be alleged; so that there could have been no recovery for attorney's fees under the first complaint. But, back of all this, the right to file supplemental pleadings or amendments of any kind is largely discretionary with the court; and the action of the court will only be reviewed for an abuse of discretion. In this case the demurrer to the complaint was sustained on the 13th day of June, and plaintiff was given 20 days in which to file an amended complaint; but no complaint was filed within that time. In fact the record shows that no complaint had been filed on the 20th day of July, nearly three weeks after the time allowed by the court, at which time the defendants moved for judgment on the demurrer; and no notice of an intention to ask leave to file an amended complaint was given until the 15th day of August, more than 40 days after the time granted had expired, and no application for further time had been made. Neither is there any attempt to justify the delay. In fact, the supplemental complaint shows that there could have been no justification, for it alleges that the matters and things set up therein came to appellant's notice on the 27th of May, two weeks prior to the ruling of the court on the demurrer. We think there was no error of the court in not allowing the appellant to file a supplemental complaint. For the reasons given, the judgment is affirmed.

ANDERS, C. J., and HoYT, SCOTT, and STILES, JJ., concur.

(3 Wash. St. 622)

SEATTLE & M. Ry. Co. v. JOERGENSON et ux. Supreme Court of Washington. Jan. 25, 1892.) APPEAL-FAILURE TO FILE TRANSCRIPT-AFFIRMANCE.

Where defendant moves to dismiss plaintiff's appeal on the ground that a transcript of the case has not been filed within the time prescribed by law, and it appears that plaintiff has been duly served with notice of the motion, and has made no effort to perfect the appeal, and has offered no excuse for such failure, the judgment will be affirmed and entered, with costs, and interest at 10 per cent. from its date.

Appeal from superior court, Snohomish county; J. R. WINN, Judge.

Action by the Seattle & Montana Railway Company against Christian and Christine Joergenson. Judgment for defendants. Plaintiff appeals. Affirmed.

L. Hulsether, for respondents.

DUNBAR, J. The record in this case shows that the respondents obtained judgment in the superior court of Snohomish county, state of Washington, on the 17th day of January, 1891, against appellant, which judgment was appealed from. On January 19, 1891, notice of appeal to this court was given, and a supersedeas bond was afterwards executed and filed. Respondents now bring to this court a certified copy of the judgment appealed from, together with the notice of appeal and a copy of the supersedeas bond, and move the court to affirm the judgment appealed from, and for judgment in this court for the amount thereof,

together with interest and costs against appellant and its sureties on the said bond, for the amount of the judgment, and for damages caused by the delay, for the reason that appellant has failed to file with the clerk of this court a transcript of the case within the time prescribed by law; and, it appearing that the appellant had been duly served with notice of this motion, and that appellant has failed to prepare and file a transcript or make any effort whatever to perfect its appeal, and no excuse whatever being shown for such failure, respondents' motion will be allowed. In the absence of any showing of actual damages, the only damages which can be allowed on a money judgment, where it does not appear from the record that the appeal was taken for delay, will be interest on the judgment and costs. The judgment of the lower court will therefore be affirmed, and judgment will be entered in this court in favor of respondents and against appellant, and H. P. Bagley and J. W. George, its sureties on said supersedeas bond, to the amount of said judgment and costs, together with interest on said judgment and costs at the rate of 10 per cent. per annum from January 17, 1891, and for costs in this court; and it is so ordered.

ANDERS, C. J., and STILES, HOYT, and SCOTT, JJ., concur.

(3 Wyo. 678)

REDMAN V. UNION PAC. RY. CO. (Supreme Court of Wyoming. March 2, 1892.) APPEAL AMENDMENT OF RECORD-REVIEW-OBJECTIONS NOT RAISED BELOW.

1. Code, 2501, provides that the court may, before or after judgment, in furtherance of justice, amend any proceeding by adding the name of a party, or by correcting a mistake. Laws 1890, p. 55, § 7, provides that district courts may allow amendments to the record. Held, that where an affidavit for appeal from a justice's court had been sworn to, but by inadvertence the signatures of the affiant and the officer administering the oath were omitted, the district court properly allowed the affidavit to be amended by inserting such signatures.

2. The objection that there was no notice of intention to appeal filed in the justice court will not be considered by the supreme court, unless the question has first been raised in the district

court.

Error to district court, Sweetwater county; JESSE KNIGHT, Judge.

Action in justice court by George Redman against the Union Pacific Railway Company. There was judgment for plaintiff, and defendant appealed to the district court. Plaintiff's motion to dismiss the appeal being overruled, he brings error. Affirmed.

E. E. Enterline, for plaintiff in error. Lacey & Van Devanter, for defendant in

error.

