Denney v. City of Everett

• Citation: 46 Wash. 342,89 P. 934
• Parties: DENNEY et al. v. CITY OF EVERETT.
• Decision Date: 30 April 1907
• Court: United States State Supreme Court of Washington

89 P. 934

46 Wash. 342

DENNEY et al. v. CITY OF EVERETT.

Supreme Court of Washington

April 30, 1907

Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Action by Harriet M. Denney and another against the city of Everett. From an order granting plaintiffs' motion for a new trial, defendant appeals. Reversed and remanded.

W. G McLaren, L. C. Gilman, and B. O. Graham, for appellant.

Padgett & Bell and Emory, Rourke & Dennoy, for respondents.

CROW, J.

Plaintiffs Harriet M. Denney and John C. Denney, her husband, are the owners of an improved lot located at the corner of Hewitt and Lombard avenues, in the city of Everett. In the year 1901 the defendant, the city of Everett, established and raised the grade of Lombard avenue along the west side of plaintiffs' lot, for the purpose of constructing an approach to a bridge on Lombard avenue over a railroad track which was located some distance to the rear of plaintiffs' lot and extended east and west substantially parallel to Hewitt avenue. On December 24, 1904, the plaintiffs commenced this action to recover damages alleged to have resulted to their lot by such change of grade. The amended complaint alleged that the change of grade was made between May 13, 1901, and January 20, 1902. The defendant demurred to the amended complaint, for the reasons (1) that it did not state facts sufficient to constitute a cause of action; and (2) that the action had not been commenced within the time required by law. This demurrer was overruled, and the defendant, answering, denied that the grading had been done between May 13, 1901, and January 20, 1902, or that it had been done at any other time than between May 1, 1901, and November 30, 1901. The defendants also affirmatively and separately pleaded the two-year and three-year statutes of limitations. Upon a trial, the jury returned a verdict in favor of the defendant. The plaintiffs moved for a new trial upon the following grounds: (1) Insufficiency of the evidence to justify the verdict, and that the same was against the law; (2) error in law occurring at the trial and excepted to at the time by the plaintiffs; (3) newly discovered evidence material for the plaintiffs, which they could not with reasonable diligence have discovered and produced at the trial. In support of the third ground of their motion the plaintiffs filed affidavits. Answering affidavits were also filed by the defendant. The motion was denied as to the first ground, but was granted on the second and third grounds therein mentioned. From the order setting aside the verdict and granting a new trial, this appeal has been taken.

The record shows, and the parties concede, that the jury reached its verdict because it concluded that, under the facts proven, the action was barred by the threeyears statute of limitations. The respondents, by their pleadings and evidence, contended that the improvement and grading was not completed prior to January 20, 1902, while the appellant contended that it was completed on or before November 30 1901, more than three years prior to December 24, 1904, the date of the commencement of this action. The evidence on this issue was in sharp conflict, and the jury...