could not be restored, and also on the theory that the situation could be restored and the cost of so doing. All of this testimony was met by the testimony of many witnesses produced by the appellant. On the theory that there could not be a restoration of the situation, respondent's witnesses fixed the damage in excess of $10,000, while the witnesses of appellant contended that the mill site had become practically valueless because of a lack of timber and the inability of any person to successfully operate the property, and consequently the damage was practically nothing. On the restoration theory respondent introduced competent evidence showing the cost to be in excess of $10,000, while appellant's witnesses fixed such sum at less than $1,000. There was a sharp dispute as to the line and nature of the original contour of the bank of the river and as to the amount of rock and material which appellant had deposited in the cove and river near the location of the sheer boom. This situation brought about a decided conflict in the evidence, and the chief question was as to the credibility of the witnesses. That such burden rests upon and is peculiarly within the province of the jury, and not the court, has been too often decided by this and other courts to need citation of authorities. In the case of Seattle & Montana Railroad Co. v. Roeder, 30 Wash. 244, 70 Pac. 498, 94 Am. St. Rep. 864, in discussing the question now before us, this court said: "We do not feel disposed to substitute our own judgment for that of the jury whose duty it is to assess the damage, simply because the amount may seem to us large, especially where there is abundant competent evidence upon which to base the verdict." In Fogarty v. Northern Pacific Railway Co., 85 Wash. 90, 147 Pac. 652, L. R. A. 19160, 803, it was said: "The evidence on this point, however, was conflicting. Its weight and the credibility of the witnesses were for the jury. The trial judge was much better able to determine the weight and credence to be given to this evidence than we are. He refused to grant a new trial. An appellate tribunal should be extremely slow to override the judgment of both the jury and the trial court on a question of fact when there is any evidence to support it." In Caldwell v. N. P. Ry. Co., 62 Wash. 420, 113 Pac. 1099, we said: "The right of trial by jury being a constitutional right, the courts, in law actions, must not take questions of fact away from them and determine such questions for themselves merely because they do not agree with the jury's findings. While we have no doubt of our power to grant new trials where verdicts are excessive, yet it is a power which should be exercised within reason, and only where it is reasonably plain that justice will be promoted [2] A careful reading of the record convinces us that there was amply sufficient evidence to support the verdict, and for us now to say that the verdict is excessive would be to usurp the province of the jury. [3] During the trial the parties, acting through their attorneys, entered into a stipulation to the effect that either party might use certain of the testimony produced at the former trial. After the defendant had closed its case, the plaintiff sought to introduce in rebuttal the testimony of one of the witnesses at the former hearing concerning the amount of material which the defendant had thrown into the river at the cove where the sheer boom was located. The trial court held that such testimony was not proper rebuttal, whereupon the plaintiff moved to reopen the case for the purpose of introducing such testimony. The court permitted this to be done. At the time of so ruling the court announced that the defendant would be permitted to introduce any evidence in answer to this new testimony of the plaintiff. Thereafter the defendant asked the court to reopen the defense and permit it to introduce the testimony of three witnesses to the effect that they had examined the test hole which had been made previously on the southerly bank of the river, and examined the character of the earth and rock and found it to be solid rock. The court held that this testimony did not rebut that introduced by the plaintiff after the reopening of the case, and it refused to reopen the case generally for the admission of this testimony. The appellant now claims error on this account. That appellant's proffered testimony was not surrebuttal, and was not in answer to the new testimony given by plaintiff's witnesses, is clear to us. The only way appellant could put in this testimony was to have the case reopened for that purpose. This the court refused to do. It is manifest that these matters must be left largely within the discretion of the trial court. There cannot be any inherent right to have a case reopened, for if there were the trial might never come to an end. In the very nature of things it is and must be a permission, the granting of which rests in the sound judgment and discretion of the court. In this instance we cannot find that the court abused its discretion, or that it erred in its ruling. Complaint is also made of that portion of the court's instruction No. 3 reading as follows: "If the plaintiff has been damaged by the deposit of waste material then your first