Pennsylvania Mortg. Inv. Co. v. Gilbert

• Decision Date: 21 February 1898
• Parties: PENNSYLVANIA MORTG. INV. CO. v. GILBERT ET AL.
• Court: Washington Supreme Court

52 P. 246

18 Wash. 667

PENNSYLVANIA MORTG. INV. CO. v. GILBERT ET AL.

Supreme Court of Washington

February 21, 1898

Appeal from superior court, Spokane county; L. H. Prather, Judge.

Action by the Pennsylvania Mortgage Investment Company, a corporation, against Harry Gilbert and others. Judgment for plaintiff. W. A. Lewis and other defendants appeal. Affirmed.

W. A Lewis, for appellants.

H. M Stephens, for respondent.

SCOTT C.J.

A motion to dismiss the appeal herein was made on the ground that the second appeal bond was not filed in time. Exception was taken to the sufficiency of the sureties on the first bond. At the adjourned time set for hearing one of the sureties failed to attend. On the next day the judge certified as to the sufficiency of the other surety, and to the fact of the failure of one of them to appear. On the fifth day after making the certificate the appellants gave a new appeal bond. Respondent contends it was too late, because there was no adjournment from the last hearing to the next day, when the judge made his certificate; but, as the certificate was made the succeeding day after said examination, we think it was a sufficient compliance with the statute, although there was no formal adjournment from the day of the hearing until the next day. Had there been an unreasonable delay, a different question might be presented. It was also contended that the bond was insufficient because it was not signed by two of the appellants in person, but that their names were affixed thereto by their attorney without special authority. We think this was sufficient, as the appellants would have been liable for the costs in any event, and the attorney had authority to appeal the case. A motion was also made to strike the statement of facts on the ground that the exhibits were not contained in the proposed statement, and because the judge before whom the statement was settled directed the clerk of the court to attach the exhibits thereto. The exhibits at that time were in the keeping of the clerk, and had remained with him since the trial of the cause, and it was not necessary for the appellants, in preparing their proposed statement, to incorporate therein copies of the exhibits previously introduced in evidence and in the clerk's possession. A reference thereto was sufficient. After the exhibits were attached to the statement, the judge made a further certificate of their correctness, and...