Blinn v. Grindle

Morris, J.

This appeal brings this case for the second time before this court. The first appeal was decided in Blinn v. Grindle, 58 Wash. 679, 109 Pac. 122, to which reference is made for the facts. The first judgment was one of dismissal, which was here reversed and the cause remanded with directions to proceed with the trial. This has been done. The court below on the further hearing sustained the action, from which judgment this appeal is taken.

The judgment is attacked upon three grounds: That the action was brought too late; that respondent was guilty of laches; and lack of tender. The first two contentions were disposed of on the former hearing. The former appeal was taken from a judgment based upon the opinion of the lower court that plaintiff was guilty of laches. This court held that the action was not barred by laches, and that it was commenced within the time limited by statute. No new facts are presented sufficient to change the ruling on the first appeal, and that judgment must be accepted as determinative. It might be added that, if the question were a new one, we would hold that, under the facts submitted showing the service to have been made within twenty-five days after the complaint was filed, the action would be deemed commenced from the time of filing the complaint rather than the time of service. Such is the plain meaning of §§167 and 220, Rem. & Bal. Code, this court having uniformly held that the last clause of § 167, relative to the commencement of actions, applies to actions by private parties. Blalock v. Condon, 51 Wash. 604, 99 Pac. 733.

Upon the question of tender, the case is controlled by Gould v. Knox, 53 Wash. 248, 101 Pac. 886; Gould v. Stanton, 54 Wash. 363, 103 Pac. 459; Gould v. White, 54 Wash. 394, 103 Pac. 460, and Pillsbury v. Beresford, 58 Wash. 656, 109 Pac. 193; and, for the reasons there given, tender was waived.

The judgment is affirmed.

Mount, C. J., Ellis, Main, and Fullerton, JJ., concur.