Neff v. Neff, 32 Wash. 82

Neff v. Neff

32 Wash. 82 | Wash. | 1903

Per Curiam.

This is an appeal from an order dismissing the action as against the respondent. The original action was commenced in the superior court for Snohomish county in 1897 against Anna 3L Neff and Stewart S. Neff on a certain promissory note. Defendant Anna K. Neff answered by her attorney, P. H. Brownell, but before the matter was brought to trial she died testate, and the superior court of Pierce county appointed the respondent the executor of her will.

The appellant duly presented her claim (the one on which this action is based) to the executor, which claim was rejected, and thereupon she filed her motion in this cause to substitute the respondent for defendant Anna K. Neff, and for leave to amend her complaint and continue *83Her action against the respondent. THe motion was granted June 15, 1899, but nothing further was done until 1902, when the amended complaint was filed and served on the former attorney of Anna K. Neff. Thereafter respondent made a special appearance and moved to dismiss the action as to him, for the reason that the' attorney for Anna K. Keff had no authority to appear for or represent him in the action; supporting his motion by the affidavit of the attorney to that effect. The other side sought to controvert this contention by showing by affidavit that the respondent had authorized the amended complaint to be served on this attorney. The trial court, however, as we have said, found against the appellant, and we shall not disturb its findings. There was a woeful lack of diligence in the prosecution of the action, and lapse of memory caused by the delays can easily account for the differences of opinion that now exist. Moreover,, no original process was ever served on the respondent, and, if he is to be brought into court in an irregular manner, the proofs that he has authorized that manner ought to be clear and certain. Ashcraft v. Powers, 22 Wash. 440 (61 Pac. 161). This view of this question renders it unnecessary to discuss others suggested.

Judgment affirmed.