inquiry will be whether said waste material can be removed so as to return said indenture or cove to a condition which will afford a secure and safe place for the head of said fin boom so as to permit its maintenance and successful operation, and, if so, then plaintiff's damages on this element would be the cost of the removing (190 P.) [4] It is claimed that this instruction is erroneous because it left to the jury whether or not the rock which had been deposited in the river could be removed, whereas the testimony all showed that it could be removed. In the first place, if the testimony was as appellant contends, then certainly no harm could have resulted to it by leaving to the jury the question of whether or not the rock could be removed. However, we find that the plaintiff introduced some testimony tend ing to show that the rock could not be re "You are instructed that under the terms of the deed of right of way and the contract executed by the plaintiff and defendant, the plaintiff as grantor having reserved the right for booming and logging purposes and maintainto use and occupy the shore line of the river ing its then existing boom and anchorage, the defendant had no right to injure the boom and anchorage or change the shore line of the river." The contract mentioned in this instruction is the one from which we have heretofore terms of that contract the respondent was quoted. Appellant claims that under the entitled to occupy the shore line, provided such occupancy did not interfere with the construction, operation, and maintenance of the railroad. But this contract was otherwise interpreted in the previous appeal. Clark Lloyd Lumber Co. v. Puget Sound & Cascade Railway Co., 92 Wash. 601, 159 Pac. 774, where we said: "Appellant contends that, having a deed to the right of way, it had a superior right to construct its road in the manner in which it did, and that the rights of respondent are subservient and subordinate to it. The right to invade the property rights of the respondent is not given by the deed, nor does a fair construction of the contract sustain it. The right reserved by respondent was to use and occupy the shore line in the manner it was then used. It would have had this right without any contract. This right is not destroyed by the further provision of the contract that such occupancy shall not interfere with the construction, operation, and maintenance of the railroad by appellant. The contract must be construed by reference to its whole context." moved so as to restore the original situation, and it was therefore entirely proper for the jury to determine that question. Appellant further complains that this instruction imposes on it the duty to place the cove in such condition as that it would be "a safe and secure place" for the operation of the sheer boom, whereas it was only required to restore the premises to the condition they were in before the damage was done. Probably it would have been better if the court had instructed that it was a question for the jury whether the rock could be removed, and thus the premises restored to the condition in which they originally were. However, it is plain to us that the jury could not have been misled. The error, if any, is more of words than of substance. The appellant had deposited rock and other material in this cove, which it was claimed destroyed the use of the sheer boom. In the pleadings, in the testimony, and in the general charge of the court to the jury, the question was whether this material could be so removed as to restore the cove to its former condition and usefulness. At no time was it contended that appellant was under obligation to put the cove in better condition than it was before the damage was done. The question was concerning the removal of the rock which appellant had placed in the cove. And in this instruction, as well as in others, the court mentioned “deposit of waste material" in the cove, and whether "said waste material can be remov(111 Wash. 224) ed." Instructions Nos. 5 and 6 give the jury BIG FOUR LAND CO. v. DARACUNAS et al. to understand that the question is whether, by the removal of this rock, the cove can be restored to its former condition and efficiency. Reading this instruction in the light of the pleadings, the testimony, the contentions of the parties, and all the instructions given by the court, we cannot conclude that there was any reversible error. Appellant also complains that the court refused to give its requested instructions Nos. 1, 2, 7, and 8. We have carefully considered these assignments of error, but do not find any merit in them. All portions of the requested instructions proper to be given were, in substance, given by the court in his own words. It is claimed that it was error for the court to instruct the jury as follows: We do not find any material error, and the judgment is affirmed. HOLCOMB, C. J., and FULLERTON, MOUNT, and TOLMAN, JJ., concur. (No. 15864.) (Supreme Court of Washington. June 4. Brokers 1920.) 