Rotting v. Cleman

• Decision Date: 27 September 1895
• Court: Washington Supreme Court
• Parties: ROTTING v. CLEMAN ET AL.

41 P. 907

12 Wash. 615

ROTTING v. CLEMAN ET AL.

Supreme Court of Washington

September 27, 1895

Appeal from superior court, Kittitas county; Carroll B. Graves Judge.

Action by Nic Rotting against Jacob Cleman and others on a note. From an order granting a new trial, defendant J. H. Ramm appeals. Affirmed.

Dunbar J., dissenting.

E. Pruyn, for appellant.

Mires &amp Warner, for respondent.

ANDERS J.

This was an action on a promissory note executed and delivered to the plaintiff by the defendants. The complaint is in the ordinary form, and its sufficiency is not questioned. All of the defendants defaulted except Ramm, who filed an answer admitting the execution of the note set out in the complaint, but alleging that be signed it as a surety for the other defendants, and that he received no part of the consideration thereof, but signed said note solely for the accommodation of his codefendants; that on or about the 1st day of February, 1894, and a long time after the note became due, he gave to plaintiff a written notice that he was surety upon the note, and that he requested plaintiff to forthwith institute an action upon said promissory note; that plaintiff did not, until the 21st day of June, 1894, institute any action upon said note; that the plaintiff did not, within a reasonable time, bring his action upon said note, and prosecute the same to judgment and execution, and that defendant was thereby discharged, and wholly relieved from any liability on the note. For a second affirmative defense the defendant alleged that the plaintiff did, on the 20th day of April, 1894, for a valuable consideration, without the knowledge or consent of the defendant, agree to extend to the other defendants herein the time of the payment of said note for a period of six months from and after the 20th day of April aforesaid. The plaintiff, in his reply, denied receiving the notice mentioned in the defendant's answer, and averred that after the time at which the alleged notice to sue was given by defendant to plaintiff, the defendant instructed the plaintiff not to sue upon said note. The defense of extension of time of payment seems to have been abandoned by the defendant, and the cause proceeded to trial upon the other issues raised by the pleadings. A verdict was rendered by the jury in favor of the defendant. Thereupon the plaintiff moved for a new trial upon the grounds (1) that the evidence was insufficient to justify the verdict; (2) that the verdict was against the law; and (3) error in law occurring at the trial, and excepted to at the time. After argument and due consideration, the court sustained the motion, and granted a new trial, and the defendant appealed.

The statute (Code Proc. § 400) provides that the trial court may set aside the verdict of a jury, and grant a new trial, upon...