ing an extension of the time of filing the statement of facts. For this reason the motion of the respondents that the statement of facts be stricken must be granted.

In the absence of the statement of fact, there is nothing before us for review, and the judgment of the lower court is affirmed.

MAIN, C. J., and HOLCOMB, CHADWICK, and MOUNT, JJ., concur.

was irregular. McHugh v. Connor, 68 Wash. 229, 122 Pac. 1018; 32 Cyc. 516. An examination of the testimony in this case does not disclose such a degree of proof as meets the burden which rests upon the appellant, and for that reason we affirm the action of the lower court.

MAIN, C. J., and TOLMAN, CHADWICK, and MITCHELL, JJ., concur.

ALLEN v. STARR. (No. 15043.) (Supreme Court of Washington. Nov. 20, 1918.)

JUDGMENT 162(4)-OPENING DEFAULTSHERIFF'S RETURN-CONCLUSIVENESS. While it is true that sheriff's return is not conclusive evidence of facts therein stated, it is also true that after a judgment has been rendered upon proof made by the sheriff's return, such judgment should only be set aside on convincing evidence of the incorrectness of the return.

Department 1. Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Proceeding by Lee M. Allen against Lida A. Starr, administratrix of the estate of Philip C. Troutman, deceased, to vacate a default judgment. From an order refusing to open and vacate the judgment, the former appeals. Affirmed.

C. S. Goshert, of Seattle, for appellant. Turner & Hartge, of Seattle, for respond

ent.

MACKINTOSH, J. The appellant is seeking to have vacated a default judgment entered against him on the 9th day of November, 1916, claiming that there had never been any legal service of summons and complaint. The sheriff's return showed service by leaving a copy of the summons and complaint with the wife of the appellant, at the place of the usual abode of appellant, on October 17, 1916. No appearance having been made, default judgment was taken, and thereafter execution was issued, and the appellant's property sold to satisfy the judgment. The trial court, after hearing the evidence introduced by appellant, and that introduced by respondent, refused to open and vacate the default judgment, holding that personal service had been made, as shown by the sheriff's return.

While it is true that a sheriff's return is not conclusive evidence of the facts therein stated, it is also true that after a judgment has been rendered upon proof made by the sheriff's return such judgment should only be set aside upon convincing evidence of the incorrectness of the return in order that judicial conclusions may possess regularity and stability. After judgment the burden is upon the person attacking the service to show, by clear and convincing proof, that the service

In re WARD. (No. 7.)

(Supreme Court of Washington. Nov. 19, 1918.) En Banc.

On report from State Board of Law Examiners.

In the matter of the disbarment of N. L. Ward. Disbarred, and license to practice annulled.

McMaster, Hall & Drowley, of Vancouver, W. F. Magill, of Portland, Or., and H. E. McKenny, of Kelso, and N. B. Brooks, of Goldendale, for accused.

W. V. Tanner, of Olympia, opposed.

FULLERTON, J. This is a proceeding for the disbarment of N. L. Ward. The state board of law examiners before whom the hearings were had made specific findings of sums of money, received by the attorney while acting as an administrator, for which he has not accounted. The findings are not disputed, the only defense offered being a plea in extenuation. But we cannot think the plea in any manner mitigates the offense.

The order is, therefore, that the defendant be disbarred and his license to practice law in this state annulled.

MAIN, C. J., and MOUNT, MITCHELL, MACKINTOSH, PARKER, CHADWICK, HOLCOMB, and TOLMAN, JJ., concur.

CARLSON v. MOCK et al. (No. 14749.) (Supreme Court of Washington. Nov. 20, 1918.) En Banc. Appeal from Superior Court, King County; Everett Smith, Judge. On rehearing. Affirmed.

For former opinion, see 102 Wash. 557, 173 Pac. 637.

TOLMAN, J. Upon rehearing en banc and a careful reconsideration of the whole sub

ject-matter, the majority of the court adheres to and reaffirms the views heretofore expressed in the opinion which will be found in 173 Pac. 637.

MAIN, C. J., and PARKER, FULLERTON, and MITCHELL, JJ., concur.

