O'Toole v. Phoenix Insurance

Citations

• 39 Wash. 688
• 82 P. 175
• 1905 Wash. LEXIS 920

Syllabus

<p>New Trial—Inadvertence and Surprise—Affidavit of Merits After Issue Joined. Upon a motion for a new trial on account of inadvertence and surprise, after issue of fact joined, it is not important that tbe application does not show a meritorious defense, where both parties considered a trial necessary, and the denials of the complaint required, a trial irrespective of the affirmative defenses.</p> <p>Judgment—Vacation—Inadvertence and Surprise—Mistake in Notifying Counsel of Date of Trial as Agreed Upon—Excusable Neglect—Abuse of Discretion. It is an abuse of discretion to refuse to grant a new trial on the ground of inadvertence and surprise, where the defendant’s failure to appear at the time the cause was set for trial was due to an excusable misunderstanding between counsel, arising in their correspondence, plaintiff’s counsel having agreed to give notice of the time, and having sent a telegram to the wrong place, which was not delivered, instead of writing as they stated they had, and defendant’s counsel having held himself and a witness in readiness awaiting such notice; a liberal rule applying in furtherance of justice when the showing is not manifestly insufficient.</p> <p>Same—Imposition of Terms. Upon granting a new trial for inadvertence or surprise not due to the fault of the adverse party, the terms imposed should be the payment of the adverse party’s costs.</p>