DocketNumber: No. 23489. En Banc.
Citation Numbers: 12 P.2d 422, 168 Wash. 465
Judges: HERMAN, J.
Filed Date: 6/20/1932
Status: Precedential
Modified Date: 1/13/2023
The foregoing opinion is erroneous both in reasoning and result. Its interpretation of our decision in the Old NationalBank case, supra, is incorrect. The statute, which remains the same at present, was quoted, which provides that an appeal may be taken
"From any order affecting a substantial right in a civil action or proceeding, which either, (1) in effect determines the action or proceeding and prevents a final judgment therein; or (2) discontinues the action;"
It was then said:
"The language of the statute seems to be clear. The order must in effect determine the action and prevent a final judgment or discontinue the action. It is maintained, however, by appellant that the orders are appealable under the announcement made by the court in Snohomish County v. Ruff,
"`It is next contended that it was not an appealable order, but this cannot be sustained, for it affected *Page 469 a substantial right and determined the action as to the particular matter in issue, and was in effect a judgment against the plaintiff thereon.'
"This court in McElwain v. Huston,
"`An order of the superior court striking out a portion of the defendant's answer is not an appealable order;' and in Olsen v.Newton,
It is to be observed that the Snohomish County case,supra, was decided by a bare majority and that Judge Dunbar, who concurred therein, in the Old National Bank case just quoted, stated that, upon further consideration of the question involved in the case of Snohomish County v. Ruff, he thought that the case should be directly overruled. *Page 470
It is apparent, therefore, that the Old National Bank case, relied upon in the majority opinion, both in its reasoning and result, is contrary to the reasoning and result reached in this case, and that Snohomish County v. Ruff, supra, is no longer authority.
Nor does the reasoning or result in Freeman v. Ambrose,
"We think it against the policy of the law to give the act a construction that would multiply appeals and permit litigants to bring their causes here by piecemeal, and especially so since the act itself provides that an appeal from any `final judgment shall also bring up for review any order made in the same action, either before or after the judgment.' Laws 1893, p. 119, subd. 1, § 1.
"The ruling complained of can be reviewed after a final judgment shall have been entered in the cause, and upon an appeal from such judgment a complete and just disposition of the cause can be made. To permit an appeal from an order of this character is to needlessly delay the progress of litigation, frequently amounting to a denial of justice, and in a vast majority of cases it would be productive merely of expense to litigants and the placing of useless and unnecessary labor upon the court."
The same reasoning applies precisely here.
It is stated by appellant in her brief that, although her
". . . affirmative defense and cross-complaint has been dismissed with prejudice, the plaintiffs' case is still at issue, the defendant having denied the material allegations of the plaintiffs' complaint. However, the defendant is barred by the adverse decision of the trial court from either presenting the affirmative matter and cross-complaint in the same action *Page 471 or from bringing an independent action to obtain the required relief. It is from the judgment of dismissal with prejudice the defendant is appealing."
Respondents have not questioned the right to appeal from that order, but, inasmuch as appellate jurisdiction cannot be conferred upon this court by waiver or consent, as we have often said, the court should, sua sponte, raise the jurisdictional question in the absence of objection by respondents. This is a matter that the court would entertain at any time even upon suggestion, or upon its own motion, if it came to the attention of the court. First National Bank of Aberdeen v. Carter,
Rem. Comp. Stat., now § 1716, et seq., gives the right to any aggrieved party to appeal from orders and determinations made by the superior court to this court in the mode prescribed therein, and no other.
The notice of appeal in this case was given one day after the order dismissing the cross-complaint with prejudice, and is manifestly well within the time to appeal from either final judgments, or interlocutory orders made before judgment.
It is obvious that the order appealed from is not a final judgment in the action, nor one which, in effect, determines the action or proceeding and prevents a final judgment therein, or discontinues the action. First National Bank of Aberdeen v.Carter, supra; Marsh v. Degeler,
One case which, at first blush, might seem to be opposed to these decisions is Whitehead v. Stringer,
It is at once manifest that the dismissal of the second cause of action discontinued that cause of action and was a final judgment as to it. No issue of fact had been made in that case as there has in this. No final judgment could have been entered in this case until after the hearing on the issues of fact.
The appeal is manifestly premature, and should be dismissed.
First National Bank v. Carter , 10 Wash. 11 ( 1894 )
Oliver v. Polson , 105 Wash. 164 ( 1919 )
Whitehead v. Stringer , 106 Wash. 501 ( 1919 )
Nishimoto v. Vernon , 107 Wash. 555 ( 1919 )
McElwain v. Huston , 1 Wash. 359 ( 1890 )
County of Snohomish v. Ruff , 15 Wash. 637 ( 1896 )
Freeman v. Ambrose , 12 Wash. 1 ( 1895 )
Olsen v. Newton , 3 Wash. 429 ( 1891 )
Marsh v. Degeler , 3 Wash. 71 ( 1891 )