July, 1898.]

Opinion of the Court- REAVIS, J.

plaintiff impleaded defendants in the former suit in a court of competent jurisdiction upon the same cause of action, disclosing the same ground of complaint and alleging the same facts to sustain the same; and that the court had jurisdiction of the parties and of the subject matter, and rendered a final judgment upon the merits in favor of defendants and against plaintiff; and that the judgment remained unreversed and in full force. The court said:

"Technical estoppels, it is conceded, must be pleaded with great strictness; but when a former judgment is set up in bar of a pending action, or as having determined the entire merits of the controversy involved in the second suit, it is not required to be pleaded with any greater strictness than any other plea in bar, or any plea in avoidance of the matters alleged in the antecedent pleading. Reasonable certainty is all that is required in such a case, whether the test is applied to the declaration, plea or replication, as the party whose pleading is drawn in question cannot anticipate what the response will be when he frames his pleading. Decided cases may be found in which it is questioned whether a former judgment can be a bar to a subsequent action, even for the same cause, if it appears that the first judgment was rendered on demurrer; but it is settled law, that it makes no difference in principle whether the facts upon which the court proceeded were proved by competent evidence, or whether they were admitted by the parties; and that the admission, even if by way of demurrer to a pleading in which the facts are alleged, is just as available to the opposite party as if the admission was made ore tenus before a jury."

The court also observes that a judgment rendered upon demurrer to the declaration or to a material pleading, setting forth the facts, is equally conclusive of the matters confessed by the demurrer as a verdict finding the same facts would be; and the rule is that facts thus established can never after be contested between the parties or those in privity with them. Lee v. Kingsbury, 13 Tex. 68 (62 Am.

40-19 WASH.

Dec. 546) Graham v. Culver, 3 Wyo. 639 (29 Pac. 270, 31 Am. St. Rep. 105); Miller v. Sherry, 2 Wall. 237; Hefner v. Northwestern Mut. Life Ins. Co., 123 U. S. 747 (8 Sup. Ct. 337).

In the intervention in the mortgage foreclosure, the intervenor submitted her rights to the homestead to trial. The final judgment of the court was against her. After judgment upon the demurrer, it was too late to withdraw from the intervention without leave of the court and making an express reservation of rights. The trial, under our code of procedure, arises upon an issue of law or fact. Where the facts are conceded, and the issue of law alone is determined, it is none the less conclusive upon the merits of the case.

We can see no error in the conclusion of the superior court in sustaining the plea of a former adjudication of the facts upon which the complaint in the present action is based. No opinion is expressed upon the other questions raised by counsel and the conclusions of the superior court thereon.

The judgment is affirmed.

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

[No. 2787. Decided July 20, 1898.]

PHILIP BAUM, Appellant, v. COUNTY OF WHATCOM,

Respondent.

BOND TO COUNTY FOR BENEFIT OF MATERIAL MEN

RECITALS-RIGHT

OF ACTION.

Where a bond executed by a contractor for the construction of public improvements, under Gen. Stat., § 2415 (Bal. Code, §5925), in order to protect laborers and material men, contains all the conditions required by the statute, the recital that it was

taken as a common law, and not as a statutory, bond, would not vitiate it.

Where a county takes a bond from a contractor for the construction of a county road, under Gen. Stat., § 2415, for the benefit of laborers and material men, the right of action of a material man on account of supplies furnished is not against the county, but must be enforced against the bondsman and his sureties.

Appeal from Superior Court, Whatcom County.-Hon. H. E. HADLEY, Judge. Affirmed.

Fairchild & Bruce, and Frye & Webster, for appellant. J. W. Romaine, for respondent.

