purchaser ready, able and willing to purchase therefore error to fail to include them, conupon terms acceptable to him, he deals through ceding them to be correct statements of the another, or in some way colludes with him to deprive the other broker of the fruits of his law and applicable to the issues. labor, and in this case, if you find that the plain- The judgment is affirmed. tiff produced a purchaser ready, able, and wil ing to purchase upon terms satisfactory to the defendants, and that a sale was made which you believe the plaintiff was the procuring cause thereof, the fact that the defendants may have dealt through another broker and paid him a commission does not take away the right of the plaintiff to recover in this case."

tained ex parte is clearly void. Michaelson, plaintiff is the owner of land aggregating v. Overmeyer, 77 Wash. 110, 137 Pac. 332. Upon the authority of the above case and those therein cited, respondent's motion must be and the same is granted; and, since without the statement of facts the appeal presents no questions which can be passed upon by the court, it follows that the judgment of the lower court must be, and the same is, affirmed.

about 170 acres in the Snohomish river valley, Snohomish county, Wash., a part of which is improved for agricultural purposes; and the remainder is in its wild state. The defendant is a railroad corporation organized and existing under the laws of the state of Washington. In the year 1910 the plaintiff's premises included a meadow of about 60 acres which had been made fit for cultivation by clearing and drainage, the same being

CROW, C. J., and CHADWICK, PARKER, a part of an extensive district of low bottom and GOSE, JJ., concur.

(82 Wash: 204)

BOYCE v. CHICAGO, M. & P. S. RY. CO. (No. 11747.)

(Supreme Court of Washington.

Nov. 14,

1914.) 1. APPEAL AND ERROR (§ 1175*)-REVERSALJOINDER OF SEPARATE CAUSES OF ACTION.

Error in joining two or more causes of action without separately stating them results only in a reversal of the judgment, and not a dismissal of the cause.

land unfit for cultivation until properly drained. The Great Northern Railway Company had constructed its railroad upon an embankment across this meadow, its line run

ning northwesterly from Monroe towards Everett. In the year 1910 the defendant purchased from the plaintiff a right of way across one of the subdivisions of the land mentioned. This right of way strip was 125 feet wide and was located on the northeasterly side of the Great Northern's right of way, and was contiguous and parallel thereto. The defendant paid the agreed price for this strip of land, and accepted a deed which contained recitals of agreements on the part 2. JUDGMENT (§ 199*)-MOTION FOR JUDG- of the defendant to take care of certain surMENT NOTWITHSTANDING VERDICT-TIME. face waters, and to provide underground and Where judgment was entered upon a verdict immediately upon its return, a motion for overhead crossings, ditches, and fences. Durjudgment non obstante veredicto, not made un-ing the years 1910 and 1911, the defendant til the day following, was too late.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4573-4587; Dec. Dig. 1175.*]

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 367-375; Dec. Dig. § 199.*] 3. JUDGMENT (§ 256*)-CONFORMITY TO FIND

ING.

In an action for damages to real estate, live stock, etc., from defendant railroad's breach of a written right of way agreement in certain particulars, where the evidence was as to damages in a lump sum, which might have been sustained by reason of plaintiff's failure to prop erly care for the ditches, etc., a finding that plaintiff had not exercised ordinary care to keep the ditches open would not require a judgment for only nominal damages.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256.*]

Department 1. Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

constructed a railroad on its right of way across the plaintiff's land. In his second amended complaint the plaintiff claims damages resulting from a breach of certain provisions of the right of way deed which were made for his benefit. The facts upon which the right of action is predicated are found in paragraphs 4 to 9, inclusive. A copy of the right of way deed is attached to the complaint, and by reference thereto as "Schedule A" is made a part thereof. The paragraphs of this complaint referred to set out with some detail the particulars in which the

plaintiff has been damaged, and the source
of such damage. To this second amended
complaint the defendant demurred on the
ground that several causes of action were
ruled, and an answer was filed containing
improperly united.
admissions, denials, and an affirmative de-
fense. To the affirmative matter in the answer
framed the cause was tried to a jury, and
a reply was presented. Upon the issues thus

The demurrer was over

Action by Peter E. Boyce against the Chicago, Milwaukee & Puget Sound Railway Company. Judgment for plaintiff, and from the denial of his motion for a new trial he appeals, and from a denial of its motion to enter judgment for plaintiff for only nom-resulted in a verdict for the plaintiff in the inal damages, notwithstanding the verdict, defendant appeals. Affirmed.

