8. APPEAL AND ERROR 1218-RECALL OF, tered in the court below February 28, 1914, REMITTITUR.

Where judgment for plaintiffs, decreeing mutual reconveyances, was affirmed that the Supreme Court's decision was erroneous in assuming that, one of the plaintiffs having died pending appeal, the commissioner appointed by the court could convey deceased plaintiff's interests, which had vested in her minor heirs, who could not convey, did not warrant recall of the remittitur; but petitioners for the recall would be permitted by the Supreme Court to sue in any form of action for loss because of failure of title by such death and intervention of rights of

minor heirs.

9. APPEAL AND ERROR REMITTITUR.

1218-RECALL OF

and it is shown now that on August 22, 1914, Eva P. Gordon, one of the plaintiffs, and wife of E. M. Gordon, died, and E. M. Gordon was on September 17, 1914, appointed and qualified as administrator of the estate of Eva P. Gordon, and that never at any time, or at any stage of the proceedings on appeal, was the administrator, or any other person, substituted as a party respondent in that cause, in lieu of or as a representative of Eva P. Gordon, deceased. It is asserted that all proceedings and all opinions by the court rendered, and all judgments made and Where judgment for plaintiffs, decreeing rendered therein, were had and done at a mutual reconveyances, was affirmed, that, pend-time subsequent to the death of Eva P. Goring the appeal, plaintiffs wasted and permitted loss to the properties to be turned back by don, and while there was no person substithem, and turned them back under the decree in tuted in her place and stead, and for that an almost worthless condition, did not warrant reason the whole proceedings in this court recall of the remittitur; but the Supreme Court would grant petitioners for the recall subsequent to the death of Eva P. Gordon permission to proceed in any form of action were and are void, and for that reason must for such losses as were sustained in regard to be vacated and set aside, and all remittiturs retransferred property. recalled, and all judgments of the superior court based thereon vacated. It is also alleged that Eva P. Gordon left her surviving two minor children, and that all the real estate of which she died possessed vested im mediately, as to her one-half interest therein, in the two minor sons, Donald P. Gordon and Douglas D. Gordon, who each owned an undivided one-fourth interest in and to the real estate and an undivided one-eighth interest in and to the personal property, which includes the money judgment entered in the original cause.

En Banc. Original proceeding by C. D. Hillman and wife for recall of remittiturs in an action by E. M. Gordon and wife against petitioners, and on application by the State, on the relation of E. M. Gordon and wife, against Everett Smith, one of the Judges of the Superior Court for King County. Petitions denied, with leave to bring such action as petitioners may be advised. For former opinions, see 91 Wash. 490, 158 Pac. 96; 98 Wash. 100, 167 Pac. 91, 169 Pac.

468.

Byers & Byers, of Seattle, for relators. Wilson R. Gay and Geo. H. Rummens, both of Seattle, for respondents.

[1, 2] Respondents have appeared and demurred, and also answered, to the petitions, and as grounds of demurrer urged that this court had no jurisdiction over the respondents by the petition. One of the propositions HOLCOMB, J. We have here before us urged under the demurrer is that all protwo concurrent petitions by the petitioners to ceedings in both cases referred to herein recall remittiturs heretofore issued from this were terminated, and remittitur filed below, court, and also for leave to vacate judgment prior to the commencement of the present upon facts alleged in one of the petitions un- term of court, and that this court has no der the practice first authorized by this court jurisdiction after the close of the term at in Post v. Spokane, 28 Wash. 701, 69 Pac. which the decisions were handed down. 371, 1104. The cause was originally before There is no merit in this contention. The us on appeal by the petitioners, who were Constitution, creating this court (article 4, defendants, in the case of Gordon et ux., Re-§ 2), provides that it shall always be open spondents, v. Hillman et ux., Appellants, No. for the transaction of business, except on 12186, 91 Wash. 490, 158 Pac. 96, an equi- nonjudicial days. The statute (Rem. Code, table action for rescission of contracts of sale of real and personal property, where a judgment and decree of the lower court was affirmed. It subsequently came before us upon an application filed here for writ of mandamus to compel the judge of the court below to sign a decree, in the case of State | merly held, but only a division of sittings inex rel. Gordon v. Smith, 98 Wash. 100, 167 Pac. 91, 169 Pac. 468.

