Swift v. Stine

• Decision Date: 01 February 1888
• Citation: 19 P. 63,3 Wash.Terr. 518
• Parties: SWIFT v. STINE.
• Court: Washington Supreme Court

19 P. 63

3 Wash.Terr. 518

SWIFT v. STINE.

Supreme Court of Territory of Washington

February 1, 1888

Appeal from First district court.

Action by George Swift against William Stine. On rule for security for costs on the ground of plaintiff's non-residence which was awarded, and failure to comply therewith, the action was dismissed. From this judgment plaintiff appeals.

TURNER J., DISSENTING.

A E. Isham, for appellant.

B. L. & J. L. Sharpstein, for appellee.

JONES C.J.

This appeal was before this court, and determined at the January term, 1886, (3 Wash. T. 18, 13 P. 904,) upon motion to affirm, for the reason that no evidence had been settled or certified by the district court. This court, at that time granted the motion upon the ground that "the cause was equitable, and the judgment of the district court was based on evidence," and that the evidence was not brought here. A rehearing being granted, the motion and the appeal are here argued together. It is settled that, on an appeal taken under the act of 1883, relating to the removal of causes to this court, under its provisions the "statement" provided for by section 3 is permissive, and need not be made and settled except at the option of the party; and, if brought here without such statement, it is not ground for dismissal, but the cause must be heard on its merits so far (and, of course, only so far) as the record sent up discloses them. The transcript here discloses the fact that the complaint was filed March 24, 1885; the summons issued the same day, and served March 25, 1885; on which day also a motion was made by defendant to strike out certain portions of the complaint; and other proceedings were had thereafter, and on May 25th an answer was filed to the complaint of plaintiff. There were two complaints in intervention filed before this date, and answers filed at the same time as to the complaint of plaintiff. On the next day replies were served. On May 29, 1885, the cause was sent to a referee for trial. On September 21, 1885, defendant, Stine, upon his own affidavit of the non-residence of plaintiff, moved that plaintiff be required to give security for costs, to which motion plaintiff appeared and filed a written "answer," as it is termed; stating, among other things, that the issues had been made up, the cause referred, and plaintiff and defendant had introduced testimony, and plaintiff had commenced putting in his evidence in rebuttal; and the cause still remained pending before the referee at the time this motion was set for hearing. On September 26th the court made an order requiring plaintiff to file security for costs, and staying proceedings until it was filed, or $200 deposited in lieu thereof; to which order plaintiff excepted. This order not being complied with, the court, on November...