Tacoma Nat. Bank v. Peet

• Decision Date: 21 June 1894
• Docket Number: 1,240.
• Citation: 37 P. 426,9 Wash. 222
• Court: Washington Supreme Court
• Parties: TACOMA NAT. BANK v. PEET ET AL.

37 P. 426

9 Wash. 222

TACOMA NAT. BANK v. PEET ET AL.

No. 1,240.

Supreme Court of Washington

June 21, 1894

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by the Tacoma National Bank against Mary M. Barnett and Ettie L. Peet for the foreclosure of a mortgage. From a judgment for plaintiff, defendants appeal. Reversed.

Parsons, Corell & Parsons, for appellants

Campbell & Powell and J. H. Parker, for respondent.

SCOTT J.

When this cause was called for trial, the defendants made a showing upon which they applied for a continuance. The court ruled that the continuance might be had upon the following terms: "That said defendants pay to the attorney for the plaintiff in said action the sum of $25, the same to be applied upon the costs and attorney's fee for the preparation of said action for trial at said time, and that the defendants pay the same as a condition for further appearing for defense in said action, and, also, that they pay the cost of entering the order of postponement; and the court then and there, before entering said order, advised the said counsel for said defendants to consult his partners, and to determine whether they would have a postponement of said cause on said terms, or arrange their affairs to proceed with the trial at that time; and said counsel then and there announced to the court that they would prefer the postponement of said cause on said motion of said defendants and on the terms aforesaid, but objected to the terms, and denied the power of the court to make same. That the said order was then and there made and entered, to which said order the said defendants, by their counsel, duly excepted and particularly to the portion thereof making the payment of said sum a condition for further appearance and defense in the action." On the 21st day of March, 1893, the defendants served upon the plaintiff the following notice "To James H. Parker and Campbell & Powell Plaintiff's Attorneys: Please furnish us a copy of any costs incurred by you in preparation for the trial of this cause for the 16th day of March inst., and a statement of witnesses' fees claimed by you for that day's attendance. Dated March 21st, 1893. Parsons, Corell & Parsons, Attorneys for the Defendants, Barnett and Peet." This demand was not complied with, and on the 27th day of March, when the cause was called for trial, an affidavit was made upon the part of defendants showing the service of such notice, and failure to comply therewith, and that the defendants did not know the amount of costs which had been incurred, if any, for witnesses' fees, and an offer to pay the same, whatever t...