Plummer v. Weil

• Decision Date: 05 November 1896
• Citation: 46 P. 648,15 Wash. 427
• Court: Washington Supreme Court
• Parties: PLUMMER v. WEIL.

46 P. 648

15 Wash. 427

PLUMMER v. WEIL.

Supreme Court of Washington

November 5, 1896

Appeal from superior court, Spokane county; Norman Buck, Judge.

Action by W. H. Plummer against R. Weil to recover for professional services. From a judgment of dismissal, plaintiff appeals. Affirmed.

W. J Thayer, for appellant.

Graves Wolf & Graves, for respondent.

GORDON J.

This action was brought to recover for professional services alleged to have been performed by the law firm of Plummer & Thayer, at the instance of the defendant (respondent), during the years 1892, 1893, and 1894. The complaint alleges that the services were reasonably worth the sum of $1,000, and that the sum due therefor was, prior to the commencement of this action, assigned by said firm to the plaintiff (appellant herein). The record shows that a so-called bill of particulars had been furnished defendant's counsel upon demand, and that, not being satisfied therewith, they moved the court for an order directing the plaintiff to furnish an amended bill. This motion was allowed, and the order granting it directed that the defendant should plead "within five days after the service of said bill of particulars." It appears that the clause fixing the time within which defendant was required to plead was inserted by plaintiff, and there is some disagreement between counsel as to whether the attorneys for defendant had any knowledge of the insertion of this clause, but we deem that question wholly immaterial, in view of the subsequent action of the court. On the same day namely, January 18, 1896, an amended bill was furnished; and thereafter, on January 24th, the plaintiff filed his motion for default, supported by affidavit showing the service of his amended bill on January 18th, and that the defendant had failed to plead thereto within five days, as directed by the order of January 18th. On the same day that default was claimed, the defendant moved the court for an order requiring plaintiff to furnish a more particular statement and bill of particulars, and thereupon the court denied plaintiff's motion for a default, and granted defendant's motion for a further and amended bill; and plaintiff having refused to furnish the same, and elected to stand upon the record, a judgment of dismissal was entered, from which this appeal was taken. The appellant assigns as error (1) the order of the court denying his motion for default; (2) the order of the court requiring plaintiff to further amend his bill of particulars; (3) the order dismissing plaintiff's action.

1. As already observed, a difference exists between the parties as to whether counsel for the defendant had any knowledge of the order of January 18th, which required defendant to plead within five days after the service of the amended bill of particulars upon him. But the lower court denied appellant's motion for default, and it must be presumed that sufficient was shown to justify the exercise of its discretion in that regard. Mason v. McLean, 6 Wash. 35, 32 P. 1006. Appellant further contends that the filing of a motion for a bill of particulars does not ipso facto extend the time for answering. We think the authorities do not sustain this contention. 3 Enc. Pl. & Prac. p. 548. Besides, in this case the order did fix the time in which defendant was permitted to plead, and operated as a stay.

2. That the court has authority to order a further and amended bill of particulars, where the one already furnished is insufficient, is a proposition which cannot well be doubted. Isham v. Parker, 3 Wash. St. 755, 29 P. 835. In the bill of particulars furnished, plaintiff says that no account was kept of the transactions with defendant, and, further that "it is impossible for him to comply with the order of the court any better than he has already done, or to make said bill of particulars any more specific on the points directed in the order of the court." Plaintiff has sued to recover the value of professional services, but, when asked to particularize the services, he replies that he has kept no...