and fact, and tried exclusively upon the affidavits which were considered by the court, and the court made its findings of fact and its conclusions of law 452 in regular form; the findings of fact not having been excepted to, under the rulings of this court in Rice v. Stevens, 9 Wash. 298, Hannegan v. Roth, 12 Wash. 65, and many subsequent cases, the only question for this court to determine is, Do the findings of fact warrant the conclusions of law? The court found that the defendant was a corporation duly organized and existing under the laws of the state of Missouri, that it had never appointed or had any agent residing in the state of Washington for any purpose whatever, had never done or carried on any business whatever in the state of Washington, had never had any property within the state of Washington, had never had an office for the transaction of business in any county in the state of Washington, and that it did not at any time have any officer or agent residing in any county in the state of Washington upon whom process might be served against said defendant company, or any officer or agent whatever of said defendant company.

The appellant has based its argument so entirely upon the matters and things set up in the affidavits that it is of very little value to this court in determining the law governing this case, for if we were to consider the affidavits we might conclude that the transaction or sale had been made in the state of Washington, but the finding of the court is, that the defendant has never done or carried on any business whatever in the state of Washington, and that John H. Leidigh, to whom a copy of summons and complaint were delivered, was at said time only casually and temporarily in the state of Washington, and has since departed therefrom; so that the argument of appellant made on the sixteenth, seventeenth, eighteenth, nineteenth and twentieth pages of its brief in relation to the purpose for which Mr. Leidigh came to this state and the capacity in which he was acting is not in point in the discussion of this case. We think from 453 an investigation of the cases cited by the appellant that it has confused the idea of jurisdiction of states over foreign corporations with the idea of a proper service. It is not questioned by any of the cases that we have seen that where a summons has been served upon an officer of a corporation for whose acts the corporation is bound, where the statute provided for a legal service on such agents or parties, the jurisdiction of the state court over foreign corporations attached. But in this case it does not appear to us that service was made under the statute, or in any

other way that has ever been maintained by any court, viz., by serving an officer of the foreign corporation which had no place of business in the state and which had never done any business in the state, such officer being simply temporarily present in the state. And most of the cases cited by appellant, as we before indicated, are cases simply sustaining jurisdiction under statutes which provided for legal service.

It is true that Hiller v. Burlington etc. R. R. Co., 70 N. Y. 223, a service upon a director of a foreign corporation in the state of New York, while he was there temporarily on his own business, was a good service and a sufficient commencement of the action, although defendant had no property in that state, but in that case it was determined by the court that the contract was made in the state of New York. There the plaintiff had made a contract to enter defendant's service for a term of years, his business being to procure emigrants to purchase and settle on defendant's lands in Nebraska. Plaintiff was bound under the contract to maintain during the whole time an office in the city of New York, and was to go to Europe for two or three months to arrange for emigration, and, in accordance with said contract, opened and kept open in the city of New York the office until the contract was terminated by 454 the defendant. that case, the court very properly held that in an action for services under the contract and for damages under the breach it was to be assumed that the parties understood that plaintiff's principal duties under the contract would be discharged in New York City, and that therefore the cause of action arose within that state. Substantially the same doctrine was announced in Pope v. Terre Haute Car Mfg. Co., 87 N. Y. 137.

In

But the court in those cases was construing a statute vastly different from our statute, and maintained the doctrine that the manner of service depended entirely upon the legislature. These cases, however, stand alone so far as the announcement of the doctrine is concerned that the service on the officer of a foreign corporation who is temporarily in the state is a good service, with the possible exception of Klopp v. Creston City Water Works Co., 34 Neb. 808, 33 Am. St. Rep. 666, a Nebraska case; though thie case is not in point here for the reason that the statute of Nebraska was entirely different from our statute, and for the further reason that it was conceded in that case that the debt was contracted in Nebraska, while the finding of the court in this case is to the contrary, and, even if we should consider the complaint, there is nothing there that would indicate that the debt

had been contracted in this state. The doctrine announced by the New York cases has not been followed by the federal courts: See Bentlif v. London etc. Corp., 44 Fed. Rep. 667.

The contention of the appellant that section 7 of article 12 of the constitution, which provides that "no corporation organized outside the limits of this state shall be allowed to transact business within the state on more favorable conditions than are prescribed by law to similar corporations organized under the laws of this state," will be invaded if this judgment is maintained, has no force 455 from the fact that it appears from the findings of the court that the defendant corporation here is not transacting business within the state under any condition whatever.

Mr. Thompson in his work on Corporations, volume 6, section S030, lays down the rule governing this case as follows: "It is a principle of American law, firmly settled, and one which may be regarded as the law everywhere, except where changed by statute, that service of process upon an officer or agent of a foreign corporation, casually or temporarily found within the jurisdiction, whether upon his own business, or otherwise, will not give jurisdiction to render a judgment in personam against the corporation. It can make no difference, in respect of the operation of this principle, whether the officer is casually or temporarily within the jurisdiction for his own private purposes, or for the purposes of the corporation-always provided that the local statute law has not changed the practice." And the cases cited by the author overwhelmingly support the principle therein announced. In fact, not only the weight of authority, but all the authority that we have been able to find outside of the New York and Nebraska cases above mentioned sustains this text. The cases are reviewed in 8 American and English Encyclopedia of Law, first edition, page 384.