§ 4) follows the same provision, but provides, also, that regular sessions shall commence on the second Monday of January, May, and October of each year. Under the constitutional provision there are no terms of this court in the sense in which they were for

to sessions for its convenience in the transaction of business. Skagit, etc., Lbr. Co. v. In one or both of the petitions now before Cole, 1 Wash. 330, 26 Pac. 535. Terms of us one of the grounds relied upon for the re- court, as they are provided for in many ju lief is that, pending the appeal to this court | risdictions, where a court of record acquires in the original cause, Mrs. Gordon, one of the and maintains, after which it cannot, except plaintiffs and a necessary party in that ac- for a limited extended period, retain, juristion, died. The original judgment was en-diction, do not exist in this state.

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Petitioners rely upon the provisions of Rem. Code, §§ 193, 967, and 1743. Section 1743 provides as follows:

[3] As to the power of the court to grant, time that the appeal from the original judgsuch relief in exceptional cases, that was ment in her favor was perfected by these settled in Post v. Spokane, supra, and fol- petitioners, nevertheless they had secured lowed in several subsequent cases. It is jurisdiction of her on appeal, and this court proper, where the petition states facts suffi- had acquired jurisdiction of her and of the cient to justify the relief demanded; and subject-matter of the appeal and the matter the permission of the court to take further in controversy between them, and no suggesaction in the matter that has been litigated tion was made in this court by either the in the trial courts, and by appeal to this appellants (petitioners here) or the respondcourt, is not original jurisdiction, but is one ents, of the death of Mrs. Gordon until after of the powers of this court under its appel- this court had rendered a final decision and late and revisory jurisdiction. It is an in- the remittitur thereon had gone down to the herent power of a court of equity, whether court below. Under the statute the appeloriginal or appellate. lants in that case, having the privilege of suggesting the death of one of the necessary parties and bringing about a substitution of parties, failed to do so. While the petition does not so aver, it was stated and urged in the oral argument on these matters by the counsel for petitioners that counsel did not know of the death of Mrs. Gordon until about the time that the remittitur went down in the original cause and some matter was being presented in connection with the decree in the court below; and it is shown that petitioners themselves were during all the time in California. The first suggestion we can find in the record of the death of Mrs. Gordon is in the decree which was presented by respondents in the original cause for entry in the court below on May 3, 1917, where it was then mentioned that E. M. Gordon was

"The death of a party after the rendition of a final judgment in the superior court shall not affect any appeal taken, or the right to take an appeal; but the proper representatives in personalty or realty of the deceased party, according to the nature of the case, may voluntarily come in and be admitted parties to the cause, or may be made parties at the instance of another party, as may be proper, as in case of death of a party pending an action in the superior court and thereupon the appeal may proceed or be taken as in other cases; and the time necessary to enable such representatives to be admitted or brought in as parties shall not be computed as part of the time in this act limited for taking an appeal, or for taking any step in the progress thereof."

Section 193 provides:

"No action shall abate by the death, marriage, or other disability of the party, or by the transfer of any interest therein, if the cause of action survive or continue; but the court may at any time within one year thereafter, on mo tion, allow the action to be continued by or against his representatives or successors in interest."

the administrator of the estate of Eva P. Gordon, deceased. Upon a hearing of the application for the writ of mandamus before this court in cause No. 14243, respondents in that matter, appellants in the original cause and petitioners here, suggested the fact of the death of Mrs. Gordon to this court, and

that no substitution had been made; but no action was then taken by either of the parties to the original cause for a substitution of parties. This court by its departmental decision (98 Wash. 100, 167 Pac. 91, 169 Pac. 468) noticed the death of Mrs. Gordon and in the opinion said:

"The death of one of plaintiffs prevents a reconveyance by the plaintiffs as individuals; but the deed of the commissioner will convey all of the title of the surviving plaintiff, as well as all of the title vested in the estate of the deceased warranties required by the judgment, obligaplaintiff. It can be made with the special tory upon the surviving plaintiff and upon the estate of the deceased plaintiff, and to these special warranties the defendants must look for any relief, if to any they are entitled," etc.

