inally created, if we should hold that less | 2. MANDAMUS (8 4*)-SUBJECTS OF RELIEFthan a majority of the whole can pronounce EXERCISE OF JUDICIAL POWERS-REMEDY BY APPEAL. Where the trial court is not refusing to proceed to a final determination of an action, but is proceeding in a way that plaintiff conceives is a violation of her rights, plaintiff's remedy is not by mandamus, but by appeal. [Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 10, 11, 15; Dec. Dig. § 4.*] 3. DISMISSAL AND NONSUIT (§ 62*)—Right TO DISMISS DEFECT OF PARTIES - DISOBEDIENCE OF ORDER OF Court. [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. § 117; Dec. Dig. § 62.*] 4. DISMISSAL AND NONSUIT (§ 62*)-DISMISSAL AS TO PARTY NECESSARY TO FINAL ADJUDICATION-DISOBEDIENCE OF ORDER OF a decision. The terms of this act are not such that we are called upon to determine such a question at this time. There may be sound reason for contending that under no circumstances can less than three judges pronounce a decision, in view of the words in the Constitution: "The Supreme Court shall consist of five judges, a majority of whom shall be necessary to form a quorum, and pronounce a decision." If this be the spirit of Where other parties to an action besides the Constitution, then this act providing for could not properly dismiss it as to them upon plaintiff claimed affirmative relief, the court departments and defining their powers is plaintiff's refusal to comply with the court's clearly within that spirit, for, by its terms, order to bring in additional parties, without giv"the presence of three judges shall be neces-ing such other parties an opportunity to bring in those the court deemed necessary. sary to transact any business in either of the departments, except such as may be done at Chambers," and "a concurrence of three judges shall be necessary to pronounce a decision in each department." So that a litigant is in as favorable position as to the least number of judges to whom he can be compelled to submit his cause, and also as to the least number of judges who can pronounce a decision thereon, as he was when the court existed under the Constitution before an increase in its membership and its division into departments by the Legislature. We are of the opinion that the provisions of the act providing for separate departments of the court and defining the powers of the departments acting separately is not unconstitutional, and that a litigant is not entitled to a hearing before the court en banc as a matter of right, because judgment may have been pronounced in his case by the concurrence of a less number of judges than a majority of the whole court. COURT. was necessary to a final adjudication, the court Nonsuit, Cent. Dig. § 117; Dec. Dig. § 62.*] The court has inherent power to require [Ed. Note. For other cases, see Parties, Cent. Dig. § 76; Dec. Dig. § 50.*] Notwithstanding our views upon the quesEn Banc. Original application by Mary tion raised by the first ground in the petition | A. Clerf for mandamus to be directed to the for rehearing, we have heard argument sit- superior court for Kittitas county and to ting en banc upon the merits and adopt the the Honorable Ralph Kauffman, judge thereviews of department 2 as expressed in their of. Application denied. decision of June 14, 1909 (102 Pac. 435), and the judgment of the superior court is there-lator. fore affirmed. RUDKIN, C. J., and CROW, MOUNT, MORRIS, GOSE, and CHADWICK, JJ., con cur. DUNBAR and FULLERTON, JJ., concur on the constitutional question discussed but dissent from the opinion expressed on the merits. (55 Wash. 465) In re CLERF. A. Mires and Graves & McDaniels, for re- ent. FULLERTON, J. This is an application for a writ of mandate. The relator avers that on or about May 13, 1905, her predecessor in interest as plaintiff began an action against certain named defendants, the object and purpose of which was to obtain a judgment and decree adjudging the plaintiff to have a prior and paramount right as against the defendants to use the waters of a certain stream known both as Caribou (Supreme Court of Washington. Nov. 2, 1909.) creek and Cherry creek to the extent of 370 1. MANDAMUS (28*)-SUBJECTS OF RELIEF-4-inch pressure for stock and domestic pur JUDICIAL DISCRETION. Mandamus will lie to compel an inferior court to act when it holds a cause in abeyance and refuses to decide one way or the other, but not to control judicial discretion. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 64; Dec. Dig. § 28.*] inches of water, miner's measure, under a poses and for the purpose of irrigating certain land then owned by plaintiff; claiming such right for the purposes stated by reason of a first and prior appropriation of such waters and their application to the uses raised no question as to the right to intervene, and particularly did not question their right on the ground that the case had been submitted to the court for adjudication, and was then awaiting adjudication by the court; further averring that there were but two riparian owners who yet remained to be brought into action, and that certain of the defendants and interveners asking affirmative relief had applied for leave to make such riparian owner parties to the action, and that the court would proceed to make such an order, and to a further trial and determination of