McInnes v. Sutton

• Decision Date: 15 July 1904
• Citation: 77 P. 736,35 Wash. 384
• Parties: McINNES v. SUTTON.
• Court: Washington Supreme Court

77 P. 736

35 Wash. 384

McINNES v. SUTTON.

Supreme Court of Washington

July 15, 1904

Appeal from Superior Court, King County; George E. Morris, Judge.

Action by N. McInnes against H. Sutton. From a judgment for plaintiff, defendant appeals. Affirmed.

H. E. Foster, for appellant.

Humes Milled & Lysons and Ralph Simon, for respondent.

HADLEY J.

Respondent brought suit for damages against appellant, and charged wanton injury and destruction of property of the respondent. Issue was formed, a trial was had, and a verdict returned against appellant. With the general verdict a special one was returned by way of answer to submitted interrogatories. The defendant moved for a new trial, and also moved for judgment in his favor on the special findings of the jury. The latter motion was denied, but the motion for new trial was granted. The cause came on for trial a second time in pursuance of regular assignment, the plaintiff, with his witnesses, being present in court and ready for trial. At that time counsel who then represented the defendant applied to the court for a continuance, but made no showing by way of affidavit or otherwise. The request was denied, and said counsel then sought to withdraw from the case, by announcing his withdrawal, and by serving upon the plaintiff and filing with the clerk of the court a notice thereof, and by refusing to proceed with or participate in the trial. The court however, proceeded with the trial. A jury was impaneled, and the plaintiff's evidence submitted. A verdict was returned in favor of the plaintiff. Before judgment was entered upon the verdict, the defendant appeared by other counsel, being the same who now represents him in this court. Said counsel filed in the cause what he designated as a 'protest against the signing or entering of judgment,' in which he recited the facts about the attempted withdrawal of former counsel, and stated that the defendant had no knowledge that the cause was to be called for trial at the time it was called, and did not know that his said attorney intended to withdraw from the case. The paper filed also states that the defendant was neither present nor represented by counsel at the trial. The court heard counsel upon the matters suggested by the paper filed in the record, and, after duly considering the same, denied the protest against entering judgment. Judgment was thereupon signed in accordance with the verdict on the 22d day of May, 1903, and the same was filed June 16 1903. Afterwards, on the 3d day of July, 1903, the defendant filed a petition to vacate the judgment, claiming that it had been irregularly entered, because of the facts concerning the attempted withdrawal of counsel, which are again recited in the petition. The petition also avers that the defendant has a good defense, as shown by his answer; that the plaintiff has no right of action; and that the complaint is insufficient to sustain a judgment. It is also alleged that the defendant is entitled to a judgment in his favor on the special findings of the jury heretofore mentioned. The court denied the petition to vacate, and the defendant has appealed.

We think the claim that the judgment was irregularly entered is not well taken. The complaint undoubtedly states a cause of action, and is sufficient to sustain the judgment. It recites a plain, wanton, and malicious removal, injury, and destruction of respondent's property. Referring to the point that the appellant was entitled to judgment upon the special findings of the jury, it will be remembered that those findings were returned at the first trial. Appellant both moved for judgment upon the findings and for a new trial, evidently intending the motions filed under the same cover to be in the alternative. With the granting of the motion for a new trial the other motion was, of course denied, and any rights of appellant under the motion for judgment were effectively determined by the granting of the other motion. Having asked for the new trial, he was not in position to complain, since he did not stand upon his motion for judgment. The final judgment entered is therefore not irregular by reason of the denial of judgment upon the special findings. If any element of irregularity attended the entry of the judgment, it must, therefore, have been through the attempted withdrawal of counsel. The statutory method for effecting withdrawal of counsel is found in section 4771, 2 Ballinger's Ann. Codes & St., as follows: 'When an attorney dies, or is removed or suspended, or ceases to act as such, a party to an action for whom he was acting as attorney must, at least twenty days before any further proceedings against him, be required by the adverse party, by written notice, to appoint another attorney, or to appear in person.' It seems to be appellant's view that the withdrawal was complete when his counsel announced in open court, after the case was called...