Vaktaren Publishing Co. v. Pacific Tribune Publishing Co.

Fullerton, J.

The appellant and respondent each own and publish a newspaper in the city of Seattle. The appellant brought an action against the respondent, alleging that the respondent had, by deceit and fraud, obtained possession of the appellant’s mailing lists, and had used the same for the purpose of enticing away its subscribers. It was further alleged that the respondent had sent its own newspaper to such subscribers, and had published therein false, defamatory, and scurrilous articles concerning the appellant’s newspaper, and its management, standing, and integrity, and had thereby induced the appellant’s subscribers to quit the appellant’s paper and subscribe for the respondent’s paper to the loss and damage of the appellant in the sum of $20,000, in which amount it demanded judgment.

In response to the summons served upon it, the respondent made a general appearance in the action, and moved the court to strike the complaint from the files of the court for the reason that it contained two or more causes of action which were not separately stated. This motion was granted by the court, and the appellant, conceiving itself aggrieved thereby, has appealed therefrom.

The respondent moves to dismiss the appeal on the ground that the order appealed from is not an appealable order. This motion must be granted. An order entered before final judgment to be appealable under the statute must in effect determine the action and prevent a final judgment, or it must discontinue the action. This order in effect did neither. It simply determined that the complaint was insufficient in form, not that the appellant had no cause of action. The statute expressly provides that the court may allow an amended pleading to be filed where the original is stricken because it contains more than one cause of action or defense and the same are. not pleaded separately. The applellant therefore had the right, when the motion to strike was sustained, to elect whether it would stand on its complaint and allow judgment to be taken against it, or whether it would amend and make its complaint conform to the court’s idea of good pleading. As it did neither, the ease was still pending in that court, neither discontinued nor determined, when it attempted to appeal to this court. It should have allowed judgment of dismissal to be taken against it and appealed from that judgment. The condition of the case is analagous to that where a demurrer has been sustained to a complaint, and we have repeatedly held that an appeal will not lie from such an order. McElwain v. Huston, 1 Wash. 359, 25 Pac. 465; Olsen v. Newton, 3 Wash. 429, 30 Pac. 450; Mason County v. Dunbar, 10 Wash. 163, 38 Pac. 1003; Padley v. Gregg, 26 Wash. 322, 61 Pac. 12.

The appeal is dismissed.

Mount, O. J., Root, Cbow, Dunbab, and Hadley, JJ., concur.