15 Wash. 558 | Wash. | 1896
The opinion of the court was delivered by
This case was before this court upon a former occasion (10 Wash. 339, 39 Pac. 131), to which reference can be had for a statement of the nature of the action. Pending the former appeal, Kirkman died, and it was stipulated in this court that the executors of his will might be substituted as defendants in his stead. When the second trial was begun
It is next contended that the court should have granted the defendants’ motion for a non-suit as to the executors of Kirkman, on the ground that the claim had not been presented to said executors as required by §§ 986 and 988, Code Proc. (Volume 2 of the Code). Judgment had been obtained against Kirkman in the lower court during his lifetime. After the stipulation substituting his executors pending the appeal, they appeared herein and,contested the same and obtained a reversal of the judgment, and ever since have been and are now contesting it, so there can be no substantial merit in this contention, and to sustain it would be inconsistent, at least, with the decision of this court in the case of Strong v. Eldridge, 8 Wash. 595 (36 Pac. 696).
The third point is disposed of in what has been said, as that relates to the claim of release of Gilmore on the ground that the executors of Kirkman were released by the failure to present the claim to them.
The fourth point is that the complaint does not state facts sufficient to constitute a cause of action against the executors af Kirkman, because it does not show Kirkman’s death and the appointment and substitution of his executors; but we think this was immaterial, and that it was not necessary to file an amended complaint containing these formal allegations. The executors had in fact been substituted by the stipulation in this court.
It is next contended that the court erred in admitting the testimony of Gilmore as to conversations with Kirkman, who was dead at the time of the trial. Nowhere in appellant’s brief has attention been called to any part of the record containing such testimony, and the respondent denies that any such was introduced, and we pass the point without' further comment.
The remaining points urged relate to the sufficiency of the evidence and to the instructions which were requested and refused. After an examination of the evidence we think it was entirely sufficient to sustain the verdict, and the point involved in the first instruction refused has been disposed of in what we have
Affirmed.
Hoyt, C. J., and Anders, Dunbar and Gordon, JJ., concur.