by the trial court, all of which had been already printed in full in appellant's brief. The clerk of this court, in taxing the costs, has allowed eighty cents per page for printing respondent's brief, and we think the record shows conclusively that that was the customary price for briefs of this size in Pacific county. There seems to be no good purpose subserved, however, in the printing by respondent in her brief of the findings of fact after they had been printed in the brief of appellant, as they had in this case. The briefs of appellant and respondent are consulted together by members of this court, and, the rule requiring the printing of the findings of fact being for the benefit of the court, there is no necessity for incurring the expense of again printing them in respondent's brief. The costs will therefore be retaxed to the extent of disallowing the expense of printing the seventeen pages of respondent's brief which contain the statement of facts as printed in appellant's brief. As so corrected, the cost bill is approved.

[No. 3617. Decided December 14, 1901.]

In the Matter of the Petition of the CITY OF SEATTLE as to Compensation to be made for Regrading of First Avenue.

CHARLES BRUHN et ux., Appellants, v. S. HENRY NORRIS,

Respondent.

APPEAL

SUFFICIENCY OF BRIEFS

FAILURE TO CONTAIN FINDINGS OF

FACT.

The supreme court rule which requires findings of fact to be printed in the appellant's brief applies only to cases where the findings themselves are contested, not to cases where the error

Dec. 1901.]

Opinion of the Court-FULLERTON, J.

assigned is as to the conclusions of law drawn from findings which are accepted as correct.

DAMAGES TO REAL PROPERTY

ON MORTGAGE FORECLOSURE.

RIGHT TO RECOVER WHO ENTITLED TO

Where damages occasioned by the grading of a street have been awarded in favor of mortgaged premises prior to the foreclosure of the mortgage thereon, the mortgagee is not entitled to such award when there is nothing in the decree of foreclosure giving it to him, and the mortgaged premises have on foreclosure sale brought the full amount of the mortgage indebtedness, thus satisfying his claim against the property of his debtor.

Appeal from Superior Court, King County.-Hon. WILLIAM HICKMAN MOORE, Judge. Reversed.

Ralph Simon, for appellants.
Allen & Allen, for respondent.

The opinion of the court was delivered by

FULLERTON, J.-Briefly stated, the facts of this case are these: In 1898 the appellants were the owners of lot 8, in block 42, in A. A. Denny's Addition to the city of Seattle, on which there was a mortgage for $3,900, held by the respondent, which the appellants had assumed and were obligated to pay. In April of that year the city of Seattle, pursuant to ordinances theretofore passed, commenced work regrading the street in front of and abutting upon the lot, completing the same on August 15th of the same year. On October 25th following, the city institute an action for the purpose of ascertaining the amount of damages done to the property holders owning property abutting upon the street by the work of regrading, making defendants therein, among others, the appellants and the respondent. This action was brought to trial on October 24, 1899, which resulted in a verdict in favor of the owners of the lot in question in the sum of $500. After the

Opinion of the Court-FULLERTON, J.

[26 Wash.

work of regrading the street had been commenced, the respondent began a suit to foreclose his mortgage, obtaining a decree of foreclosure therein on October 19, 1898. under which the property was sold by the sheriff, in the usual manner, on February 18, 1899, to the respondent, for the full amount of the decree, including the accrued costs, leaving no deficiency whatever. This sale was confirmed by the court on June 29, 1899. After the return of the verdict in the action instituted by the city, the re spondent filed a petition in the superior court, entitled as in that proceeding, praying the court to enter a judgment on the verdict of the jury awarding to him the amount assessed as damages. This petition was served upon the appellants, who filed a counter-petition, praying that they have judgment for the award. The court ruled that the respondent was entitled to the award, and entered judg ment in his favor. This appeal is from that judgment.

The respondent moves to dismiss the appeal for the reasons: (1) That the appellants have not printed in their brief the findings of fact and conclusions of law made by the trial court; and (2) that there is no sufficient assignment of error. The rule of this court requiring findings to be printed in the brief applies only to cases where the findings themselves are contested, not to cases where the findings are accepted as correct, and the error assigned is the conclusion of law drawn therefrom. In their brief the appellants have clearly stated the question involved, and the error relied upon for reversal. In doing so they have complied with the requirements of both the rule and the statute. The motion to dismiss is denied.

By reference to the dates above given, it will be seen that the work done upon the street which caused the injury to the lot, was done prior to the time of the sale under the foreclosure decree, and at a time when the appellants

Dec. 1901.] Opinion of the Court-FULLERTON, J.

were the owners of the lot and the respondent was the holder of a mortgage lien thereon. The respondent's right, therefore, to the award depends upon what answer is given to the question, did the right to collect the award pass to the purchaser at the mortgage sale? We can conceive of no reason why it should be held to have so passed. The proceedings brought to foreclose the mortgage, so far as the record discloses, were the ordinary proceedings followed in the usual course of practice; that is to say, a money judgment was entered against the parties obligated to pay the debt, followed by a decree directing that the mortgaged property be sold to satisfy the amount due. So far as it appears, no reference to the award was made in the decree. It was neither directed to be sold, nor was the amount thereof deducted from the amount of the debt. The property was sold at public auction to the highest and best bidder, after notice given, which described the lot as it was described in the mortgage, making no reference to any right of damages passing with the property. It has been uniformly held that the right to damages for an injury to property is a personal right belonging to the owners of the property, which will not pass by deed unless expressly conveyed. McFadden v. Johnson, 72 Pa. St. 335 (13 Am. Rep. 681); Losch's Appeal, 109 Pa. St. 72; King v. Mayor, etc., of New York, 102 N. Y. 171 (6 N. E. 395); Porter v. Metropolitan Elevated Ry. Co., 120 N. Y. 284 (24 N. E. 454); Chicago & E. I. R. R. Co. v. Loeb, 118 Ill. 203 (8 N. E. 460, 59 Am. Rep. 341); Milwaukee & Northern R. R. Co. v. Strange, 63 Wis. 178 (23 N. W. 432). On like principles it will not pass by a sale under a decree of foreclosure unless expressly so ordered and directed by the decree. Undoubtedly, had there been a deficiency remaining after the mortgage sale, the respondent would have been entitled to this award up to the amount

26 606

27 239

27 241

of such deficiency. But his right against the mortgagors was the right only to have the mortgage debt paid in full, and where this was paid by a sale of the mortgaged premises in their damaged condition, all his claims against the property of the debtors were satisfied. The right to collect these damages was the appellants' property, their personal right, subject to the payment of the mortgage debt so long as it existed, becoming absolute after the debt was satisfied.

The judgment is reversed, and the cause remanded, with instructions to enter a judgment for the appellants. REAVIS, C. J. and ANDERS and DUNBAR, JJ., concur.

[No. 3979. Decided December 14, 1901.]

GOTTLIEB BURIAN, Appellant, v. SEATTLE ELECTRIC COM

PANY, Respondent.

f30 349 31 376

FOR JURY.

Whether a cable car company engaged in operating a line upon a steep street is guilty of negligence or not, where the cars could only be safely stopped upon the level of cross streets and not upon the incline, and by reason of that fact a pedestrian upon the cross street was run into and injured because of the failure of the company's employees to stop the car until it had completely ascended from the slope to the level of the cross street, is a question for the jury, and it is not within the province of the court to say as a matter of law that the company was not negligent in operating such cars.

SAME- NON-SUIT.

In an action to recover for injuries resulting from being run down by a cable car, where there is some evidence that no gong was rung, it was error to non-suit plaintiff, since it became the duty of the jury to determine what the fact was as to sounding the gong, and whether a failure to sound it constituted negligence under all the facts of the case.