Albin v. Seattle Elec. Co.

• Decision Date: 11 June 1907
• Citation: 90 P. 435,46 Wash. 420
• Parties: ALBIN et ux. v. SEATTLE ELECTRIC CO.
• Court: Washington Supreme Court

90 P. 435

46 Wash. 420

ALBIN et ux. v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

June 11, 1907

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by John Albin and wife against the Seattle Electric Company. From an order overruling defendant's motion to strike the amended complaint and to dismiss action, and also directing a new trial, defendant appeals. Appeal dismissed.

Hughes McMicken and Dovell & Ramsey, for appellant.

John B Hart and Herbert E. Snook, for respondents.

ROOT J.

This case was here once before, and may be found reported in 40 Wash. 51, 82 P. 145. At that time a judgment in favor of plaintiff was reversed on account of evidence having been admitted as to facts not pleaded in the complaint. Subsequent to that decision, plaintiff asked permission of the superior court to file an amended complaint charging a number of specific acts of negligence not alleged in the original complaint. Over defendant's objection, permission to file said amended complaint was given by the superior court. Defendant then moved to strike amended complaint and to dismiss action. This motion was denied by an order which also directed a new trial. From this order the present appeal is prosecuted.

Respondents have moved to dismiss the appeal upon the ground that said order was not appealable. It is urged by appellant that the order permitting the amended complaint to be filed amounted to the substitution of a new and different cause of action and that this was inconsistent with the direction of the Supreme Court, and, furthermore, not legally permissible, for the reason that the statute of limitations had run; the accident having occurred more than three years prior to the time of filing the amended complaint. An order of the superior court permitting the filing of an amended complaint is not one from which an appeal lies. Ordinarily an order granting a new trial is appealable. The statute so provides but this statute does not apply where the order granting a new trial is made pursuant to directions of the appellate court. The question as to whether the statute of limitations had run as to the new matters embraced in the amended complaint cannot be brought before this court upon this appeal. Neither can we at this time inquire as to the propriety of permitting the filing of such amended complaint.

Finding no authority for the maintenance of this appeal, the motion for its...