Nelson v. Denny

The opinion of the court was delivered by Dunbar, J. This is an appeal from an order vacating a judgment, and respondents move to dismiss the appeal on the ground that such order is not appealable. We decided in Lilienthal v. Wright, 1 Wash. 1 (23 Pac. 801), and Gower v. Gower, 1 Wash. 16 (24 Pac. 29), that an order of the district court vacating a judgment was not subject to review in the supreme court, and therefore not appealable. These decisions were, however, prior to the law of 1893, which provides (Laws 1893, p. 119, § 1, subd. 1), that an appeal may be taken from an order granting a new trial. It is suggested that an order granting a new trial is in substance the same as an order vacating a judgment, but, however that may be, since the passage of the law of 1893, supra, we held in Greene v. Williams, 6 Wash. 260 (33 Pac. 588), that an order vacating a judgment was not appealable, in that case noticing the change of the law since the decision in Lilienthal v. Wright and Gower v. Gower, supra; and, indeed, the fact [328] that the later law had authorized an appeal from an order granting a new trial was one of the reasons assigned for holding that the order to vacate was not appealable. It has been suggested that this court has several times entertained appeals from orders vacating judgment, and this is true; but in those cases, with but one exception, the question was not raised by the respondents and the cases were disposed of on their merits in favor of the respondents. So that it was not necessary to pass upon the question of whether or not the order was appealable, even if it had been called to the attention of the court. In Williams v. Breen, 25 Wash. 666 (66 Pac. 103), however, the exception above referred to, which was an appeal from an order vacating a judgment, the respondent moved to dismiss the appeal for the reason that the order was not appealable. This motion was made orally, and was not decided, the court, as is its custom, taking the motion with the case, and hearing the argument on the merits. This case was also decided in favor of the respondent and the motion was not noticed in the opinion, it being a common practice of this court to decide cases upon their merits when it is not necessary to discuss motions to dismiss, and it is not necessary when the case is decided upon its merits in favor of the respondent. But in later cases this court has spoken with no uncertain sound on this question. In Freeman v. Ambrose, 12 Wash. 1 (40 Pac. 381), it was held that an order setting aside a default and giving a defendant leave to file an answer was not appealable, and the new law of 1893 was there discussed as follows: “But appellant bases his right upon subd. 6 of § 1 of that act (Laws 1893, p. 119), which provides that an appeal may be taken from any order which, ‘3. Grants a new trial;’ and contends that the order vacating the judgment in this cause in effect ‘grants a new trial,’ and is [329] therefore appealable. We are unable to agree with this contention. A new trial is defined by § 399, Code Proc., to be ‘a re-examination of an issue in the same court, after a trial and decision by a jury, court or referees]’ and § 400 j)rescribes the grounds upon which such new trial may be granted. We do not think that setting aside a default and giving a defendant leave to file an answer and defend is the granting of a new trial within the meaning of the statute. 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 1S93, 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 disppsition of the ease 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.” To the same effect is Reitmeir v. Siegmund, 13 Wash. 624 (43 Pac. 878). And in Hart Lumbar Co. v. Rucker, 17 Wash. 600 (50 Pac. 484), a case which was tried by eminent counsel, and in which every point was tenaciously contested, it was again decided that an order of the superior court vacating a judgment was not appealable. This being a question of practice, and the court having laid down the rule in so many cases, we think it would bo unwise to disturb the decisions heretofore made. The motion will be sustained, and the appeal dismissed. Beavis, C. J., and Aydebs and Hadley, JJ\, concur. White, J., not sitting.