[4, 5] At common law all actions pending abated upon the death of a necessary party. But section 193, supra, abrogated this provision of the common law, and provided that no action should abate by the death of the party if the cause of action survived or continued; and there is no doubt that such a cause of action as was here originally involved was one which survived or continued. But that cause of action had then been merged in a judgment in favor of plaintiffs, and the plaintiffs had a judgment which was final, subject only to appeal, and in such action this court was required to try the cause de novo upon the record. Having merged into judgment, the cause of action could not abate upon the death of either of the plaintiffs. After While this departmental decision became the judgment the provisions of section 1743, final as the decision and judgment of this supra, related to the abatement of the right court, it is manifest that it was erroneous to appeal or of an appeal taken, and it was in that part which held that a commissioner there enacted that the death of a party after appointed by the court could divest the title judgment should not affect any appeal taken of the deceased plaintiff, as well as that of or the right to take an appeal; but the prop- the surviving plaintiff, in community real er representatives in personalty or realty of estate, which had vested, not in the administhe deceased could come in voluntarily as trator, and not in the surviving plaintiff, or parties to the cause, or, if they failed to do member of the community, but in the minor so, the adverse party might cause them to be heirs of the deceased. There should at that substituted pending the appeal. time have been some motion on the part of

See, also, Phelan v. Tyler, 64 Cal. 80, 28 and control of the petitioners, and that they Pac. 114; Black on Judgments, § 306.

[9] What the lower court in the original cause attempted to do in the controversy was to restore the status quo of the parties as to property concerning which they had negotiated, and to preserve certain equities in favor of all the parties. In doing so [7] Nor can we recall the remittiturs in the decree provided that plaintiff should the two proceedings involved.

Tris court lost jurisdiction of the cause when and that defendants should restore certhe remittitur went down. For the purpose of orrecting a mistake, or enforcing its judgment, this court may recall a remittitur, if applicatan therefor is made with due diligence. There is no contention that any mistake was made in the original opinion nor has application for a recall of the remittitur been Lade with due diligence.' Peabody v. Edmonds, 72 Wash. 604, 131 Pac. 250.

great losses in the property which had been conveyed to them, both real and personal, allowed taxes to accrue, although they had money in their hands with which to pay them, allowed interest on notes to default, allowed notes to become overdue, and failed to collect them or make any attempt to collect them, and in divers respects caused and permitted great loss and damage to the properties which had been transferred and conveyed to them, and upon the termination of the litigation turned back properties to these defendants under the decree in an almost worthless condition by reason of the dissipation, waste, and loss thereof; that, on the other hand, the defendants paid out large sums in preserving the property held by them, for which they could obtain no relief, because it was not a subject of controversy in the original action; that the loss and damage which was accruing through the acts and omissions of respondents while the litigation was pending in the original controversy could not be considered, because not a matter of original controversy therein; that by reason thereof they are entitled to relief under the principle announced in Post v. Spokane, supra.

the payment of the judgment entered in the state of Washington, or any part or portion thereof; that the application of said judgment is not affected in any way by the execution and delivery of said note and mortgage, or by the execution of this agreement. Dated March 19, 1918."

As to the retention of the principal part of the property in litigation by the petitioners, we have no knowledge. We must presume, however, that the decree heretofore entered and affirmed, and thereafter ordered to be carried into execution by a further judgment of this court, has been obeyed. If not, there are very effective remedies therefor.

