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April, 1901.] Opinion of the Court-REAVIS, C. J.

"Question: Now, you have mentioned these threats; just give the court fully all that you know about her making threats against herself and the child and anybody else.

"Answer: She would threaten to kill my mother. I don't know how many times she would make these threats, but I know two dates she did make these threats since 1 came back from Alaska. I went to her to see the baby, and talked to her, and she wanted me to live with her, and I told her I could not do it, and she said she would kill the baby and kill herself and kill me. That was the last day of June. The first day of July I went to see her again, and she said she would kill the baby, and wanted me to come into the house and see the poison she had bought. I told her, no, I wouldn't do it. I told her not to do anything like that. And she wanted to bring the poison out to me, and I wouldn't have it."

He further testified that he lived with her about five months after the marriage. A very few days before her confinement, plaintiff and defendant were ordered or sent from his father's house, and they occupied a wretchedly furnished room in an isolated house not far off, plaintiff still taking his meals and remaining most of the time at his father's, while defendant was alone, and he was absent when she was confined. He testified that the child was born on the 28th of June; that he left her on the 5th of July following; that he left her because at the time. she was quarreling and complaining of him and threatening to kill his mother, and that in such a quarrel he left her, and did not return for over two years, when he went to see the child, and told her he would not live with her and wanted to be free from her, and she made the threat to kill herself and kill the child. It appears that plaintiff had practically contributed nothing to the support of the defendant at any time after the marriage. Plaintiff also testified that at the time of the marriage his family and defendant's were of about equal station. They were

Opinion of the Court-REAVIS, C. J. [24 Wash.

then poor and lived by daily labor. Upon cross-examination, plaintiff again gives the true color surrounding the threats which he averred defendant made. In answer to what were the circumstances he answered: "Why, I and her were talking. I was trying to reason with her and trying to have her give me my freedom. And I told her how I was fixed. I had nothing. I told her I couldn't live with her. It was impossible. And she said she would kill herself and kill the child and kill me." He also testified directly that no suspicion of infidelity had arisen since marriage. It is apparent, without further reviewing the evidence of the plaintiff, that it states no facts which can fairly be construed into such cruel treatment as would occasion reasonable apprehension of personal violence; and surely he shows himself fully in delinquency in cause for irritation on the part of the defendant. He seems to have been absolutely recreant in every duty he owed to defendant as her husband. Under the rule in Colvin v. Colvin, supra, announced by this court, he is not entitled to any relief. The testimony also showed that plaintiff's father, with whom he was associated, had, since the marriage and plaintiff's desertion of his wife, acquired quite a competence in Alaskan adventure, and the family were quite well-to-do, and plaintiff's station in life much improved. Considerable testimony was heard for defendant and given by several witnesses, contradicting many of the statements of the plaintiff as to the conduct of his wife; and she denied all the material statements relative to herself. It appeared at the trial that the child, John Stanley, was a robust, healthy child. There was considerable testimony as to the suitableness of the defendant to retain his custody. There was some conflict in the opinions of the witnesses and perhaps some partisanship displayed. But it appeared that the defendant has been

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a laundress for some considerable time, getting fair wages; that she is industrious and very fond of the child, and there seems to be no reason for interference with his custody, on the facts shown. Certainly, from the disclosures made by himself as well as admitted, the plaintiff is not a more suitable person to take care of the child than its mother.

The decree is reversed, with instructions to dismiss the

cause.

DUNBAR, FULLERTON and ANDERS, JJ., concur.

[No. 3223. Decided April 6, 1901.]

TOWNSEND GAS AND ELECTRIC LIGHT COMPANY, Respondent, v. D. H. HILL, as Mayor, et al., Appellants.

APPEAL

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RECORD

IDENTIFICATION WITHOUT JUDGE'S CERTIFICATE. An agreed statement of facts upon which a cause had been tried will not be stricken on appeal for want of the trial judge's certificate, when it is sufficiently identified by the court's findings and by the accompanying record.

