Durand v. Simpson Logging Co.

Per Curiam.

A motion to dismiss this appeal is made, for the reason that the original amount in controversy is under $200. We think this motion must be sustained, and that the case falls squarely within the rule announced by this court in Chapin v. Kenoyer, 12 Wash. 536 ( 41 Pac. 916 ) ; Tom, the Cook, v. Sayward, 5 Wash. 383 ( 31 Pac. 976 ); and McCoy v. Spithill, 13 Wash. 158 ( 42 Pac. 546 ).

It may be true, as suggested by the appellants, that, under the issues as made by the pleadings in this case, it would be construed to be an action for the foreclosure of a lien; but the stipulation of facts, which were made a part of the record, and upon which the case must be decided, shows conclusively that the contest, so far as the appellants *23 are concerned, is one with reference to an eloignment of the logs only. Paragraph 11 of the stipulation is to the effect that, after the filing and perfecting of the said lien of Maggie Durand, and after the commencement of this suit, the defendant, Simpson Logging Company, eloigned all of said liened logs and took them away from said waters where they were lying when the lien was perfected and suit begun in foreclosure thereof, and took them out of Mason county, Washington, and converted the same to its own use, without the knowledge and without the express consent of the plaintiffs, or either of them. This and other paragraphs of the stipulation render it certain that this is, in effect, an action for damages for the eloignment of these logs, and not an equitable proceeding; and, under all the authorities, the action must be construed by a consideration of the stipulation of facts on which the case was tried. We think the attorney’s fees allowed in the case cannot be construed as a part of the original amount in controversy, but as costs incident to the case.

The motion will be granted and the appeal dismissed.