(225 P.)

be considered. It is conceded in appellant's, tled and allowed is properly before this court, brief as to causes of action Nos. 22 to 31, in- and the question of the insufficiency of the eviclusive, that respondent is entitled to a lien dence will be reviewed. on the logs; therefore the entire conclusions of the court were not erroneous, and, since there are numerous conclusions of law, we are not advised which particular conclusion is complained of. As was said in the case of Wolverton v. Wolverton, 163 Ind. 26, 71 N. E. 123:

"An assignment that the court erred in its conclusions of law is joint, and cannot be sustained, where it is not contended that all the conclusions of law on the facts found are erroneous."

To the same effect see Miller v. ArmstrongLandon Co., 53 Ind. App. 501, 102 N. E. 47. There is no merit in the third assignment of error.

The judgment should be affirmed, and it is so ordered. Costs are awarded to respondent.

MCCARTHY, C. J., and WILLIAM A. LEE, J., concur.

2. Criminal law 564(1)—Indictment and information 166-Venue of criminal offense must be laid in information and proven; when venue in criminal offense not proven, conviction reversed and remanded.

The venue of a criminal offense is a material allegation, and must be laid in the information and proven. judgment of conviction will be reversed on apWhere it is not proven, a peal and the cause remanded for a new trial.

Appeal from District Court, Madison County; Geo, W. Edgington, Judge.

Thomas Siepert and others were convicted of the unlawful possession of intoxicating liquors, and they appeal. Reversed and remanded for new trial.

Miller & Ricks, of Rexburg, for appellants. A. H. Conner, Atty. Gen., and Jas. L Boone, Asst. Atty. Gen., for the State,

BUDGE, C. J. Appellants were convicted of the crime of unlawful possession of inWM. E. LEE, J. I dissent from that part from an order overruling a motion for a new toxicating liquor. From the judgment and of the opinion which holds that one who per- trial this appeal is prosecuted. There is no forms labor upon or assists in securing saw-reporter's transcript. The case is here for logs has a lien, not only on the sawlogs, but review upon a bill of exceptions duly settled also upon the lumber into which such logs and allowed by the trial judge. are sawed. In my opinion, the lien accorded by C. S. § 7356, is confined to sawlogs. I also dissent from that portion of the opinion which holds that one who assists in manufacturing sawlogs into lumber has a lien upon such lumber after it has been removed to a lumber yard six miles distant from the mill where manufactured. C. S. § 7357, affords a lien to such a person "upon such lumber while the same remains at the mill where manufactured." "At the mill where manufactured" does not mean at a lumber yard six miles away.

Re

STATE v. SIEPERT et al. (No. 4195.) (Supreme Court of Idaho. Oct. 30, 1923. hearing Denied Dec. 27, 1923.) 1. Criminal law 1121(1)-Sufficiency of evidence reviewed, where bill of exceptions considered below in motion for new trial made part of record on appeal.

Under the provisions of C. S. § 9068, where a motion for a new trial is made after judgment and overruled, and the insufficiency of the evidence to support the verdict and judgment is set out in the notice and motion for new trial, and thereafter, in support of the motion, a bill of exceptions embodying the material testimony is before the trial court and considered by it in passing upon the motion, and is thereafter incorporated in and becomes a part of the record on appeal, the bill of exceptions so set

tion is whether, in the absence of a reporter's [1] The important question for determinatranscript in lieu of a bill of exceptions, the insufficiency of the evidence to justify the verdict and judgment may be reviewed upon a bill of exceptions from an order overruling a motion for a new trial. Where a motion for a new trial is made after judgment and overruled, and the insufficiency of the evidence to support the verdict and judgment is set out in the notice and motion for new trial, and thereafter, in support of the motion, a bill of exceptions embodying the material testimony is before the trial court and considered by it in passing upon the motion, and is thereafter incorporated in and becomes a part of the record on appeal, the bill erly before this court, and the question of of exceptions so settled and allowed is propthe sufficiency of the evidence will be reviewed. C. S. § 9068, provides that:

"An appeal may be taken by the defendant: "1. From a final judgment of conviction. "2. From an order denying a motion for a new trial.

"3. From any order made after judgment, affecting the substantial rights of the party.

"Upon an appeal from a final judgment of conviction, if a reporter's transcript of the evidence appears in the record, the ground that the verdict is contrary to the evidence may be considered and determined to the same extent as on an appeal from an order denying a new trial, Providing, A specification of the particulars in which the evidence is insufficient to sustain the

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verdict is made in appellant's brief filed with the | 2. Pleading 290 (3)—Unverified answer inSupreme Court."

