Maybury v. City of Seattle, 35049

CourtUnited States State Supreme Court of Washington
Citation336 P.2d 878,53 Wn.2d 716
Docket NumberNo. 35049,35049
PartiesMyra E. MAYBURY, Plaintiff, v. CITY OF SEATTLE, a municipal corporation, Defendant and Relator, Superior Court of the State of Washington for King County, Honorable George H. Revelle, Judge, Respondent.
Decision Date13 March 1959

A. C. Van Soelen, R. H. Siderius, Seattle, for plaintiff.

Weyer, Roderick, Schroeter & Sterne, Seattle, for defendant.

FOSTER, Judge.

The city of Seattle petitions for a writ of certiorari to review an interlocutory order.

Plaintiff sued the city of Seattle for personal injuries arising out of an accident on one of the city's busses. On January 5, 1959, by pretrial order, the court determined that there was no genuine issue as to any material fact with respect to the city's liability for the alleged damage sustained by the plaintiff, and limited the trial to the issue of damage alone. Although the order in question is labeled 'Order for Summary Judgment,' the title is a misnomer and is misleading for it is not a judgment but is more nearly akin to a pretrial order under Rule of Pleading, Practice and Procedure 16, 34A Wash.2d 80, limiting the issues to be tried.

The summary judgment rule, 1 so far as material, is as follows:

'(a) For Claimant. A party seeking to recover upon a claim, counter-claim, or cross-claim, or to obtain a declaratory judgment may, at any time after the expiration of the period within which the defendant is required to appear, or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. * * *

'(c) * * * A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

'(d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action, the facts so specified shall be deemed established, and the trial shall be conducted accordingly.'

The question for decision is whether this court will review, by certiorari, pretrial orders in advance of trial.

Only a final judgment may be appealed. Rule on Appeal 14, 34A Wash.2d 20, so far as material, is as follows:

'Any party aggrieved may appeal to the supreme court in the mode prescribed in these rules from any and every of the following determinations, and no others, made by the superior court, or the judge thereof, in any action or proceeding:

'(1) From the final judgment entered in any action or proceeding. An appeal from any such final judgment shall also bring up for review any order made in the same action or proceeding either before or after the judgment. * * *' (Emphasis supplied.)

Upon appeal from a final judgment, however, any interlocutory order will be reviewed pursuant to Rule on Appeal 17, 34A Wash.2d 24, which is as follows:

'Upon an appeal from a judgment, the supreme court will review any intermediate order or determination of the superior court which involves the merits and materially affects the judgment, appearing upon the record sent from the superior court.'

Thus it is clear that the claimed error of the superior court, in limiting the trial of this case to the question of damage, may be reviewed by appeal from the final judgment. Both parties agree that an order under subdivision 1(d) of the summary judgment rule, 1 limiting the issues to be tried, is not a final judgment and is, therefore, not appealable, and that the error, if any, in such an order may be reviewed upon appeal from the final judgment. The cases will be found collected in 3 Barron and Holtzoff, Federal Practice and Procedure (Rules ed.), 187, § 1241, and 6 Moore's Federal Practice (2d ed.) 2311, p56.20.

Moore declares:

'It has been pointed out that Rule 56 [Fed.Rules Civ.Proc. 28 U.S.C.A.] provides for a 'partial summary judgment', namely, a summary judgment that is not rendered upon the whole case or for all the relief asked; but that the term 'partial summary judgment' is usually a misnomer, and that a more accurate term would be an interlocutory summary adjudication. The first edition of the Treatise stated:

"Since Rule 54(a) defines 'judgment' as used in the Federal Rules as including a decree and 'any order from which an appeal lies,' it might be contended that a partial summary judgment rendered under Rule 56 is, by virtue of the definition in Rule 54(a), an appealable judgment. But this contention fails for two reasons:

"1. Rule 56(d) expressly provides the procedure for dealing with a partial summary judgment. It is clear from Rule 56(d) that a partial summary judgment is not a final judgment, [nor appealable unless this particular interlocutory order is made appealable by statute,] but is merely a pre-trial adjudication that certain issues in the case shall be deemed established for the trial of the case. Such an adjudication is on a par with the preliminary order formulating issues under Rule 16.

"2. As pointed out in the discussion of Rule 54(b), it was the policy of the draftsmen of the Federal Rules to continue the policy under the former practice of not allowing interlocutory appeals, except where specifically provided for by a statute of the United States.'

'This position if fully sustained by the courts and by the Advisory Committee. Rule 56 is not intended to affect appellate jurisdiction. It does not make any interlocutory order appealable.' 6 Moore's Federal Practice (2d ed.) 2311, p56.20.

Barron and Holtzoff state:

'Under these provisions, if the court finds that a summary judgment cannot be granted because there are genuine issues of material facts to be tried, it is empowered to save time and expense and greatly simplify the trial by making the order specified in Rule 56(d). This order is similar to the order made upon a pretrial hearing under Rule 16.' 3 Barron and Holtzoff, Federal Practice and Procedure (Rules ed.), 187, § 1241.

See, also, Borges v. Art Steel Co., Inc., 2 Cir., 243 F.2d 350; E. I. Du Pont De Nemours & Co. v. United States Camo Corp., D.C., 19 F.R.D. 495; Delta Theatres, Inc. v. Paramount Pictures, Inc., 5 Cir., 259 F.2d 563.

Counsel for the city rely strongly on Federal Glass Co. v. Loshin, 2 Cir., 217 F.2d 936, but ignore the subsequent appeal in the same case, 2 Cir., 224 F.2d 100. We find nothing in the opinion on the first appeal that is of controlling importance. While it is true that the order appealed from denied a motion for summary judgment, it was not appealable on that account but because it denied an application for a temporary injunction, which is appealable under the Federal interlocutory appeals statutes. 2 Of this case, Barron and Holtzoff say '* * * But in ...

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