Docket No. 171

Argument: Friday, March 13th, 1891

Decided: Saturday, January 31st, 1891

Opinion: 2 Wash. 327 (1891)

Court: Anders1 Court (1889-1892)

Anders

Dunbar

Hoyt

Scott

Stiles

MURPHY v. ROSS, 2 Wash. 327; 26 P. 554 (1891).

No. 171.

SUPREME COURT OF WASHINGTON

March 13, 1891, Decided Appeal from Superior Court, Pierce County. Motion to dismiss the appeal. The appellant, in opposition to the motion, filed the affidavit of Fred T. Peet, the attorney of record in the cause below, as follows: "That on or about the 9th day of July, A. D. 1890, this affiant duly argued a motion for a new trial before Judge Allyn in open court on behalf of said Murphy, appellant; that at that time Judge Allyn notified this affiant that he, Judge Allyn, should be absent from the State of Washington for about sixty days from said 9th or 10th of July; that in accordance with such information this affiant entered into an oral stipulation with Joseph Sessions, attorney for said Ross, appellee herein, that he might prepare his transcript and settle all questions of fact upon reasonable notice after Judge Allyn's return to said Pierce county; that at the time of Judge Allyn's return, this affiant having received no additional retainer from said Murphy, and knowing that said Murphy had engaged other attorneys in Tacoma in and about his business, and from the additional fact that this affiant had repeatedly notified said Murphy that something must be done in his case, said affiant believed that he was no longer employed by said Murphy in and about the said case; that on or about the 15th day of January, 1891, Joseph Sessions called at this affiant's office and notified this affiant that the six months for appeal having run out he should issue execution forthwith if this case was not settled; thereupon this affiant notified said Murphy of this fact, and then and there said Murphy informed this affiant that he had supposed that this affiant was attending to the case all along; that this affiant further notified said Murphy that he believed that said Murphy had a perfectly good defense on the merits of the appeal, and that he should advise said Murphy to at once perfect said appeal; that on the 10th day of February, 1891, about 1:30 P. M., said Mr. Sessions, attorney for said appellee, left at this affiant's office, in the custody of a law student, his motion to dismiss appeal and confirm judgment; that on the 24th day of February this affiant notified said Murphy that other counsel would have to be retained in the case, that this affiant's health being such that he could not properly attend to the matter; that on Thursday evening, February 26, 1891, this affiant and said Murphy duly retained the firm of Snell & Bedford as counsel in this case; that this affiant was by reason of ill health unable to attend to any law business and was confined to his bed on the 27th day of February, the day of the hearing of the motion."

Court: Motion sustained and appeal dismissed.

Counsel: Fred T. Peet, and Snell & Bedford, for appellant. Joseph Sessions, for appellee.

Judge(s) DUNBAR, J. ANDERS, C. J., and SCOTT, HOYT, and STILES, JJ., concur.

Opinion By: DUNBAR The opinion of the court was delivered by DUNBAR, J.--This is a motion to dismiss an appeal for the reason that appellant has not perfected his appeal within the time prescribed by law and the rules of this court, and affidavits and counter-affidavits are filed in support of and opposed to the motion. We do not think that the affidavit of appellant's attorney shows any legal or reasonable excuse for the failure. It follows that the motion will be sustained and the appeal dismissed, and it is so ordered.

ANDERS, C. J., and SCOTT, HOYT, and STILES, JJ., concur.