Prior to the amendment of C. S. § 9068. supra, the only method of procuring a review of the evidence was upon appeal from an order granting or denying a motion for a new trial. State v. Lottridge, 29 Idaho, 53, 155 Pac. 487. Under the provisions of C. S. § 9068 an appeal may now be taken by the defendant from a final judgment of conviction, and, if a reporter's transcript of the evidence appears in the record, the ground that the verdict is contrary to the evidence may be considered and determined, providing a specification of the particulars in which the evidence is insufficient to sustain the verdict is made in appellant's brief filed in the Supreme Court.

We have therefore properly before us for review the evidence contained in the bill of exceptions. If all of the evidence is not contained in the bill of exceptions, the fault. rests with the prosecuting attorney for failure to propose amendments to the bill incorporating all of the evidence bearing upon the point. This court cannot presume that there is any evidence other than that contained in the bill, and this is particularly true, where there is a stipulation to the effect that the bill of exceptions contains all of the evidence, as in this case. People v. English, 52 Cal.

211.

[2] Appellant has raised the point in his assignments of error that there is no proof of venue. The venue of an offense must be laid in the information and proven as any other material allegation. State v. Cole, 31 Idaho, 603, 174 Pac. 131. Proof of venue must be either direct or indirect, but it must be one or the other, and the record must show it or the judgment will be reversed. People v. Roach, 48 Cal 382. The evidence contained in the bill of exceptions in this case fails to show proof of the venue as alleged in the information.

sufficient to tender issue where verified answer required by statute.

In all cases where a verified answer is re

quired by C. S. § 6703, an unverified answer is insufficient to tender an issue.

MCCARTHY, C. J. This is an action on a promissory note for $500 which the complaint alleges appellant executed and delivered to the Holland Realty & Investment Company and that company indorsed to respondent. It further alleges that respondent is the lawful owner and holder of the note; that $100 is a reasonable attorney's fee; and that the principal of $500 and $230 interest are due and unpaid. Respondent prays for judgment for the $500 principal, $230 interest, and $100 attorney fee. The complaint is duly verified. By an unverified answer appellant seeks to deny the execution and indorsement of the note and that any amount is due and owing. Later, in an affirmative In view of what has been said it follows defense, he sets up that he gave the note eithat the judgment must be reversed and the ther to the company or to respondent in pay cause remanded for a new trial. There are ment for an interest in the business of the other errors assigned which we do not deem company, and that respondent, who was a dinecessary to consider in view of the disposi-rector, agreed with him that he could pay

tion of this case.

$960 cash for such interest and give his notes for $1,000, payment of which would not be

MCCARTHY, DUNN, WILLIAM A. LEE, required of him until he had received suffi

and WM. E. LEE, JJ., concur.

CRAVEN v. BOS. (No. 3946.) (Supreme Court of Idaho. April 1, 1924.) 1. Appeal and error —959(1)-Ruling on application to amend pleading not reversed except for abuse of discretion.

The ruling of the trial court on an application to amend a pleading will not be reversed except for abuse of discretion.

cient profits from his interest in the concern to pay the same; that he paid the $960 cash and gave his note on this understanding. In this affirmative defense appellant also tries to set up the defense of failure of consideration. Respondent made a motion for judgment on the pleadings, and the court indicated that it would sustain the motion. Thereupon counsel for appellant asked permission to file an amended answer to which respondent objected. The court sustained the objection to the filing of an amended answer

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(225 P.)

The note was signed by Secor and wife and eight other parties, including the appellant and respondents herein, and was secured by

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a second mortgage on a tract of land in Gooding county. Against the said land was a first mortgage held by the state of Idaho. Secor and wife having defaulted in the payment of a small amount of interest, on May 24, 1916, Jones and Bell, respondents, paid the Foster Crane note, and also the note due the state of Idaho, and caused the two mortgages secured by said notes to be released. On the same day respondents took from Secor and wife a deed of conveyance of the property covered by said mortgages. On July 2, 1920, four years, two months and eight days after respondents had paid and fully satisfied the obligations to Crane and the state of Idaho, they commenced this action against appellant, praying for contribution from appellant of his proportionate share of the deficiency not covered by the sale of the property. Respondents alleged that after disposing of the property and paying all the necessary expenses connected therewith there remained due from appellant as cosurety the sum of $3,350 in excess of the amount realized from the handling of the security. To this complaint appellant demurred, challenging the sufficiency of the complaint to state a cause of action, and also asserting that the cause was barred by the provisions of C. S. § 6610. The demurrer was by the court overruled, whereupon appellant answered setting up a number of affirmative defenses. Thereafter the cause was tried to the jury. After respondents rested, appellant moved for a nonsuit, which motion was by the court overruled. The case was thereupon given to the jury, and a verdict returned in favor of the respondents, and judgment entered ac'cordingly, from which judgment this appeal is prosecuted.