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An erroneous finding of fact by a court, which does not materially affect the merits of the controversy, does not constitute prejudicial error.

APPEAL BOND- WHEN NOT REQUIRED OF PUBLIC OFFICERS.

Public officers need not furnish an appeal bond, when they appeal in behalf of public corporations which by law are exempted from the necessity of furnishing such a bond.

MUNICIPAL CORPORATIONS

CONTRACTS WHETHER PAYABLE OUT OF INDEBTEDNESS OR CURRENT EXPENSE FUND- CONSTRUCTION OF STAT

UTE.

Under Laws 1897, p. 222, requiring cities of less than 20,000 inhabitants to maintain a "current expense fund," corresponding to what had theretofore been known as the "general fund," and an "indebtedness fund" against which should be chargeable "all outstanding warrants, certificates and all other obligations

24 469

e31 541

24 469

33 194

24 469

634 641

34 642

Opinion Per Curiam.

[24 Wash. and indebtedness of the city, for the payment of which no provision is made by law," the indebtedness described as "all other obligations and indebtedness" must be construed as limited to the same class as the particular words which precede, and hence where plaintiff had a claim creating a general liability of the city, but the amount of which was not finally fixed and ascertained at the date of the creation by law of the indebtedness fund, plaintiff could compel by writ of mandate the issuance to it of warrants upon the current expense fund in payment of the indebtedness due it.

Appeal from Superior Court, Jefferson County.-Hon. FRANK T. REID, Judge. Affirmed.

A. W. Buddress, for appellants.

Harry Ballinger, for respondent.

PER CURIAM. This action was begun by the respondent in the superior court of Jefferson county, for the purpose of procuring a writ of mandate against the appellants, as the mayor and clerk, respectively, of the city of Port Townsend, requiring them to issue to the respondent warrants drawn upon the current expense fund of said city to pay the balance due respondent from the city on a judgment, and also a claim subsequently allowed by the city council, all of which was for street lights furnished under a contract between respondent and said city. The court granted a peremptory writ of mandamus, and from such judgment the defendants have appealed to this court.

The case was heard below upon an agreed statement of facts, and without the introduction of any evidence other than that shown in such agreed statement. Respondent has moved to strike such statement on the ground that it is not certified by the judge who tried the cause, but we think it is sufficiently identified by the court's findings and by the accompanying record to warrant us in denying the motion.

Respondent's motion to dismiss the appeal for want of

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an appeal bond is also denied, as we believe the better reason lies in favor of the rule that public officers appealing in behalf of political corporations exempted by law need not furnish an appeal bond. The action is brought against the appellants as officers of the city, and not in their individual capacity. We think it is clear that the city is the real party in interest, and therefore the same exemption applies here that would have applied had the city itself been the appellant. In support of this view, see citations in 1 Enc. Pl. & Pr. pp. 968, 969; also Lamberson v. Jefferds, 116 Cal. 492 (48 Pac. 485).

This case has been exhaustively argued upon the merits in the briefs of the respective counsel, and numerous suggestions and citations of authorities have been made by each. A comprehensive review of them all would require more space than we deem necessary for the determination of the case. From the facts as found, the court found, as a conclusion of law, that respondent was entitled to a peremptory writ of mandate commanding appellants to issue warrants upon the current expense fund of said city for the amount of respondent's claims, and judgment was entered accordingly. Appellants except to the court's twenty-second finding of fact, which is "that, aside from said delinquent taxes, said indebtedness fund cannot raise a revenue by taxation greater than about the sum of $5,000." Based upon the agreed statement of facts, the amount found is doubtless an error, as the sum would probably be about $9,000. But, since the last-named sum is less than the annual interest charge against said fund, we do not think the error materially affects the merits of this controversy. We do not deem it necessary to discuss the other exceptions specifically, since we believe the remaining findings challenged are substantially in accord with the agreed statement of facts.

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