FISHER v. ELLSWORTH, 42 Wn.2d 671 (1953)

257 P.2d 773

ANDREW FISHER et al., Respondents, v. FREDDIE ELLSWORTH et al., Appellants.[1]

No. 32435.The Supreme Court of Washington. Department One.
May 28, 1953.

[1] COSTS — ON APPEAL — DAMAGES AND PENALTIES FOR FRIVOLOUS APPEAL AND DELAY. Under RCW 4.88.200, where a judgment for the payment of money has been superseded and the supreme court is satisfied by the record that the appeal was taken for delay only, it must award additional damages not exceeding fifteen per cent of the amount recovered; and where, in an action for specific performance, the court decreed a specified amount for the net rents and profits of the land of which the plaintiffs had been deprived up to the time of the judgment, which was superseded, and the supreme court is satisfied by the record that the appeal was taken for delay only, the plaintiffs will be awarded additional damages in the amount of fifteen per cent of the judgment.

[1] See 3 Am. Jur. 755.

Appeal from a judgment of the superior court for Spokane county, No. 133107, Kelly, J., entered November 15,

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1952, upon findings in favor of the plaintiffs, in an action for specific performance, tried to the court. Affirmed, as modified.

Gleeson Smith, for appellants.

Clyde H. Belknap, for respondents.

PER CURIAM.

On March 10, 1952, defendants entered into a written contract to sell a tract of land to the plaintiffs. Defendants breached their contract, and an action for specific performance was tried on September 29, 1952.

The trial court entered a decree for specific performance of the contract, and for $379.64 for the net rents and profits of the land, of which the plaintiffs had been deprived up to the time of the judgment.

The defendants appealed, and failed to offer this court any legal reason why the decree should be reversed.

[1] RCW 4.88.200 [cf. Rem. Rev. Stat., § 1738] provides:

“Upon the affirmance of any judgment or order for the payment of money, the collection of which, in whole or in part, has been stayed by an appeal bond, the court may award to the respondent damages upon the amount superseded; and, if satisfied by the record that the appeal was taken for delay only, the court must so award such damages not exceeding fifteen percent of the sum by such judgment or order recovered or directed to be paid, as will effectually tend to prevent the taking of appeals for delay only.” (Italics ours.)

Being satisfied by the record that the appeal was taken for delay only, this court awards the plaintiffs additional damages in the amount of fifteen per cent of $379.64.

As thus modified, the decree of the trial court is affirmed.

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