HAYS ET AL. v. TERRITORY.

July Term, 1884.

GAME LAWS-CONSTITUTIONALITY OF. A law restricting hunting during certain seasons in five of the counties of the territory, is not in violation of the provision in the organic act of the territory which forbids the legislature from granting special privileges.

MARRIED WOMEN MAY ACT AS JURORS. -The legislature had power to make married women eligible to sit and serve on grand and petit juries in all cases.

ERROR to the district court. The opinion states the facts.
Robinson, Porter & Robinson, for the plaintiffs in error.

J. C. McFadden, for the defendant in error.

GREENE, C. J. By this record there are presented to us but two questions which we deem worth while to consider. They are questions as to the validity of the game law, upon which this indictment was framed, and as to the validity of an indictment found by a grand jury composed in part of married women.

The game law in question restricted hunting in five counties only. It is contended that for this reason it is inconsistent with that inhi- • bition in the organic act which forbids the legislature from granting special privileges. But the provisions of this game law fall, without distinction, upon all inhabitants of the territory. All are forbidden to hunt at certain seasons within the counties named. There is no special privilege, unless it be in favor of the brute life of the specified area, or those of human kind who are so happy as to be alive at the hunting season.

We think the law to be a sensible police regulation, entirely within the power of the territorial legislature to enact.

Upon the question of eligibility of married women to grand jury duty, we have but a word to say. This court, circling through its four phases, like the moon, has already once, when differently constituted, passed and thrown its light upon that question. What it then saw it sees now. Its views are unchanged. But as the question has revolved somewhat, so as to bring a part of it more directly under our gaze, we will content ourselves with casting our own more restricted view upon that part only.

It is contended that the provisions of the federal constitution, preserving to the citizen the right of juries, grand and petit, as known to the common law, are incompatible with any legislation by our territorial legislature, that would make it the right or duty of women to serve as petit jurors in any case, or as grand jurors in cases capital or infamous; and that therefore the legislation, which, interpreted as this court interprets it, admits without discrimination women to jury duty as freely as men, cannot rightly be given any such interpretation or effect.

The definition and touchstone of qualification for jury duty, at the time of the adoption of the constitution and its amendments, was the ancient phrase, "Liber et legalis homo." It vested the qualification on a threefold basis-freedom, law and humanity; in other words, the juror must be free, lawful and of the human race.

This

definition was rigid, as far as freedom and humanity were concerned, but elastic as to lawfulness. Custom and statute prescribed the lawfulness. For a jury to try one sort of an issue males were not Liber et legalis homines, and females were; for a jury to try another sort, both men and women were; for the trial of other and all ordinary issues, males only were competent. But all this depended upon law and custom, and was liable to change as the conditions of society or new cases might demand.

This elasticity of the common law respecting jury qualifications was preserved in, and flows to us through the federal constitution. We are free to change by statute the legal qualification of jurors, so long as we do not transgress limitations imposed by acts of congress, and so long as we do not put on juries those who are under duress of servitude, or who are monkeys or angels, but do put on them those only who are free beings, sympathetic, and schooled in the lot of human kind.

We find no error in the record, and the judgment of the court below will therefore be affirmed.

WINGARD, A. J., concurred.

TURNER, A. J., CONCURRING. I concur in all of this opinion that treats of questions other than the validity of the indictment dependent upon the presence upon the grand jury of married women, living with their husbands.

ROBINSON V. COFFIN.

July Term, 1884.

PUBLIC STREET-DEDICATION INTENTION.-Upon a review of the evidence, held, that no intention was manifested by the prior owner of the land in controversy to dedicate the same as a public street.

APPEAL from the district court. The opinion states the facts.

W. G. Langford, for the appellant.

J. B. Allen, for the appellee.

GREENE, C. J. This a case wherein the appellee sued out an injunction to prevent appellant, who was then city marshal of the city of Walla Walla, from entering upon certain land to remove improvements which were obstructions upon what the city claimed was

a street.

Parties agree, and the transcript shows, that in January, 1871, the land in question was a part of a large tract belonging to one A. B. Roberts, who in that month filed and had recorded in the office of the auditor of Walla Walla county, under the statutes of the territory relative to town plats and additions, a duly executed and acknowledged plat of the tract. By this plat, the tract was laid off into various parcels, some of which were sub-divided with regularity and uniformity into lots and blocks bounded by streets or other

lots, and some of which were strips or blocks, differing very much from one another in size and shape, and laid off without much if any obvious method.

The land in controversy is a part of a long strip eighty feet wide, abutting at one end upon a street at right angles called Park street, and at the other end upon the end of a street in direct line with it, and also eighty feet wide, called Roberts street and upon another street at right angles called Dr. Newell street. From Dr. Newell street to Park the strip runs along the front of a long block of lots, the ingress and egress to which would naturally be through it, were it a street. On one side of the strip, at a distance of about half its length and parallel to it, separated from it by two blocks of lots and another narrower strip runs a street called Ebbie street, and on the other side and also parallel, at about the same distance, and with an assortment of various sized lots and parcels intervening, runs another street named Catherine. Thus this strip is one running through the midst of a large square block, around which, as platted, runs a continuous line of demarcation, and which is bounded by Dr. Newell, Ebbie, Park and Catherine streets. It does not, according to the lines of the plat, open out into any street or other public place.

All the lands embraced in the entire plat have been since 1871 within the city limits of Walla Walla.

The only question put before us by this record is, whether this plat shows an intention by Roberts to dedicate the strip above described, to public use as a street.

