Concurrent opinion by
Hoyt, Associate Justice.I concur in the ruling that the motion must be denied, for the reasons given in the opinion of the Chief Justice, and for the further reason, that I am of the opinion that, under the rules of this court, the filing of a brief, in the cause, by the defendant in error, was an appearance therein, subject to the right to move to dismiss, as provided in rule 13 of this court, and that, as the motion was not made within the time provided in said rule, he is precluded, by the filing of his said brief, from making it at a later time.
Opinion by
Wingard, Associate Justice.I am of opinion that the filing of a brief has not, hereto*606fore, been held to be general appearance in a case, in this court, and to so hold, at this term, would be a surprise to the Bar, which would be harsh if not unjust.
The waiver of copy by Mr. McGilvra, attorney for defendant in error, of the motion by Mr. McHaught, attorney for plaintiff in error, for a rule upon the clerk, to certify up the original writ, I do not regard as general appearance, in the light of the history of this case.
I am satisfied that, so to hold, is, in effect, to entrap the attorney for defendant in error, against his intention. I do not mean that such was, in anywise, the object of the attorney for plaintiff in error.
At the time the aforesaid waiver was made, the law of the Territory was, that a writ of error was essential to jurisdiction.
Generally, and unattended by such circumstances as attended this case, I believe the waiver aforesaid would constitute a general appearance.
Opinion on case by
Wingard, Associate Justice.This was a civil action brought by 1ST. H. Oglesbee against Henry L. Yesler upon a promissory note, as follows:
“Seattle, Sept. 12, 1865.
“One day after date, for value received, I promise to pay 1ST. H. Oglesbee or bearer, the sum of $1172.00 with interest at the rate of 1-|- per cent, per month.
“(Signed,) H. L. YESLER.”
The plaintiff below alleges in his complaint “ that the said defendant has not paid the said note or any part thereof except the sum of $71.21, on the 21st of Sept., 1871 and the sum of $20.00 on the 6th day of September, 1877, and the same remains due and unpaid,” etc. The defendant below answered that the cause of action was barred by the statute of limitations.
A demurrer was filed to the answer and was sustained by the District court. From that decision the writ of error was taken. We are of opinion that the demurrer should have been overruled, for the reason that the complaint does not state facts *607sufficient to sustain the action. In other words there is no allegation in the complaint of any payments upon the note. The note prima facie would be barred before the commencement of this action, to wit: July 27,1878.
The Judgment of the District court is reversed.