5 Wash. 399 | Wash. | 1892
The opinion of the court was delivered by
The respondents made several motions in this cause which were decided adversely to them at the time of the hearing. The first motion was to strike the brief of the appellants, and to affirm the judgment, for the reason that said brief contained references to the judge who tried the cause in grossly improper language. This motion was denied on the ground that respondents1 brief did not point out the objectionable language in question.
The second motion was to strike the statement of facts on the ground that the certificate of the trial judge to the statement was not in accordance with law, in that it does not certify that the statement contains all the material facts in said cause. It appeal's that when the transcript in this cause first came to this court the certificate was defective, and appellant asked and obtained leave of the court to
A further reason for the striking of this statement is presented to the effect that the notice given of the time and place of settling the statement of facts was insufficient, in that it did not specify the place where the same was to be settled with sufficient particularity. The place mentioned was designated as the court house, and the respondents urge that this was too general; that said court house contained various offices wherein the several judges of the court transacted business. We think the designation was sufficient, because it would be understood as referring to the judge who tried the cause, and there should have been no difficulty in ascertaining at what particular place or room in the building the matter would come up before him for consideration, and it does not appear that in fact there was any difficulty in this respect.
Other grounds for striking the statement are stated in this motion, but the same were not argued in respondents’ brief, and for that reason will not be discussed here.
Respondents also move to dismiss the appeal for the following reasons: (1) The motion for new trial was not filed within the time allowed by law. (2) That upon the hear
As to these matters the appeal could have been taken in. this cause without making any motion for a new trial. And it is not necessary under our practice to prepare a statement of facts for use on the hearing of such a motion. A statement may be settled in advance of the giving of notice of appeal. The time allowed for the settlement of the statement is much less than that within which the notice of appeal can be given, and the notice of appeal may be subsequent to the settlement of the statement. It appears that in the preparation of the statement appellant acted in good faith, and that the same was substantially complete when presented. The filing of the notice of appeal within one day after the service was sufficient.
ON THE MERITS.
The appellants, Charles Miller and Elizabeth Miller, were husband and wife, háving intermarried in the year 1858, in the State of Pennsylvania, where they resided until the year 1877, at which time they separated, said Elizabeth Miller remaining in the State of Pennsylvania and he moving westward to the State of California, and subsequently to the Territory of Washington. Miller purchased the lands in question in the year 1884, and in the year 1888 he executed a deed thereof to the plaintiffs, who had no knowledge that he was a married man, or of the existence
At the time of the purported conveyance of the land by Miller to the plaintiffs, there were two mortgages thereon given to secure the payment of two notes of five hundred dollars each, executed by Miller to the mortgagees. The plaintiffs agreed to pay these mortgage debts as a portion of the purchase price of said premises. The purchase price agreed upon, and which plaintiffs were to pay to Miller, was the sum of four thousand dollars. A few days after the purported conveyance they reconveyed to Miller a portion of the land for the agreed sum of fourteen hundred dollars, which was deducted from the consideration of four thousand dollars. Subsequently Miller instituted suit against the plaintiffs to recover the balance of the purchase price then due him for said lands, and he obtained a judgment thereon for over twelve hundred dollars. In their complaint the plaintiffs alleged that they had paid the consideration price for said premises, and had paid said mortgages. This was denied by the defendants, and the proof showed that the judgment obtained by Miller against the plaintiffs had never been satisfied, and it further showed that the notes secured by the mortgages as aforesaid had been purchased by the plaintiffs, and that the mortgages had been assigned to them, and that said mortgage debts were still outstanding as against Miller. These mortgages so assigned