Douglas v. Badger State Mine

Citations

• 41 Wash. 266
• 83 P. 178
• 1905 Wash. LEXIS 1101

Syllabus

<p>Appeal — Bond—Conditioned as Cost and Supeesedeas. Upon appeal from a judgment foreclosing a laborer’s lien in the sum of $1,475 with $300 attorney’s fees, in which no order of court is made fixing the amount of the supersedeas bond on appeal, an appeal bond in. the sum of $200 conditioned also as a supersedeas bond, is sufficient to give the court jurisdiction of the appeal, where it is apparent from the instrument that the condition for a supersedeas was included inadvertently, and there was no attempt to employ the same as a supersedeas, and both parties treated the same as an appeal bond only (Rudkin and Dunbak, JJ., dissenting).</p> <p>Judgment — Vacation—Excusable Neglect. It is an abuse of discretion for the trial court to grant a motion for default and deny an application to vacate the same, where it appears that the defendant’s counsel, whose residence was 200 miles from the place of trial, served by mail a motion to make the complaint more definite and certain, submitting the same with a written argument, and relied upon the opposing counsel to give notice of the disposition of the same, not knowing when the same would be heard, which notice was not given; and upon motion for default being made eleven days after the disposition of the defendant’s motion, the defendant’s counsel presented an affidavit of meritorious defense and tendered an answer, and leave to file the same was denied; since the facts present a case of excusable neglect in not being represented at the hearing and answering in time, calling for a denial of the default upon terms (Fullerton, Rudkin, and Dunbab, JJ., dissenting).</p>