Arnold v. National Union of Marine Cooks & Stewards Ass'n, No. 32180

• Court: United States State Supreme Court of Washington
• Writing for the Court: DONWORTH; SCHWELLENBACH
• Citation: 246 P.2d 1107,41 Wn.2d 22
• Parties: ARNOLD et al. v. NATIONAL UNION OF MARINE COOKS & STEWARDS ASS'N et al.
• Decision Date: 07 August 1952
• Docket Number: No. 32180

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41 Wn.2d 22 246 P.2d 1107 ARNOLD et al.
v.
NATIONAL UNION OF MARINE COOKS & STEWARDS ASS'N et al. No. 32180. Supreme Court of Washington, Department 1. Aug. 7, 1952.

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John Caughlan, Siegfried Hesse, John F. Walthew, of Seattle, for appellant.

Bassett, Geisness & Vance, Seattle, for respondent.

DONWORTH, Justice.

Respondents have moved to dismiss an appeal from an 'adjudication of contempt' entered by the superior court on April 4, 1952, upon motion of the receiver, the material portions of which read as follows:

'* * * and the Court having heard and considered the statements and arguments of counsel, and having examined the files and records herein and the affidavit of said receiver submitted in support of his motion for said order to show cause, and other evidence herein, the Court find that said defendant voluntary association has wilfully and contemptuously failed and refused, and still fails and refuses, to deliver to [246 P.2d 1108] said receiver certain United States bonds, although expressly ordered to do so by an order made and entered in the above entitled cause February 15, 1952, and although certified copies of said order were served upon said defendant voluntary association, as appears by return and affidavit of service on file herein, and it further appearing that said voluntary association has said bonds in its possession and under its control and has given no explanation or justification for its failure to assign, transfer and deliver said bonds to said receiver pursuant to said order of this Court and that written demands for delivery of said bonds, pursuant to said order, received by said voluntary association on February 23, 1952, and February 25, 1952, have been ignored, it is now, therefore,

Ordered, Adjudged and Decreed that the defendant National Union of Marine Cooks & Stewards, a voluntary association, impleaded herein as National Union of Marine

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Cooks & Stewards Association, be and the same hereby is adjudged in contempt of this Court, and that said contemptuous conduct of said defendant frustrates the enforcement of the judgment herein in favor of the plaintiffs and against the defendants and frustrates the receivership created herein by order of this Court; * * *.'

(The order continued the hearing one week as to other issues not material here.)

The motion to dismiss has been made upon the ground that the appeal was not taken within the time allowed by law. Notice of appeal was served and filed Monday, May 5, 1952. It is respondents' position that, if the adjudication of contempt be appealable at all, it was necessary that the appeal be taken within fifteen days.

Appellant contends that the adjudication of contempt is a final judgment and that the right of appeal therefrom is given by RCW 7.20.140, Rem.Rev.Stat. § 1062:

'Either party to a judgment in a proceeding for a contempt may appeal therefrom in like manner and with like effect as from judgment in an action * * *.'

Rule on Appeal 33, 34A Wash.2d 33, provides as follows:

'(1) In all civil actions and proceedings, an appeal from any final judgment must be taken by serving on opposing counsel and filing with the clerk written notice of appeal within thirty days after the day of the entry of such final judgment; and an appeal from any order other than a final order, from which an appeal is allowed, within fifteen days after the entry of the order, if made at the time of the hearing, and in all other cases within fifteen days after the service of a copy of such order, with written notice of the entry thereof, upon the party appealing, or his attorney. This rule applies alike to all appeals whether provided for by general or special statutes or rules.'

Appellant's position is that the appeal was timely under the above quoted rule, notice thereof having been given within thirty days after the entry of a final judgment.

The factual background of this controversy can be set forth briefly. This court reversed a judgment entered after a demurrer had been sustained to the amended complaint and remanded the cause with directions to overrule the demurrer.

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Arnold v. National Union of...