Shook v. Hughes

• Decision Date: 15 December 1927
• Docket Number: 20811.
• Citation: 262 P. 142,146 Wash. 134
• Court: Washington Supreme Court
• Parties: SHOOK v. HUGHES et al.

262 P. 142

146 Wash. 134

SHOOK v. HUGHES et al.

No. 20811.

Supreme Court of Washington

December 15, 1927

Department 2.

Appeal from Superior Court, Whitman County; Sharpstein, Judge.

Action by Clement J. Shook, as administrator of the estate of Jacob Shook, deceased, against Harry I. Hughes and others copartners as Bageant & Morrell. Verdict for defendants, and from a judgment granting plaintiff a new trial, defendants appeal. Affirmed.

John Pattison, of Spokane, and W. L. La Follette, Jr., and S. R Clegg, both of Colfax, for appellants.

Kimball & Blake, of Spokane, for respondent.

MAIN J.

This is an action for a wrongful death. The cause was tried to the court and a jury, and resulted in a verdict for the defendants. The plaintiff made a motion for new trial, which was sustained, and, from the order entered granting the motion, the defendants appeal.

The motion for new trial was based upon a number of different grounds. The order granting the motion, aside from the formal parts, was as follows:

'This matter having heretofore been brought on for hearing on the motion for a new trial filed by the attorneys for the plaintiff, and the court having heard the arguments of the attorneys for the respective parties, and having considered the matter, has filed herein a memorandum decision, and, the court being advised in the matter, said motion for a new trial is hereby granted, and the verdict is set aside. The defendants, and each of them, through their attorneys, except hereto and to all hereof. The defendants may have ten days to file any exceptions which they see fit to file to any statements contained in said memorandum decision, and these exceptions, if filed, will be allowed.'

It thus appears that the ground for granting the motion is not stated in the formal order. There is only a reference to a memorandum decision and a statement that exceptions may be filed to the same. In Morehouse v. Everett, 136 Wash. 112, 238 P. 897, it was distinctly held that, where a motion for a new trial was made upon a number of grounds, and the trial court granted it upon a particular ground, that ground must appear in the formal order. It was there said:

'There may have been some little confusion touching our views, growing out of our decision in the peculiarly circumstanced case of Crowl v. West Coast Steel Co., 109 Wash. 426, 186 P. 866, on the question of just when the record of a given case shows or fails to show the granting or refusing of a new trial exclusively upon some discretionary or purely legal ground; but we think it plain from our later decisions, above noted, which are in harmony with those rendered prior to Crowl v. West Coast Steel Co., supra, that any such limitation and exclusiveness of the court's ground for the granting or denial of a motion for new

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