43 (3)-Description of property in employment contract held insuffi Broker's employment contract authorizing a broker to sell "property hereinafter describfor the sum," etc., held not to entitle broker to ed, to wit, 40 acres at Forest located in recover commissions on owner's refusal to perform by selling property to procured purchaser; the description being insufficient under the statute of frauds. Department 2. Appeal from Superior Court, Lewis County; W. A. Reynolds, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Cox, 188 Pac. 623; Toledo, etc., Co. v. Fen- I had, because of its subrogation to the rights stermaker, 163 Ind. 534, 72 N. E. 561, 562; of plaintiff, was not assignable. Appellants Roundtree v. Mt. Hood, etc., Co., 86 Or. 147, seek to invoke the rule of law relating to 168 Pac. 61. It is equally clear to us that actions for death or personal injuries, and the employés of defendants were guilty of for damage to property under statutes differgross carelessness in not properly control-ent from ours. Section 954 of the Civil Code ling and extinguishing the fire when their has effected a change in the common-law attention was directed by McCabe to the probability of its spreading. It was burning in tall, dry grass near the adjacent fields of stubble and grain, and it should not have required any warning to apprise them of this imminent danger. rule of the nonassignability of choses in action. One arising out of either the violation of a right of property or one arising out of an obligation or contract may now be transferred. Stapp v. Madera Canal & Irrigation Co., 34 Cal. App. 41, 46, 166 Pac. 823. O [6] The deductions drawn by the trial [8, 9] The next point urged by appellants court are not illogical, or inherently un- is that the insurance company should have sound, either as to the employment of been joined in the action, either as plaintiff Schultz and Moore or as to the origin and or defendant. We find no merit in this consource of the fire. Whether or not the work- tention. It was not necessary even that the men were the servants of the power com- assignment by the insurance company to the pany was so peculiarly within the knowl-plaintiff should have been pleaded. The edge of the defendants that the plaintiff was insurer merely had a cause of action arising not required to make as strong showing in by way of subrogation or equitable assignthat regard as might have been otherwise ment. Caledonia Insurance Co. v. Northern required. As against the deductions drawn Pacific Railway Co., 32 Mont. 46, 49, 79 Pac. by the trial court, which seem eminently 544. This assignment by operation of law, reasonable, no other inferences founded on and the reassignment by the company to facts proved in the case find support. It is plaintiff, left the claim as it was originally not within the power of this court to disre- and invoked probative matters that had no gard, or set aside, the findings thus support-place in the pleading. Zany v. Rawhide ed. Ryder v. Bamberger, 172 Cal. 791, 799, | Gold Mining Co., 15 Cal. App. 373, 377, 114 158 Pac. 753; County of Alameda v. Tieslau, Pac. 1026. The action was therefore prop186 Pac. 398. erly commenced by the plaintiff alone. The judgment is affirmed. We concur: RICHARDS, J.; KNIGHT, Judge pro tem. (47 Cal. App. 128) PEOPLE v. GUTIERREZ. (Cr. No. 699.) (District Court of Appeal, Second District, Division 2, California. April 14, 1920.) Infants 19-Evidence held insufficient to show that infants had no parent or guardian. On cross-examination of the plaintiff it was developed that the grain was insured against fire in the Hartford Fire Insurance Company, which paid plaintiff $3,025.60, the amount due under its policy. On redirect examination plaintiff established that, before the commencement of the action, the insurance company assigned to the plaintiff all rights and causes of action against the defendants, arising out of the loss or damage occasioned by the fire. A written assignment was admitted in evidence over the conten-1. tion of the defendants, the objection being that the cause of action was not assignable and that the assignment had not been pleaded. The defendants then made application to the court to amend their answer by setting up a further defense, which, in substance, was that the action had not been brought, and was not being prosecuted, in the name of or by, the real party in interest. The court denied the application amend. to [7] Appellants complain of the act of the court in admitting the assignment in evidence and its further action in refusing permission to file the amendment to the answer. Their contention, first, is that the insurance company, upon the payment of the loss of the plaintiff, was subrogated to plaintiff's rights, and became the real party in interest to the extent of its payment, and that the cause of action which the insurer In a proceeding to take from their father the custody of infants, evidence held insufficient to establish that they had no parent or guardian capable of exercising proper parental control over them. 2. Infants 19 To justify taking infants from custody of parent, facts specified in statute therefor must be averred and found. To take from the father the custody and control of infants, under Juvenile Court Law, § 9b, providing that no ward of the juvenile court shall be taken from the custody of his parent or legal guardian without the consent of such parent or guardian, unless the court shall find such parent or guardian to be incapable of and education, or