Gust v. Gust

• Decision Date: 04 November 1912
• Citation: 70 Wash. 695,127 P. 292
• Parties: GUST v. GUST.
• Court: Washington Supreme Court

127 P. 292

70 Wash. 695

GUST v. GUST.

Supreme Court of Washington

November 4, 1912

Department 2. Appeal from Superior Court, King County; H. A. P. Myers Judge.

Action by Sarah A. Gust against Adolph A. Gust. From a judgment dismissing the action, plaintiff appeals. Reversed and remanded for further proceedings.

See also, 124 P. 504.

Edward Judd, of Seattle, and B. E. McGregor, of Prosser, for appellant.

George W. Saulsberry, H. E. Foster, and L. Y. Devries, all of Seattle, for respondent.

MORRIS J.

Action for divorce and appeal from judgment dismissing the action. Respondent also appeals from that portion of the judgment awarding appellant attorney's fees and costs, and permitting amendments to the complaint, and moves to dismiss the appeal of appellant, and to strike the opening brief and a statement of facts certified to in connection with an application by appellant for suit money which was denied, and which is incorporated in the appeal. These contentions will first be noticed. The conclusion we have reached makes it unnecessary to notice respondent's appeal upon the award of attorney's fees and costs, since the judgment will be reversed upon the merits, leaving this question to the judgment of the court upon the entry of any final decree, upon the further hearing of the case.

We find no error in the allowance of the amendments to the complaint. Such an order will never be disturbed here, unless there is a clear abuse of the discretion, which, under our statute, is vested in the trial court in such matters. In view of the fact that the omissions in the complaint were not called to the court's attention until after the close of the evidence introduced by appellant, and that such defects were fully covered by the testimony, we think the trial court was justified in permitting the amendments. The motion to strike the brief is based upon language characterizing the ruling of the trial judge in what appellant considers must have been his view of the law in dismissing the complaint, in view of the evidence before him. This language is not such a dignified reference to the ruling complained of as becomes an attorney in referring to the action of the trial court. It is, however, more a thoughtless levity of speech than an abusive utterance, and not of such a character as demands such a penalty as respondent urges. It is sufficient to say such language weakens, rather than adds to, any brief in which it is incorporated. Motion to strike the brief is denied.

It will not be necessary to refer further to the motion to strike the statement of facts prepared by appellant upon the refusal of the court below to award suit money as prayed for; since the cause is to be sent back and the lower court will have ample opportunity to make such awards for suit money, attorney's fees, and alimony pendente lite as from the showing made before it may seem just and proper.

For this reason, we shall not discuss this question as raised by appellant's appeal from the order denying her suit money; the court below having ample power to correct any order it may have previously made, upon becoming satisfied that its award is insufficient to enable appellant to properly prepare and submit her case.

The motion to dismiss the appeal can best be discussed in connection with the...