Bishop v. Illman, 28344.

• Decision Date: 08 July 1941
• Docket Number: 28344.
• Citation: 115 P.2d 151,9 Wn.2d 360
• Parties: BISHOP v. ILLMAN et al. (CITIZENS BANK OF SULTAN, Garnishee).
• Court: Washington Supreme Court

115 P.2d 151

9 Wn.2d 360

BISHOP v. ILLMAN et al. (CITIZENS BANK OF SULTAN, Garnishee).

No. 28344.

Supreme Court of Washington

July 8, 1941

Department 2.

Action by Ed Bishop, doing business as the Federal Discount Company against W. R. Illman and others, wherein the Citizens Bank of Sultan, Washington, was summoned as garnishee, and wherein judgment was rendered for the plaintiff and default judgment entered against the garnishee defendant. From an order vacating the default judgment on the petition of the garnishee, plaintiff appeals.

Appeal dismissed.

Appeal from Superior Court, King County; Clay Allen, Judge.

A. V Stoneman, of Seattle, for appellant.

Newton & Newton, of Everett, for respondent.

MILLARD Justice.

A default judgment was entered October 22, 1940, against respondent, as garnishee defendant, in favor of appellant who had theretofore instituted an action against the marital communities of W. R. Illman et ux. and H. W. Illman et ux. on certain claims and recovered judgment for the amount claimed.

The trial court entered an order January 11, 1941, granting petition of respondent garnishee defendant for vacation of the default judgment against it and for permission to file its answer to the writ of garnishment, on payment to appellant plaintiff of costs in the amount of twenty-five dollars. The appeal is from that order.

At the threshold is a question of jurisdiction which we raise sua sponte. Is the order of which appellant complains an appealable order?

In the absence of constitutional provision, the right of appeal is purely statutory. The provision of our constitution, Art. IV § 4, conferring the right of appeal, is not self-executing, but, as we said in Robison v. LaForge, 170 Wash. 678, 17 P.2d 843, 'receives its vitality from legislative enactment.' Unless the order vacating the judgment comes within the terms of the appeal statute (Rem.Rev.Stat. § 1716) it is not an appealable order.

The statute (Rem.Rev.Stat. § 1716) provides that an appeal lies to this court from any order affecting a substantial right in a civil action or proceeding which either in effect determines the action or proceeding and prevents a final judgment therein, or discontinues the action, and from any final order made after judgment, which affects a substantial right.

When the question, under the foregoing statutory provisions, of the right to appeal from an order vacating a judgment was raised in Tatum v. Geist, 40 Wash. 575, 82 P. 902 we cited our prior decisions on the question and enunciated the rule, from which we have not departed, deducible from those decisions. The...