unless such person has been providing, etc., proper maintenance, training, convicted of a felony, or the court shall find that the welfare of such ward requires his cus tody to be taken from the parent or guardian, averments of facts specified must be made in (190 P.) the petition, and findings thereof must appear The custody of infants cannot be taken from their parent and natural guardian under the Juvenile Court Law, and given to another because it is deemed the infants may be better provided for and trained as wards of the state, and interference with the natural relations of parent and child is justified only where there is demonstrated incapacity or something akin to criminal neglect. the grandmother, owing to some personal differences which had arisen between the two. He at first kept them at his home, with the help of a woman he employed, but later sent for and paid the transportation of a brother and his family, who lived in New Mexico, to come to San Diego and live with him and make a home for himself and the children. They were all living together under this arrangement when this proceeding was commenced. It is undisputed that the father is an industrious man, earning good wages, affectionate with the children, spending his money freely to provide for them, and able and willing to care for them. There is nothing to indicate that the care and custody given Appeal from Superior Court, San Diego these minors by their father is not as good County; S. M. Marsh, Judge. Proceeding by the People of the State of California, on behalf of Guadalupe and Elvira Gutierrez, alleged wards of the Juvenile Court. From an order taking them from the custody and control of their father Tomas Gutierrez, he appeals. Order reversed. E. F. Du Fresne, of San Diego, for appel lant. U. S. Webb, Atty. Gen., Arthur Keetch, Deputy Atty. Gen., and Thomas A. Wood, of Los Angeles, for the People. SLOANE, J. This is an appeal from an order of the superior court of the county of San Diego, sitting as a juvenile court, declaring Guadalupe and Elvira Gutierrez, minors, to be wards of said court, and taking them from the custody and control of their father, Tomas Gutierrez, appellant herein. as ordinarily falls to the lot of families in the same station in life. There was some evidence tending to show that the children were well and affectionately cared for by the grandmother, and that she was so situated as to given them better attention and more wholesome surroundings than they were made by the father. It is quite evident from likely to receive under the arrangements transcript of the proceedings, that it was the remarks of the trial judge, shown in the this circumstance that influenced his decision to take the children from the father and place them in the custody of the probation officer under the immediate care of the grandmother. But there is neither any allegation in the petition nor finding in the order of commitment to justify depriving the father of the custody of his children on the ground that their welfare demanded that the father be deprived of their custody. Section 9b of the Juvenile Court Law (St. 1915, p. 1233) provides that The only averment upon which jurisdiction could be maintained to declare these minors wards of the court is contained in the following allegation of the petition: "That said "No ward of the juvenile court as defined in Guadalupe and Elvira Gutierrez have no par- this act shall be taken from the custody of his ent or guardian capable of exercising proper parent or legal guardian without the consent of parental control." The court, in its order such parent or guardian unless the court shall committing the minors to the care of their find such parent or guardian to be incapable of grandmother, under the custody of the pro- providing or to have failed or neglected to probation officer, finds that all of the allegations for said person; or unless said person has been vide proper maintenance, training and education of the petition are true. In the hearing on writ of habeas corpus in this same matter, to reform, or unless said person has been contried on probation in said custody and has failed We held that this finding was sufficient to sus-victed of a crime by a jury, or unless the court tain the order. On this appeal the issue is shall find that the welfare of said person represented on the sufficiency of the evidence to quires that his custody be taken from said support this finding. We think the evidence parent or guardian." is insufficient. [1, 2] It was shown by the testimony, without dispute, that at the time of commencing this proceeding the minors, who are girls aged respectively one and three years, were in the custody of their father. The mother is dead, and the children had for some time been in the immediate care of the maternal grandmother, with the father's consent, and under an arrangement whereby he paid for their keep. Some two or three months prior to this proceeding the father took them from The findings thus required are necessary to support the order of commitment, and must regularly appear of record. In re Brodie, 33 Cal. App. 751, 753, 166 Pac. 605. As has already been pointed out, the only finding in this matter is that the minors "have no parent or guardian capable