17 Wash. 399 | Wash. | 1897
This cause was before the court at the January term, 1896, and was reported in 14 Wash. 349 (44 Pac. 867). A petition for re-hearing was filed by the respondent, in which, among other things, it was stated that that part of the former opinion of the court to which the petition for re-hearing was directed was “ based and predicated upon a mistake of fact and upon the assumption that the Lewis mortgage covers poles, wires and electric equipments, south of South Ninth street.” Continuing, the petition further states: “If such were a fact then the conclusion reached by your honors would necessarily be correct.” Upon consideration of the petition for re-hearing the following order was made: “ Ordered that a re-hearing be granted in the above entitled cause on the point as to whether or not the John C. Lewis mortgage covers any other or different line of railroad than that from Point Defiance to South Ninth street in the city of Tacoma, and that this cause be set for argument at the October term.” "What the court really intended by the order was to direct argument to the question of whether the Lewis mortgage covered any property which was not covered or embraced within the terms of the Hinchman mortgage, it being the contention of the respondent throughout his petition for re-hearing that the property embraced within the two mortgages was identical. It may be conceded that, so far as real property was included or embraced within the terms of either mortgage, it was confined to the line of railway north of South Ninth street. At the time when the Hinchman mortgage was executed the maker of that mortgage— the Point Defiance Pailway Company — owned no property south of South Ninth street, and so far as the record discloses, it never was any part of the purpose or intention of that company to secure by purchase or otherwise
“ Question: What is the fact about the Point Defiance, Tacoma & Edison Company purchasing certain railways after it bought the railway of the Point Defiance Bailway Company?
“Answer: We purchased another line of railway at the same time, but none afterwards.
“ Q. What was the other line of railway?
“A. That was the Wapato Park line of railway.
“ Q. That road connects with the line of railway we have been discussing here, does it not?
“A. It does, through the Tacoma Bailway & Motor Company’s line; yes, sir.
“ Q. That is known as the south end%
“A. Yes, sir; spoken of as the south end.
“ Q. And the line in controversy here is called the north end?
“A. Yes, sir.”
The Wapato Park Belt line, which was purchased at or about the same time as the other, was at the time of the purchase operated solely by steam power, whereas the Point
“ all passenger cars, both open and closed (supposed to be twelve or more in number), freight cars (of which there is supposed to be one or more), construction cars, flat cars, car bodies, trucks, including both those on which cars are now mounted and those on which none are now mounted, motors now in use for operating said cars and motors designated for such use but not now in use therefor, and all trolleys, trolley stands, controllers, rheostats, car wires, car fixtures, lamps, spare parts, tools and instruments, and, in fact, everything pertaining to the complete electrical equipment of said cars now owned by said party of the first part and used or intended for use, wholly or in part, on either or*404 any line or lines of street railway owned, leased or operated by said party of the first part, whether the line or lines of street railway on which such cars or electrical equipments thereof or any thereof are used, lie northerly or southerly of said South Ninth street, in said city of Tacoma, or wheresoever such cars or electrical equipments thereof may lie or wherever the same may be used.”
The testimony of Mr. Hurley, the receiver, shows that at the time he took possession, viz.: May 8, 1894, the cars were being operated both north and south of South Ninth street. He testified that they were being “ indiscriminately run ” over the whole line. Also:
“ Question: The cars in other words were running through from Point Defiance Park to the south end of the system?
“Answer: Yes, sir.
“ Q. There is a road running south of South Ninth street which forms really a part of the Point Defiance road, is there not?
“A. Yes, sir.
“ Q. How does that run, and what is its terminal point?
“A. Edison. It runs to Edison.
“ Q. And at that time you took possession of the property which you describe they were running the cars clear through from Point Defiance Park to Edison?
“A. Yes, sir.”
The decree directed that all of the property be sold as an entirety, and it is urged by the respondent that inasmuch as no appeal has been taken from that part of the decree, and appellant did not demand a separate sale of the property on which he claims an exclusive lien, that the relief which he seeks should not be granted, for the reason that it would nullify those parts of the decree from which no appeal was taken. We do not think that a reversal would affect the title of the purchaser, and what appellant is concerned in is the application of the fund derived from the
Scott, C. J., and Anders and Reavis, JIT., concur.