National Christian Ass'n v. Simpson

• Decision Date: 29 March 1899
• Citation: 21 Wash. 16,56 P. 844
• Court: Washington Supreme Court
• Parties: NATIONAL CHRISTIAN ASS'N et al. v. SIMPSON et al.

56 P. 844

21 Wash. 16

NATIONAL CHRISTIAN ASS'N et al. v. SIMPSON et al.

Supreme Court of Washington

March 29, 1899

Appeal from superior court, Whitman county; E. M. Warner, Judge pro tem.

Action by the National Christian Association and others against Charles V. Simpson and others. From a judgment for plaintiffs, defendants appeal. Motion to dismiss the appeal. Granted.

T. P. &amp C. C. Gose and M. F. Gose, for appellants.

Trimble & Pattison, for respondents.

DUNBAR J.

The appellants move to strike from the files of this court the briefs of the respondent the Woman's Baptist Foreign Missionary Society of Oregon, for the reason that it did not serve and file, or serve or file, with the clerk of the superior court in which this action was tried, and in which this appeal is taken, the number of briefs required by law or any briefs, within the time required by law, and did not serve upon the appellants, or any of them, any brief or briefs, within the time required by law. It seems, however that the respondent made application to the lower court for an extension of time to serve its briefs, which application was granted. It is contended by the appellants that they did not have notice of this application, and therefore the action of the court in granting the extension was illegal and of no force or effect. But the statute provides that applications of this character may be made to the lower court. The matter is very largely discretionary with the lower court, and, unless there was a plain abuse of discretion, this court would not feel justified in interfering with its action, and we do not think there has been any abuse of discretion in this case. The case of Ambrose v. Gwinnup, 16 Wash. 333, 47 P. 737, cited by appellants in support of their motion to strike the briefs, was a case where the excuse for not filing the briefs within time was first offered in this court, and the court passed upon the merits of the case, and found that the excuse was not sufficient. But that is altogether a different proposition from the one involved here, where the application was made and the extension granted by the lower court. The motion is therefore denied.

The respondent the Woman's Baptist Foreign Missionary Society moves to dismiss the appeal in this case for the reason that the notice of appeal was not served within the time prescribed by law. The final judgment in the cause was signed by the court on the 2d day of June, 1898, and filed with the clerk of the court on the 4th day of June following. The notice of appeal was served upon the respondent on the 3d day of September, 1898, and filed on the same day. A computation of the time from June 4, 1898, to September 3, 1898, will show, without any question, that the statutory time for giving notice of appeal had expired. Section 1 of chapter 49 of the Laws of 1895, which is an amendment to the law of 1893, provides that, in civil actions and proceedings, an appeal from any final judgment must be taken within 90 days after the date of the entry of such final judgment, and an appeal from any order, other than a final order from which an appeal is allowed by this act, within 15 days after the entry of the order, if made at the time of the hearing, and in all other cases within 15 days after the service of a copy of such order, with written notice of the entry thereof upon the party appealing or his attorney. A very extensive and earnest brief has been filed by the appellants in opposition to this motion to dismiss. It is not contended therein that the statutory time of 90 days from the time of...