and fixing new boundaries in the same man- cover the possession, custody, and control of ner and to the same extent as is required in said minors, and the cause came on for hearmaking a new location, or the relocator may ing before said respondent; the children sink the original discovery shaft ten feet being brought into the custody of said court deeper than it was at the date of commence- upon the writ issued. During the hearing ment of such relocation, and shall erect new, said respondent directed that said minors or make the old monuments the same as should remain in the custody of one Mrs. originally required; in either case a new loca- Hubbard, the matron of the juvenile departtion monument shall be erected and the loca- ment of said court, and said children were tion certificate shall state if the whole or any placed in such custody, and were there at part of the new location is located as aban- the time the court rendered its final judgdoned property." Under the finding of the ment and decree wherein, and whereby the court as above set forth, it is apparent that care, custody, and control of said minor chilthis ground could not be classed as abandoned dren was awarded to their mother. From property, and that Chamberlain never pro- this judgment and decree an appeal was takreeded far enough to acquire any rights to en to this court, and a supersedeas bond be lost by abandonment or otherwise. Sec- duly filed by these relators. Thereafter relation 2 of the above act provides that: “Be- tors made a motion for the delivery of the fore filing such notice for record, the dis- possession, custody, and control of said micoverer shall locate his claim by first sinking nors to them upon the ground that they had a discovery shaft upon the lode, to the depth filed the supersedeas bond in the amount fixed of ten (10) feet from the lowest part of the by the court. This motion was denied by rim of such shaft at the surface.

*"

respondent. The court found that this requirement of It is contended here by relators that the the statute was complied with by the re- filing of the supersedeas bond had the effect spondent's grantor, and the finding is sus- of leaving all parties in the position they octained by the testimony.

cupied at the commencement of the habeas There is no error in the record, and the corpus proceedings before respondent, and judgment is affirmed.

that, as they then had the possession and

custody of the children, they became imme· MOUNT, C. J., and FULLERTON, HAD- diately entitled thereto again upon the giving LEY, and DUNBAR, JJ., concur.

of said stay bond, and that a writ should issue requiring respondent to direct the deliv

ery of said minors to relators. We do not (45 Wash. 37).

think this position tenable. Where minor STATE ex rel. DAVENPORT et al. v. POIN

children are involved, a much different conDEXTER, Judge.

sideration is presented than obtains with ref(Supreme Court of Washington. Dec. 15, 1906.) erence to mere property rights. The welfare HABEAS CORPUS — APPEAL - SUPERSEDEAS - of the children is a matter of prime imporCUSTODY OF INFANTS.

tance and public concern, and must be the Where, in a habeas corpus proceeding in the superior court, a mother recovered the

subject of careful consideration at all stages custody of her minor children from their adopt- of any proceeding wherein their possession, ed parents, the giving of a supersedeas bond by

custody, or control is involved. In such a the adopted parents did not give them a right

proceeding as this we do not think the giving to the custody of the children pending the appeal.

of a supersedeas bond has any effect what

ever upon the possession, custody, and conApplication by the state of Washington,

trol of the minor children in question. It on the relation of William I. Davenport and

being presumed that the order of the trial another, for a writ of habeas corpus against

judge was correct, and that he was actuated Miles Poindexter, judge of the superior court

by a consideration of the minors' welfare, of Spokane county. Denied.

it would be against public policy to have that Hamblen, Lund & Gilbert, for plaintiffs. welfare imperiled during an appeal, in the Danson & Williams, for defendant.

absence of a statute clearly permitting the

staying of such orders. The trial court had ROOT, J. This is an original application jurisdiction to take said children into its for a writ of habeas corpus directing and possession if it believed that their physical commanding the above-named respondent ko or moral welfare or other substantial interdeliver, or to direct the delivery of, the pos- ests necessitated such action. When the apsession, custody, and control of Roy Eliott peal was perfected, this court became investPierce and John Edgar Pierce, two minors, ed with jurisdiction to make such orders as to the abore-named relators. The material the welfare and necessities of said minors facts are substantially these: Relators were might demand. If, as contended by relator, awarded the custody of said children by vir- the present situation of these minors is so tue of certain adoption proceedings which unsuitable as to menace their physical or are claimed by the mother of said children moral welfare or other substantial interests, to have been fraudulent and invalid. Said the question of an appropriate change could mother instituted habeas corpus proceedings doubtless be considered by this court upon a before the above-named respondent to re- proper showing. Irving v. Irving, 26 Wash. 125, 66 Pac. 123. But such a matter is not timony was offered at the trial tending to before us at this time. Relators are basing show the habits and mental condition of the their right to the immediate possession of deceased. The witnesses on the part of the said children upon the supersedeas bond appellant testified that he was generally ingiven as aforesaid. The giving of said bond toxicated, that his looks and actions were does not entitle them to such possession. strange and peculiar at times, and that in The application for the writ is denied. their opinion he was insane. On the other

hand, witnesses on the part of the respondMOUNT, C. J., and DUNBAR, HADLEY, ents, who had known the deceased intimately and FULLERTON, JJ., concur. RUDKIN for years prior to his death, testified that he and CROW, JJ., not sitting.

