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May, 1898.] Opinion of the Court-ScoтT, C. J.

by one witness that a warning had been given to the deceased a short time before the injury, to keep off the premises, but it is contended by the respondent that this witness was contradicted or impeached and the jury were justified in disbelieving him, and we accept that contention, as in passing upon these grounds only the conceded or undisputed facts will be considered. We are also of the opinion that it was the duty of the company, upon abandoning and discontinuing the use of the pit, to have either filled it up or inclosed it in such a manner that a person would not be likely to fall therein, but that this would only hold good as to persons who had no knowledge of the existence of the pit and who had not been personally warned of the intention and desire of the company to exclude people from the tract. Respondent contends

that it was the only convenient way, during times of high water, such as existed at the time of this injury, for the deceased and many others to reach their homes from the business portion of the town, and that they were permitted to use it at such times, but no permission was shown further than that there may have been no forcible resistance. The people who did cross it, did so in spite of the notices. There was no obligation upon the railroad company to provide them a way, and if they saw fit to make use of the defendant's property, after having been personally notified to keep off of it, they did so at their own risk. Nor was the fact material as to what induced the company to give the notice. It was effectual to rebut the presumption of a license, regardless of the purpose for which it was given. These facts clearly distinguish the case from that of Rowe v. Ballard, ante, p. 1 (52 Pac. 321), and Roth v. Union Depot Company, 13 Wash. 525 (43 Pac. 641); for here actual knowledge of the existence of the pit was shown and also a notice to a person capable of understanding it to keep off of the tract in question.

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The motion of the defendant for a directed verdict in its favor should have been granted. The judgment is reversed and the cause remanded with instructions to render judgment for the defendant.

GORDON and DUNBAR, JJ., concur.

ANDERS and REAVIS, JJ., concur in the result.

[No. 2916. Decided May 20, 1898.

JOHN WINTERS et al., Respondents, v. GRAY'S HARBOR
BOOM COMPANY et al., Appellants.

APPEAL

JOINDER IN NOTICE― JURISDICTION OF APPEAL.

Where a party to an action appeals without serving notice upon his co-defendants, the action of the parties not served in later joining in the appeal bond, but neglecting to join in the appeal by statement filed with the clerk or to serve an independent notice of appeal, will not confer jurisdiction upon the supreme court, under Laws 1893, p. 121, § 5 (Bal. Code, § 6504) governing notice in cases where parties similarly affected desire to appeal.

Appeal from Superior Court, Chehalis County.-Hon. CHARLES W. HODGDON, Judge. Appeal dismissed.

N. W. Bush, for appellants.

George D. Schofield, for respondents.

PER CURIAM. From a judgment in plaintiff's favor the Gray's Harbor Boom Company, one of the defendants, gave notice of appeal. The notice was not served upon its co-defendants, Burrows and Stockwell, who had appeared in the action. Thereafter the last named defendants joined in the appeal bond but did not serve an independent notice of appeal or join in the appeal by filing with the clerk of the superior court a statement to that effect.

May, 1898.]

Opinion of the Court- GORDON, J.

Laws 1893, p. 121, ch. 61 § 5 (Bal. Code, § 6504). Respondents have moved to dismiss, basing their motion upon the facts already stated. We have repeatedly held that the notice of appeal is jurisdictional and cannot be dispensed with, and the court can only obtain jurisdiction when the statute on the subject of appeals is complied with. The motion to dismiss must be granted.

[No. 2934. Decided May 20, 1898.]

Z. COLBY, Appellant, v. C. F. BACKUS, Respondent.

DUE PROCESS OF LAW IMPRISONMENT FOR DEBT- COSTS AGAINST COMPLAINING WITNESS.

A statute authorizing a justice of the peace to adjudge costs against a complaining witness in a prosecution for misdemeanor and order his imprisonment until paid, in case the trial results in the acquittal of defendant and the court finds the complaint was frivolous and without probable cause, is not unconstitutional on the ground that it deprives a person of his liberty and property without due process of law.

A statute authorizing the imprisonment of the complaining witness in a malicious prosecution until payment of the costs of the action imposed upon him by the justice as a penalty, is not in violation of the constitutional inhibition against imprisonment for debt, as such constitutional provision relates only to liabilities arising on contract.

Appeal from Superior Court, Spokane County.-Hon. WM. E. RICHARDSON, Judge. Affirmed.

Danson & Huneke, for appellant.
John A. Pierce, for respondent.

The opinion of the court was delivered by

GORDON, J.-Appellant was the complaining witness in a prosecution instituted before the respondent, a justice

Opinion of the Court-GORDON, J.

[19 Wash. of the peace of the county of Spokane, in which certain parties were charged with trespass. The trial resulted in the acquittal of the defendants therein, and the court, having found that the complaint was frivolous and without probable cause, ordered and adjudged that the complaining witness (appellant here) should pay the costs. Thereafter appellant obtained a writ of review from the superior court and on a hearing had thereon the judgment and order of the justice was affirmed. From that decision this appeal was taken.

Appellant contends that § 1588, 2 Hill's Code (Bal. Code, § 6700), and § 3050, 1 Hill's Code (Bal. Code, § 1627) are unconstitutional; first, because they operate to deprive a person of his liberty and property without due process of law; and second, because they allow imprisonment for debt. As to the first contention, the decisions upon similar statutes are conflicting, some courts upholding and others denying their validity. In the following cases the statute was considered constitutional: In Re Ebenhack, 17 Kan. 618; State v. Donnell, 11 Iowa, 452; State v. Darr, 63 N. C. 516; Lowe v. Kansas, 163 U. S. 81 (16 Sup. Ct. 1031); State ex rel McCaslin v. Smith, 65 Wis. 93 (26 N. W. 258).

To the contrary, see: State ex rel McGraw v. Ensign, 11 Neb. 529 (10 N. W. 449).

The provision of our state constitution is identical with that of the federal constitution in relation to due process of law, and we think that the conclusion reached by the supreme court of the United States in Lowe v. Kansas, supra, is authoritative and should be followed by us. statute which is assailed in the present case is almost iden tical with that of Kansas, which was passed upon by the federal court, and we shall not attempt to enlarge upon the decision in that case.

The

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As to the second objection, viz., that it has the effect of imprisoning the complaining witness for debt, it was said by the supreme court of Kansas in In re Ebenhack, supra:

"These costs are cast upon him as a penalty-they do not constitute strictly and simply a debt, in the technical sense of the word, any more than the fine imposed upon a party convicted of assault and battery, is a debt."

The imprisonment which is forbidden by the constitution, art. 1, § 17, relates to liabilities arising on contract. In re Wheeler, 34 Kan. 96 (8 Pac. 276), and the numerous authorities there cited. See, also, In re Boyd, 34 Kan. 570 (9 Pac. 240).

Affirmed.

SCOTT, C. J., and ANDERS and DUNBAR, JJ., concur.

[No. 2883. Decided May 21, 1898.]

MAJOR JULIUS VON SCHRADER et al., Respondents, v. HANNAH M. WELCHER et al., Appellants.

APPEAL BRIEFS.

A failure of appellant to conform with the supreme court rule as to dimensions of briefs is ground for striking his briefs, when his reply brief is as objectionable as his opening brief, though his attention was called to the matter by respondent, and no exeuse is offered for the violation of the rule.

Appeal from Superior Court, Cowlitz County.-Hon. A. L. MILLER, Judge. Appeal dismissed.

M. E. Billings, for appellants.
W. F. Magill, for respondents.

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