Hennessy v. Tacoma Smelting & Refining Co.

• Decision Date: 10 December 1903
• Citation: 33 Wash. 423,74 P. 584
• Court: Washington Supreme Court
• Parties: HENNESSY et al. v. TACOMA SMELTING & REFINING CO. et al.

74 P. 584

33 Wash. 423

HENNESSY et al. v. TACOMA SMELTING & REFINING CO. et al.

Supreme Court of Washington

December 10, 1903

Appeal from Superior Court, Pierce County; Thad Huston, Judge.

Suit by P.J. Hennessy and others against the Tacoma Smelting &amp Refining Company and others.From a judgment for defendantsplaintiffs appeal.Reversed.

Parsons, Parsons & Parsons and T. L. Stiles, for appellants.

Fogg &amp Fogg, W. H. Bogle, and Jesse Thomas, for respondents.

HADLEY, J.

Respondents move the court to dismiss this appeal.It is urged that the appeal was not taken in time, and that this court is without jurisdiction to entertain it.The reasons advanced in support of this phase of the motion were discussed in State ex rel. Hennessy v. Huston,72 P. 1015.In that case a writ of mandate was sought to require the trial court to settle and certify the statement of facts proposed in the case now before us.It was there contended that the time for appeal in this case began to run from the date of the original judgment of dismissal.But it appeared that a motion had been made to vacate the judgment on the ground that it was irregularly entered.This court held that the motion was well taken, and also that the time for appeal began to run from the date of the order denying the motion to vacate inasmuch as it involved a judgment irregularly entered.We refer to what was said in that case as decisive against respondents upon this branch of their motion to dismiss the appeal.

The motion to dismiss is further urged upon the ground that there is no merit in the further prosecution of the appeal, for the reason that there is now no actual controversy, involving real or substantial rights, between the parties to the record, and no subject-matter upon which any judgment in favor of appellants can operate.In support of this ground of the motion, it is contended that events occurring subsequently to the judgment have eliminated the controversy involved in this case.This contention is chiefly based upon a certified record filed here from the Circuit Court of the United States for the District of Washington, Western Division.That record shows that, after the original judgment of dismissal was entered in this case, some of the appellants here filed a bill in equity in the above-named court against certain of the respondents here.The bill was dismissed as being without equity against the defendants in the action.It is now urged here by respondents that the subject-matter of the two suits is the same, and that the judgment of the federal court is res judicata of the matters involved in this case.Appellants, upon the other hand, insist that there is an essential difference between the purposes of the two suits, and that the parties are not the same in each.It does appear from the record that the parties are not...