103 Wash. 228 | Wash. | 1918
— This is an action brought to rescind an exchange of lands, to set aside and cancel the deeds executed in consummating the exchange, to cancel and set aside a mortgage given by the appellants in the transaction, and to recover incidental damages, all on the ground of misrepresentation and fraud.
A demand for a jury trial was made, which was refused, and the cause was set for trial before the court for the 19th day of June, 1917. Thereafter the appellants made an application for a continuance, upon the
“Upon condition, however, that the plaintiffs shall have no right to proceed in said cause and that it shall he a condition of their right to further proceed herein that they shall pay to the defendants or to the clerk of the court for their benefit the per diem fees and the mileage of all of the witnesses of the defendants now in attendance upon this trial, and in addition thereto the sum of $50, and that unless the same shall he paid on or before said 27th day of June, 1917, the plaintiffs shall have no right to proceed further with this cause.”
The cause was called for trial on June 27th, whereupon counsel for respondents objected to the cause proceeding to trial because “the plaintiffs had not complied with the order of continuance made in said cause on the 17th day of June, 1917, in that said plaintiffs had not paid the sum of $50 and the witness fees and mileage in accordance with the said order of continuance.” Counsel for the appellants refused to comply with the said order or pay the costs as therein directed, and thereupon counsel for the respondents waived the payment of the $50 specified in the order, and consented that the witness fees referred to therein should abide the result of the trial; and announced that they were ready to proceed with the trial. After some discussion, the court directed the appellants (plaintiffs below), to proceed with the trial, and a request was made for time to make a showing for a further continuance, upon the ground that, anticipating that the court and opposing counsel would stand by the order previously made, the appellants did not come at that
The action being one to rescind and cancel an exchange of lands, and to cancel deeds and a mortgage, is unquestionably one of which equity has sole cognizance, and the claim for damages is but incidental thereto. The verdict of a jury would be advisory only, and there was no abuse of discretion in denying a jury trial. Maher & Co. v. Farnandis, 70 Wash. 250, 126 Pac. 542.
We need not consider whether or not the court erred in fixing the terms upon which the continuance to June 27th was granted, because the respondents waived such terms in open court, and the only question to be decided is whether or not the court abused its discretion in refusing a further continuance on June 27th, after the waiver of the terms. As we read the record, before the waiver of the terms of the order of continuance, the appellants conceiving that the court had committed reversible error in making such order, were attempting to lead the court to dismiss the action for noncompliance with such terms, apparently preferring to appeal on that comparatively trivial matter rather than to proceed to trial on the merits, though both counsel and client, whose absence was the basis of the prior continuance were present; and no reason ap
Main, C. J., Mitchell, Fullerton, and Parker, JJ., concur.