was sound of mind and temperate in his habits. A review of this confiicting testi

mony would serve no useful purpose, unil we (45 Wash. 55)

content ourselves by simply announcing our In re RATIJENS' ESTATE.

conclusion that the finding of the court on RATHJENS V. MERRILL et al. the question of testamentary capacity is (Supreme Court of Washington. Dec. 15, 1906.) fully sustained by the testimony. There was 1. WILLS - VALIDITY - UNDUE INFLUENCE- testimony tending to show that the testator SUFFICIENCY OF EVIDENCE.

was sane at all times, and was rarely, if In a will contest, evidence held insufficient

ever, intoxicated; and, if we were to concede to show that the will was procured by undue influence.

that he was intoxicated and insane at in2. SAME PROBATE - COSTS — ALLOWANCE

tervals, yet there is ample testimony to OUT OF ESTATE.

show that he was both sane and sober at Where the unsuccessful contestant of a

the time of the execution of this will. The will claimed under one will, and the respond

charge of undue influence on the part of the ents claimed under another, the court properly declined to award costs to the contestant out respondents and the brothers of the respond. of the estate.

ent Weise finds its chief support in the fact [Ed. Note. For cases in point, see Ceni. Dig.

that those parties espoused the cause of the vol. 49, Wills, 88 877, 878.]

deceased in a divorce proceeding instituted Appeal from Superior

Superior Court, Spokane against him by the appellant some two years County; Henry L. Kennan, Judge.

before his death and made affidavits in his Will contest by Amelia Rathjens against behalf. F. S. Merrill, as administrator with the will There was testimony also—some of it from annexed of Jacob Rathjens, and others, doubtful sources-tending to prove declaraFrom a judgment in favor of defendants, tions and statements alleged to have been plaintiff appeals. Affirmed.

made by the deceased, by the respondents. A. C. Shaw and John C. Kleber, for ap

and by the brothers of the respondent Weise pellant. Graves, Kizer & Graves, for re

in relation to the appellant and in relation to spondents.

the property of the deceased. The making of such statements is denied, except the

statements attributed to the deceased, and RUDKIN, J. This is an appeal from an order dismissing a will contest. A suflicient

it is a significant fact that in all his letters

to the appellant, in which he deplored their statement of the case will be found in the opinion of this court on a former appeal,

estrangement and separation, the deceased

never so much as referred to his brothers-inwhere a judgment of nonsuit was reversed. Rathjens v. Merrill, 38 Wash. 442, 80 Pac.

law as the authors of his woes. But the

conduct of the deceased himself both be754.

fore and after the execution of the will in The grounds of the contest were undue influence and want of testamentary capacity

controversy here rebuts even the slightest

inference of undue influence. He was in resulting from intemperance and insanity. No claim of a general lack of testamentary

Davenport, miles away from those who are capacity was advanced by the appellant at

alleged to have influenced his acts and conthe trial. Indeed, her own conduct pre

duct, for the greater part of the two months cluded her from advancing any such claim, immediately preceding the execution of this inasmuch as the testator executed a will in

will. He left Davenport for Spokane, deher favor only 17 days before the execution claring to some of his friends that he was of the will now under contest, and that will going to execute a will in favor of the reshe caused to be probated, proving to the spondent Weise, to others that he was going satisfaction of the court that at the time of to will his property to his friends. In the its execution the testator was of sound and note written immediately before inflicting the disposing mind and memory. It was practi- wound which afterwards resulted in his cally conceded, therefore, that the testator death, and which he doubtless intended as was sober at times, and had lucid intervals, his last communication in life, he declared during which he had sufficient mind and that he was about to shoot himself on a'memory to enable him to comprehend the na- count of his wife; that all she was after ture and extent of his property and to recol- was his property; that she thought he was lect the objects of his bounty. Much tes- so dumb that he did not know it; and that all his property was for the respondent, a corporation may, in its own name, maintain an Weise. Between the time he received his mor- action to recover such property. tal wound and the time of his death, some

