Aug. 1901.] Opinion of the Court-FULLERTON, J. same time; or he had to institute one, prosecute it to a final determination, and, if he failed of success, institute the other; or he had to make his choice of causes at his peril. It is not in accord with the spirit of the Code that the practice thereunder should be made unnecessarily cumbersome, nor is it in accord with justice that the form of relief should be so restricted as to deny to a litigant any of the rights guaranteed him by the Code; and we feel constrained to hold, therefore, that in an application to vacate a judgment the causes prescribed by §§ 4953 and 5153 may be joined under the form of procedure pointed out by that chapter of the Code of which § 5153 forms a part. The statute provides (§ 5158) that a judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action in which the judgment is rendered. In the case before us the trial court made the necessary adjudication; but it is said this could only be done after a trial of the defense upon its merits, and that here there was no such trial. But the statute cannot mean that the court must hear the entire cause, and grant the petition only when it appears that the evidence preponderates in favor of the applicant. The weight and sufficiency of evidence in this form of action are questions for a jury. It is sufficient to determine the question here presented, that the court finds that the facts alleged constitute a defense to the cause of action stated in the complaint, and that there is substantial evidence to support the allegations. These matters are sufficiently shown in the present record. The order will stand affirmed. REAVIS, C. J., and DUNBAR, WHITE and ANDERS, JJ., concur. [No. 3629. Decided April 30, 1901.] NORTH WESTERN LUMBER COMPANY, Appellant, v. CHEHALIS COUNTY, et al., Respondents. Appeal from Superior Court, Chehalis County.-Hon. CHARLES W. HODGDON, Judge. Affirmed. Sidney Moor Heath, for appellant. W. H. Abel and James H. Parker, for respondents. PER CURIAM.-Action to recover money paid under protest by appellant upon taxes levied on three steam tugs in Chehalis county--the Traveler, Astoria, and Printer-in the year 1897. The facts relative to the assessment of these three vessels are identical with those appearing in North Western Lumber Company v. Chehalis County et al., ante, p. 95, and upon authority of that decision, the judgment is affirmed. [No. 3838. Decided June 26, 1901.] JOHN VOGEL, Respondent, v. DALLES, PORTLAND & ASTORIA NAVIGATION COMPANY, Appellant. Appeal from Superior Court, Clarke County.-Hon. ABRAHAM L. MILLER, Judge. Affirmed. Coovert & Stapleton and Carey & Mays, for appellant. W. W. McCredie, for respondent. PER CURIAM.-This case involves substantially the same principles that were involved in the case of Sievers v. Dalles, Portland & Astoria Navigation Co., 24 Wash., 302 (64 Pac. 539), a petition for rehearing in which case has been overruled since the argument in this case. For the reason stated therein, the judgment in this case is affirmed. [No. 3915. Decided June 28, 1901.] LONDON & SAN FRANCISCO BANK, LIMITED, Appellant, v. GEORGE E. FORD et ux., Respondents. Appeal from Superior Court, Kittitas County.-Hon JOHN B. DAVIDSON, Judge. Affirmed. Kauffman & Frost, for appellant. PER CURIAM.-This case depends entirely upon the facts proven. The facts as found by the court are justified by the evidence produced and the conclusions of law are properly deduced from the facts found. Judgment affirmed. 43-25 WASIL INDEX ACCOUNTING. See MORTGAGES, 5; PARTNERSHIP, 1, 2. ACKNOWLEDGMENTS. Notaries—Certificate of Acknowledgment-Sufficiency. The ADVERSE POSSESSION. 1. What Constitutes. The inclosure of the lands of another 2. Occupation of Railroad Right of Way-Inconsistency 474 14 |