4 Wash. 80 | Wash. | 1892
The opinion of the court was delivered by
In this case the original notice of the settlement of the statement of facts was given July 1, 1891, and the time appointed for said settlement was August 1, 1891. This was thirty-one days, being one day longer than the statutory time allowed for the settlement of the statement of facts after notice given. Before the first of August, to wit, on July 20th, counsel for defendant discovered their mistake and moved the court to extend the
“And now on this 3d day of September, 1891, the day fixed for the settling and certifying, of the statement of facts in the above entitled action, pursuant to due notice of application for the settlement and. certifying of such, statement of facts, and to due adjournment of the settling-thereof by order of the judge of the above named court, the parties to said action appearing- this day before said judge for the purpose of the settlement of said statement, the undersigned judge,” etc., “hereby settles,” etc.
This appearance we think must be held to-be a waiver of ' notice. To hold otherwise would be to hold'that the notice-of the time of the settling of the statement of facts was
It is very earnestly argued by the counsel for the respondent that as a matter of fact he did not appear at the time certified by the judge; that such certificate was inadvertently made by the judge; and that he was not aware until he appeared in this court to argue the case that the
The case, then, being here for hearing on its merits, we think that the attorney’s fee of one thousand dollars allowed by the court to the respondent is excessive, and notwithstanding the proof as to the value of the services and the amount of labor shown to have been involved in this case, we are of the opinion that legal services in this state are not so valuable as to warrant a judgment in favor of the prevailing party in an ordinary divorce case involving the amount of property which is involved in this case fop one thousand dollars, notwithstanding the case was contested. We think that under all the circumstances of this case, considering the fact that two trips were made to Spokane Falls, that five hundred dollars is an exceedingly liberal statutory attorney’s fee. It is urged by the respondent that an appellate court will not diminish the attorney’s fees allowed by the trial court in the absence of proof; but this case is tried de novo by this court, and that portion of the judgment relating to attorney’s fees is here for the action of the court, exactly as any other portion of the judgment is, and if from all the circumstances of the case this court concludes that the judgment is faulty in that respect it is its duty to so modify it. In cases of this kind, where it is difficult from the written testimony to obtain a knowledge of the true state of affairs, and where the disposition of the parties and the motives prompting their action can be as readily ascertained by their appearance and actions on the witness stand as by the words they utter, great weight
Scott and Stiles, JJ., concur.
Hoyt, J., concurs in the opinion on the merits.
Anders, C. J., not sitting.