Sliscovich v. Scandinavian-American Bank

Parker, J.

The plaintiff commenced this action in the superior court for King county, seeking to recover the value of certain shares of stock of a corporation, the certificates of which he claims were converted by the defendants to their own use while owned by him and in their possession. The defendants answered, denying the conversion, but admitting the possession of the certificates, and alleging, as an affirmative defense, in substance, that the certificates were placed in their hands for the benefit of the plaintiff and Jacob Schick, in pursuance of a contract entered into between him and Schick; that Schick claims interest in the stock under the terms of that contract; that Schick is a necessary party to the action; that a proper determination of the controversy cannot be had without bringing Schick into the action and that defendants have no interest in the stock save as escrow holders thereof for the benefit of the plaintiff and Schick, under their contract. Upon motion of the defendants the court ordered “that the motion of defendants to require plaintiff to bring in one Jacob Schick as a party defendant to this action be and the same is hereby granted.” No further order or disposition of the cause has been made by the superior court. From this order, the plaintiff appealed to this court.

Respondents move to dismiss the appeal, upon the ground that the order is not such as “(1) in effect determines the action . . . and prevents a final judgment therein; or (2) discontinues the action;” these being the only descriptions of appealable orders which could possibly be applicable to this order, found in our appeal statute, Rem. & Bal. Code, § 1716 (P. C. 81 § 1183). That the order does not have such an effect upon its face seems to be clearly settled by our recent decision in State ex rel. Murphy v. Superior Court, 73 Wash. 507, 131 Pac. 1136, where we held that an order that a disbarment proceeding be dismissed at the expiration of thirty days thereafter unless a civil action be instituted within that time by the person alleged to have been wronged by the attorney’s conduct, was not an appealable order, upon the ground that it was not final within the meaning of these provisions of our appeal statute.

Counsel for appellant insist, however, that the order was, in effect, final because of the impossibility of bringing Schick into the case, he being a nonresident, which fact it is claimed the record disclosed at the time of or soon after the making of the order. We are unable to see, however, that such condition changes the fact that the order does not finally dispose of the cause, does not prevent a final judgment therein, and that it is still pending in the superior court. It may be true that the court would have entered an order of dismissal or in some manner finally disposed of the cause upon appellant insisting upon a final disposition thereof; but that was not done, so the case was left in the same situation as the Murphy case when the question of the finality of the order was there under consideration. Our conclusion finds support in Bolton v. Donavan, 9 N. D. 575, 84 N. W. 357, where a situation quite similar to this was considered. Another ground upon which the motion to dismiss is rested is that, since the appeal was taken, and before the record of the cause was brought to this court, Schick voluntarily intervened in the cause by leave of the court. It might well be argued that this, in any event, ends the particular controversy involved in this appeal. However, we need not express our views upon this question.

The appeal is dismissed.

Crow, C. J., Mount, Morris, and Fullerton, JJ., concur.