The principal question to be determined is whether respondents' cause of action was barred by the provisions of C. S. § 6610. In determining this question it becomes necessary to ascertain when respondents' cause of action arose, whether upon payment by them of the amount of the note, upon which all cosureties were liable, or whether the right of action did not arise until after they had disposed of the land taken by them as security," and distributed the amount realized therefrom among the various sureties. If the cause arose upon the payment by respondents of the principal debt, the action was barred. If the cause of action did not arise until after application of the proceeds of the sale of the security, the statutes of limitation had not run. Upon this question it must be conceded there is some conflict in the authorities, but we are convinced that the great weight of authority, both in the texts and the adjudicated cases, is in support of the rule that, when one of several cosureties pays the principal debt his cause of action for contribution at once arises. Mentzer v. Burlingame, 78 Kan. 219, 97 Pac. 371, 18 L. R. A. (N. S.) 585; Richter v. Henningsan, 110 Cal. 530, 42 Pac. 1077; Williams v. Riehl, 127 Cal. 365, 59 Pac. 762, 78 Am. St. Rep. 60; Burrus v. Cook, 215 Mo. 496, 114 S. W. 1065: Kelly v. Sproul, 153 Mich. 691, 117 N. W. 327, 15 Ann. Cas. 1029; 21 R. C. L. 1150; Broussard v. Mason, 187 Mo. App. 281, 173 S. W. 698; Sanders v. Weelburg, 107 Ind. 266, 7 N. E. 573; Dunkle v. Haight, 68 Colo. 404, 189 Pac. 783; 7 Am. & Eng. Ency. of Law, 340.

The reason for the rule as expressed by the authorities, is that, when a surety under such circumstances takes security, such indemnity, of whatever it may consist, accrues at once to the benefit of all cosureties, and that the surety taking it at once becomes a trustee for all cosureties, charged with han

interest in the property is only that of any cosurety. The rule is founded upon the maxim, "Equality is equity." Any different rule would raise an unwarranted inequality against the surety who had parted with his money for the benefit, not only of himself, but as much for the benefit of each cosurety, who was equally obligated to pay the principal debt. He might be unable to dispose of the security, in which event he would be compelled to wait an indefinite time before receiving compensation from those who have assumed obligations as binding as his own. We think the rule should not be different when the cosurety, upon payment of the debt, takes property of the principal debtor as indemnity against loss which might be sustained by the enforced payment. In the case of Williams v. Riehl, supra, the court said:

[1, 2] Appellant makes numerous specifications of error, among which are that the court erred in overruling appellant's demurrer, in overruling appellant's motion for non-dling the property for the benfit of all. His suit, in giving various instructions, in admitting evidence over the objection of appellant, and in entering judgment for any amount against the appellant. The fifth assignment of error is that the verdict of the jury and the judgment entered are not supported by the evidence. This specification we are unable to consider, for the reason that the same does not come within, the requirements of rule 42 of this court, as construed in the case of Morton Realty Co. v. Big Bend Irr. & Mining Co., 37 Idaho, 218 Pac. 433. In this case it was held that an assignment, simply asserting that the findings of fact and conclusions of law are contrary to the law and the evidence, does not comply with the rule of this court, in that it does not contain a distinct enumeration of the several errors relied on, as required by said rule. The controverted facts raised by the affirmative answer have been decided by the jury in favor of the respondents; with these we therefore have no concern.

"There is a sharp conflict in the authorities as to whether a surety, holding in his hands indemnity, can maintain an action against his cosurety, regardless of the indemnity. Many

(225 P.)

tained.

MCCARTHY, C. J., and DUNN and WM. E. LEE, JJ., concur.

BUDGE and WILLIAM A. LEE, JJ., dissent.