2. SAJE-ISSUES.

In replevin by a corporation for its records weeks thereafter, he repeatedly declared that

and seal, defendant answered that he was the he had willed his property to the respondent secretary thereof, which the corporation by repliWeise, and expressed satisfaction with the cation denied. The corporation proved that the disposition made. Counsel argue that the

property belonged to it, and that delivery thereof

had been refused after demand. There was no fact that the deceased made two wills with.

other evidence. Held not to present any quesin a period of 17 days, naming different dev- tion as to the right to the office of secretary isees, is evidence of mental incapacity or

of the corporation. undue influence. It might be convenient to

3. EVIDENCE-SECONDARY EVIDENCE-CORPO

RATE OFFICERS. attribute a change of mind which cannot be

In replevin by a corporation for its records otherwise satisfactorily accounted for to in- and seal, a person may testify that he was sanity, drunkenness, or undue influence, but the general manager of the corporation, and this we are not at liberty to do. We know

as such made a demand for the delivery of the

property, which was refused, as against the not what hopes or promises may have in- objection that parol proof was inadmissible to duced the deceased to execute the will in prove that the witness was an officer of the favor of the appellant. If we did, the mys

corporation.

4. EVIDEXCE-PRESUMPTIONS. tery surrounding the change of beneficiaries

The manager of a corporation is presumed might be solved.

to act with the authority of the corporation Again, it is argued that it is unnatural that when making a demand for the possession of the husband should disinherit the wife, in

its property. view of the number and character of the

Appeal from District Court, El Paso Counletters written to her within the few months

ty; Louis W. Cunningham, Judge. preceding his death. The answers to these

Action by the Alert Gold Mining Company letters, or a failure to respond to his re

against J. W. D. Stovell. From a judgment peated appeals for a reconciliation, miglit for plaintiff, defendant appeals. Affirmed. afford some explanation of a change of mind and heart. It is impossible to read the rec

', . ,

W. K. Brown, for appellant. Gunnell, ord in the first divorce suit, with its charges Chinn & Miller, for appellee. and counter charges, the record in the second divorce suit, the threat from the attorney for

STEELE, J. Claiming to be the owner and the appellant to the deceased a few days

entitled to the immediate possession of cerbefore his death, that, if he did not obtain tain personal property, consisting principally a decree of divorce from the appellant in

of its record books and seal, the Alert Gold the pending suit, she would amend her an

Mining Company brought suit in replevin for swer and pray for one, the note written by the recovery of the possession of the property the deceased at the time of his attempt to

and for damages for the detention of the same commit suicide, and then declare that the against John D. Stovell, who, it was alleged, conduct of the deceased was either unseemly wrongfully detained it and refused to deor unnatural.

liver it upon demand. The answer avers that Lastly, it is contended that the court erred | defendant, Stovell, is the duly qualified and in not allowing the appellant her costs in the acting secretary of the company, and as such, court below. Conceding that a court may

under the statutes of the state and the byin its discretion allow an heir who unsuccess- laws of the company, is the proper custodian fully contests his ancestor's will costs out of of its record books and seal, and that said the estate, yet in this case, where the ap- property was in the possession of the company pellant claimed under one will and the re- at the time the suit was instituted. The repspondents under another, the court properly lication denies that the defendant is, or at declined to award costs to the unsuccessful

the time of the commencement of the suit was, contestant. For a like reason, her prayer

the secretary of the company, and denies that for costs in this court is disallowed.

the company was in the possession of the The judgment of the court below is free property, through its secretary or otherwise, from error and should be affirmed, and it is

at the time of the commencement of the suit. So ordered.

A witness for the plaintiff testified that the

property in question was the property of the HADLEY, FULLERTON, and CROW, JJ.,

corporation; that he was a director and the concur. MOUNT, C. J., and DUNBAR, J.,

,

general manager, and had made a demand upnot sitting

on the defendant for the property; and that defendant had declined to deliver it to the

company. After motion to strike out all the (38 Colo. 80)

testimony was denied, plaintiff rested. The STOVELL V. ALERT GOLD MINING CO.

defendant offered no testimony. Judgment

was rendered for the return of the property, (Supreme Court of Colorado. Dec. 3, 1906.)

and the defendant appealed to the court of 1. REPLEVIN-RIGHT OF ACTION ACTION BY

appeals. CORPORATION. Though the secretary of a corporation is

The appellant contends that the court erred by law the custodian of its records and seal, in appointing a custodian of the property, pending the litigation. We shall not discuss

(38 Colo, 289) the question raised, for the reason that the or- | REBECCA GOLD MINING CO., Limited, v. der made did not determine the rights of the

BAKER. parties.

