Hibbard, Spencer, Bartlett & Co. v. Delanty

Per Curiam.

On the 2d day of December, 1896, in tbe superior court of tbe state of Washington for Island county, tbe appellant obtained a money judgment against tbe respondent, entered on tbe verdict of a jury. On tbe lltb day of Pebruary, 1898, upon tbe application of respondent, and after notice to appellant, tbe superior court vacated and set aside tbe verdict and judgment and granted a new trial of tbe action. On tbe 7tb day of April, 1898, tbe appellant filed a written motion asking tbe court to vacate and set aside its order of Pebruary 11, 1898 (being tbe order vacating and setting aside tbe verdict and judgment and granting a new trial). Tbis motion was beard and denied by tbe court on tbe lOtb day of May, 1898. On the last date the appellant served upon respondent a notice of appeal from the order of February 11th, and on the 18th of May executed a bond to perfect the appeal, which bond was filed with the clerk of the court of Island county on the lYth day of the same month. The notice of appeal was not filed with the clerk, but appears here by stipulation of the parties. On the 4th day of August, 1898, the appellant served another notice of appeal in which it is recited that an appeal is taken from the order of February 11, 1898, and also the order of the 10th day of May, 1898. Mo appeal bond accompanied this latter notice. The respondent moves to dismiss the appeal for want of jurisdiction in this court.

The order refusing to set aside the order vacating the judgment is not an appealable order. Any reason that could be shown for setting aside the order could have been and should have been shown in opposition to the application made by the respondent to vacate the judgment. Having had due notice of that application and having failed to satisfy the lower court on the hearing that no sufficient reason existed for vacating the judgment, the appellant was precluded from further questioning the sufficiency of the order in that court. His remedy was by appeal to this court.

The attempted appeal from the order vacating the judgment was insufficient for several reasons: the notice was not filed with the clerk of the court within five days from the time it was served on respondent (Bal. Oode, § 6503, Laws 1893, p. 120, § 4) ; the bond given to perfect the appeal was not filed with the clerk of the court within five days from the time the notice of appeal was served (Bal. Code, §§ 6503, 6505, Laws 1893, p. 120, §§ 4, 6); the order was not a final judgment; it was made at the time of the hearing and an appeal therefrom must be taken within fifteen days from the time of its entry (Bal. Oode, §§ 6500, 6502, Laws 1893, p. 119, § 1, Laws 1895, p. 81, § 1). This court has repeatedly held these provisions of the law jurisdictional, and a strict compliance with them necessary in order to perfect an appeal.

The motion to dismiss is granted.