PER CURIAM.-The defendant let a contract to one Moran for the construction and improvement of a county road. The contract provided that the contractor should execute a bond containing the provisions of § 2415, 1 Hill's Code (Bal. Code, § 5925). A bond was executed accordingly, but contained a recital that it was executed as a common law bond, and not in pursuance of the statute aforesaid, and also that under the decisions of the supreme court it was not required to take a bond to secure the performance of the contract, etc. The plaintiff furnished supplies to the contractor for his use in the construction of the road, which were not wholly paid for; and he brought this action against the county for a failure to take a bond under the statute, relying upon the statement in the bond. that it was not taken thereunder, and upon the further fact that he, not being a party to the bond, could not avail himself of its provisions; citing Sears v. Williams, 9 Wash. 428 (37 Pac. 665). It being conceded that the bond contained all the conditions required by the statute, the recital that it was taken, not as a statutory, but as a common law, bond, would not vitiate it; and the case referred to was overruled in the particular mentioned in State v.

Opinion of the Court-ANDERS, J.

[19 Wash

Liebes, ante, p.589, decided July 6, 1898. The holding in that case disposes of this one, and the judgment is affirmed.

[No. 2674. Decided July 21, 1898.]

SEATTLE, LAKE SHORE AND EASTERN RAILWAY COMPANY et al., Appellants, v. SOL. G. SIMPSON, Respondent, S. LOUISE ACKERMAN, Intervenor.

APPEAL- LIMITATION-SERVICE OF NOTICE-JURISDICTION BY CONSENT.

A judgment dismissing an action is a final judgment, and, under Laws 1895, p. 81 (Bal. Code, § 6502), the limitation upon appeal therefrom is ninety days after the date of entry of such judgment, and not the fifteen-day limitation upon all orders other than final orders, provided for by the same statute.

Under Laws 1895, p. 561, § 82, providing that notice of appeal to the superior court from the decision of the board of state land commissioners, as to the prior right to purchase tide lands, must be served upon the respondents, or upon their attorneys, within thirty days after the filing or entry of such decision, service of the appeal notice must be made upon the attorney of record for a respondent, and the superior court can take no jurisdiction of an appeal where admission of service of the notice appears to have been made by attorneys for respondent other than the attorney of record.

Where a court has no jurisdiction of an appeal the appearance therein or consent of the respondent would not confer jurisdiction.

Appeal from Superior Court, King County.—Hon. WILLIAM HICKMAN MOORE, Judge. Affirmed.

Struve, Allen, Hughes & McMicken, for appellants. Thomas T. Littell, for respondent.

The opinion of the court was delivered by

ANDERS, J.-The appellants and the respondent, Simpson, each applied to the board of state land commission

July, 1898.]

Opinion of the Court― ANDERS, J.

ers to purchase a certain tract of tide land in King county. A hearing was had before the board and, after consideration of the evidence adduced upon both sides and the argument of counsel, the land in controversy was awarded to the respondent. From the decision of the land commissioners the railway company appealed to the superior court of King county. This appeal was dismissed and the complaint of the intervenor, Ackerson, filed therein, stricken out, on motion of the respondent. From the order and judgment of dismissal this appeal was taken.

The respondent moves to dismiss the appeal herein on the grounds and for the reasons that the notice of appeal was not given or the appeal taken from the order of the superior court within the time limited by law, viz., fifteen days after the service of a copy of the order and the written notice of the entry thereof upon appellants' attorneys; and that this court has no jurisdiction over the person of respondent or the subject matter involved in this proceeding. Both grounds of the motion are jurisdictional and, in effect, the same, for, if it is true that the appeal was not taken within the time prescribed by statute, then this court has no jurisdiction to hear and determine the cause. The order from which this appeal is taken was made and entered on January 28, 1897, and the notice of appeal herein was served on respondent's attorney on April 23, 1897 -eighty-five days after said order was entered and notice thereof given. Section 1 of the act of March 8, 1893, relating to appeals to the supreme court (Laws 1893, p. 119, Bal. Code, § 6500) provides that, "Any party aggrieved may appeal . . 1. From the final judgment entered in any action or proceeding," etc., and " 6. From any oder affecting a substantial right in a civil action or proceeding, which either, (1) in effect determines the action o: proceeding and prevents a final judgment therein; or