Hall v. American Nat. Plastics, Inc.

• Court: Washington Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Hall v. American Nat. Plastics, Inc., 437 P.2d 693, 73 Wn.2d 203 (Wash. 1968)
• Decision Date: 15 February 1968
• Docket Number: No. 39117
• Parties: B. D. HALL, doing business as See Cycle Company, Appellant, v. AMERICAN NATIONAL PLASTICS, INC., a Washington corporation, William T. Marks and Jane Doe Marks, his wife, Donald Lee Galbraith and Jane Doe Galbraith, his wife, Alfred R. Butz and Jane Doe Butz, his wife, incorporators thereof, and individually, Respondents.

Page 203

73 Wn.2d 203

437 P.2d 693

B. D. HALL, doing business as See Cycle Company, Appellant, v. AMERICAN NATIONAL PLASTICS, INC., a Washington corporation William T. Marks and Jane Doe Marks, his wife, Donald Lee Galbraith and Jane Doe Galbraith, his wife, Alfred R. Butz and Jane Doe Butz, his wife, incorporators thereof, and individually, Respondents.

No. 39117.

Supreme Court of Washington, Department 1.

Feb. 15, 1968.

Garvin & Reno, Wilmot W. Garvin, Spokane, for appellant.

Woodworth & Shelledy, Patrick H. Shelledy, Spokane, for respondents.

PER CURIAM.

This is an appeal from an order vacating a judgment entered upon a default. Plaintiff claims damages for defendants' alleged breach of contract in failing properly to design, fabricate and manufacture a merchantable, serviceable product capable of being used for the purpose for which it had been ordered. A 20-day summons and the complaint were served on the defendants January 28, 1966. February 21, 1966, more than 20 days after service of the summons, the plaintiff presented and the court entered against the defendants an order of default.

March 21, 1966, after hearing evidence as to damages, the court entered a judgment against the defendants for plaintiff in the sum of $26,723.06, reciting in the judgment that a default had been entered against defendants. Two days later, defendants, on March 23, 1966, filed their motion for a vacation of the default judgment, supporting it with an affidavit of merits setting forth a detailed account of facts upon which defendants asserted a defense. After argument and a consideration of the record, the trial court, by written order, on April 20, 1966, vacated the default judgment of March 21, 1966, and granted defendants leave to file their answer. Plaintiff now appeals this order of April 20, 1966, which vacated the judgment and allowed an answer to be filed.

We think the order vacating the judgment should be sustained, but not necessarily for the reasons argued by respondents. Neither party addressed its contentions to the question of whether an order vacating a judgment is appealable, and in our opinion such an order being interlocutory is not appealable.

Defendants brought their motion to vacate and set aside the judgment under Rule of Pleading, Practice and Procedure 60.04W, RCW Vol. O, since superseded by Civil Rule for Superior Court 60(e). That rule should be and we think was read by the court in pari materia with RCW 4.32.240, which provides for vacation of judgments:

The court may, in furtherance of justice, * * * relieve a party, or his legal representatives, from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.

RCW 4.72.010 likewise authorizes vacation of judgments for reasons not here pertinent.

This court has consistently followed the rule that an order vacating a judgment, being interlocutory in nature, is not an appealable order. In Mattson v. Kline, 47 Wash.2d 538, 540, 288 P.2d 483 (1955) in declining to review such an order on certiorari, we said:

At the outset, we are faced with the question of...