Anderson v. Shields

• Decision Date: 11 January 1909
• Citation: 99 P. 24,51 Wash. 463
• Parties: ANDERSON v. SHIELDS.
• Court: Washington Supreme Court

99 P. 24

51 Wash. 463

ANDERSON v. SHIELDS.

Supreme Court of Washington

January 11, 1909

Appeal from Superior Court, Whatcom County; Jeremiah Neterer, Judge.

Action by Nels Anderson, as administrator, against Robert Shields. Plaintiff dismissed without prejudice, and from an order refusing to vacate the judgment thereon, he appeals. Affirmed.

Million & Houser and Parrott & Griswold, for appellant.

Crites & Romaine, for respondent.

DUNBAR J.

This is an appeal from an order refusing to vacate a judgment of voluntary nonsuit and reinstate the case for trial. The facts are about as follows: The action was brought to recover $258 being the balance due upon a note given for $458, upon which a payment of $200 was made on November 1, 1901. The answer alleged the payment in full of the note. The case was set down for trial on Monday, April 6, 1908. The attorneys for the plaintiff were Million & Houser, of Seattle, and Parrott & Griswold, local counsel. The affidavit for continuance shows that the plaintiff's case was in charge of E. C. Million, one of the attorneys, that he was familiar with the evidence in the case, and that Griswold was not. After the case was set for trial, Million was informed by Griswold that the trial would probably not be reached until Monday afternoon or Tuesday morning. The record shows that, when the case was called at 10 a. m. Monday, April 6 1908, the plaintiff appeared by W. J. Griswold, Esq., of the law firm of Parrott & Griswold, and the defendant appeared in court in person, and by his attorneys, Crites & Romaine whereupon the following proceedings were had: 'The Court Are both parties ready for trial in this case? Mr. Romaine If your honor please, we are prepared to go to trial. Mr. Griswold: If you honor please, we cannot go to trial at this time, for the reason that Mr. E. C. Million, one of the attorneys for the plaintiff, has the note in his possession, and all the evidence which plaintiff will be required to introduce to substantiate his claim. As he has not shown up, I would ask for a few minutes' time in which to telephone and locate him. The Court: Very well, you may have a few minutes.' After the lapse of a short time Mr. Griswold returned, and informed the court that Mr. Million could not arrive before 1 o'clock, and that he did not feel authorized to commence the trial of the case. Mr. Romaine objected to any continuance stating that they were keeping a witness at an expense of $2.50 per day; that the witness resided at Fraser River, and was anxious to get home and begin work, and he should object to a continuance, unless plaintiff would pay the witness $2.50 per diem and board until the case was tried. Mr. Griswold stated that he did not feel authorized to make any such arrangement, and, in view of the court's ruling that, unless a continuance was consented to, the cause must proceed to trial, moved the court to dismiss the case without prejudice at plaintiff's cost. The motion was granted. At 6:30 p. m. of the same day plaintiff appeared by E. C. Million, and made a motion to vacate the judgment of dismissal, setting up the fact that he had been attending to some business in Mount Vernon the night before, and that he had not left that place until noon for Bellingham, arriving there after the case had been dismissed. The motion to vacate was opposed by the attorney for the defense. Mr. Griswold also filed an affidavit in support of the motion, the substance of which was that he had notified Mr. Million that the case was set for trial on Monday morning, but...