American Bonding Co. v. Dufur

Dunbar, J. The complaint in this case stated, in substance, that the plaintiff was a corporation entitled to transact business in this country, etc., and empowered to become surety upon judicial bonds; that on the 19th day of September, 1904, it had become surety upon a forthcoming bond in an action then pending in the superior court of the state of Washington, wherein one Timothy L. Driscoll was plaintiff and the appellants herein appeared as defendants; that the said Driscoll obtained judgment in said action; that thereafter the said Driscoll sued the plaintiff upon said bond; that plaintiff appeared in the action, defended the same, and that Driscoll recovered judgment of the plaintiff in the sum of $842.25, and his costs and disbursements taxed in the sum of $29.90, being $872.15; that thereafter plaintiff paid and satisfied said judgment in full in the sum of $872.15; that in the defense of said cause the plaintiff incurred in all, expenses amounting to $171.35, the expenses being itemized in the complaint; that the plaintiff notified the defendants that suit had been instituted, and requested the defendants to appear and defend the same; again notified the defendants that the said cause had been set for trial for September 24, 1907, and again requested them to appear and defend the cause; but that said defendants did not appear or offer to defend the same; that the plaintiff defended said cause at its own cost and expense; that a reasonable attorney’s fee for the prosecution of this case is $125; and asked for judgment in the sum of $1,127.26, and for costs, taxed at $17.20. On November 7, 1907, defendant John Dufur filed an objection to the jurisdiction of the court, and the hearing was noted for November 11, and was on that day overruled. The other defendants not appearing, plaintiff moved for judgment by default. Motion was not granted, and the defendants were [634] allowed five days’ time from that date in which to file an answer. On the 12th day of November, defendants filed another objection to the jurisdiction of the court, based on affidavits. The plaintiff thereupon moved to strike said affidavits and objection, for the reason that they were sham, frivolous, and irrelevant, and further moved for judgment for default; and said motions for default and to strike the affidavits were set for hearing on the 25th day of November. On that day the motions were called for hearing and were stricken by the court on the ground that they were sham, frivolous, and irrelevant, and did not constitute pleadings, and were not in compliance with the order of the court theretofore made. The court further ordered that said defendants were in default, and that judgment of default would be rendered against them unless they should file and serve upon plaintiff’s attorneys an answer to the complaint, which answer should disclose a meritorious defense. Thereafter defendants each' filed separate demurrers to the complaint, which demurrers were afterwards overruled, answers were filed, and motion was made to strike the answers for the reason that they did not disclose a meritorious defense, which said motion was granted. The case was then continued until the 2d day of December, 1907, for the purpose of taking proof as to the amount of damages sustained by plaintiff. Thereafter, on the 2d day of December, 1907, the cause came on for trial, and the defendants appeared by their respective attorneys, and the court made its findings of fact and conclusions of law and entered judgment for the plaintiff in the sum of $1,127.26, and costs taxed at $17.20. From that judgment, this appeal is taken. Appellants’ brief is so rambling, vituperative, and discourteous to the trial court that, had there been a motion to strike it, the motion would probably have been sustained, as a brief of this kind has no place in the records of this court [635] and is no aid to the court in determining legal questions involved in a lawsuit. But as no motion has been made to strike the brief and affirm the judgment, we have undertaken to discover what the merits of the controversy are. The first error assigned is that the court erred in overruling the objection to the jurisdiction. This motion was based upon the claim that, under the constitution, each county in the state was entitled to a judge, and that Honorable W. W. McCredie who tried the case was a resident of Clarke county, and not of Cowlitz county where the cause was tried. There is no merit in this contention. State ex rel. Dustin v. Rusk, 15 Wash. 403, 46 Pac. 387. The demurrers were properly sustained. The answers are too long to set up here, but they constituted no defense whatever to the complaint. This was a simple action on a liability incurred under a bond given by respondent to the appellants, and under a special provision in the bond that the applicants, appellants here, would at all times indemnify and keep indemnified and save harmless the said company from and against all loss, liability, costs, damages, charges, counsel fees, and expenses whatsoever which said company should or might for any cause at any time sustain, incur, or be put to, for or by reason or in consequence of said company having executed said bond. There is no denial of the execution of the bond, or of the recovery of the judgment against the respondent, or the payment thereof; nor is there any denial that the appellants were notified to appear and defend against said action. It is difficult to comprehend what answer there could be to an action of this kind in the absence of a denial of the execution of the bond, or the rendering of the judgment against the respondent, or an allegation of collusion or fraud, or an allegation of the payment of the judgment. The third assignment is that the court erred in ordering a default, but the appellants were so plainly in default and [636] acted so directly in opposition to the orders of the court that this assignment is not discussable. It is the contention of the appellants that they were under no obligation to answer for the judgment against respond-, ent, for the reason that they paid it $15 as compensation for its executing a bond in their favor, or rather for appearing as surety upon' their bond. A sufficient answer to this contention is that they especially contracted in their agreement with the bonding company to hold it harmless for damages of any kind. It is also earnestly urged that in any event no attorney’s fees should have been allowed in this case, but the same contract provides for the payment by the appellants of attorney’s fees; and the appellants agreed that the court in this case should fix the amount of attorney’s fees, provided it was proper for any attorney’s fees to be allowed, and it was proper under the conditions of the agreement. We do not feel called upon to answer the appellants’ aspersions upon the action of the trial court. A perusal of the record satisfies us that the court acted well within its discretion, and that the .appellants were not deprived of any rights which they were entitled to under the law. The judgment is therefore affirmed. Hadley, C. J., Crow, Mount, Root, Fullerton, and Rudkin, JJ., concur.