In conclusion, we are convinced that we have no jurisdiction to recall the remittiturs, or to stay the proceedings until respondents can litigate their claims against the Gordons for their losses on account of waste and dissipation of the property while held by the Gordons prior to the final decree in the cause, for the reasons heretofore stated. The showing made by petitioners is such, however, that we believe the ends of justice demand that an opportunity shall be given to petitioners to litigate in some appropriate manner the losses and damages alleged to have been sustained by them.

Permission is hereby granted, therefore, for petitioners to proceed, if they be so advised, in any form of action at law or in equity, for relief in damages or otherwise, for such losses as they have sustained in regard to the property transferred and conveyed to the Gordons involved in their controversy, and the failure of title, if any, by reason of the death of the plaintiff Mrs. Gordon and the intervention of the rights of her under the law we are authorized to grant.

minor heirs. This is all the relief which

As to these averments respondents answered with denials, and also affirmative allegations, to the effect (1) that there was a stipulation agreed to by the petitioners in open court that the judgment in the original cause as entered should be final and there should be no further litigation; that a consideration for that stipulation was paid and accepted, in that petitioners gave a promissory note in the sum of $10,000, secured by mortgage, the payments of which, when made, were to be made on the judgment, thereby acquiescing in and confirming the finality of the judgment; (2) that petitioners accepted the deeds, notes, and transfers tendered to them at the initiation of the action in 1912, at the time of the signing of the final judgment on January 5, 1918, and retained the same; (3) that petitioners had acknowledged their liability as defendants in an ac- THIEMENS v. SANDERS, County Auditor. tion to foreclose a mortgage on the principal piece of property, known as the Pike Place property, which they have at all times retained since the initiation of the action, and now retain, and for which the alternative judgment was mostly awarded.

As to the stipulation alleged to have been made in open court on January 5, 1918, it not having been made in writing, or made of record in the court, cannot be considered here. As to the acquiescence by giving the promissory note and mortgage for $10,000 to be applied upon the judgment, it is shown by a contract made at the time the notes are shown to have been made as collateral thereto, set out in one of the petitions here, that "Gordon, in accepting that note and mortgage, is not accepting them as security for

MOUNT, PARKER, WEBSTER, and MACKINTOSH, JJ., concur.

WHITE v. SAME.

(Nos. 14497, 14498.)

(102 Wash. 453)

(Supreme Court of Washington. May 11, 1918.) 1. OFFICERS 70%, New, vol. 17 Key-No. Series-RECALL-PETITION-SUFFICIENCY.

Const. Amend. 8, art. 1, § 33, provides that every elective officer, except judges, is subject call, reciting that such officer has committed to recall whenever a petition demanding his resome act or acts of malfeasance or misfeasance, stating the matters complained of, is filed. Rem. Code 1915, § 4940-1, provides that recall of any elective public officer, they shall prewhenever any committee shall desire to demand a pare a typewritten charge, reciting that such officer has committed an act of malfeasance or misfeasance, which charge shall state the act or acts complained of in concise language without unnecessary repetition. Section 4940-3 provides that the officers with whom the charge is filed

shall formulate a ballot synopsis, which shall lower court, and by stipulation filed in this set forth a concise statement of the elements court are to be considered upon the same recof the charge. Section 2334 provides that every

public officer who shall (2) be beneficially in- ord and briefs. It is contended by the appelterested in any contract, sale, lease, or pur-lants that the court erred in dismissing the chase which may be made by or under his su- actions because: First, the petitions filed pervision or for the benefit of his office shall be against the appellants are insufficient; and, guilty of a misdemeanor. A petition for the recall of a county commissioner alleged that second, the statement of receipts and expenthe commissioner agreed with another commis- ditures did not comply with the statute. The sioner to vote for the purchase of a parcel of charges preferred against the commissioners land for a courthouse and that such commis- were made by a committee of taxpayers. sioner owned an interest in the land not of These charges, in relation to Mr. Thiemens, record. Held, that the petition sufficiently charged malfeasance in office. were stated in the petition substantially as follows:

2. OFFICERS 702, New, vol. 17 Key-No. Series-RECALL-PETITION-SUFFICIENCY. That petition for an election for the recall of a county commissioner recited that the officers were guilty of misfeasance instead of malfeasance is immaterial, in view of Const. Amend, 8, art. 1, § 33, and Rem. Code 1915, $$ 4940-1, 4940-3, requiring the act or acts done to be stated in plain and concise language. 3. OFFICERS 702. New, vol. 17 Key-No.

