19 Wash. 279 | Wash. | 1898
The opinion of the court was delivered by
This is substantially an appeal from an order denying a motion for a new trial. When the cause came on for trial the defendant objected to the introduction of any evidence on the ground that the complaint did not state a cause of action, and this motion was sustained. Thereafter the plaintiffs moved for a new trial, and the motion was granted on condition that the plaintiffs should within) ten days file a waiver of costs to date. This order was made on the 28th day of May. On June 8th following the court rendered a judgment for the defendant, reciting therein the previous orders and that the terms of the order providing for a new trial had not been complied with, and that the motion was therefore denied. Thereafter the plaintiffs moved to vacate this judgment, setting up the foregoing proceedings and making a showing that they had attempted to- comply with the order providing
A compliance with the order for a new trial would have required a filing of the waiver of costs with the clerk of the court on or before June 7th. It was not a correct practice to send it to the judge at all. But, overlooking this, there was no proof that it had been received by the judge before June 8th, and the time expired on the 7th. Uor was there a sufficient showing of diligence to warrant our holding that there was an abuse of discretion upon the part of the court, if that question could be considered under the circumstances, and the action of the court in denying the motion for a new trial and in refusing to vacate the judgment would have to be sustained, if considered with reference to the showing as to a compliance with the order. But it is contended that the court had no right to impose terms at all as a condition of granting the motion for a new trial. The motion was founded upon subd. 8 of § 400, 2 Hill’s Code (Bal. Code, § 5071), viz., an error in the ruling of the court that the complaint did not state a cause of action. And, if the ruling was erroneous, a new trial should
Anders, Dunbar, Gordon and Reavis, JJ., concur.