the cause upon its merits with all reasonable dispatch. mentioned made by himself, and by his pred- | had any formal refusal to comply with the ecessors in interests to whose rights he court's order been made, but that, on the succeeded. She further averred that there- contrary, the relator pursued a course of after certain parties were dismissed from conduct that had tended to mislead the the action, and certain others intervened court as to her intentions; that she had and became parties thereto by leave of court; among other things appeared in court many that the plaintiff died, and that she succeed- months after the order to bring in further ed to all his rights and interests, and was parties had been entered, and sought a resubstituted as plaintiff by permission and newal of an interlocutory order regulating order of the court; that the defendant and the distribution of the water pending the interveners filed pleadings in which they con- trial of the action, and had at the same time troverted the plaintiff's claim, and set up questioned the sufficiency of the pleadings and claimed interests in the waters of the of certain riparian proprietors on the stream creek adverse to the claim of the plaintiff, mentioned who had intervened in the action which they alleged to be prior and para- by leave of court, since the court announced mount thereto; that thereafter the cause that further parties were necessary to a final was assigned for trial, and between March adjudication of the case. Further answer2, 1908, and March 6, 1908, was tried to the ing, the court averred that the relator in court, each party submitting evidence in sup-questioning the pleadings of such interveners port of their several allegations, finally submitting the cause to the court for adjudication; that in April, 1908, the court announced, in substance, that it was unable to find that the plaintiff was entitled to any prior rights to the waters of the stream by virtue of prior appropriation, but that the waters must be apportioned among all of the owners of land riparian to such stream according to acreage, and that no apportionment or final judgment could be entered without making parties to the action the owners of all the lands riparian to such creek; and thereupon entered an order directing the relator as plaintiff to cause all such riparian owners to be brought in and The relator does not controvert the court's made parties to such action within 60 days return, but insists nevertheless that she is from April 8, 1908. The relator then avers entitled to a decision on the record as it that Caribou or Cherry creek is a stream stood when the original submission of the arising in the hills and mountains lying to cause was made. But whether this contenthe north and east of Kittitas valley, in the tion be true or not this court cannot try out county of Kittitas, and flows southerly the question in a mandamus proceeding. A through such valley a distance of some 20 mandamus will run to an inferior court to miles, where it empties into the Yakima riv- compel it to act when it holds a cause in er, and that the condition of the titles to abeyance and refuses to decide either one the various lands along the creek are un- way or the other, but it does not lie to conknown to the relator, and it is impossible trol judicial discretion. This latter we think for her to ascertain who are the actual own- the relator is asking us to do by this applicaers of such lands, and that the withholding tion. The trial court is not refusing to proof the final adjudication of the cause un- ceed to a final determination of the action til relator shall bring in such owners and before it, but is proceeding in a way that make them parties to the action is unwar- the relator conceives is a violation of her ranted and without authority of law. It is rights. Her remedy for this error, if it be then averred that more than 90 days have error, is not by mandamus. She must purelapsed since the cause was submitted to the sue the cause along the lines marked out by court for adjudication, but that the court the trial court unto the end, and then seek refuses and declines to render judgment a review of the judgment entered. She can, therein, whereupon she prayed that a writ of course, on that review, if she has preservof mandate issue compelling the court to ad- ed her rights by proper objections, have rejudicate the case upon the issues and evi- viewed any ruling made during the progress dence presented. The trial court in response of the cause, even the refusal of the court to the notice served upon it appeared and to decide the controversy on the records origcontroverted the relator's application. In inally submitted, but she cannot have a reits answer it admitted substantially all of view of the question by the shorter route in the allegations of relator. Answering fur- the nature of a mandamus proceeding. If ther, however, it averred that no formal de- the trial court has not proceeded in the cause mand or demand of any kind had been made with as much diligence as the exigencies of upon the court for a decision of the cause the case required, we think a part of the on the record as originally submitted, nor blame therefor can rest with the relator. J. T. Casey and Milo A. Root, for appel lant. Had she made known to the court her intent | ticing medicine and surgery without a lito refuse to bring in the required parties, cense, and appeals. Reversed, and accused and her desire to have the case heard on the discharged. record as first heard within a reasonable time after the promulgation of the order, doubtless the court would have at once given other parties to the cause that opportunity, and proceeded to a further hearing with its usual diligence. But the relator's action was not prompt, and the court seems to have acted with reasonable diligence after the relator made known the fact that she would not proceed on the lines marked out by the court. The relator seemingly contends that the court should have dismissed the action, or dismissed it as to her at least, on her re fusal to comply with the court's order. But there were other parties to the action claim: ing affirmative relief, and the court could not properly dismiss it as to them without giving them an opportunity to bring in the parties the court deemed necessary to a final adjudication. Nor could it dismiss the relator from the action. Her continuance therein was necessary to a final adjudication of the cause as the court viewed the record. True, the court cannot compel her to participate in any further trial of the cause, but it can try it on the issues made by the pleadings of the other parties, and treat her as a party making default, thus binding her by the final judgment entry. The right of the court on its own motion to require additional parties to be brought in is also questioned. But this power is inherent in the court, and, moreover, is expressly conferred on it by statute. ger's Ann. Codes & St. § 4840 (Pierce's Code, § 269). The application is denied. Ballin RUDKIN, C. J., and CHADWICK, GOSE, MORRIS. DUNBAR, CROW. and PARKER, JJ., concur. MOUNT, J., took no part. (55 Wash. 403) STATE v. HANOVER. (Supreme Court of Washington. Oct. 29, 1909.) CRIMINAL LAW (§ 15*)-STATUTORY PROVISIONS REPEAL. Accused was prosecuted for practicing medicine without a license, and between the date when the offense was charged to have been committed and the date of trial the Legislature passed a new act regulating the practice of medicine, and repealing prior acts, without any saving clause for the prosecution of offenses under the old law, and the new law was passed with an emergency clause. Held, that there was no authority at the time of the trial for the prosecution of accused. under the provisions of section 8 of the act MOUNT, J. The appellant was prosecuted of 1890 (Laws 1889-90, p. 119), relating to the practice of medicine and surgery. He was license, and was convicted and sentenced to charged with practicing medicine without a pay a fine. He appeals from that judgment. The state has made no appearance in the case in this court. The information alleges that the act was committed on October 26, 1908, in King county. A trial was had in the tered against appellant on May 1, 1909. Bemonth of April, 1909. A judgment was entween the date when the offense is charged to have been committed and the date of the trial, the state Legislature passed a new act regulating the practice of medicine and surgery, and repealing prior acts. This last act contained an emergency clause, and took effect upon its approval, viz., March 18, 1909. See Laws 1909, p. 677, c. 192. This act contained no saving clause for the prosecution of offenses committed under the old law. Under well-settled principles of law there was no authority at the time of the trial for the prosecution of the appellant upon the offense charged. In State v. Oliver, 12 Wash. 547, 41 Pac. 895, the statute under which the defendant was prosecuted was repealed without a saving clause as to prior offenses, and this court held that the prosecution was barred. And in State v. Allen, 14 Wash. 103, 44 Pac. 121, where an act was repealed without any saving clause pending an appeal to this court, it was held that a prosecution under the repealed act was barred; the court saying: "It is familiar law that the repeal of a statute pending a prosecution thereunder, without any saving clause as to such prosecution, will prevent its being further prosecuted, and this rule applies as well after judgment and sentence, pending an apfinal determination in the trial court.” peal duly taken therefrom, as before the The judgment appealed from must therefore be reversed, and the appellant discharged. RUDKIN, C. J., and CROW, PARKER, and DUNBAR, JJ., concur. (55 Wash. 408) LOHMAN v. CLAUSSEN. [Ed. Note.-For other cases, see Criminal Law, (Supreme Court of Washington. Oct. 29. 1909.) Cent. Dig. 17; Dec. Dig. § 15.*], 1. APPEAL AND ERROR (§ 548*)-STATEMENT OF FACTS-EFFECT OF ABSENCE. Department 2. Appeal from Superior Court, King County; Mitchell Gilliam, Judge. er was excessive cannot be reviewed in absence Whether the compensation allowed a receivWilliam Hanover was convicted of prac-of a statement of facts or bill of exceptions in the record, showing the evidence upon which | plaintiff, she having died since commencing the trial court based the allowance. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2433, 2434; Dec. Dig. § 548.