Pacific Supply Co. v. Brand

The opinion of the court was delivered by Scott, J. The appellant filed its complaint in the superior court of Pierce county, to which the respondents interposed a demurrer, which was sustained by the court, and appellant was granted ten days to amend. After the lapse of said time, no further proceedings having been had, the respondents moved said court for an order adjudging appellant to be in default, and for a dismissal of the action, [358] whereupon the court entered an order accordingly, and dismissed the action. This motion was not resisted, nor was any motion made to set said judgment aside. With the record in this condition, appellant, took its appeal. The respondents moved to dismiss said appeal, for the reason that none would lie from the judgment entered, and we are of the opinion that this motion must prevail. Appellant contends that it did not desire to amend the pleading, that the sustaining of the demurrer and subsequent dismissal of said cause was, in effect, an adjudication of its rights upon the merits, and that it was its intention to appeal therefrom to test the validity thereof in this court. However this may be, the status of the case here must depend upon the record as made in the lower court, and there is nothing on the face of the record to indicate appellant’s contention in anywise; excepting the bare fact that an appeal was taken as stated. An appeal will not lie direct from a judgment of dismissal for want of prosecution, and it must be dismissed. Dunbar, C. J., and Hoyt, Anders and Stiles, JJ., concur.