Joseph Hutchinson and the appel- citement and prosperity. He came there for lant, Charles H. Botsford. All the other the purpose of investigating the conditions appellants joined with Botsford are in the of a lease controlled by the plaintiff Van case nominally, and so far as this case is Riper, whom he had met in New York. Mr. concerned do not seem to have any real in- Botsford had invested $15,000 in this lease, terest in the dispute.
and, more money being required to work The complaint is one based on the doctrine said lease, the purpose of his visit to Goldof joint adventure, a doctrine of modern field was to determine the · advisability of origin, and in effect alleges, in our judgment, saving the investment, which would have the necessary allegations which, if proved, been lost providing further capital was not entitle the plaintiffs to the judgment accorded forthcoming. While in Goldfield on this misthem. The complaint in effect alleges: sion, Mr. Botsford met the plaintiff Joseph "First. That the plaintiffs and defendant Hutchinson, a mining engineer and promoter Botsford entered into an agreement to use of wide experience and reputation and comtheir joint efforts for the purpose of secur- mendable ability, and learned that litigation ing a certain option and selling the same. had been or was about to be commenced by Second. That it was agreed that defendant the Combination Mines Company against the Botsford should be the active agent of the Mohawk properties, claiming that the Moventure in the securing of the option and hawk veins apexed in the Combination the sale of the same. Third. That the plain- ground. At this time this threatened litigatiffs assisted in the furtherance of the ven- tion, which, unless averted by compromise ture in divers and sundry ways by counsel, or otherwise determined, would paralyze the introductions, and personal efforts. Fourth. prosperity of the district, then in the throes That it was agreed in the event of the con- of the wildest kind of a mining boom, caussummation of the venture the plaintiffs and ed the people of the camp of Goldfield the the defendant Botsford should share equal most tense feeling of excitement, apprehenly in the profits realized. Fifth. That the sion, and anxiety, awaiting and hoping for venture was successfully terminated under a peaceful compromise or determination of said agreement, and that the defendant Bots- this gigantic legal battle which seemed imford was to receive 100,000 shares of stock minent, and which litigation would, for some of the value of $1,000,000 as compensation. time at least, tie up some of the richest Sixth. That defendant Botsford at- mines in the very heart of the Goldfield mintempting to get possession and control of all ing district. of said shares of stock, and refused to rec- It is contended by Hutchinson, and so alognize the plaintiffs as being entitled to any leged in the complaint, and found in the portion of the same as compensation for the findings of the lower court, which, after a securing and sale of said option. Seventh. most careful review, owing to the great conThat the defendant was without this state flict of testimony on all the material issues, and insolvent. Eighth. Follows then the we have concluded not to disturb: That he prayer that the plaintiffs be declared to be conceived the idea of having the Combinathe owners of and entitled to a one-third tion Mines Company and the Goldfield Moeach of any and all compensation either in hawk Company merge their interests for the stock or otherwise, which the defendant was purpose of avoiding threatened litigation over entitled to by virtue of the consummation the extralateral and other rights of said com