*] the action, thus putting in issue the ownership of the machinery and fixtures covered by the conditional sale contracts. The de 2. APPEAL AND ERROR (8 907*) - PRESUMP-fendant West Side Lumber Company, failing TIONS-FACTS NOT SHOWN BY RECORD. In absence of evidence in the record so as to permit the appellate court to determine whether an allowance to a receiver is excessive, it must be presumed that the trial court did not abuse its discretion in making the allowance. [Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 2911, 3673; Dec. Dig. 8 907.*] 3, APPEAL AND ERROR (705*)-QUESTIONS PRESENTED FOR REVIEW-ALLOWANCE OF RECEIVER'S COMPENSATION. The compensation of a receiver may, under some circumstances, be charged against a party instead of against the property in his possession, and where, in a suit to foreclose a mortgage on machinery which plaintiff claimed belonged to the mortgagor, a receiver was appointed at plaintiff's instance and took charge of the plant including the machinery, it could not be said that the court exceeded its discretion in rendering judgment against plaintiff for the receiver's compensation instead of against the machinery upon its ownership being adjudged in others than the mortgagor, though all of the facts and circumstances which induced the trial court to make the award did not appear in the record. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2943; Dec. Dig. § 705.*] Department 2. Appeal from Superior Court, Pierce County; George T. Reid, Judge. Suit by Henry Lohman, as administrator of the estate of Mary Lohman, deceased, against the West Side Lumber Company and others. From a judgment against plaintiff, as administrator, in favor of the receiver appointed in the action, plaintiff appeals. Affirmed. H. W. Lueders and Harry E. Phelps, for appellant. Ray & Dennis, for respondent. PARKER, J. This is an appeal from a judgment rendered against appellant in favor of respondent for the sum of $500 as compensation for his services as receiver in this action. The suit was commenced by Mary Lohman to foreclose a chattel mortgage given to her by the defendant West Side Lumber Company upon its sawmill plant and fixtures to secure the sum of $1,200. On November 8, 1907, soon after the commencement of the suit, the respondent was appointed receiver to take charge of the property pending the foreclosure at the instance of the plaintiff, and thereupon took possession of the plant and fixtures. Certain other defendants, who had been made such for the purpose of foreclosing their interest, filed answers, claiming to be owners of a large part of the machinery and fixtures by virtue of conditional sale contracts entered into with the defendant West Side Lumber Company, and duly recorded in the office of the auditor of Pierce county. Replies to these answers were filed by the plaintiff and her administrator, who had been substituted as to answer, was adjudged to be in default. Thereafter the issues as to the ownership of the machinery and fixtures covered by the conditional sale contracts were tried by the court, and, on June 13, 1908, the court rendered its judgment and decree in favor of the answering defendants as to the property claimed by them, and by the same decree foreclosed the mortgage and ordered the remainder of the property sold to apply on the debt thereby secured. Special execution was issued to the sheriff accordingly. Thereupon the respondent petitioned the court for an allowance of his compensation as receiver, and that judgment be rendered in his favor and against the plaintiff and defendants for any balance remaining due in the event the remaining property then about to be sold by the sheriff should not yield sufficient funds for that purpose. The plaintiff answered the receiver's petition, and, the matters being submitted to the court upon the merits, judgment was rendered in favor of the receiver and against the appellant as administrator in the sum of $500. Prior to the hearing upon the question of the receiver's compensation the sale was had under the foreclosure, when the remaining property was bid in by the plaintiff for $200. The plaintiff appealed from the judgment rendered against him as administrator for the receiver's compensation. Appellant assigns as error and contends that the trial court erred (1) in allowing the receiver $500 because such compensation is excessive; (2) in refusing to charge the whole amount of the expense of the receivership to the property cared for by the receiver; and (3) that the court was without jurisdiction to render judgment against plaintiff as administrator for the receiver's compensation. We are unable to review the trial court's action in fixing the amount of the receiver's compensation, since there is no statement of facts or bill of exceptions in the record showing the evidence before the court as to the amount of the receiver's services. This was one of the issues of fact raised by the receiver's petition and appellant's answer thereto. It does appear that the receivership covered a period of some seven months. We must presume, in the absence of the evi dence, that the trial court did not abuse its discretion in determining the amount of the receiver's compensation. The other two assignments of error involve the question of whether or not a court has the power under any circumstances to render a judgment against a party to the suit in favor of the receiver for his com *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 104 P.