F. M. Dudley, G. W. Korte, and C. H. Hanford, all of Seattle, for appellant. Vince H. Faben, of Seattle, and C. H. Graves, of Everett, for respondent.

sum of $3,000. The verdict was returned on the 8th day of May, 1913. Thereupon the court directed that judgment be entered by the clerk upon such verdict. On the day following, May 9th, the defendant moved that the general verdict of the jury be set aside, and that a judgment notwithstanding MAIN, J. This is an action to recover the verdict be entered for the plaintiff for damages for alleged injuries to real estate nominal damages only, but did not move for and live stock, and for losses consequential to a new trial. The plaintiff moved for a new an alleged interference with the plaintiff's trial. These motions being overruled by the business as a farmer and dairyman. The superior court, both parties appealed.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

The questions presented upon the defend- the verdict. There was evidence which, if ant's appeal are as follows: First, Does the believed by the jury, would support the versecond amended complaint state two distinct dict. causes of action, one for an alleged breach of a written contract, and the other for an alleged tort, without separately stating them? and, second, Did the court err in overruling the appellant's motion for judgment non obstante veredicto?

[3] Neither would the special finding of the jury justify a judgment for nominal damages only. The contract was claimed to be breached in a number of particulars. The evidence as to the damages gave it in a lump sum. There was no segregation as to the amount of damages which might have been sustained by reason of the plaintiff's failure to properly care for the ditches, as found by the jury in its special verdict, and the amount of damages which resulted, for instance, from failure to construct the fences, crossings, and approaches as provided in the contract. Hence, if the judgment in its entirety could not be sustained, it would only result in a new trial. This the defendant does not ask. In a colloquy which occurred between the trial court and the defendant's counsel, when the motion for judgment non obstante was being heard, the court, believing that it had committed error in the giving of a certain instruction which had been re

I. The defendant claims that the facts pleaded in the second amended complaint constitute more than one cause of action, and that the complaint is demurrable be cause the several causes of action are not separately stated. In support of this contention an engaging argument is made. It must be admitted that there are certain expressions in the complaint which, if removed from their setting, would support this view. But when the complaint is read in its entirety, we think it is sufficiently plain that the plaintiff was predicating his action upon a breach of the terms contained in the right of way deed. This deed, as already noted, is attached to the complaint and is made a part thereof, and in each paragraph of the com-quested by the plaintiff, stated that if the plaint, where the facts upon which the right of action is based are stated, the contract is referred to.

[1] But if it were assumed that the facts stated constitute two or more causes of action, the fact that they are not separately stated would not justify the relief which the appellant asks. For an error of this nature would only result in a reversal of the judgment and not a dismissal of the cause. The defendant, in concluding its argument upon this branch of the case, "asks for an order reversing the judgment and dismissing the case," apparently being content with the judgment unless a dismissal can be secured upon the record or a judgment for nominal damages entered.

[2] II. The motion for judgment non obstante veredicto is based upon the claim: (a) That there was no evidence as to the amount

defendant were asking for a new trial, it should be granted. In response to this the defendant's counsel said, "Well, we do not ask it."

Upon the plaintiff's appeal it is claimed that the court erred in the giving of certain instructions. Without reviewing these in detail, it may be said that this claim of error is not well founded.

The judgment will be affirmed.

CROW, C. J., and ELLIS, CHADWICK, and GOSE, JJ., concur.

(82 Wash. 330)

STATE ex rel. SHATTUCK, Sheriff, v. FRENCH, Superior Court Judge. (No. 12455.) (Supreme Court of Washington. Nov. 18, 1914.) CERTIORARI (§ 16*) - DECISIONS REVIEWABLE-FINALITY OF DETERMINATION.

Certiorari will not lie to review a threatened order discharging a prisoner on habeas corpus, where no judgment or order discharging the prisoner has yet been entered.

[Ed. Note.-For other cases, see Certiorari, Cent. Dig. §§ 31, 32; Dec. Dig. § 16.*] 2. CERTIORARI (§ 5*) -EXISTENCE OF OTHER REMEDY-ADEQUACY.

of damages; and (b) upon the special find-1.
ings of the jury that the plaintiff had not
exercised ordinary care to keep open the
drains and ditches upon his land. As ap-
pears from the facts stated, the judgment
was entered by the clerk upon the verdict
immediately upon its return, and the mo-
tion for judgment non obstante veredicto
was not made until the day following. Un-
der the holding of the recent case of Forsyth
v. Dow, 142 Pac. 490, this motion was not
timely. It was there held that a motion for
judgment non obstante, made after judg-
ment was entered upon the verdict, came too
late.

Under Rem. & Bal. Code, § 1002, authorizing the issuance of certiorari where there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy at law, and section 1716, authorizing appeals by the state in criminal actions where the error complained of is some material error in law not affecting the acquittal of the prisoner on the merits, cerIt may be said, however, that since this tiorari will not lie to review the discharge of a case was pending here when the decision in prisoner on habeas corpus for failure to bring the Forsyth Case was rendered, we have him to trial within the statutory period of 60 looked into the record, and find that the days, even though habeas corpus is not a proper remedy to procure his discharge, since the state trial court committed no error in overruling has a remedy by appeal which the Legislature the motion for judgment notwithstanding has, in effect, declared an adequate remedy, not

withstanding the possibility that the prisoner | herein, which return is not controverted, may abscond pending the appeal.

[Ed. Note.-For other cases, see Certiorari,
Cent. Dig. §§ 5, 6; Dec. Dig. § 5.*
For other definitions, see Words and Phrases,
First and Second Series, Certiorari.]