(Supreme Court of Colorado. Dec. 3, 1906.) It is contended that, as the secretary of the MASTER AND SERVANT – ACTION FOR COMcorporation is by law made the custodian of

PENSATION--EVIDENCE--ADMISSIBILITY. the records and seal, he alone is authorized to

On an issue as to whether plaintiff, who

was employed by defendant, the owner of a mine, bring a suit for the possession thereof. It

as a watchman, was re-engaged after having is entirely probable that the secretary of a been discharged, evidence of the execution of a corporation could maintain a suit of replevin

lease of the mine and entry of the lessee on the

day of the discharge was admissible as tending to recover possession of such of the company's

to show that plaintiff's services were not reproperty as he is entitled to the possession of, quired after the discharge. but, as the property of which he is the cus

Appeal from Teller County Court; A. I. todian is the property of the corporation, we

Frost, Judge. know of no reason why the corporation itself

Action by John B. Baker against the Re may not maintain an action to recover its

becca Gold Mining Company. From a judgproperty. We think there is nothing in the

ment in favor of plaintiff, defendant appeals. defendant's contention, and that the suit was

Reversed. properly brought by the corporation.

It is next contended that the real contro- M. B. Carpenter and John A. Deweese, for versy was over the office of secretary of the appellant. J. Maurice Finn and Temple & company, and authorities are cited holding Crump, for appellee. that the right to an office cannot be tried in an action of replevin. There is no such ques

GODDARD, J. This is an action to recov

er for services rendered by appellee, plaintiff tion presented by the record. It does not ap

below, as watchman upon the property of the pear from the testimony that any one held

appellant, defendant below. the office of secretary of the corporation. The

The complaint

alleges that the defendant on the 24th of chefendant alleged in the answer that he was

June, A. D. 1901, employed the plaintiff to then, and was at the time of the bringing of

watch, guard, look after, and protect all the the suit, the secretary of the company, but this was denied by the replication. The

replication. The personal property situate upon certain mining

claims (describing them), for which services plaintiff proved that the property belonged

the defendant agreed to pay plaintiff the sum to the corporation, that delivery thereof had

of $3 per day; that plaintiff has been conbeen refused after demand, and rested. The defendant did not cross-examine plaintiff's

stantly employed guarding, watching, and

looking after the said premises, at the spewitnesses, and offered no testimony, and there

cial instance and request of defendant, for the was no question of the kind now raised pre

period of 379 days, the total value of which sented to the trial judge.

work amounts to $1,137; that defendant at It is next contended that the court received

divers times paid plaintiff sums aggregating incompetent and secondary evidence. The

$286.40, leaving a balance of $850.60 still court, over the objection of the defendant,

due and unpaid. Defendant answered, denypermitted a witness to testify that he was an

ing the allegations of the complaint. The officer of the corporation and that a demand

cause was tried to a jury. The testimony was made by him for the delivery of the prop

disclosed that plaintiff went to work upon the erty. The objection was that the records property the 24th of June, 1901; that on Dewere the best evidence of who the company's

cember 21, 1901, he was discharged, and upon officers were, and that no authority from the

settlement then had there was due him $415. board of directors for making the demand was

As to what occurred at that time, plaintiff shown. The position of counsel is untenable.

testifies, inter alia, as follows: "Mayhew The title to the office of manager was not in

[who was manager for the company, and by dispute, and the authorities are numerous,

whom plaintiff was employed] said to me: when the title to an office is involved only

'Jolin, you can go down home. Your time is incidentally, that parol proof is not objec

up here.' 'Well,' I says, 'all right. Who is tionable, and that the fact of the existence of

going to pay me? *

He says: 'Burthe corporation, or the fact that one is an

bridge was to pay this debt.' Well, I told officer of the corporation, may be proved by him he was never known to pay anything. one who knows the fact. The manager is pre- I said: 'I am going to stay here until I get sumed to have acted with the authority of the

my money.'” He further testified that, when corporation in making demand for the pos

the time was reckoned up and the settlement session of its property, and there was nothing made, Mayhew said: “John, you go back up shown which overcomes this presumption. to the mine and stay there until Burbridge There being no error disclosed by the rec

pays you, and keep track of your time.” ord, the judgment is affirmed.