PER CURIAM. The foregoing opinion has been examined, and is hereby adopted as the opinion of the court. It is ordered that the judgment of the trial court be reversed, with direction to said court to sustain the demurrer to the complaint. Costs awarded to appellant.

authorities hold that the surety may maintain This suit having been filed more than four an action against his cosurety for the sum he years after the date of such payment, the is then entitled to, regardless of the indemnity; cause was barred by C. S. § 6610. Inasmuch that in such case whatever may be afterward as these facts appear on the face of the comreceived by a sale of the indemnity shall be ac-plaint, the demurrer should have been suscounted for and proportionately paid to the sureties. On the other hand, it has been held in several cases that the surety so indemnified must save himself harmless, or fully account for the value of the indemnity, before he can recover against his cosurety in an action for contribution. The question does not appear to have been decided by this court, and we are at liberty to lay down the rule in this case. We think the first the better rule. Equality is equity. The moment one cosurety or joint judgment debtor pays the debt of his principal, he has a right to recover from his cosurety or joint judgment debtor his proportionate share. The law gives him this right and also imposes upon his cosurety the duty of paying his proportionate share. The obligation is as binding upon the cosurety as if created by promissory note or contract. It would be no defense for a defendant, when sued upon a promissory note or other written contract, to set up that the plaintiff held collateral securities or property for the purpose of indemnifying himself. Why should it be a defense in this kind of an action? Why should the plaintiff, in an action for contribution, after having paid out his money, be compelled to wait until he can realize upon C. S. § 6819, does not prevent the appointsome collateral indemnity, which may requirement of a person as a receiver in a foreclosure years, while his cosurety, who was as much bound in law and morals as himself by the bond, has paid nothing? This would not make the burdens of the cosureties equal. The indemnity is for the benefit of one cosurety as much as for the other, no matter which holds it. Civ. Code, § 2849. Either one could apply to the court for its sale, or to enjoin a wrongful disposition of it. The burden of finding a market for it, and applying its value toward the debt Where a second mortgage contains condiof the principal, should be borne by one as well tions that the mortgagor shall pay all taxes, as the other. There is no reason why the co-assessments, liens, or other incumbrances then surety who has paid the debt of his principal should assume the burden of disposing of the indemnity, and the additional burden of waiting until it is disposed of, before he can receive from his cosurety his proportion"-citing 1 Brandt, Sur. § 274; Paulin v. Kaighn, 29 N. J. Law, 483; Anthony v. Percifull, 8 Ark. 495; Bachelder v. Fiske, 17 Mass. 464; Johnson's Adm'rs v. Vaughn, 65 Ill. 425.

[3] While we are not in accord with the following statement found in the above quo

tation:

"It would be no defense for a defendant, when sued upon a promissory note or other written contract, to set up that the plaintiff held collateral securities or property for the purpose of indemnifying himself,"

-we agree with the reasoning employed in this case and the conclusion reached. We therefore conclude that respondents' cause of action for contribution arose at the time they paid the principal debt, to wit, May 24, 1916. Appellant's liability was upon an implied promise to contribute. The right of action thereon is controlled by C. S. § 6610.

REED v. HARTSOCK et al. (No. 4049.) (Supreme Court of Idaho. April 5, 1924.) I. Mortgages 467(1)-Law preventing appointment of party to action as receiver held not to bar one inadvertently made defendant and afterward dismissed.

proceeding to which he has been inadvertently made a party, where no relief is asked against him, and where upon his appointment he is dismissed as a party to the action.

2. Mortgages 401 (1)-Default in payment of prior lien or charge on premises by mortgagor accelerates maturity of debt at holder's option.

subsisting or thereafter imposed upon the premises which may be a prior charge thereon, and also covenants that in case default be made in the payment of any part thereof the mortgagee may consider the mortgage indebtedness immediately due and payable, such stipulation authorizes the holder of the mortgage to pay any such liens to protect his security, and default in the payment of any prior lien or charge thereon by the mortgagor accelerates the maturity of the entire mortgage indebtedness at the option of the holder of the mort

gage.

3. Mortgages 199 (2)-Holder of second mortgage, paying interest and taxes to prevent foreclosure of prior lien, may apply rents and profits to his claim.

Where the holder of a second mortgage pays accrued interest on a prior mortgage, which covers and includes the rents, issues, and profits of the premises, and also pays taxes in order to protect his mortgage lien, the rents, issues, and profits may be applied in discharge of the payment of accrued interest on the first mortgage, and taxes paid by the holder of the second mortgage to prevent the foreclosure of the prior lien, where the second mortgage contains the stipulation above recited.

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