98 Wash. 275 | Wash. | 1917
This case, upon its merits, presents a like question to that just decided in Lochore v. Seattle, ante p. 265, 167 Pac. 918, that a city is liable for injury to prop
Two questions of procedure are presented which demand our attention. The first arises upon the city’s objections to the sufficiency of the claim presented by appellant. The city charter, in referring to claims against the city for damages, provides that:
“All such claims for damages must accurately locate and describe the defect that caused the injury, accurately describe the injury, give the residence for one year last.past of claimant, contain the items of damages claimed, and be sworn to by the claimant.” Seattle charter, art. 4, § 29.
Appellants filed their first claim with the city on March 13, 1914. The first recital in this claim is a statement somewhat in the nature of an account against the city for damages to the property “by reason of improper and negligent-grading of said Thirteenth Avenue West in front of said lots or pieces of property and encroachment upon said property and removal of lateral support thereto, $1,200.” Then follows an affidavit showing the residence and post-office address of the claimants for a year last past, the grading of the street and excavation in front of the lots, leaving the property unsupported and in danger of falling into the excavation, with a statement that, for the last thirty days, the property has been sliding into the street, and that the injury is a continuing one. On February 25, 1915, the second claim was filed, which does not differ materially from the first, other than the recital of additional injury. On March 16, 1916, a third claim similar to the other two was filed. The city’s attack upon the sufficiency of these claims was sustained by the lower court, it being of the opinion that
The next question arises out of the city’s cross-appeal. Upon the trial judge’s making his ruling upon the insufficiency of the claims, he suggested to counsel for appellant that the city’s motion for dismissal would be granted unless appellant would move for a voluntary nonsuit. Thereupon, after some discussion as to its effect, counsel for appellant asked the court for a voluntary nonsuit, which was granted. Counsel for the city then said to the court: “If your Honor please, I understand that Mr. Casey wishes to join—and we will prepare an order granting the voluntary nonsuit . . . . or, if he cares to prepare the order, we would simply O. K. it.” The court: “The motion will be shown to
If any judgment had been entered upon appellant’s motion for voluntary nonsuit the case would present a different question.. It seems to have been considered by both court and counsel, at the time of the hearing of the city’s motion, that some subsequent action would be taken by the court in the way of signing some formal order which would bear the O. K. of counsel. This was never done, and we think the lower court was within its discretion in permitting appellant to withdraw the motion for voluntary nonsuit before it ripened into judgment. In asking for voluntary nonsuit appellant followed the suggestion of the court. If, before judgment, appellant considered his action ill-advised he should be permitted to make his own record upon which to base his future action, rather than follow the advice of the trial judge as to what should be done. Abundant statutory authority is found in § 303, Rem. Code, empowering the trial court to relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, or excusable neglect. If this statute were not sufficient, there is ample inherent authority vested in trial courts to relieve- a party from an embarrassing situation in which he finds himself by accepting the trial judge as associate counsel in his case.
The judgment is reversed upon the main appeal and affirmed upon the cross-appeal.
Mount, Holcomb, Fullerton, Parker, and Webster, JJ., concur.
Chadwick, J., concurs in the result.