Hennessy v. Tacoma Smelting & Refining Co.

Hadley, J.

Respondents move the court to dismiss this appeal. It is urged that the appeal was not taken in time, and that this court is without jurisdiction to entertain it. The reasons advanced in support of this phase of the motion were discussed in State ex rel. Hennessy v. Huston, 32 Wash. 154, 72 Pac. 1015. In that case a writ of mandate was sought to require the trial court to settle .and certify the statement of facts proposed in the case now before us. It was there contended that the time for appeal in this case began to run from the date of the original judgment of dismissal. But it appeared that a motion had been made to vacate the judgment on the ground that it was irregularly entered. This court held that the motion was well taken, and also that the time for appeal began to run from the date of the order denying the motion to vacate, inasmuch as it involved a judgment irregularly entered. We refer to what was said in that case as decisive against respondents upon this branch of their motion to dismiss the appeal.

The motion to dismiss is further urged upon the ground that there is no merit in the further prosecution of the appeal, for the reason that there is now no actual controversy involving real or substantial rights between the parties to the record, and no subject matter upon which any judgment in favor of appellants can operate. In support of this ground of the motion, it is contended that events occurring subsequently to the judgment have eliminated the controversy involved in this case. This contention is chiefly based upon a certified record filed here from the circuit court of the United States for the District of Washington, Western Division. That record shows that, after the original judgment of dismissal was entered in this ease, some of the appellants here filed a bill in equity in the above named court against certain of the respondents here. The bill was dismissed as being without equity against the defendants in the action. It is now urged here by respondents that the subject matter of the two suits is the same, and that the judgment of the federal court is res judicata of the matters involved in this case. Appellants, upon the other hand, insist that there is an essential difference between the purposes of the two suits, and that the parties are not the same in each. It» does appear from the record that the parties are not identical, and we deem it unnecessary to discuss the question of the identity of the subject matter of the two suits for reasons which appear in the memorandum decision of the federal court, found in the certified record before us. Referring to the judgment of the superior court in the case at bar, the decision says:

“That decree has not been attached for fraud, and this court has no power to set it aside. Therefore the issues in this case are narrowed and limited by the plea of res adjudicata to the question whether the complainants are entitled to any relief in equity by reason of the facts and transactions since the date of that decree, viz., March 6, 1902.”

It is thus apparent that the only question adjudicated by the federal court was whether the complainants in that case were entitled to any relief by reason of facts occurring after the date of the judgment of the superior court. The court expressly declined to adjudicate the matters involved in the superior court case, all of which occurred prior to March 6, 1902.

In any event, however, even if the decision and judgment of the federal court purported to adjudicate the matters involved in the case at bar, it appears by a certificate of the clerk of that court, filed here by appellants, that said cause has heen appealed to the United States circuit court of appeals for the ninth circuit, and that no mandate from said appellate court has been received or filed in his office. Under any view of that judgment, it cannot, therefore, now be said to be final and res judicata of matters involved in the case on appeal here. The motion to dismiss the appeal is denied.

The merits of this appeal were practically determined by the decision in State ex rel. Hennessy v. Huston, supra. It was there held that the judgment appealed from was prematurely entered, that it was entered by the court of its own motion after issue joined under the pleadings, and without any hearing, trial, or opportunity for hearing under such issues; all of which made it an irregular judgment.

For the reasons assigned in that opinion, the judgment is reversed, and the cause remanded, with instructions to the lower court to proceed with the trial under the issues joined^

Fullerton, O. J., and Anders, Dunbar, and Mount, JM., concur.