Agassiz v. Kelleher

• Decision Date: 26 October 1894
• Citation: 9 Wash. 656,38 P. 221
• Court: Washington Supreme Court
• Parties: AGASSIZ v. KELLEHER.

38 P. 221

9 Wash. 656

AGASSIZ v. KELLEHER.

Supreme Court of Washington

October 26, 1894

Appeal from superior court, King county; R. Osborn, Judge.

Action by Richard Agassiz against Daniel Kelleher to recover money delivered in escrow and wrongfully withheld by defendant. Judgment for defendant, and plaintiff appeals. On motion by plaintiff to dismiss his appeal. Appeal dismissed.

M. L. Baer, for appellant.

Bausman Kelleher & Emory, for respondent.

SCOTT J.

Appellant moves to dismiss his appeal herein, without prejudice. Notice of the motion was given respondent, who appears and resists the same. The time for taking a second appeal has not yet expired, and appellant avows that his intention is to move for a correction of the judgment entry in the lower court and to take another appeal therefrom. The appeal act is silent with reference to the right of an appellant to dismiss his appeal, but in the case of Allen v. Catlin (decided Oct. 18th), 38 P. 79, we held that the appellant had such a right, and granted his motion to dismiss, of which no notice had been given to the respondents. Subsequently however, the respondents appeared, and moved for judgment against the appellant and his sureties upon the appeal bond giving due notice thereof, and we held that, notwithstanding the prior dismissal, they were entitled to such judgment, and granted their motion. In that case there was no desire upon the part of the appellant to take a second appeal. We are still satisfied that the appellant has a right to dismiss his appeal, and that as the act in question (Sess. Laws 1893, § 18, p. 119) gives the respondent a right to move for a dismissal of an appeal and to combine therewith a motion for an affirmance of the judgment, and as section 24 thereof authorizes him also to move for a judgment against the appellant and his sureties in the appeal bond, appellant cannot deprive the respondent of his rights in the premises by a voluntary dismissal. The question presented here is somewhat complicated. Section 20 provides that no dismissal which does not go to the substance of or to the right of the party to appeal shall preclude him from taking another appeal in the same cause within the time limited by law. We are not disposed to grant the dismissal in the language prayed for, viz. without prejudice; but in order to render the various parts of the act effectual, and to preserve the rights of all parties, we will...