Ex parte Parker

Decision Date13 May 1889
PartiesEx parte PARKER
CourtU.S. Supreme Court

John H. Mitchell, for petitioner.

W. W. Upton, C. B. Upton, John B. Allen, and B. L. Sharpstein, for respondents.


This is an application for a writ of mandamus, to the supreme court of Washington Territory to reinstate an appeal to that court from a judgment of the district court of the First judicial district of the territory, dismissed for alleged irregularity in taking it. The case is before us on a return of the supreme court to our rule. The material facts upon which the application is made, condensed from the statement contained in the record and briefs of counsel, are as follows: In May, 1884, the petitioner, Hollon Parker, commenced an action in the district court of the First judicial district of Washington Territory against George D' Acres, to recover possession of certain real property situated in the county of Walla Walla, in the territory, and demanding also in his complaint $22,500 as the value of the rents and profits of the property while unlawfully detained from him. The defendant appeared and answered the complaint, denying generally its allegations, and setting up that he had purchased the premises at a judicial sale had on a judgment rendered in an action between other parties in that court, and had made permanent improvements thereon to the value of $6,000. The plaintiff replied to the answer denying its allegations. On the trial which followed, the defendant, under the instructions of the court, obtained a verdict of the jury, upon which judgment was entered in his favor on the 14th of February, 1885. Soon afterwards, and during the same month, an appeal from the judgment was taken by the plaintiff to the supreme court of the territory, which, on the 14th of July following, was dismissed because no assignment of errors had been filed with the clerk of the district court and served on the adverse party or his attorney within 20 days after entry of notice of appeal in the journal of the district court, as required by its rules. 7 Pac. Rep. 862. By the law of the territory a party against whom a judgment is rendered is allowed six months to appeal from it. In this case the time to appeal extended to August 14, 1885. Accordingly, on the 27th of July, 1885, the plaintiff gave another notice of appeal, by writ of error, to the supreme court of the territory, from the judgment, at the chambers of the judge of the district court, and requested that the notice be entered upon the journal of the court, and it was thereupon ordered that the notice of appeal be thus entered, and that the appeal be allowed. This proceeding was had at the chambers of the district judge while he was at Olympia, attending the supreme court of the territory, he being one of its members. Olympia is without the territorial limits of the district of which he was judge. The important sections of the act of the territory of November 23, 1883, under which the appeal was taken, are as follows: 'An act in relation to the removal of causes to the supreme court. Section 1. Be it enacted by the legislative assembly of Washington Territory, that any person desiring to remove a cause from any district court of Washington Territory may do so, either in person or by his attorney of record, and in the following manner: Such person or attorney may give notice in open court or at chambers that he appeals such cause to the supreme court of the territory. Such notice shall, by order of the court, or judge having jurisdiction of the cause, be entered in the journal of such court, and no other service or notice of pr cess shall be required; and thereupon the clerk of such court shall make and certify a full and complete transcript of said cause, including the journal entries thereunto appertaining, and cause such transcript to be filed with the clerk of the supreme court within the time allowed by law; and thereupon the supreme court shall have complete and perfect jurisdiction of such cause. Sec. 2. That the supreme court shall hear and determine all causes removed thereto, in the manner hereinbefore provided, upon the merits thereof, disregarding all technicalities.' 'Sec. 5. The notice of appeal hereinbefore provided for may be given at any time within six months after the rendition of the judgment, order, or decision intended to be removed to the supreme court. Sec. 6. All acts and parts of acts, so far as they conflict herewith, are hereby repealed. Approved November 23, 1883.' Subsequently the defendant moved to dismiss this second appeal, and at the January term of the supreme court of 1887 it was dismissed on the ground that the notice of appeal, not being given in open court, and being in its nature an application for an order allowing the appeal, was entertained by the judge without the preliminary notice to the adverse party, prescribed by section 2140 of the Code. 3 Wash. T. 12, 13 Pac. Rep. 903. That section, so far as it relates to this matter, is as follows: 'Sec. 2140. When a party to an action has appeared in the same he shall be entitled to at least three days' notice of any trial, hearing, motion, or application to be had or made therein, before any judge at chambers; which shall be in writing, setting forth the nature of the motion or application, and the grounds thereof, and specifying...

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