12 Wash. 662 | Wash. | 1895
Lead Opinion
The opinion of the court was delivered by
This was an action for personal damages for injuries alleged to have been received by respondent through the carelessness and negligence of the appellant while in its employ. Service was duly made upon the appellant, and upon failure to answer within the time required by law a default was asked for and granted; a jury was impaneled, testimony was offered and a judgment was rendered in favor of respondent for $500, the action having been brought for the sum of $10,000. After the entry of the judgment a petition was made by appellant to vacate the same on the ground that default had been suffered to be taken by reason of the inadvertence of counsel for appellant. After considering the showing made both by appellant and respondent the court granted the motion to vacate the judgment on condition that appellant should give bonds for the payment of any judgment which might be obtained against it in the sum of $2,000. From that portion of the order imposing this condition an appeal was taken to this court.
Conceding the right of the appellant to appeal before judgment in the original cause, we are unable to find, under the circumstances, any abuse of discretion on the part of the court. It is true the judgment was
A matter of this kind being so largely in the discretion of the court, without an abuse of this discretion is plainly made to appear, this court does not feel-justified in disturbing the orders of the lower court.
The judgment will therefore be affirmed.
Hoyt, C. J., and Scott, J., concur.
Gordon, J., no.t sitting.
Dissenting Opinion
(dissenting).—The statute upon which the motion to set aside the judgment in this case was based provides that the court may, upon such terms as may be just, and upon payment of costs, relieve a party, or his legal representatives, from a. judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. Code Proc., §221.
While I readily concede that the power to relieve from judgments, under this provision of the statute, is to a great extent discretionary, I do not think that the court possessed the power to arbitrarily impose terms
I therefore respectfully dissent from the conclusion reached by the majority of the court.