Series-RECALL-PETITION-SUFFICIENCY.

Under Rem. Code 1915, § 4940-9, providing that at the time of submitting a petition for an election to recall a public officer, the person, committee, or organization submitting it shall file a statement giving the names and post office addresses of all persons, corporations and organizations who have contributed or aided in the preparation of the charge, and the preparation and circulation of the petition, with the amount contributed by each, and the detailed statement of all expenditures, verified by the affidavit of the person or some member of the committee or organization making the charge, a petition for an election to recall a county commissioner containing the names of numerous persons, but not stating what such persons contributed, and also containing the names of persons with the amount of their contribution properly verified, was not insufficient as against a claim of omissions; the verification being conclusive.

Department 2. Appeal from Court, Grant County; John R.

Judge.

Superior Mitchell, Actions by D. C. Thiemens and J. C. White against O. T. Sanders, as County Auditor of Grant County, to enjoin him from calling an election for the recall of plaintiffs, as county commissioners. Heard together by stipulation, and from a dismissal of both actions plaintiff appeals. Affirmed.

See, also, 168 Pac. 1140.

Daniel T. Cross, C. G. Jeffers and Wm. Clapp, all of Ephrata, and Bausman & Oldham and Don G. Eggerman, all of Seattle, for appellants. W. E. Southard, T. B. Southard and C. J. Lambert, all of Wilson Creek, and N. W. Washington, of Ephrata, for respondent.

MOUNT, J. These two actions were brought to enjoin the county auditor of Grant county from calling an election for the recall of the plaintiffs as county commissioners of that county. After a trial the lower court dismissed both actions. The plaintiffs have appealed.

The issues in the two cases are practically identical. They were tried together in the

First, that Mr. Thiemens was guilty of "misfeasance," in that he, acting with J. C. White, one of the other commissioners-they then and there constituting a majority of the board-passed a resolution of such board to block 11 of the Third addition to the town of construct a courthouse for Grant county on Ephrata, and to authorize the purchase of said block 11 for the purpose of erecting thereon the said courthouse; that this resolution authorized Thiemens, the chairman of the board of county commissioners, to purchase the lots constituting said block 11 at certain stated prices, among which lots were Nos. 6 to 13, inclusive, which were authorized to be purchased for the sum of $3,500; that an undivided one-half interest, though not of record, belonged to commissioner Thiemens; that Thiemens has therefore been guilty of misconduct as a public officer, in that he is beneficially interested in the sale of these lots to Grant county; and that under this resolution the auditor of Grant county was directed to draw a warrant forthwith to pay for the lots.

Second, that Thiemens committed a further act of misfeasance in his office, in that, with J. C. White, he did, between January 12, 1917, and April 17, 1917, willfully conspire to cast their several votes in favor of the resolution authorizing the purchase of block 11, though both Thiemens and White knew that Thiemens was the real owner of an undivided one-half interest in lots 6 to 13, inclusive; that the sum of $3,500 proposed to be paid for these lots was largely in excess of their true value; that as a part of this conspiracy Thiemens and White agreed that they should keep secret from the other member of the board, T. H. Twining, their intention to pass this resolution until it was "sprung upon him"; that White and Thie mens further conspired that this resolution should be passed in such a way as to enable Thiemens to close the transaction before the taxpayers of the county would have knowl edge of the agreement or an opportunity to prevent its being carried into effect; that Thiemens and White also agreed that the resolution should be passed in a manner so as to direct the county auditor to forthwith issue warrants for the purchase of the lots in violation of the statutes of this state providing that county warrants shall not be is

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