MERRELL, J. The errors complained of In the petition in error in this court, as having been committed in the district court, are: (1) The court erred in sustaining the motion of the defendant to amend the affidavit of appeal; (2) the court erred in denying the motion of plaintiff to dismiss the appeal; (3) the judg

99

ule, art. 20, § 1. It is inconsistent with the constitution only in the view that section 12 was intended to operate retrospectively, and set aside the said act of the legislature. We understand that it is perfectly well settled that a statute will be construed to operate prospectively, and not retrospectively, unless the retrospective intention is clearly expressed. See a long list of cases in 3 Amer. & Eng. Enc. Law, p. 758, note 1. This is also the rule as to constitutions. In Constitutional Limitations, Judge Cooley says: "We shall venture also to express the opinion that a constitution should operate prospectively only, unless the words employed show a clear intention that it should have a retrospective effect. Page 76, (4th Ed.) In Shreveport v. Cole, 129 U. S. 43, 9 Sup. Ct. Rep. 210, Chief Justice FULLER, in the opinion, remarks: “Constitutions as well as statutes are construed to operate prospectively only, unless on the face of the instrument or enactment the contrary is manifest beyond reasonable question." No authorities are cited, and the court lays down the propo- | sition as of course, and not neriting discussion. See, also, cases recited by relator in his brief. The language of section 12, art. 12, of our constitution, is prospective in terms, and the words are future in tense. They are, "No appropriation | shall be made." There is nothing to indicate that a retrospective operation was intended. We therefore hold that this section of the constitution is to be prospective in its application, and does not affect the appropriation made by the act of the legislature of March 8, 1889. Respondent has filed no brief, nor has he referred us to any decisions tending to a contrary view. Let the writ of mandate issue as prayed for by relator, commanding the respondent to draw his warrant in favor of relator for the sum admitted to be due.

BLAKE, C. J., and HARWOOD, J., concur. (11 Mont. 533)

BANK OF MINNESOTA V. HAYES. (Supreme Court of Montana. Feb. 8, 1892.) SUPPLEMENTARY PROCEEDings-PropeRTY

REACHED-MONEY PAID INTO COURT.

Where money has been paid into court on a judgment in favor of one who is defendant in supplementary proceedings based on a judgment against him, the court may, there being no other claims for the same money, order it to be applied in satisfaction of the judgment against such defendant.

Appeal from district court, Lewis and Clarke county; WILLIAM H. HUNT, Judge. Supplementary proceedings by the Bank of Minnesota against Michael D. Hayes and Henry Hayes. From an order turn ing over to plaintiff certain money which had been paid into court on a judgment in his favor, defendant Michael D. Hayes appeals. Affirmed.

The other facts fully appear in the following statement by DE WITT, J.:

This is an appeal from a special order made after final judgment. Hayes v. First Judicial District Court, (October term, 1891,)

for a statement of the facts. The case was then before us on a writ of certiorari. That writ having been dismissed, the defendant has now appealed from the order at that time complained of. The appeal, as it now comes to this court, presents the following situation: The plaintiff had judgment against the defendant. Execution was returned unsatisfied. At that time there was a sum of money in the same court, belonging to defendant, and, as counsel concede, paid into that court upon a judgment rendered in favor of this defendant against another party. Upon a hearing had, these facts were before the district court. Plaintiff was a judgment creditor, with a judgment unsatisfied upon execution. There was in court money of the judgment debtor. There were no claims or liens upon this money by any one outside of these parties. There was a claim for attorney's fees, but that was provided for, and is not a matter in controversy in this appeal. The money was the judgment debtor's. The judgment creditor asked that it be turned over to him in satisfaction of his unsatisfied judgment. The court so ordered. The defendant appeals.

Alex. C. Botkin, for appellant.
Oliver T. Crane, for respondent.

The order directing the payment to plaintiff was properly made. Hammer v. Kaufman, 39 Ill. 87; Stebbins v. Walker, 14 N. J. Law, 90, 91; Noe v. Gibson, 7 Paige, 513; Voorhees v. Sessions, 34 Mich. 100; Adams v. Woods, 9 Cal. 28; Adams v. Haskell, 6 Cal. 116; Acker v. Ledyard, 8 N. Y. 62; Yuba Co. v. Adams, 7 Cal. 35; Adams v. Hackett, Id. 187; Burns v. Thornburgh, 3 Watts, 78; Conable v. Bucklin, 2 Aikens, 221; Rix v. Nevins, 26 Vt. 384; Brown v. Warren, 43 N. H. 437; Porter v. Liscom, 22 Cal. 433; Simpson v. Hart, 1 Johns. Ch. 93; Hobbs v. Duff, 23 Cal. 597; Lindsay v. Jackson, 2 Paige, 581; 2 Black, Judgm. § 1000.

