McCoy v. Bell

• Decision Date: 29 January 1889
• Citation: 20 P. 595,1 Wash. 504
• Parties: MCCOY ET AL. v. BELL.
• Court: Washington Supreme Court

20 P. 595

1 Wash. 504

MCCOY ET AL. v. BELL.

Supreme Court of Territory of Washington

January 29, 1889

Error to district court, Whitman county; WILLIAM G. LANGFORD Judge.

Action before a justice of the peace by William C. Bell against A L. McCoy and Con O'Brien, copartners doing business under the firm name of McCoy & O'Brien.The justice rendered judgment for plaintiff, which was affirmed by the district court, on certiorari.Defendants bring error.

Doolittle & Pritchard, for plaintiffs in error.

E R. Pickerell and Mark A. Fullerton, for defendant in error.

NASH J.

From the complaint of plaintiff and the statement of account included in answer of defendants it appears that the defendants were copartners doing business in Whitman county Wash. T., under the firm name and style of McCoy & O'Brien.The complaint further alleges that these defendants were copartners jointly indebted to plaintiff in the sum of $39.90.The record shows that service of the complaint was made upon defendants by leaving a copy of the complaint and notice with Con O'Brien, one of said defendants, in Whitman county, Wash. T., on the 18th day of August, 1887.No other service was made.The time fixed for trial in said notice is the 25th day of August, 1887, at the hour of 10 o'clock A. M.On the return-day specified in the notice the plaintiff herein went to the justice's office, and, after waiting for one hour after the time the defendants were cited to appear, and finding that they had failed to appear and plead, demanded judgment against them.To this certain parties who were present and claimed to be the agents of the defendants made objection to judgment being rendered at that time.It fully appears by the record in this case that a full hour had elapsed from the time the parties were required to appear by said notice, and that no pleading of any kind or character had been filed by the defendants in said cause; that the plaintiff at that time demanded judgment, when some colloquy between the parties claiming to be the agents of the defendants ensued in regard to a continuance of said cause; to which, however, the justice answered that he would have to render judgment for the plaintiff therein, and the plaintiff's attorneys thereupon left the office of the justice; that immediately thereafter these parties claiming to be the agents of the defendants prevailed upon the justice, after filing their answer and an affidavit for continuance, to continue said cause; that the papers above mentioned were filed about 15 minutes past 11 o'clock, and, as claimed, the order for continuance was shortly thereafter granted, and the defendants left the justice's court; that about 4 o'clock in the afternoon of the same day the plaintiff's attorney returned, and prevailed upon the justice to enter up the judgment he had formerly announced that he would render, which judgment is as follows:

"Upon request of plaintiff, judgment is rendered in favor of plaintiff and against defendants for the sum of $39.90, at 11 o'clock in the forenoon on the 25th day of August, A.D. 1887, with costs and disbursements of suit, it having appeared to the court that a true copy of complaint and notice had been served upon Con O'Brien, one of the defendants in said action, at least five days before the time mentioned in the notice for defendants to appear and answer the complaint in this action in Whitman county, Wash. T.And, said defendant or defendants not having filed an answer or other pleadings or other paper or papers in said action, or appeared in said court in any way up to the hour of 11 o'clock in the forenoon of the 25th of August, A.D. 1887, it is hereby ordered and adjudged by said court that default be duly entered, and judgment rendered as aforesaid against said defendants."

Execution was issued thereon on the 25th day of August, 1887, writ of certiorari prosecuted to the district court, and the following errors assigned in the court below.

"(1) In failing to enter on your docket the fact of the defendantCon O'Brien's appearance in said action and the time thereof.

"(2) In failing to enter on your docket the order of continuance of said action until the 24th day of September, 1887, which order was duly made and announced by you at the time of the appearance of the parties in said action, and in the presence and hearing of the agents of said defendants.

"(3) You erred in rendering a judgment against defendants in said action after you had made an order continuing said action until the 24th day of September, 1887, and after the agents of said defendants had departed from your said court, relying on your said order of continuance.

"(4) You erred in not entering upon your docket the true time of entering said judgment, in this, to-wit, that said judgment was given about 4 o'clock P. M. on said 25th day of August, 1887, in fact, and you have entered it in your said docket as having been given at 11 o'clock of said day.

"(5) You erred in entering said judgment without any evidence or proof of plaintiff's claim.

"(6) You erred in rendering any judgment against both of said defendants when said defendantCon O'Brien alone had been served or notified."And the justice before whom said cause was tried, in obedience to the writ of certiorari, returned the following in answer to the allegations of the affidavit therein:

"As to the first ground of error, it is true that I did not enter upon my docket the appearance of Con O'Brien, and it is also true that Con O'Brien did not at any time appear in person, and the agents representing both of the defendants did not appear until 15 minutes past 11 o'clock of said appearance day, at which time they filed the statement returned herewith.

"As to the second ground of error alleged in this affidavit, it is true that I did not enter in my docket the order of continuance of said cause until the 24th day of September, 1887.And it is true that I made such order, and announced the same, but not until after the appearance of the defendants, and after 11 o'clock of said day as above set forth, and after plaintiff had left the court-room, and said order was made in the presence and hearing of said defendants' agents.And I will further add that said agents were present before me prior to 11 o'clock of said day, and prior to the time of plaintiff's departure, but did not file any papers in said case until 15 minutes past 11, and I did not know who they were until said time.

"As to the third ground of error alleged in said affidavit the facts are these: At 11 o'clock plaintiff's attorney, finding no papers on file for defendants, arose before me, and said, 'I now demand judgment.'To this, shortly afterwards, the said agents, though not known to me at the time to be such, made some objection, and I then said I would have to render judgment, and said agents said they did not think I had grounds for doing so, and then plaintiff and his attorney departed, and then I again said, 'I will have to render judgment,' and referred said agents to section 1781 of the Code of Washington Territory, and the agents made some objection, and then filed and swore to said statement of account.The said agents also about this time read to me certain

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