sessed, it may be enjoined therefrom, and if plaintiff agreed to pay all taxes, as urged by appellants, it could be required to pay only legal taxes. The fact that the city extended its streets outside of its corporate limits would not give it authority to levy taxes on property situated outside of its corporate limits.

The judgment must be affirmed.

REAVIS, C. J. and FULLERTON, ANDERS and DUNBAR, JJ., concur.

HADLEY, J., not sitting.

[No. 3914. Decided October 3, 1901.]

CHRISTIAN ANDERSON, Respondent, v. PROVIDENT LIFE AND TRUST COMPANY OF PHILADELPHIA, Appellant.

APPEAL INSUFFICIENCY OF BOND.

On appeal from a money judgment for the sum of $1,400, an appeal bond in the sum of $3,200, conditioned to pay all costs and damages that may be awarded against the appellant on the appeal not exceeding $200, and to satisfy and perform the judgment or order appealed from in case it shall be affirmed, and any judgment or order which the supreme court shall make or order to be rendered by the superior court, fully complies with the requirements of Bal. Code, §§ 6505, 6506, on the subject of appeal and supersedeas bonds.

SAME STATEMENT OF FACTS BY WHOM TO BE SETTLED.

The fact that a statement of facts was settled and certified by the judge who presided at the trial after his term of office had expired would not be ground for striking the statement, where it was subsequently settled and certified within the statutory time by the judge of the court.

WRONGFUL INJUNCTION

ACTION FOR DAMAGES

PARTIES PLAINTIFF.

Where an injunction was wrongfully sued out against a judgment creditor and a sheriff, to restrain the sale of real estate upon execution, an action for damages is maintainable by the

Oct. 1901.]

Opinion of the Court-HADLEY, J.

judgment creditor alone, without the necessity of joining the sheriff as a party plaintiff.

SAME ATTORNEY FEES WHEN RECOVERABLE.

Attorney fees are recoverable as an item of damages in an action on the case for damages for the wrongful suing out of an injunction, when the language of the complaint is so strong that, as against demurrer, it must be held that the effect of the pleading is to tender the issue of malice and want of probable cause.

SA ME― LIABILITIES INCURRED BUT NOT PAID.

In an action for damages for the wrongful suing out of an injunction, attorney fees and expenses are recoverable, when a liability therefor has been incurred, although such expenses may not have been paid.

SAME FORM OF ATTACK AGAINST INJUNCTION.

Where a demurrer to an injunction in the federal court challenged its jurisdiction and reached the injunction as effectively as a motion to dissolve would have done, attorney fees are recoverable for services rendered in the presentation of the demurrer, the same as upon a former motion to dissolve; but attorney fees for services upon a trial on the merits after the overruling of the demurrer are not recoverable.

Appeal from Superior Court, Pierce County.—Hon. THOMAS CARROLL, Judge. Reversed.

E. R. York, for appellant.

John A. Parker, J. W. A. Nichols and John C. Stallcup, for respondent.

The opinion of the court was delivered by

HADLEY, J.-Respondent brought this action against appellant, a corporation organized under the laws of the state of Pennsylvania, having an agent in this state upon whom process may be served. For his cause of action respondent alleges substantially as follows: That on the 24th day of January, 1894, in an action then pending in the superior court of Pierce county, wherein the Tacoma

13-26 WASH.

Opinion of the Court-HADLEY, J.

[26 Wash.