-40 The opinions of experts are taken to aid the jury, and no matter how positive may be their conclusion drawn from a given state of facts, it is for the jury whether the facts recited on which the conclusion is based are the facts proven by the evidence, and whether the conclusion is correctly drawn. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2395; Dec. Dig. § 570.*] 3. PHYSICIANS AND SURGEONS (§ 18*)-ACTION FOR MALPRACTICE SUFFICIENCY EVIDENCE. OF pensation. That there may be circumstances [2. EVIDENCE (§ 370*)-OPINION EVIDENCE. warranting the charging of the compensation of a receiver in whole or in part against a party to the action, instead of against the fund or property in his possession, has been recognized by this court. Lammon v. Giles, 3 Wash. T. 117, 123, 13 Pac. 417; Brundage v. Home, etc., Association, 11 Wash. 288, 291, 39 Pac. 669. While we have no statement of facts before us showing all the facts and circumstances which induced the trial court to render judgment against the plaintiff for In an action against a physician for malthe receiver's compensation, it can be read-practice in using unsterilized instruments, whereby plaintiff contracted a private disease, eviily seen from the record that such facts may dence held to sustain a.verdict for plaintiff. bave existed and been proven as to fully warrant the court's action. The receiver was appointed and took charge of the whole plant, including the machinery and fixtures not subject to the mortgage. This was done at the instance of the plaintiff and over the objections of the defendants, who were adjudged to be the owners of a large portion of the machinery and fixtures after several months of litigation in the action, wherein the plaintiff was contending that such machinery and fixtures were the property of the defendant West Side Lumber Company, the mortgagor, and subject to the mortgage. Having failed in this contention, the court may have quite properly concluded under all the facts of the case that the owners of this property should not be burdened with any of the expense of the receivership by having their property charged therewith. In support of the court's jurisdiction to render judgment in favor of the receiver for his compensation against the party securing his appointment, the following may be cited: Farmers' Nat. Bank v. Backus, 74 Minn. 264, 77 N. W. 142; Highley v. Deane, 168 Ill. 266, 48 N. E. 50; Knickerbocker v. Mining Co., 67 Ill. App. 291; Tome v. King et al., 64 Md. 166, 184, 21 Atl. 279; French v. Gifford, 31 Iowa, 428, 431; Ephraim v. Pacific Bank, 129 Cal. 589, 62 Pac. 177. We are of the opinion that the court had jurisdiction to render judgment against the plaintiff as administrator for the receiver's compensation; and, in so doing, the record discloses no error or abuse of discretion. The judgment is therefore affirmed. RUDKIN, C. J., and DUNBAR, CROW, and MOUNT, JJ., concur. (55 Wash. 470) HELLAND v. BRIDENSTINE. (Supreme Court of Washington. Nov. 2, 1909.) 1. PHYSICIANS AND SURGEONS (8 18*)-Ac TION FOR MALPRACTICE-PROOF. In an action against a physician for malpractice in using unsterilized instruments, whereby plaintiff contracted a private disease, plaintiff was not required to prove her case beyond a reasonable doubt, nor by direct and positive evidence. [Ed. Note. For other cases, see Physicians and Surgeons, Cent. Dig. § 43; Dec. Dig. § 18.*] [Ed. Note. For other cases, see Physicians and Surgeons, Cent. Dig. § 43; Dec. Dig. § 18.*] 4. EVIDENCE (§ 553*) - OPINION EVIDENCE — MEDICAL EXPERT WITNESS. That a hypothetical question asked a medical expert witness embodied the very fact that was ultimately to be found by the jury did not render it incompetent. Cent. Dig. § 2369; Dec. Dig. § 553.*] 5. APPEAL AND ERROR (§ 930*)-REVERSIBLE Though there was no evidence of loss of service or earnings on plaintiff's part as alleged, the failure to instruct the jury not to consider such items was not reversible error, since, it not affirmatively appearing that the jury found on an issue on which the evidence was silent, it would not be presumed that they did so. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3760; Dec. Dig. § 930.*] 6. APPEAL AND ERROR (§ 900*) - PRESUMP TIONS. In an action against a physician for malpractice, an instruction that in fixing the damages the jury should consider plaintiff's physical and mental pain and suffering, if any, by reason of the injury and loss of time, if any, the sense of humiliation and disgrace, if any, the expense of effecting a cure, including physician's charges and medicine, if any, and from those considerations allow her such sum as would compensate her for the injuries sustained, if any, was not erroneous as allowing recovery for elements of damage as to which there was no evidence. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252.*] 8. PHYSICIANS AND SURGEONS (§_18*)—MAL- [Ed. Note. For other cases, see Physicians and Surgeons, Cent. Dig. § 46; Dec. Dig. § 18.*] 9. DAMAGES (§ 131*) - INJURIES THROUGH MALPRACTICE-EXCESSIVE DAMAGES. In an action against a physician for malpractice in using unsterilized instruments, whereby plaintiff contracted a private disease, a verdict for more than $2,000 was excessive, where plaintiff fully recovered from the disease, and no permanent disability or injury resulted therefrom, and her losses because of inability to |