Logan v. Cross ( 1920 )

Petition for Rehearing.

(192 Pac. 1119.)

On petition for rehearing.

Former Opinion Modified.

Mr. N. G. Wallace; Mr. M. E. Brink and Mr. Donald M. Graham, for the petition.

Mr. Willard H. Wirtz and Mr. Jay E. Upton, contra.

McBRIDE, C. J.

A petition for rehearing has been filed in this case, accompanied by an affidavit claiming that there was an oral stipulation between the respective attorneys that the justification of the surety might be taken by interrogatories. The affidavit states that this agreement is now denied by the attorney for plaintiff.

2, 3. While we cannot take cognizance of oral stipulations made by attorneys outside of court, we are satisfied that there is a misunderstanding between them in this case as to the import of the conversation between them in relation to taking the justification of the surety. As excuse for not having made any showing before our opinion was handed down dismissing the appeal, the affidavit discloses the fact that the attorney for defendant was ill at the time the motion to dismiss was filed and was nnable to attend to the business of his office, but as soon thereafter as possible he went with defendant to Portland for the purpose of executing a surety company undertaking; While there he again became ill, and was forced to spend some days in the hospital, and upon his return home was informed that the matter had been decided adversely to his client. He has now prepared and filed with the clerk of the Circuit Court an additional undertaking, and exhibits a copy of it with his affidavit, asking leave to file the same.

We think that the circumstances shown are such that he should be permitted to do this, and our original opinion is modified, so as to permit counsel to serve upon plaintiff’s counsel a copy of the undertaking proffered by him, or other sufficient undertaking, which, if approved by the court upon objection, or if no objections are made within the statutory time, may be sent up to this court and filed; this to ■be done within thirty days from the time this opinion is handed down. Former Opinion Modified.