National Bank was plaintiff and Otis Sprague and others were defendants, the said court gave judgment in favor of said bank, and against the said defendants therein, for the sum of $4,370 and costs, and that said judgment remains unsatisfied; that prior thereto, in the month of December, 1893, John W. Sprague, father of Otis Sprague, died seized of certain described real estate situated in the county of Pierce, and left the said Otis Sprague and three others, his sons, as devisees, and the said Otis Sprague as devisee of the undivided one-fourth of said real estate; that afterwards, in the year 1897, the respondent, for value and by sale and assignment thereof to him duly made, became the owner of said judgment, and still continues to hold the same; that said judgment was then, and at all times since the rendition thereof has been, a lien on any legal or equitable interest of said Otis Sprague in the said real estate; that in the latter part of the year 1895 or 1896, while the said real estate was subject to the lien of said judgment, the same was conveyed to the appellant by the said four sons of said John W. Sprague, deceased, together with one Hayden, as executor of the last will of said John W. Sprague, and the appellant so took title to said premises subject to the lien of the said judgment upon the undivided one-fourth thereof, which interest, with the title thereto, had been held by the said Otis Sprague, and the appellant then took possession of said premises; that after the said purchase of said premises the appellant claimed title thereto free and clear of the lien of said judgment, and thereupon respondent filed in said superior court his bill of complaint against the appellant and against the said executor and devisees, for the purpose of removing the said obstructions in the way of realizing on the said judgment by execution sale of one-fourth in

Oct. 1901.]

Opinion of the Court-HADLEY, J.

terest in said real estate, and asked equitable relief accordingly; thereupon the appellant herein demurred to the complaint in that action, and upon said demurrer it was claimed by this appellant that this respondent had ample remedy at law in the premises by the writ of execution under said judgment, and by seizure of said real estate thereunder, and the court so held, and gave judgment to that effect upon said demurrer; that afterwards this respondent filed in that action his amended supplemental complaint, and the said action is still pending; that on the 17th day of January, 1898, upon the said ruling on said demurrer, this respondent caused an execution to be issued out of the said superior court upon his said judgment against the said Otis Sprague, and the sheriff of said county thereupon levied upon the interest of said Otis Sprague in said real estate; that for the purpose of harassing and injuring this respondent, and putting him to great expense and annoyance, and for the purpose of preventing him from realizing on his said judgment, and preventing execution from going against said real estate until after the lien of said judgment had expired by the lapse of five years' time from the date of its rendition, and in contempt of right and justice, and in violation of law and especially of the plain prohibitory act of the congress of the United States, expressed in § 720 of the Revised Statutes of the United States, this appellant, after said levy had been made, and when sale thereunder had been duly advertised, filed its so-called bill of complaint in the cir cuit court of the United States for the district of Washington, against this respondent and the said sheriff, demanding an injunction against said sale, and against the proceedings under said execution, or any execution touching the sale of said real estate under said judgment; that upon

Opinion of the Court-HADLEY, J.

[26 Wash. the filing of said bill a temporary injunction was allowed, and afterwards, upon motion to dissolve, was allowed and continued on condition that this appellant should file a bond securing this respondent and other defendants in that action against damages resulting in case the said injunction was wrongful, and the undertaking was made, filed and accepted in the premises, wherein the sureties obligated themselves, and promised this respondent and the other defendants in that action, that this appellant should abide the final decision of that court, and pay all moneys and costs adjudged against it in case the said injunction should be dissolved, and, in case the said appellant did not so perform and pay, they would so pay and perform; that the said sheriff and this respondent were thereby restrained from making said sale or any sale of said premises, or of the interest of Otis Sprague therein, under the said execution, or any execution under said judgment, and upon the hearing of said cause by the decree of said court they were accordingly perpetually enjoined; that thereupon the said sheriff and this respondent duly appealed from said decree to the circuit court of appeals for the Ninth circuit of the United States, and the said injunction was by that court dissolved, and the said decree reversed, and said bill of complaint ordered dismissed for want of jurisdiction; that thereafter the said circuit court entered final decree in that court dissolving said injunction and dismissing said bill of complaint according to the mandate of the said circuit court of appeals; that the appellant is liable for, and should pay, all costs, expenses, and charges which respondent has in the premises incurred, or for which he has become liable, and which were occasioned by the said injunction, and the proceedings of the appellant in and about the same, and in defending against