This conversation was denied by Mayhew in

toto, who further testified that he did not reThe CHIEF JUSTICE and CAMPBELL, employ the plaintiff after December 21, 1901, J., concur.

but that he turned the possession of the property over to a Mr. May for Burbridge and below, appearing for that purpose only, morassociates under lease; that he never recog- ed the court to dismiss the appeal on the nized plaintiff as watchman after Decem- ground that the appeal bond was not filed ber 21st. Defendant also offered in evidence and approved in conformity with the rea lease executed by the company to Bur- quirements of section 2679, 2 Mills' Ann. St., bridge under which it is claimed that posses- which, inter alia, provides: "The party sion of the premises was turned over to him praying the appeal shall, within ten days on December 21, 1901. This offer was re- from the rendition of the judgment from jected.

which he desires to take an appeal, enter into , We think the court erred in excluding this bond, with security to be approved and conevidence. The execution of such a lease, and ditioned as hereinafter provided.

* the entry into possession of the premises The court denied this motion. The statute by the lessee thereunder was very persuasive, above referred to is mandatory and jurisdicoif not conclusive, evidence that the services | tional, and must be strictly complied with,. of the plaintiff as a watchman were no long- and, unless in appeal is taken within the er needed in behalf of the company, and statutory period, as therein provided, the that fact would strongly corroborate defend- court has no jurisdiction, and the appeal is ant's claim that there was no re-employment | void for all purposes, and will be dismissed of the plaintiff, as claimed by him. Further- either on motion of appellee or on the court's more, it is evident from plaintiff's own testi- own motion. In such case the court has mony that he was influenced in his action

no power to make any other order than that in remaining upon the property after Decem- of dismissal. 2 Enc. Pl. & Pr. 239, and cases ber 21st by reason of his mistaken notion that cited. he was justified in doing so until his wages The court erred in denying the motion. were paid, rather than because of a re-em- The judgment is reversed, and the cause reployment by the company. But, however manded, with directions to dismiss the appeal. that may be, in view of the conflict in the Reversed. testimony as to the fact of the re-employment, the defendant was entitled to the bene- GABBERT, C. J., and BAILEY, J., concur. fit of the evidence offered, and its exclusion necessitates a reversal of this judgment. Reversed.

(38 Colo. 104)

CRIPPEN v. GLASGOW. GABBERT, C. J., and BAILEY, J., concur. (Supreme Court of Colorado. Dec. 3, 1906.)

WATERS AND WATER COURSES-IRRIGATION

POINT OF DIVERSION--CHANGE. (38 Colo. 364)

In a proceeding by a landowner to change HORN V. MARTIN.

his point of diversion to a point higher up on

the stream, as authorized by Laws 1903, p. (Supreme Court of Colorado. Dec. 3, 1906.) 278, owners of land below the point of the JUSTICES OF THE PEACE-APPEAL-STATUTORY

original intake cannot object that the owners

of lands between the old and new point of TIME FOR APPEAL.

diversion have been injuriously affected by the 2 Mills' Ann. St. § 2679, providing that the

change. party praying for an appeal shall, within 10 days from the judgment, enter into a bond with Appeal from District

District Court, , Saguache security to be approved, is mandatory and juris

County; Chas. C. Holbrook, Judge. dictional, and, unless an appeal from a justice is taken within the statutory period as therein

Proceedings by David E. Glasgow to change provided, the court has no jurisdiction, and it the point of diversion of plaintiff's right must be dismissed either on motion of appellee to use the water of a creek to a place higher or on the court's own motion.

up the stream, to which J. J. Crippen filed [Ed. Note.For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, 8 530.]

objections. From a decree in favor of peti

tioner, Crippen appeals. Affirmed. Appeal from Prowers County Court; L.

Hodges, Arlson & lodges, for appellant. F. Blodgett, Judge.

John 1. Palmer, for appellee.
Action by J. C. Horn against W. E. Martin.
From a judgment in the justice's court,

CAMPBELL, J. This is a special proceedplaintiff appeals. From an order in the county court refusing to dismiss the appeal, de

ing under the act of 1903 (Session Laws

1903, p. 278), having for its object a change, fendant appeals. Reversed.

to a place higher up the natural stream, vi J. C. Horn, in pro. per.

the point of diversion of the petitioner's right

to the use of water from San Luis creek in GODDARD, J. This action was originally water district No. 23. The substantive part brought before a justice of the peace. On of this act recognizes, and gives legislative May 23, A. D. 1902, the cause was tried, sanction to the right which theretofore exand judgment rendered against defendant isted of changing the point of diversion, if for costs. An appeal bond, in many re- the rights of other appropriators are not inspects defective, was approved by the justice juriously affected. The exclusive method or of the peace the 3d day of June, 1902. In remedy for enforcing the right is therein prethe county court the appellee, defendant scribed. If it appears upon hearing of the

87 P.--68