DE WITT, J., (after stating the facts.) Counsel have argued in this case upon the question of offsetting one judgment against another. But we understand that the question presented is a different one. The money in this case was in court, belonging to the defendant, as the order of the court recites, with no claims of any class of third persons upon it, as far as we are informed. The plaintiff, as a judgment creditor, asked an order of the court that defendant's money in that court be applied to its (plaintiff's) unsatisfied judgment. No rights of any third persons were concerned. The matter of the disposition of this fund was a question solely between plaintiff and defendant, judgment creditor and judgment debtor. As we understand the doctrine of exemption of money in custodia legis from levy, it is on the ground, among others, "that otherwise a conflict must arise between different officers seeking, in the performance of their duties, to seize the same property." Freem. Ex'ns, § 130. Respondent cites many authorities in his brief, in reference to money being in the hands of receivers or other officers of the court, upon the point

"

that he makes that such money can be disposed of only by an order of the court, and that the order of the court in this case was authorized by the general powers of a court. Those cases are in point generally, but we observe two cases wherein the facts are practically the same as those at bar, except that the money was in the hands of the sheriff instead of the clerk. Ex parte Fearle, 13 Mo. 467, and Dolby v. Mullins, 3 Humph. 436. In the Missouri case, the syllabus states the case thus: "A sheriff having in his hands an execution against A., and having received money for him under an execution in which he was plaintiff, although the money, before being paid over to A., cannot be levied upon, the court may direct it to be paid over upon the execution against hin, unless the legal and equitable right to it has passed to some third person. We mention this statement of the syllabus as a succinct presentation of the point that was decided. NAPTON, J., in the opinion says: "The case of Turner v. Fendall, 1 Cranch, 116, seems to hold the doctrine that money in the hands of the officer is not subject to levy, as it is in the custody of the law, and not the property of the plaintiff in the execution. Judge MARSHALL, however, observes that it is the duty of the officer to seize it the moment it is paid over into the hands of the creditor, and as the payment, under these circumstances, would be a vain ceremony, no court would hesitate to justify the payment in satisfaction of the second execution, or, if the money was brought into court, to direct it to be so paid, unless the legal and equitable right was in some third person. The officer did right, we think, in waiting for the directions of the court, and the court was clearly authorized to direct the whole amount to be paid over, unless the assignee, Shepard, bad a legal and equitable right to such proceeds." In that case, the person named as Shepard was claiming as an assignee of the judgment debtor in the second execution, the judgment creditor in the first execution. But in the case at bar no assignee is claiming anything, Judgment debtor and creditcr are the only persons in court. Note Judge NAPTON's remarks as to Chief Justice MARSHALL'S views: "No court would hesitate, if the money were brought into court, to direct it to be so paid;" that is, paid to the judgment creditor. And in the case at bar the money was in court, and the court did order it to be so paid. The Tennessee case, in a more elaborate opinion, holds the same views; but that case goes to the extent of holding that the sheriff, with an execution against A., may levy upon A.'s money in his (the sheriff's) hands, collected upon another execution in favor of A. The facts before us do not require us to pass upon that proposition. We cite the Tennessee case simply as showing that, if that court would hold that the sheriff might make such a levy, then a fortiori a court, with its judicial powers, could order the disposition of the fund, as it did in the case at bar. In Turner v. Fendal, supra, Chief Justice MARSHALL says: "But the money becomes liable to

such execution the instant that it shall be paid into the hands of the creditor; and it then becomes the duty of the officer to seize it. It appears unreasonable that the law should direct a payment under such circumstances. If the money should be seized the instant of its being received by the creditor, then the payment to him seems a vain and useless ceremony, which might well be dispensed with; and if the money should, by being so paid, be withdrawn from the power of the officer, then his own act would put beyond his reach property rendered by law liable to his execution, and which, of consequence, the law made it his duty to seize." Notwithstanding the remarks of the court in Turner v. Fendall, quoted above, it was held in that case that the sheriff could not levy upon money already in his hands, made by a levy of an execution in favor of the debtor against whom he held the second execution. But the case before us is different. The money of the defendant, Hayes was not levied upon by the sheriff by virtue of the execution in favor of the bank. The money had been paid into and was in court. The matter was not left to the sheriff, or any ministerial officer, to determine its disposition at the peril of such officer. A hearing was had before the court analogous to a hearing on proceedings supplemental to execution. Section 350 et seq., Code Civil Proc. All persons interested in the fund were present. No meritorious reason appeared why the money of the judgment debtor, which was in court, should not be paid to the judgment creditor, and no reason at all, except, perhaps, that the debtor preferred to put the money into his pocket rather than pay his debt with it. We conceive that there is a great difference between a sheriff deciding upon the disposition of a fund in his hands, and a disposition being made by a court, of money in court, upon a hearing of all the parties interested. Ex parte Fearle, supra. So the facts of Turner v. Fendall are distinguished from those of the case at bar, as they were from those of the Missouri case. The question before us is not of a sheriff levying, but rather of a court determining; and the remarks of Chief Justice MARSHALL, quoted above, become very pertinent. It is the principle and policy of the law to subject all property of the judg ment debtor, not specially exempt, to the payment of his debts. Sperling v. Calfee, 7 Mont. 529, 19 Pac. Rep. 204. Then why may not the district court have made the order that it did? It had the defendant Hayes before it. It had the money in court. No third persons claimed it. There was no clash of rival officers attempting to get it. There was no collision between two courts as to the money. No person was interfering with the conduct of the court's business, as might occur if the court's receiver were garnished, or property in his hands levied upon. The reasons of the doctrine of exemption of money in custodia legis wholly disappear from this case. It was eminently just that defendant's unincumbered and unexempted property should be applied to satisfy a judgment against him, when