THE STATE OF WASHINGTON, Appellant, v. Fred W. BUTLER, Respondent.

APPEAL-TIME OF FILING NOTICE.

Jurisdiction to hear an appeal is not conferred upon the supreme court where the appellant does not file his notice of appeal in the clerk's office until seven days after its service on respondent, when the statute requires that such filing should be made within five days after service.

Appeal from Superior Court, Snohomish County.-Hon. FRANK T. REID, Judge. Appeal dismissed.

P. H. Winston, Attorney General, and Thomas M. Vance, for The State.

Per Curiam.-This action was brought by the state to eject the defendant from certain lands alleged to have been granted to the state for the support of its common schools. The land had been patented to the defendant, but it was contended that he had settled thereon after title had vested in the state, and while the same was unsurveyed. Judgment having been rendered for the defendant, the state has appealed. There has been no appearance in this court by the defendant. The record discloses that the notice of appeal was served on the 10th day of June, 1897, but that it was not filed until the 17th day of said month. This was insufficient to confer jurisdiction upon this court. Watson v. Pugh, 9 Wash. 665 (38 Pac. 163); Howard v. Shaw, 10 Wash. 151 (38 Pac. 746); Fairfield v. Binnian, 13 Wash. 1 (42 Pac. 632); Puckett v. Moody, 17 Wash. 609 (50 Pac. 494).

It follows that the appeal must be dismissed.

Mar. 1898.]

Opinion of the Court - REAVIS, J.

[No. 2723. Decided March 17, 1898.]

THE FIRST NATIONAL BANK OF OLYMPIA, Respondent, v. MILO A. ROOT et al., Defendants, CHARLES T. LANSDALE, Administrator, Appellant.

DECEDENT'S ESTATE-CLAIMS -ACTION ON REJECTED CLAIM- EVIDENCE.

In presenting to the administrator of an estate a claim based upon a promissory note, a copy of the note verified by affidavit is sufficient under Code Proc., § 980 (Bal. Code, § 6229), without producing the original, unless the production of the latter for examination may have been demanded by the administrator.

In an action against an administrator upon a claim founded upon a promissory note, which had been rejected by him, both the original note and the rejected statement of claim containing a copy of the original note, are admissible in evidence.

Appeal from Superior Court, Thurston County.—Hon. ORANGE JACOBS, Judge. Affirmed.

John R. Mitchell, for appellant.

T. N. Allen, for respondent.

The opinion of the court was delivered by

REAVIS, J.-Action brought to recover judgment on a promissory note executed by defendants Root and wife and R. H. Lansdale and M. P. Lansdale on the 4th of October, 1895, payable six months after date, to the order of respondent. On November 21 following M. P. Lansdale died intestate. On March 23, 1896, appellant Charles T. Lansdale received letters of administration on the estate of M. P. Lansdale, so deceased, and has since been such administrator. On April 26, 1896, respondent presented to the administrator Charles T. Lansdale a verified statement of the claim evidenced by the note, which statement contained a copy of the note. This statement of claim was on July

Opinion of the Court-REAVIS, J.

[19 Wash. 15, 1896, indorsed "rejected," and returned by appellant administrator to respondent. On July 15, 1896, respondent again presented to appellant a verified statement of the claim which contained a copy of the note, which claim was, on July 27th following, rejected by appellant, which rejection was indorsed on the statement of the claim. On the trial of the cause the two statements of claims, as mentioned before, were offered in evidence by respondent and received by the court over the objection of appellant, and the promissory note itself was also offered in evidence by respondent and received over appellant's objection. The cause was tried before a jury and appellant offered no testimony. The superior court, on motion of respondent's counsel and over the objection of appellant, instructed the jury to return a verdict according to the prayer of the complaint, and judgment was entered upon such verdict. The only error assigned by appellant is the admission of the rejected statements of claims and the promissory note in evidence. The appellant maintains that the promissory note itself is the claim meant by our probate laws, and not a copy verified by affidavit which was offered to the administrator in this case. But § 980, 2 Hill's Code (Bal. Code, § 6229) contains this clause:

"The executor or administrator may also require satisfactory vouchers to be produced in support of the claim.”

It will thus be seen that the administrator could have demanded the production for his examination of the promissory note in question, but he did not do so. Every claim which has been allowed must be filed in the court, and it is then ranked among the acknowledged debts of the estate, to be paid in the course of the administration. We see no particular reason for filing the promissory note with the clerk of the superior court until it is paid. It may be noted here, too, that although the promissory note in contro

versy is negotiable, yet its negotiability had terminated at the time of the presentation to the administrator, it then being overdue. So the suggestion that negotiable paper might pass from the administrator to an innocent purchaser is not in point here.

We perceive no error in the record before us, and the judgment of the superior court is affirmed.

DUNBAR, GORDON and ANDERS, JJ., concur.

[No. 2766. Decided March 17, 1898.]

JOHN JENKINS, Respondent, v. WILLIAM B. PowE, Appellant.

APPEAL- COSTS IN LOWER COURT- QUESTION NOT RAISED BELOW.

The supreme court will not consider and determine the right of a party to an allowance for costs incurred in the lower court, when the lower court has never been called upon to pass upon the question.

Appeal from Superior Court, Thurston County.—Hon. CHARLES H. AYER, Judge.

Motion of respondent to amend judgment dismissing the appeal, so as to include costs in lower court. Denied.

A. L. Campbell, and G. C. Israel, for appellant. Charles M. Dial, and Phil. Skillman, for respondent.

Per Curiam.-Upon respondent's motion based upon a short record the appeal in this cause was dismissed on October 19, 1897. Thereafter respondent filed a motion to amend the judgment of this court and include therein certain costs claimed by respondent to have accrued during the pendency of the action in the superior court, and which

8-19 WASH.

Syllabus.

[19 Wash. -through inadvertency, it is claimed-were omitted from the judgment of that court. This motion was denied on January 28, 1898, for the reason that it did not appear to us that the lower court had ever passed upon the question of respondent's right to the allowance. But in denying the motion we filed no opinion and we are now requested to indicate our reasons for denying the same in order that the decision of the motion may not prejudice any right of respondent to apply to the superior court for such remedy as he may be entitled to. Without attempting to determine whether or not respondent is entitled to such costs, we conclude that the parties are entitled to be informed of our reasons for denying the motion to amend the judgment, and as already stated, the sole reason for our decision was that it did not appear to us that the matter had ever been passed upon by the superior court, and that in the exercise of our appellate jurisdiction we could not properly consider it.

[No. 2892. Decided March 17, 1898.]

THE STATE OF WASHINGTON, on the Relation of Henry Holgate, v. SUPERIOR COURT OF STATE OF WASHINGTON FOR PIERCE COUNTY et al.

NEW TRIAL-PARTIES AFFECTED BY GRANT OF APPEAL-MANDAMUS -ESTOPPEL AGAINST CHANGING THEORY OF CASE.

The action of the court in granting a new trial must be held for the benefit of all the defendants, although applied for by but one of them, when it appears that the new trial was granted on the ground that the court had received the verdict in the absence of the parties, thereby constituting an irregularity in the proceedings of the court prejudicial to all the defendants.

Where an appeal has been taken from the order of the court granting defendants a new trial upon the application of one of