Under the circumstances of this case, then, as shown by the findings of fact, the judgment of the lower court must be sustained, and it is affirmed.

Scott, C. J., and Gordon and Reavis, JJ., concur.

Anders, J., concurs in the result.

APPEALABLE ORDERS, WHAT ARE.-Whether an order is appealable or not depends more upon what it purports to determine than upon its actual effect. The general rule is, that an ap peal lies from an order only when it determines the action or affects some substantial right of the appellant: Extended note to Davie v. Davie. 20 Am. St. Rep. 173: Harrison v. Lebanon Waterworks, 91 Ky. 255; 34 Am. St. Rep. 180, and note.

APPEAL-WHAT WILL BE CONSIDERED ON.-There can be no review on appeal of questions not raised at the trial: Greene v. Greene, 49 Neb. 546; 59 Am. St. Rep. 560, and note; Reich v. Cochran, 151 N. Y. 122; 56 Am. St. Rep. 607, and note.

CORPORATIONS, FOREIGN-SERVICE OF PROCESS UPON. Service of process on an officer of a foreign corporation who is casually in this state does not, in the absence of a statute conferring authority to make such service, give the courts of this state jurisdiction over such corporation, when it has neither an agency nor property in this state, and has not done business therein other than entering into a contract to be performed in another state: Aldrich v. Anchor Coal etc. Co., 24 Or. 32; 41 Am. St. Rep. 831, and note.

SMITH V. SEATTLE.

[18 WASHINGTON, 484.]

LIMITATIONS OF ACTIONS-REMOVAL OF LATERAL SUPPORT.-The statute of limitations begins to run against a right of action for damages for the removal of lateral support only from the time that injury actually results therefrom, and not from the time of the act of removal.

Smith & Cole, for the appellant.

J. K. Brown and F. B. Tipton, for the respondent.

485 GORDON, J. The complaint in this action alleges that the appellant is the owner in fee of lot 2, block 42, of Terry's Second Addition to the city of Seattle, situated at the southwest corner of Seventh avenue and Alder street, said lot being sixty feet wide and one hundred and twenty feet long, and distant easterly from Yesler Way (a public street) about one hundred and thirty feet at its southwest corner, and about one hundred and seventy-five feet at its northwest corner, said block 42 being fractional, and bounded southwesterly by Yesler Way, which runs diagonally through it. That in the summer of 1888 plaintiff erected a dwelling-house on said lot; that in its natural state the lot was substantially level and the soil and earth of the lot so related to the soil and earth immediately to the south westward, and to the soil and earth of Yesler Way that the latter formed the natural and actual support of the soil and earth of plaintiff's lot. That in the summer and fall of 1888 the city graded Yesler Way between Sixth and Seventh avenues, excavated to the depth of from fifteen to twenty-five feet below the natural surface of the land to the southwestward of plaintiff's property, and carelessly and negligently made such excavation without leaving or providing any means for lateral support for the soil and earth adjoining Yesler Way to the northeastward

thereof, in consequence of which the soil and earth immediately to the northeasterly of said Yesler Way "began forthwith to crack, subside, and slide away, which said cracking, subsidence, and sliding away has continued intermittently, but surely and without restraint northeasterly from Yesler Way ever since.

...

"That by reason of the careless, negligent, and unskillful grading of said Yesler Way as aforesaid by defendant, 486 and the failure of defendant to furnish any lateral support, or any support, in place of that removed by said grading to the land to the northeasterly of said Yesler Way, between Sixth and Seventh avenues, and to the said lot of plaintiff, the soil and earth immediately northeast of said Yesler Way during the period from the grading of said Yesler Way to the fall of the year 1896 kept gradually sliding or falling into said Yesler Way, and said defendant thereupon. . . . so carelessly and negligently excavated and removed said sliding and falling soil and earth and provided no lateral or subjacent support in place thereof, that the soil and earth next further northeast thereto slid and fell into said excavation in and adjoining said Yesler Way; that in the months of October, November, December of 1896, and January, 1897, said defendant oftentimes actively and with great force excavated and removed from said Yesler Way the earth and soil sliding and falling thereon as aforesaid, carelessly and negligently, carrying away said soil and earth by sluicing and hydraulicking the same recklessly and carelessly, also going off from said Yesler Way to the northeast thereof upon private property between Sixth and Seventh avenues, and removing therefrom large masses of soil and earth for the purpose of the sooner tearing down said hillside and removing the lateral support of land to the northeasterly thereof and to plaintiff's lot, and providing no lateral support in place thereof for land adjacent thereto or to the lot of plaintifï; and also during said months. . . . excavating and removing earth and soil from below the established grade of said Yesler Way, between Sixth and Seventh avenues, on account of which acts of defendant, carelessly, negligently, and wrongfully done, and on account of its failure to provide to plaintiff's lot lateral or subjacent support, the lot of plaintiff, in the month of October, 1896, began to crack, subside, and fall away onto adjoining land to the southwesterly thereof and into said Yesler Way, which said cracking, subsidence, and sliding away of the soil and earth of plaintiff's lot continued during the months of October, November, December of 1896, and January, 1897, nor was the same caused by or attributable 48 to the weight or otherwise of