Dux v. Hostetter, 31480.
| Citation | 225 P.2d 210,37 Wn.2d 550 |
| Decision Date | 07 December 1950 |
| Docket Number | 31480. |
| Parties | DUX, v. HOSTETTER et al. |
| Court | United States State Supreme Court of Washington |
Department 1.
Minnick & Hahner, Walla Walla, Moulton Powell & Gess, Kennewick, for appellant.
John Horrigan, Theodore D. Peterson, Pasco, for respondents.
This action was instituted by plaintiff, Fred Dux, against defendant A. T Hostetter, doing business as the Lewis Hotel to recover damages allegedly sustained during the night of May 13, 1949 when, he, as a paying guest, was staying at defendant's hotel in a room assigned him. It was further alleged that during that night a fire broke out in the hotel after plaintiff had retired and by reason of defendant's negligence in failing to provide adequate safety measures and in failing to comply with the building code of the city of Pasco the plaintiff suffered severe injuries in making his escape from the fire. A bill of particulars was furnished specifying defendant's alleged acts of negligence in the operation and maintenance of the hotel.
The defendant answered denying all of the material allegations of the complaint and interposed several affirmative defenses.
Subsequently the defendant filed a petition to bring in as additional parties defendant Roy B. Stokely and Frank Pope, doing business as the 'Sky Club'. Notice of hearing of the petition was given to the plaintiff, and upon the hearing the trial court entered an order that Roy B. Stokely and Frank Pope be brought in as additional parties defendant and that defendant Hostetter have leave to amend his answer and file a cross-complaint. Plaintiff then filed an amended complaint which contained no allegations as to Stokely and Pope, and the defendant filed an amended answer and cross-complaint and served the same upon Stokely and Pope, together with a summons.
Defendant is his cross-complaint alleged as follows: Additional parties defendant, Stokely and Pope, leased from defendant a portion of the building in which the Lewis Hotel is located. On the night of May 13, 1949, the fire of which the plaintiff complained originated on the premises leased and occupied by the additional parties defendant and was started through their negligence in causing to be ignited waste paper and other combustible materials which had been wrongfully permitted to accumulate on the premises. Any injury allegedly received by the plaintiff was, therefore, the direct and natural result of the negligent acts and omissions of the additional parties defendant. The defendant in his prayer asked that, if a judgment should be recovered by the plaintiff against the defendant, he be granted a judgment against the additional parties defendant in the same sum. Defendant further asked that he be discharged from all liability to the plaintiff, and that the plaintiff and additional parties defendant be required to litigate among themselves the plaintiff's claim for damages.
After being served with the summons and cross-complaint, the additional parties defendant appeared by serving and filing a 'special appearance' as follows: 'Come Now the defendants, Roy B. Stokely and Frank Pope, doing business as Sky Club, by their attorneys, John Horrigan and Theodore D. Peterson, and hereby appear specially in the above entitled matter and only for the purpose of challenging the jurisdiction of the above entitled Court.'
Following the argument on the 'special appearance,' the trial court took the matter under advisement. Thereafter the following order was entered April 11, 1950:
'This Matter having come on for hearing the 21st day of March, 1950, for argument on the special appearance and motion for dismissal from the above entitled action by the defendants, Roy B. Stokely and Frank Pope, doing business as Sky Club; and the court having heard the argument of counsel thereon and being fully advisec in the premises; and the court being of the opinion that the defendants, Roy B. Stokely and Frank Pope, cannot be joined in the above entitled action upon the motion of the defendant, A. T. Hostetter, doing business as Lewis Hotel, Now, Therefore,
'It Is Hereby Ordered, Adjudged & Decreed that unless the plaintiff, Fred Dux, in the above entitled action shall amend his complaint and state a cause of action against the defendants, Roy B. Stokely and Frank Pope, joining them as defendants with the defendant, A. T. Hostetter, doing business as Lewis Hotel, within ten days from the date of this order, the defendants, Roy B. Stokely and Frank Pope, shall be dismissed without prejudice from the above entitled action.'
We have italicized the words 'and motion for dismissal' because no such motion appears in the record. If this was an oral motion, there is nothing to indicate what the grounds of the motion were. The only matter Before the court at the hearing was Stokely and Pope's special appearance challenging the jurisdiction of the court.
Defendant A. T. Hostetter served notice of appeal from this order on April 18, 1950, and filed it on the following day. He filed his bond for costs on appeal within the five-day period as required by the applicable statute.
A minute entry by the clerk of the superior court, dated April 25, 1950 indicates that on that...
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Deaconess Hospital v. Washington State Highway Commission
...Appeal 43, RCW vol. O. It may and should be raised by the court on its own motion if it is not raised by the parties. Dux v. Hostetter, 37 Wash.2d 550, 225 P.2d 210 (1950); Ullom v. Renton, 5 Wash.2d 319, 105 P.2d 69 As I view the law, Judge HALE'S opinion should have ended at the point whe......
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Munden v. Hazelrigg
...language of RAP 2.2(a)(3), or its predecessor, to the question of appealability of dismissals without prejudice. In Dux v. Hostetter, 37 Wash.2d 550, 225 P.2d 210 (1950), this court held that dismissal without prejudice of a cross claim was not an appealable order because it made no final d......
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Fairview Lumber Co. v. Makos
...four days prior to the order denying the motion for a new trial. In support of its first contention, respondent cites Dux v. Hostetter, 1950, 37 Wash.2d 550, 225 P.2d 210 and Strickland v. Rainier Golf & Country Club, 1930, 156 Wash. 640, 287 P. 900. Neither case is controlling. In the Dux ......