Lauridsen v. Lewis

• Decision Date: 19 November 1907
• Citation: 47 Wash. 594,92 P. 440
• Parties: LAURIDSEN v. LEWIS.
• Court: Washington Supreme Court

92 P. 440

47 Wash. 594

LAURIDSEN v. LEWIS.

Supreme Court of Washington

November 19, 1907

Appeal from Superior Court, Clallam County; Lester Still, Judge.

Action by G. M. Lauridsen against F. S. Lewis.From a judgment denying both parties relief, defendant appeals.Motion by plaintiff to dismiss appeal, and by defendant to strikeplaintiff's statement of facts.Motion to dismiss denied and motion to strike granted.

Trumbull & Trumbull, for appellant.

A. W Buddress, for respondent.

HADLEY C.J.

Respondent moves to dismiss this appeal, first, on the ground that the action is one at law for the recovery of money in which the original amount in controversy is less than $200.The appellant, as defendant in the action, interposed a counterclaim for the sum of $244.'When the defendant files a counterclaim in the trial court and then appeals from a judgment against him he occupies substantially the position of a plaintiff appealing from an adverse judgment, and therefore the amount so claimed affirmatively by him becomes the appellate amount in controversy.'1 Enc. Pl. & Pr.p. 734.A number of authorities are cited in support of the above text.See also, Sorrill v. McGougan(Wash.)87 P. 825.It is, however, further contended that the allegations of the answer do not constitute a counterclaim.We are not willing at this time to say that the facts stated will not support a counterclaim, and that we are without jurisdiction for that reason.Inasmuch as there was a trial upon the facts, we think the facts, both alleged and found, must be considered together before finally determining upon their sufficiency, and to do so calls for an examination of the appeal upon its merits.

The second ground of respondent's motion is that the appeal is premature, and is not from a final judgment.Findings of facts and conclusions of law were entered on July 5, 1907.The findings were generally in favor of the appellant upon his counterclaim, but the conclusions of law were that the counterclaim is barred by the statute of limitations.On the same day that the findings were entered judgment was also entered, to the effect that both parties are denied recovery by reason of the bar of the statute of limitations.On July 25th, respondent filed what he called a 'motion to strike findings, conclusions, and judgment.'The transcript discloses no order of the court upon the above motion, and it is apparently still pending.The appeal of appellant was taken on August 2d, after the filing of the above motion.We are not aware of any authorized procedure for the mere striking of a judgment.Perhaps the motion is in legal effect to vacate for irregularity that part of the judgment which denies respondent the right to recover.It is necessarily limited to the vacation of that part of the judgment inasmuch as respondent has no interest in vacating that part which is in his favor and which denies recovery to appellant.The appellant does not, however, appeal from that part of the judgment which respondent seeks to vacate, but from that part only which denies to appellant the right of recovery.Appellant's appeal was therefore not taken pending a motion to vacate the real judgment from which he appealed.Respondent insists that the case comes within the rule of State ex rel. Hennessy v. Huston,32 Wash. 154, 72 P. 1015, andHennessy v. Tacoma Smelting, etc., Co.,33 Wash. 423, 74 P. 584, where it was held that,...