Department 2. Certiorari by the State, on relation of J. Howard Shattuck, Sheriff of Kitsap County, against Walter M. French, Judge of the Superior Court for Kitsap County, to review an order discharging a prisoner on habeas corpus. Proceeding dismissed.

F. W. Moore, of Bremerton, for plaintiff. Garland & McLane, of Bremerton, for respondent.

the trial court was advised, not only by the two informations that the same offense was cases, but that it was so stated by the prosecharged and in the same language in both cuting attorney in open court upon the hearing. The trial court thereupon expressed the opinion that the prisoner should be released for the reason that the crime charged was a misdemeanor, and that the prisoner had been confined in jail for more than 60 days and had been discharged for that reason by order of the court, and that the state was barred from any further prosecution for the same offense. On request of the prosecuting attorney the trial court took the matter under advisement and withheld his decision until the prosecuting attorney should have time to apply to this court for a writ of review.

The statute (Rem. & Bal. Code) declares: formed against for an offense, whose trial has "Sec. 2312. If a defendant indicted or innot been postponed upon his own application, be not brought to trial within sixty days after the indictment is found or the information filed, the court shall order it to be dismissed, unless good cause to the contrary is shown." "Sec. 2315. An order dismissing a prosecution under the provisions of sections 2311, 2312, or 2314 shall bar another prosecution for a misdemeanor or gross misdemeanor where the prosecution dismissed charged the same misdemeanor or gross misdemeanor, but in no other case shall such order of dismissal bar another prosecution."

ELLIS, J. This case is here upon the return to an alternative writ of certiorari to review a threatened order of the superior court of Kitsap county, discharging a prisoner upon the sheriff's return to a writ of habeas corpus issued from that court. The facts are not disputed. On August 18, 1914, one James Stewart was arrested upon a warrant founded upon an information charging him with the crime of lewdness, under the provisions of the statute defining lewdness, and declaring it a gross misdemeanor. Rem. & Bal. Code, § 2458. He was confined in the county jail for more then 60 days. No steps were taken to bring him to trial. After the expiration of the 60 days the prisoner applied to the superior court for his release by writ of habeas corpus. The matter came on for hearing on October 20, 1914, when the court signified an intention to discharge the prisoner for the reason that he had not been brought to trial within 60 days from the filing of the information, and that no postponement had been requested by the prisoner or by any one in his behalf. The prosecuting attorney then asked leave to dismiss the proceeding upon the original information and to file a new information. The court thereupon entered an order in the original cause, dismissing the same and granting leave to the prosecuting attorney to file a new information. The prisoner was immediately rearrested by the sheriff on a warrant founded on a new information filed with the court, which charged the same offense and in the same language as in the original information. The prisoner thereupon sued out a second writ of habeas corpus returnable forthwith. The sheriff demurred to the petition for the writ upon the ground that, under the circumstances appearing upon the face of the petition, the issuance of the writ of habeas corpus is prohibited by statute. The demurrer was overruled. For return to the writ the sheriff set up the fact that he held the prisoner by virtue of an information and a warrant of arrest issued thereon, copies of which were attached to the return. An immediate It is elementary that certiorari lies only hearing was had, and as appears from the where there is no appeal nor any plain speedy trial judge's return to the alternative order or adequate remedy at law. Rem. & Bal. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[1, 2] Under the conceded facts the trial court clearly had both the jurisdiction and the statutory authority to determine the matter in some sort of proceeding. This is conceded, but it is urged that this power can only be invoked by motion to dismiss the prosecution. The relator advances a number of grounds upon which it is claimed the action of the trial court should be reversed, all of which are referable to the one fundamental contention that habeas corpus will not lie to discharge a prisoner who has not been brought to trial within the statutory period of 60 days, but that the prisoner's remedy is by motion in the criminal action itself. This is an interesting question, but can we determine it in this proceeding? We are confronted at the outset with that preliminary question which, although not raised by either side, must be determined in the interest of sound and orderly procedure: Was the alternative writ of review providently issued on a state of facts such as here presented? Is there a right of review by certiorari on application by the state in such a case as this? We think not for two reasons: (1) Because no judgment or order discharging the prisoner has yet been entered; hence, there is nothing to review. (2) Because, even had the order been entered, the state would have an adequate remedy by appeal.

Code, § 1002. The statute governing appeals for trial, and had he applied for the writ of (Rem. & Bal. Code, § 1716) after according review, a different question would be preto any party aggrieved an appeal to the sented. We express no opinion as to the Supreme Court from the final judgment en- adequacy of his remedy by appeal. tered in any action or proceeding, further The proceeding is dismissed. declares in subdivision 7 of the same section:

"But an appeal shall not be allowed to the state in any criminal action, except when the error complained of is in setting aside the indictment or information, or in arresting the judgment on the ground that the facts stated in the indictment or information do not constitute a crime, or is some other material er- GOETTER et ux. v. CITY OF COLVILLE ror in law not affecting the acquittal of a prisoner on the merits."