O'Neil v. Lindsey

Citations

• 41 Wash. 649
• 84 P. 603
• 1906 Wash. LEXIS 1029

Syllabus

<p>New Tut at. — Continuance—Subpbise. In an action upon a promissory note brought against the wife, as executrix of the estate of her husband, one of the joint makers of the note, in which the plaintiff had alleged payments tolling the statute of limitations, without specifying by whom the payments had been made, the defendant is entitled to a continuance of the case or a new trial, where the court had denied her motion to make the complaint more definite and certain by stating by whom, to whom, and when the payments had been made, and where ic appears that she was surprised at the trial by the evidence of a witness who claimed to have acted' as agent of the holder of the note, and. who testified to a payment of $2 made by the deceased in September, 1897, at the city of S, which was the payment relied upon by the plaintiff to toll the statute; and where the defendant testified at the trial that the deceased had been a helpless invalid since 1896, unable to attend to any business or make any payments- on the note, and that he had not been at the city of S but once since 1896, when she accompanied him, and that she could not state at the time what year that trip was made, but would be able to do so if time was given to communicate with parties at S; and after the trial affidavits were produced to the effect that the aforesaid trip to S had been made in April 1900.</p>