5 Wash. 289 | Wash. | 1892
Lead Opinion
Respondent moves the court to dismiss the appeal because no motion for a new trial was given in the court below. This motion was not included in the brief, but notice thereof was, and although this was not a technical compliance with the rules of this court, yet we think, under the circumstances of this case, such notice, together with the actual filing and serving of the proper motion, was a substantial compliance therewith. The motion, however, must be denied. This court has held that an appeal will lie in a case in which no motion for a new trial has been interposed in the court below. The only effect which the failure to make such motion can have upon the proceedings in this court is, to limit the questions which may be properly presented here.
Respondent also moves to strike the statement of facts because the same was not filed, and notice of settlement thereof given, within thirty days after the entry of judgment as required by the statute. The judgment appealed from was rendered pursuant to a decision of the cause by the j udge at chambers, and no notice of such decision or of the rendition of the judgment was served upon the appellants until February 28th, and the statement and notice of settlement thereof was duly given March 9th. We think the notice was in time. For the purposes of the settlement of the statement the judgment should not be considered as rendered until notice thereof had been given to the defeated party. The motion to strike the statement must be denied.
This action was commenced in Lewis county, and service of process was had upon one of the defendants in that county. At the time defendants appeared in said action they filed an affidavit of merits and a showing that neither of said defendants resided in said county of Lewis, but
“Sec. 161. In all other cases the action must be tried in the county in which the defendants, or some of them, reside at the time of the commencement of the action, or may be served with process, subject, however, to the power of the court to change the place of trial, as provided in sections one hundred and sixty-two and one hundred and sixty-three of this code.
“Sec. 162. If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein, unless the defendant, at the time he appears and demurs or answers, files an affidavit of merits, and demands that the trial be had in the proper county.”
It is claimed on the part of the respondent that one of the defendants having been served in the county of Lewis, the case is brought directly within the provisions of said §161. On the other hand it is claimed that said §161 provides for two classes of defendants, one of which is all those haying a place of residence in some county within this state, and the other, all those who are not residents of the state. We think the second contention is the true one. A careful reading of the section satisfies us that the legislature could have intended nothing else. It is true that the construction contended for by the appellants seems to be against the plain reading of the section, but this seeming conflict disappears upon a critical examination of the language used, in the light of the object to be accomplished.'
Under this legislation a resident of any county in this state was given the right to have actions against him tried
The conclusion to which we have come as to this error, presented at the very threshold of the case, makes it unnecessary for us to discuss at length the other alleged errors. We desire to say, however, that we think the point
As there must be a re-trial, we shall not attempt to discuss the evidence in the case to determine whether or not
Concurrence Opinion
I concur in the result, excepting that I do not agree that there should be a change of the place of trial.