First Nat. Bank v. Fowler

• Decision Date: 18 February 1909
• Citation: 51 Wash. 638,99 P. 1034
• Parties: FIRST NAT. BANK OF WENATCHEE et al. v. FOWLER et ux.
• Court: Washington Supreme Court

99 P. 1034

51 Wash. 638

FIRST NAT. BANK OF WENATCHEE et al. v. FOWLER et ux.

Supreme Court of Washington

February 18, 1909

Appeal from Superior Court, Chelan County; R. S. Steiner, Judge.

Actions consolidated under the title of First National Bank of Wenatchee and another against Leonard Fowler and wife. Judgment for plaintiffs, and defendants appealed. Motion to dismiss appeal denied.

Bevington & Finch and Ira Thomas, for appellants.

Reeves & Reeves, for respondents.

CHADWICK J.

In the court below four actions, involving the same subject-matter were consolidated by order of the court, in which it is recited: 'And by agreement of parties above named appearing and representing the parties in each of said causes, as above indicated, the motions heretofore filed by Leonard Fowler and Mary B. Fowler, his wife, to consolidate all of said civil causes, referred to as suits numbered 1, 2 3, and 4, are hereby sustained, and said causes of action are consolidated in civil cause No. _____ said suit No. 3 in which a receiver has been appointed for the Republic Press, and the separate division of the motions filed by said Leonard Fowler and Mary B. Fowler, his wife, to interplead, the defendants named in said cross-complaints, filed in each of said actions are also hereby sustained, and said parties are by this order made defendants in each of said cross-actions and in this consolidated action civil cause No. _____, suit No. 3. This order being made by agreement of counsel of record for the parties thus interpleaded is therefore not excepted to by any of the parties.' Whereupon it was stipulated by all parties appearing in said several actions in civil cause No. _____, suit No. 3, the consolidated action should be submitted on a certain day and in the following manner: 'Upon the pleadings now on file in said several causes of action as consolidated in said suit No. 3, it being understood that the complaints filed by the several plaintiffs in each of said suits is to be considered as evidence and the answers and cross-complaints and interpleaders filed by Leonard Fowler and Mary B. Fowler, his wife, are also to be considered as evidence, and the actions thus consolidated are to be submitted on the issues thus joined and the evidence thus submitted under this stipulation.' The action was set down for trial and tried as one case. There was but one subject-matter involved. Action had been begun by the First National Bank of Wenatchee, a corporation, and by George R. Fisher, to recover several items of indebtedness due and owing from the Republic Press, a corporation, and praying for the foreclosure of certain securities. Leonard Fowler and Mary Blanche Fowler, his wife, defendants and cross-complainants, set up in said consolidated action the facts: That they had personal interests in the assets of the Republic Press; that they were the owners of certain property taken over by the receiver of that corporation; that they were in fact sureties for the Republic Press, and asked that their relation be so declared by the court, and that the assets of the Republic Press be marshaled and applied to the payment of the amounts found due the plaintiffs before their property was made subject to execution. Judgment was rendered by the lower court in favor of plaintiffs, whereupon counsel for defendants prepared and submitted to the court findings of fact and conclusions of law in the consolidated action, all of which were refused by the court. The court thereupon prepared, or caused to be prepared, separate findings and decrees in each case, and they were so entered. Defendants then moved for a new trial, treating the several judgments of the court as one. After entitling their motion and setting out the several causes by name and number, they proceeded with their motion under the caption: 'All of said causes having been consolidated in civil cause No. _____, suit No. 2.' The order overruling the motion for new trial was under the same title, as well as all subsequent proceedings in the superior court and in this court. This case was brought to this court upon the appeal of defendants and cross-complainants. Motion is now made to dismiss the appeal upon the theory that there are four judgments and but one notice of appeal and one appeal bond.

That it was within the power of the court to order a consolidation we do not understand to be questioned, but it is insisted that the consolidation was only for trial--that is for the purpose of taking testimony--and that the court properly entered four several judgments under separate titles. The order of consolidation being general, we do not think it would be overcome by the four judgments entered by the court until vacated by an order entered with the same...