This аppeal is prosecuted to reverse the action of the superior court of Thurston county, in refusing to vacate and set aside a judgment entered upon the verdict of a jury, after trial had in the absence of appellant and its counsel. The grounds upon which relief was sought, were mistake, inadvertence, and surprise.
The record shows the following facts, which axe undisputed, and which are urged by appellant in support of its mоtion: This action was instituted by respondent, John O’Toole, against the Phoenix Insurance Company of Hartford, Connecticut, appellant, upon сertain fire insurance policies, to recover for losses sustained. The issues of fact being fully formed, the case was set down for trial on June 16, 1904. On Junе 6th, in a conversation with H. T. Granger, sole attorney for appellant, Mr. Israel, of Israel & Mackay, residing in Olympia and counsel for respondent, stated that Mr. Granger, who resided in Seattle^ need not come to Olympia to attend the trial until he re
“Spokane, Wash., June 15, 1904.
“Israel & Mackay, Olympia Wash.: Can leave here to-
night. What is situation? Answer care of Hotel Victoria. H. T. Granger.”
Mr. Israel being absent from his offiсe, his partner, Mr. Mackay, immediately replied by wire as follows:
“Olympia, Wash., June 15, 1904.
“H. T. Granger, Hotel Victoria, Spokane, Wash.: Impossible to reach your case this week. Have written. Israel & Mackay.”.
Israel & Mackay did not write, but instead, wired again as hereinafter stated. On the morning of June 16th, Mr. Israel called the court’s attention to this case, the trial being delayed by reason of the congested condition of the calendar, and a resetting was definitely made for June 21st. Therеupon, instead of writing, Israel & Mackay wired Mr. Granger at Spokane as follows:
“Olympia, Wash., June 16, 1904.
“H. T. Granger, Hotel Victoria, Spokane, Wash.: O’Toole ease assigned for nest Tuesday morning, 21st instant. Israel & Mackay.”
Mr. Granger having left Spokane,’ this telegram did not reach ■ him until after judgment had been entered herein. He had returned to Seattle, where, on Thursday, Friday, and Saturday, the 16th, 17th, and 18th of* June, he held
“June 20, 1904.
“Messrs. Israel & Mackay, Olympia, Wash.
“Gentlemen: Tour telegram was received by me at Spokane last Wednesday saying you had written. I have received no letter, therefore supрose you have been busy trying other cases. I wish yon would wire me tomorrow at my expense what the probabilities are about reaching our cаse. I have been holding myself in readiness to come at any time in response to a notice from you ever since last Thursday. Tours truly, H. T. Granger.”
This letter, whiсh was mailed in a return envelope, is not shown to have ever reached respondent’s attorneys, who deny having received it, while Mr. Granger says it has never been returned to him. On Tuesday morning, June 21st, the ease was called for trial, but appellant and its counsel being absent, was continued until 2:00 p. m., at whiсh time it was again called; and, no one appearing on behalf of appellant, a jury was empaneled, and a verdict rendered for respondent for $2,800, the full amount claimed by him, and on said verdict the judgment complained of was entered. Mr. Granger, having received no word by letter оr otherwise, called Israel & Mackay by telephone, on the morning of June 22nd, and was then advised of the trial, verdict, and judgment. He immediately filed appellant’s motion, supported' by affidavits, to set aside said judgment. Controverting affidavits were filed, but the above facts seem to be undisputed.
Some question is raised in the briefs as to whether ap>pellant’s answer states a meritorious defense to the com
In Hull v. Vining,
“The rule in eases of this character seems to be, and of right ought to be, that ‘where there is a showing, not manifestly insufficient, the court should'bе liberal in the exercise of its discretion in furtherance of justice.’ ”
Under the facts shown, as above stated, we think the judgment should have been vacаted, and that the refusal of the trial court to vacate the same was such an abuse of discretion as to constitute prejudicial error. Aрpellant’s attorney was holding himself in constant readiness to appear in Olympia and try the case. He almost momentarily expected to hear from respondent’s attorney either by letter or wire in ample time to do so. Bespondent’s attorneys, however, having on June 16th, as they supрosed, advised Mr. Granger by wire, sent to> Spokane, that the trial would occur on the 21st, naturally concluded that he knew the situation, and did not communicаte with him further. They, doubtless, understood from this telegram of the 15th that he would await instructions in Spokane, and wired him there after his departure. On the other hand, by his wire of the 15th, “Can leave here tonight,” he doubtless meant to convey the idea that he would leave that night either for Olympia or Seattle, as the situаtion demanded. An honest mistake was doubtless made by each of the
It is ordered that the judgment of the honorable superior court be reversed, and the cause remanded, with instructions to set aside thе judgment and grant a new trial, on condition that appellant shall, within ten days after the filing of the remittitur, pay to the clerk of the superior court, for sаid respondent, the sum of $200.80, the costs taxed in said judgment. Under authority of Bal. Code, § 6528, it is further ordered that the costs of this appeal abide the result of this action.