HOLCOMB, J. (dissenting). The majority having sustained the department opinion

herein, and there having been heretofore no opportunity for me to express my views upon the original opinion, I avail myself of the present opportunity so to do.

any suit; and, if he elect to take compensation under the act, his cause of action would be assigned to the state for the benefit of the accident fund. These terms do not give the option or election to the wrongdoer to have determined at his instance whether he shall pay the injured person directly or

Cable or electric street railways were expressly brought within the terms of the act as extrahazardous occupations, and "all employés of street railways" were classified as in extrahazardous occupation. The plant of such a system must necessarily constitute and include, not only the private premises of the system devoted to such use, but the poles and wires (Brown v. Gerald, 100 Me. 351, 61 Atl. 785, 70 L. R. A. 472, 109 Am. St. Rep. 526), and the fixtures, machinery, apparatus, appliances, etc., necessary to carry on the trade or business or any mechanical operation or process (Scott v. Roberts, 42 Colo. 280, 93 Pac. 1123; Ency. Dictionary; Webster's International Dictionary; Wood v. U. S. F. & G. Co. [D. C.] 143 Fed. 424; McKeon v. Proctor, 76 Misc. Rep. 599, 135 N. Y. Supp. 291). Other similar constructions could be cited.

Under the prevailing opinion a street railway would have no plant except its power plant or car barn, if it had any such. Some electric street railways have no power plant. but buy electric power from an independent concern. Some such systems, if new or small, may even dispense with car barns and have nothing but their franchises and tracks upon public streets. Such systems would therefore have no plant and, although expressly denominated extrahazardous occupations for its employés, the employer would be read out of the act. This condition cannot long be sustained.

And, again, if a street railway exists partially upon private right of way and partially upon public streets, a private right of way is to be deemed a part of the plant, while the tracks upon the public streets are not. Whenever a public road crossed the railway upon its private right of way, the crossing, being a public highway, would not be part of the plant. In short, the railway would be segregated here and there into plant and nonplant. Great confusion thus results from such definition.

I should like to concur in the result and affirm the judgment for in this case respondents were wrongdoers and appellant injured by their tortious act. The act was not intended to protect and insure a wrongdoer from the consequences of his tortious act. The act provides that an employé injured while away from the plant by such wrongdoer shall have the right to elect whether to take under the act or seek his remedy against such other, such election to be in advance of

person.

The defense was that, under the compensation act, the court had no jurisdiction of the cause of action. The wrongdoer should not complain that he is held accountable directly by the injured party rather than by the state. In any case he can be held accountable but once for the same injury and damage. If I conscientiously could, I should insist that in such a case as this, where the injury happened upon a public street and may have happened as well outside of the tracks of the street railway company as between them or upon them, under a broad interpretation of the act and proviso giving the right of election, the injured party may elect that as to the wrongdoer other than the employer the injury occurred away from the plant of the employer. But as I see it this cannot be done. The act gives the right of election only to one injured "away from the plant." The plant and the system of a street railway are synonymous and are patently used interchangeably in the act. There is room for appropriate legislative amendment, but none for judicial legislation.

For these reasons I must dissent.

MACKINTOSH, MOUNT, and CHADWICK, JJ., concur.

HAHN v. HAHN. (No. 14737.) (Supreme Court of Washington. Nov. 20, 1918.) MARRIAGE 58(1) - ANNULMENT - INVALID MARRIAGE.

A marriage contracted within six months of entry of decree divorcing one of the parties, in Idaho, by residents of Washington, who immedi ately after marriage returned to Washington, being void under Rem. & Bal. Code, § 991, will without reference to guilt or innocence of either be annulled by court, in view of section 983, party.

En Banc.

Appeal from Superior Court, Spokane County; David W. Hurn, Judge.

Action by R. A. Hahn against Sophrana Hahn. Judgment of dismissal, and plaintiff appeals. Reversed, with directions.

Robert Corkery, of Spokane, for appellant. John B. White, Fred J. Cunningham, and Ralph Robinson, all of Spokane, for respondent.