Hibbard, Spencer, Bartlett & Co. v. De Lanty

• Decision Date: 07 February 1899
• Court: Washington Supreme Court
• Parties: HIBBARD, SPENCER, BARTLETT & CO. v. DE LANTY.

56 P. 34

20 Wash. 539

HIBBARD, SPENCER, BARTLETT & CO. v. DE LANTY.

Supreme Court of Washington

February 7, 1899

Appeal from superior court, Island county; James G. McClinton Judge.

Action by Hibbard, Spencer, Bartlett & Company against Richard De Lanty for failure to execute legal process as sheriff. From an order vacating and setting aside a verdict and judgment for defendant, and granting a new trial, and from an order refusing to set aside the former order, plaintiff appeals. Dismissed.

W. F Hays, for appellant.

A. R Coleman, for respondent.

PER CURIAM.

On the 2d day of December, 1896, in the superior court of the state of Washington for Island county, the appellant obtained a money judgment against the respondent, entered on the verdict of a jury. On the 11th day of February, 1898, upon the application of respondent, and after notice to appellant, the superior court vacated and set aside the verdict and judgment, and granted a new trial of the action. On the 7th day of April, 1898, the appellant filed a written motion asking the court to vacate and set aside its order of February 11, 1898; being the order vacating and setting aside the verdict and judgment, and granting a new trial. This motion was heard and denied by the court on the 10th day of May, 1898. On the last date the appellant served upon respondent a notice of appeal from the order of February 11th, and on the 13th of May executed a bond to perfect the appeal, which bond was filed with the clerk of the court of Island county on the 17th day of the same month. The notice of appeal was not filed with the clerk, but appears here by stipulation of the parties. On the 4th day of August, 1898, the appellant served another notice of appeal in which it is recited that an appeal is taken from the order of February 11, 1898, and also the order of the 10th day of May, 1898. No appeal bond accompanied this latter notice. The respondent moves to dismiss the appeal for want of jurisdiction in this court.

The order refusing to set aside the order vacating the judgment is not an appealable order. Any reason that could be shown for setting aside the order could have been and should have been shown in opposition to the application made by the respondent to vacate the judgment. Having had due notice of that application, and having failed to satisfy the lower court on the hearing that no sufficient reason existed for vacating the judgment, ...