Bignold v. Carr

• Decision Date: 30 March 1901
• Court: Washington Supreme Court
• Parties: BIGNOLD v. CARR.

64 P. 519

24 Wash. 413

BIGNOLD v. CARR.

Supreme Court of Washington

March 30, 1901

Appeal from superior court, King county; J. P. Houser, Judge.

Action by Lewis B. Bignold, receiver of the Bank of Montesano against H. Willis Carr. From a judgment for plaintiff defendant appeals. Affirmed.

Byers & Byers, for appellant.

Hogan &amp Abel and John Kelleher, for respondent.

DUNBAR J.

This action was brought on August 8, 1898, in the superior court of Chehalis county, on a judgment which had been obtained by the Bank of Montesano against the appellant and others for the sum of $2,615.57 and costs. The plaintiff in this case is receiver of the Bank of Montesano. A demurrer was interposed to the original complaint, which was sustained, and an amended complaint was filed. A demurrer was interposed to the amended complaint in the fall of 1898. No further steps were taken by the respondent, and in June, 1899, the appellant moved for a dismissal for failure to prosecute. The motion was denied, and renewed and denied in 1899, when the demurrer to the amended complaint was heard and overruled. The appellant then answered by a general denial, and the cause was tried. Judgment was rendered in favor of the respondent.

The refusal of the court to grant a dismissal of the action for failure to prosecute is alleged as error. We do not think this contention can be sustained. At the time these motions were made the case was pending upon an issue of law raised by appellant's demurrer to the amended complaint. It was within the power of the appellant to have noticed the demurrer for hearing, and it was as much to his interest to expedite the case by noticing the demurrer for argument as it was the plaintiff's to have the cause prosecuted to trial. In fact, the case could not be tried until the demurrer was disposed of.

The principal contention in this case is that the statute of limitations had run before the action was brought; more than six years having expired between July 21, 1892, and the commencement of this action on August 8, 1898. This contention, however, cannot be sustained, for two reasons The first is that under the amended complaint it appears that for a period of one year next immediately preceding the commencement of the action the defendant was out of the state of Washington and absent therefrom, so that personal service of process could not be made upon him, and that, in addition to that, since the entry of the judgment he had been absent from the state of Washington at intervals aggregating about two years in all. It is well established that the statute will not run during the time that the plaintiff was incapacitated from bringing the action by reason of the absence of the defendant. In the second place, the record shows and the court finds that, although judgment was entered on the 23d day of July, 1892, the judgment being a judgment of foreclosure, the mortgage which was foreclosed providing for the entry of a deficiency judgment, thereafter, after the sale of the...