Belle City Mfg. Co. v. Kemp

• Decision Date: 02 January 1902
• Court: Washington Supreme Court
• Parties: BELLE CITY MFG. CO. v. KEMP et al. [1]

67 P. 580

27 Wash. 111

BELLE CITY MFG. CO. v. KEMP et al. ^[1]

Supreme Court of Washington

January 2, 1902

Appeal from superior court, Lincoln county; C. H. Neal, Judge.

Action by the Belle City Manufacturing Company against G. Kemp and another. From a judgment for plaintiff, G. Kemp appeals. Affirmed.

Wright & Wright and Merritt & Merritt, for appellant.

Martin & Grant, for respondent.

HADLEY J.

This suit was brought by respondent, a corporation, against Henry Cook and G. Kemp, to recover the price of a threshing machine and its equipments, and for certain mechanical work done thereon. It is alleged that the property sold consisted of 'one 32-inch Columbia thresher; one 8-horse triple-geared power, style F; two derrick forks, block and cable ropes and derricks, and other necessary implements that usually go with a threshing machine, such as forks,'--and that the agreed price therefor was $835.35, which is unpaid. It is further alleged that the firm of Zielkie & Schreder were commonly known as 'machinists,' and were doing a general mechanic's business at the time at Davenport Wash.; that the defendants, Cook and Kemp, employed said machinists to build for them a 'feeder,' and attach the same to the said thresher, which was done; that the reasonable worth of said work was $65, which is unpaid; that prior to the commencement of this suit the said Zielkie &amp Schreder sold and assigned said claim to the plaintiff, who now owns the same. Judgment is demanded for the aggregate sum of $895.35. The defendant Kemp answered separately, and denied generally the material allegations of the complaint and alleged that he never in any way contracted for said threshing machine, and does not now and never has owned or possessed the same, or any part thereof. A trial was had before a jury, and a verdict was returned in favor of the plaintiff and against both defendants for $900.35. A motion for a new trial was made by defendant Kemp, which was by the court denied, and judgment was thereupon entered in accordance with the verdict. From said judgment the defendant Kemp has appealed.

Respondent moves to dismiss this appeal on the ground that no notice of appeal was ever given as required by law. It appears from the record that the firm of Wright & Wright were the appellant's attorneys of record in the court below during all the proceedings that were had prior to and at the time of entering judgment. The notice of appeal is signed by Merritt & Merritt as appellant's attorneys, and the names of Wright & Wright do not appear therein. It is urged by respondent that under the terms of section 6503, 2 Ballinger's Ann. Codes & St., the notice must be signed by the attorney of record. It will be observed by reference to said section that it does not in terms say that the notice shall be signed by the attorney of record, but that the party desiring to appeal '* * * may by himself or his attorney * * * serve written notice * * *.' There is a provision in our statute for a change of attorneys, found in section 4769, 2 Ballinger's Ann. Codes & St. That section authorizes a change to be made 'at any time before final judgment or final determination,' and, together with section 4770, outlines the method required to make such change. Before this notice of appeal was given, the case had proceeded to judgment and final determination as far as the superior court was concerned. As we have seen, our statutory provisions for notice when it is desired to change attorneys seem to be limited to the time before final judgment. The statute does not seem to contemplate that the procedure must be followed after final judgment. The statute only requires that the notice of appeal shall be given by the party or his attorney, and it would appear that any attorney who is authorized by an appellant to act has power to give the notice. A respondent can in no way be harmed by this rule. The essential thing to him is that he has received actual notice of his antagonist's intention to appeal. If the appeal is not thereafter prosecuted according to law, a respondent may avail himself of his rights by reason thereof. If, however, the party against whom an appeal is being taken gives no notice of a change of attorneys after judgment, then the appellant may serve notice of appeal upon the attorneys of record, as decided in Sturgiss v. Dart, 23 Wash. 244, 62 P. 858. The latter rule is manifestly just, and appellant should not be required to make inquiry of a respondent in order to ascertain if the attorneys of record are authorized to accept service after judgment. But when an appellant has actually changed attorneys after judgment, and by them has given notice of appeal, the respondent is thereby informed, and no inconvenience results to him. In addition to the reasons above assigned, the facts shown in this record will prevent respondent from raising this question, under another principle. In McDonald v. McConkey, 54 Cal. 143, a motion was made similar to the one made here. There was, however, a certificate in the nature of a stipulation attached to the transcript, which was signed by respondent's attorney, together with appellant's attorney; and the court held that respondent, by joining with appellant's attorney in the certificate, waived the right to object to his competency. The rule that was actually decided in the last-named case would in any event prevent respondent from raising this point now, since the record shows that appellant's attorneys who now appear for him appeared in the superior court and asked for an extension of time to file a statement of facts, and respondent's counsel then appeared, and did not object to the right of these counsel to appear for appellant at that time. The motion to dismiss the appeal is denied.

At the trial there was testimony to the effect that appellant, Kemp was present with defendant Cook, and talked with one Minnick, a representative of respondent, about purchasing a threshing machine; that it was usual when respondent made a sale, if the cash price was not paid, to require the purchaser to sign a written contract in relation to deferred payments; that Kemp objected to signing any written contract; that Minnick was not authorized to sell a machine without a written contract, and his superior, Mr. Glasgow, as the agent of respondent, was then in the East; that Kemp and Cook agreed to wait until Glasgow's return; that Minnick asked Kemp if, upon Glasgow's return, any arrangement he should make with Cook would be satisfactory to Kemp; that Kemp said: 'Anything Glasgow does with Cook will be all right with me, and I will stand to it. Whatever Cook does will be all right with me. He knows all about a threshing machine, and I would rely upon his judgment;' that, upon...