We do not think that such an intent is indicated by the plat. Upon it all streets are plainly marked as streets, and all other subdivisions are designated by letters and numbers. This strip is a lettered subdivision, denominated "C."

While it is true that it might well serve as a convenient street for access to the lots abutting upon it, and while the lots, if it be not a street, are indeed without any approach, yet there are many other lots in this plat that are condemned to like isolation, with no convenient strip that might serve for a street near them.

It is a rather strange plat that Mr. Roberts has made, but the author of it had a right to indulge his freedom by platting his own property after a fashion to suit himself.

As our views accord with those upon which the judgment of the court below is justly based, that judgment will be affirmed. HOYT, A. J., and TURNER, A. J., concurred.

NEW TRIAL-NOTICE OF INTENTION TO MOVE, WHEN MUST BE GIVEN.-A party intending to move for a new trial has a right to wait for a notice in writing of the decision from the adverse party, under section 659 of the code of civil procedure, before giving notice of his intention to move for a new trial, although he was present in court when the decision was rendered and waived findings and asked for a stay of proceedings on the judgment.

THE SAME STATEMENT ON NEW TRIAL-FILING-RECORD.-A statement on a motion for a new trial is not required to be filed until it has been signed by the judge with his certificate that it is allowed. When filed, and not before, it becomes a part of the record.

APPEAL from an order of the superior court of the city and county of San Francisco, dismissing defendants' motion for a new trial. The opinion states the facts.

Henry E. Highton, for the appellants.
P. B. Nagle, for the respondent.

THORNTON, J. In this case the notice of intention to move for a new trial was given by defendants in time, and their statement on such motion was filed in time. The court erred, therefore, in striking out defendants' statement and in dismissing the motion for a new trial.

The notice of intention to move for a new trial where the action is tried by the court without a jury, must be given by the party aggrieved within ten days after notice of the decision of the court: C. C. P., sec. 659. Notices must be in writing: Id., sec. 1,010.

In this case the cause was tried by the court without a jury, and the decision was announced by the court on the twenty-eighth of March, 1882. No notice of the decision eo nomine was ever given, but notice of the rendition and entry of the judgment was given on the fifth of April following. On the fifteenth of the same month (April) defendants gave notice of their intention to move for a new trial, by serving the notice on the plaintiff's attorney. On the fifteenth day of May, 1882, to a day posterior to which the time for preparing and serving their statement on this motion had been by the court extended, defendants duly served their statement. Subsequently, on the seventeenth day of May, 1882, plaintiff's attorney served a notice of a motion for the twenty sixth of the same month, to dismiss the motion of defendants for a new trial, and to strike out the statement, on the grounds that neither the notice of intention was given nor the statement served within the time required by law. On the seventh day of June, 1882, the court granted plaintiff's motion, struck out the statement, and dismissed defend

ant's motion for a new trial.

It appears from an affidavit of the plaintiff's attorney used on his motion, contained in the bill of exceptions, that when the decision was announced by the court, defendants' attorney was present in

court and heard it; that thereupon he (defendants' attorney) asked for and obtained an order of the court staying proceedings on the judgment for twenty days, and then and there proposed to affiant that findings be waived, which proposition was agreed to, and it was by the court ordered that findings be waived. That attorney of defendants, among other things, spoke of moving for a new trial, and in other ways expressed dissatisfaction with the decision and judg

ment.

We are of opinion that the true construction of the statute: sec. 659, C. C. P.; is that a party intending to move has a right to wait for a notice in writing: sec. 1,010, C. C. P.; of the decision from the adverse party before giving notice of intention to move for a new trial, and that he is entitled to such notice of decision before he is called on to act, although he is present in court when the decision is rendered, and waives findings and asks for a stay of proceedings on the judgment. This is much the best rule. It is more certain and definite, prevents controversies which under any other construction would be likely to arise, and above all accords, in our opinion, with the intention of those enacting the statute: Carpenter v. Thurston, 30 Cal., 125; Roussin v. Stewart, 33 Id., 210; Sawyer v. San Francisco, 50 Id., 375.

A similar question arose in New York on a section, 332, of its code of procedure regulating appeals, by which it was provided that the appeal from the special to the general term "must be taken within thirty days after written notice of the judgment or order shall have been given to the party appealing." The court held there must be written notice of the judgment or order in order that the thirty days shall begin to run, that it is not enough that the party have knowledge of the judgment or order, that no oral communication nor presence in court, and hearing the decision announced, or the order or judgment declared by the court, is sufficient: Fry v. Bennett, 16 How. Pr. Rep., 402, heard and decided in the superior court by Bosworth, Hoffman, Slosson, Woodruff and Pierrepont, JJ. The opinion is an able one, and its perusal is recommended. See also. Staring v. James, 13 How. Pr., 428; Valtin v. National Loan Fund L. A. Society, 19 Id., 517; Rankin v. Pine, 4 Abb., 310; Sup. Court 2d Dist., 7 Id., 352; Leavy v. Robarts, 8 Id., 310; Matter of N. Y. Cent. & H. R. R. Co., 60 N. Y., 114-115. In Rankin v. Pine, supra, it is held that in order to limit the right of appeal, service of written notice upon the party is necessary even when the appeal is from a judgment entered by the appellant himself.

Barron v. Deleval, 58 Cal., 95, is upon a different section of the statute than the one involved in this case, and the ruling in this case does not necessarily overrule what was held in that case.

It is a singular fact that the statement of defendants was struck out before it became a part of the record. The statement is not required to be filed until it has been signed by the judge with his certificate that it is allowed: C. C. P., sec. 659. When filed, and not before, it becomes a part of the record.