Baker v. Prewett

Citation19 P. 149,3 Wash.Terr. 474,3 Wash.Terr. 595
PartiesBAKER ET UX. v. PREWETT.[*]
Decision Date14 July 1888
CourtWashington Supreme Court

(January 30, 1888.)

John B. Allen and D. J. Crowley, for appellants.

J. H. Lasater and A. E. Isham, for appellee.

ON MOTION TO DISMISS.

PER CURIAM.

1. It has been repeatedly decided by this court that actions at law may be brought here for review under the act of 1883, and we are satisfied with those decisions.

2. The act of 1883 is not invalid for want of a proper title. The language of the title, "An act in relation to the removal of causes to the supreme court," while not technically accurate, yet describes to the common apprehension that which the act accomplishes. This is all that is required.

3. Under our statutes an appeal lies to this court from a default judgment. The motion to dismiss this appeal is denied.

(July 14, 1888.)

ON THE MERITS.

ALLYN, J.

James M. Prewett, March 17, 1888, filed a complaint for $1,500 damages for breach of warranty in the sale of 240 acres of land, 160 acres of which, being incumbered, was lost to the grantee, appellee. April 16, 1887, motion for default and judgment by plaintiff was allowed. April 19, 1887, at chambers, judgment was rendered in favor of plaintiff, and against defendants, for $1,925, and costs. Complaint is made by appellant that the summons does not first state the general nature of the action, etc. This may be conceded, but a defendant having been personally served with summons, and also copy of complaint, and not having appeared and questioned it, and after judgment making no objection, but having appealed, and made his objection for the first time in this court, is rather late, and entitled to little consideration. We refuse, therefore, to consider this question.

The objection is made that in this action assessment of damages for breach of warranty-the action of the court in allowing judgment for the amount claimed on default-was improper, and we are inclined to agree with this view. Sections 204 and 289, Code, seem to require that in all actions for the assessment of damages the intervention of a jury must be had save where a long account may authorize a reference, etc. This statute is mandatory, and we are satisfied that where the amount of damages is not fixed, agreed upon, or in some way liquidated, a jury must be called unless expressly waived. Contention is made that under the provisions for setting aside judgments irregularly obtained it was the duty of appellant to have called the attention of the court below to the irregularity, and had it corrected there. There is...

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6 cases
  • Bird v. Best Plumbing Grp., LLC, 86109–9.
    • United States
    • United States State Supreme Court of Washington
    • January 10, 2013
    ...fact-finding function included the determination of damages. Id. at 645–46, 771 P.2d 711, 780 P.2d 260 (citing, e.g., Baker v. Prewitt, 3 Wash. Terr. 595, 19 P. 149 (1888); Dacres v. Oregon Ry. & Nav. Co., 1 Wash. 525, 20 P. 601 (1889)). This evidence led us to conclude that article I, sect......
  • Sofie v. Fibreboard Corp., 54610-0
    • United States
    • United States State Supreme Court of Washington
    • April 27, 1989
    ...... Our past decisions show that it is indeed. The constitutional nature of the jury's damage-finding function is underscored by Baker v. Prewitt, 3 Wash.Terr. 595, 19 P. 149 (1888). In that case, the territorial Supreme Court stated: . Sections 204 and 289 of the [territorial] ......
  • Tenold v. Weyerhaeuser Co.
    • United States
    • Court of Appeals of Oregon
    • April 20, 1994
    ...as it existed in Washington at the time of section 21's adoption in 1889. The court was persuaded by the decision in Baker v. Prewitt, 3 Wash.Terr. 595, 19 P. 149 (1888): "Baker's holding provides clear evidence that the jury's fact-finding function included the determination of damages. Th......
  • Bird v. Best Plumbing Grp., LLC, 86109-9
    • United States
    • United States State Supreme Court of Washington
    • October 25, 2012
    ...upon, or in some way liquidated, a jury must be called, unless expressly waived.'" (emphasis added) (quoting Baker v. Prewitt, 3 Wash. Terr. 595, 597-98, 19 P. 149 (1888))). The statutory limit in Sofie was unconstitutional because it supplanted the jury's fact finding role concerning damag......
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