of exercising, proper parental control"; and we have held that this finding is not supported by the evidence. [3] Moreover, we question if the evidence presented in the record is sufficient to justify For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes a finding that the welfare of the minors requires that their custody be taken from the father, if such an allegation had appeared in the petition, or such finding had been made. The Juvenile Court Law certainly does not contemplate the taking of children from their parents and breaking up family ties merely because, in the estimation of probation officers and courts, the children can be better provided for and more wisely trained as wards of the state. Probably from mere considerations of healthful and hygienic living and systematic education and training this would be true in the cases of thousands of families of wealth and respectability. We think it is only in instances where there is demonstrated incapacity or something akin to criminal neglect that the law is justified in interfering with the natural relations of parent and child. Notwithstanding we are fully satisfied that the juvenile court was actuated by its desire that these children should have a better home than the father was likely to provide, we are convinced that neither the law nor the facts in the case justified the order appealed from. The order is reversed. Louise Searcy is the plaintiff and abovenamed petitioner is defendant. Said superior court on the 9th day of January, 1920, on due proceedings had in that behalf, made and entered its final order, changing the place of trial of said action from said county of Humboldt to the city and county of San Francisco. On the same day the petitioner appealed from said order, and his appeal is now pending. Notwithstanding said change of place of trial, said superior court, respondent herein, upon the usual notice and motion, proceeded to make its further order, allowing to said plaintiff Mary Louise certain sums by way of alimony for her support and also as counsel fees on appeal. The petitioner insists that said orders are in excess of the jurisdiction of the court. Said court is about to take proceedings against petitioner looking to the enforcement of said orders. 1. When the court made its order transferring the cause to the superior court of the city and county of San Francisco, it thereby lost, for all purposes, all jurisdiction of the action. Chase v. Superior Court, 154 Cal. 789, 99 Pac. 355; Hatch v. Galvin, 50 We concur: FINLAYSON, P. J.; THOM- Cal. 441, and People v. Suesser, 142 Cal. 354, AS, J. (47 Cal. App. 124) 75 Pac. 1093. In the first of these cases the court uses the following language: "We are of the opinion that the action was transferred to Santa Clara county when the SEARCY V. SUPERIOR COURT OF HUM-order was finally made and entered in the supeBOLDT COUNTY et al. (Civ. 2182.) (District Court of Appeal, Third District, Californía. April 14, 1920. Hearing Denied by Supreme Court June 10, 1920.) Venue 78-Order transferring cause to other county deprived court of all jurisdiction. In view of Code Civ. Proc. § 949, under section 399, when the superior court of Humboldt county made its order transferring a divorce action to the superior court of the city and county of San Francisco, it lost all jurisdiction of the action for all purposes, and could not allow plaintiff wife alimony for support, and counsel fees on defendant husband's appeal from the order; jurisdiction to do so was in the superior court of San Francisco county. Application for writ of prohibition by C. L. Searcy against the superior court of the county of Humboldt and Hon. Denver Sevier, judge thereof. Writ granted. Henry L. Ford and J. T. Fraser, both of Eureka, and V. A. McGeorge, of Sacramento, for petitioner. E. L. Webber, of Napa, for respondents. PREWETT, Presiding Judge pro tem. This is an application for a writ of prohibition to restrain respondents from proceeding further with certain orders and proposed orders in a divorce action wherein one Mary rior court of the city and county of San Francisco. There must be a moment of time when the court transferring the case loses jurisdiction, and the court to which it is transferred acquires jurisdiction. When the court to which the action is transferred acquires jurisdiction, the court which made the order transferring it has no power to make any further order in the premises." In the Hatch Case the court says: "The order thus entered * * * vested jurisdiction in the court of said Abner C. Squire, and necessarily put an end to the jurisdiction of the defendant over the case." To the same effect are the following cases from other jurisdictions: State v. Lay, 128 Mo. 609, 29 S. W. 999; Cunningham v. Current, etc., 165 Mo. 270, 65 S. W. 556, and Fatt v. Fatt, 78 Wis. 633, 48 N. W. 52. It is provided in section 399 of the Code of Civil Procedure that: is transferred has and exercises over the same "The court to which an action or proceeding the like jurisdiction as if it had been originally commenced therein." Therefore in the absence of an appeal there exists no doubt that the respondents lost all jurisdiction and power of every sort in the premises. 2. It is insisted by the learned judge of |