Mogelberg v. Calhoun

• Decision Date: 16 February 1917
• Docket Number: 13571.
• Citation: Mogelberg v. Calhoun, 94 Wash. 662, 163 P. 29 (Wash. 1917)
• Court: Washington Supreme Court
• Parties: MOGELBERG v. CALHOUN et al.

163 P. 29

94 Wash. 662

MOGELBERG v. CALHOUN et al.

No. 13571.

Supreme Court of Washington

February 16, 1917

Department 2. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by G. W. Mogelberg against C. E. Calhoun and others, wherein Calhoun filed a cross-complaint against one Gassar, a defendant. From judgments for plaintiffs, and for Gassar on Calhoun's cross-complaint, defendants Calhoun and another appeal. New trial ordered for the appealing defendants as against plaintiff, and cause remanded for further proceedings not inconsistent with the views of the opinion, and appeal from judgment on the cross-complaint dismissed.

Geo. McKay and H. S. Noon, both of Seattle, for appellants.

Beechler & Batchelor and Byers & Byers, all of Seattle, for respondent.

PARKER J.

The plaintiff, Mogelberg, commenced this action in the superior court for King county seeking recovery of damages for personal injuries which he alleged resulted to him from the negligence of the defendants Calhoun and Gassar in the driving of their respective automobiles and causing them to come into collision at the intersection of Twentieth avenue and Union street in Seattle while he was a passenger for hire upon defendant Calhoun's automobile. Mrs. Calhoun was made a defendant evidently because of her alleged community interest in the operation of the automobile which was being driven by her husband as a carrier of passengers for hire. The Pacific Coast Casualty Company was made a defendant because it had executed a bond as security with the defendant Calhoun as principal in compliance with chapter 57, p. 227 Laws of 1915 (Rem. Code, § 5562-37 et seq.), relating to motor vehicles as passenger carriers in cities of the first class. The trial resulted in verdict and judgment in favor of plaintiff Mogelberg, awarding him $2,500 against the defendants Calhoun and wife and the casualty company, from which they have appealed to this court. Defendant Gassar was exonerated from all liability to plaintiff Mogelberg, and there was also rendered in defendant Gassar's favor verdict and judgment upon a cross-complaint for damages filed against him in this action by his codefendant Calhoun. The issue so raised was tried together with the issue upon plaintiff Mogelberg's claim for damages against all the defendants, without objection. The defendants Calhoun and wife gave notice of appeal from this judgment in favor of Gassar.

Counsel for defendant Gassar moved to dismiss the appeal attempted to be taken from the judgment rendered in his favor upon the ground that it never was perfected by the filing of a bond as required by Rem. Code, § 1721. The only bond ever filed in the cause is one executed by defendants Calhoun and wife and the casualty company as principals with a surety, for the benefit of plaintiff Mogelberg; defendant Gassar not being mentioned or referred to therein in any manner as beneficiary. This bond plainly was intended only to perfect the appeal of defendants Calhoun and wife and the casualty company from the judgment rendered against them in favor of plaintiff Mogelberg. This judgment, as we shall presently see, is a separate judgment from that rendered in favor of defendant Gassar upon the cross-complaint of his codefendant Calhoun. But even if this were not so, the bond would seem ineffectual to perfect an appeal as against defendant Gassar it not being given for his benefit by naming him as a beneficiary therein. Rem. Code, § 1721, provides that:

'An appeal in a civil action or proceeding shall become ineffectual for any purpose unless at or before the time when the notice of appeal is given or served, or within five days thereafter, an appeal bond to the adverse party conditioned for the payment of costs and damages as prescribed in section 1722, be filed with the clerk of the superior court, or money in the sum of two hundred dollars be deposited with the clerk in lieu thereof. * * *'

This provision has been given full force and effect by this court. Bruhn v. Steffins, 66 Wash. 144, 119 P. 29; Heine v. Hall, 84 Wash. 260, 146 P. 577.

We conclude therefore that the appeal attempted to be taken from the judgment rendered in favor of Gassar as against his codefendant Calhoun should be dismissed. We have not overlooked the act of 1915 (Laws 1915, p. 303, § 9) relating to the curing of defects in appeal bonds reading as follows:

'When a notice of appeal to the Supreme Court shall have been served and filed in due time and an appeal bond shall have been given within the time required by law, no appeal shall be dismissed because of any defect in the appeal bond, nor because an appeal bond which is given both as a cost bond and as a bond on supersedeas shall be insufficient by reason of the amount, but the appellant shall in all cases be allowed to give a new bond within such time and upon such terms as the court may order.' Rem. Code, § 1730-9.

It seems quite plain to us that this provision has no reference to cases where no bond whatever has been filed, as in this case. In so far as the judgment rendered in defendant Gassar's favor upon the cross-complaint of his codefendant Calhoun is concerned, there never was any bond, defective or otherwise, given to perfect that appeal, and therefore none to cure by the giving of a new bond. The appeal from the judgment rendered in defendant Gassar's favor upon the cross-complaint of his codefendant Calhoun is dismissed.

Counsel for plaintiff Mogelberg move to dismiss the appeal taken by defendants Calhoun and wife and the casualty company from the judgment rendered in his favor against them upon the ground that no appeal bond has been executed and filed by them as required by Rem. Code, § 1721. It is argued that defendant Gassar is an adverse party in the cause, and that therefore the appeal bond above mentioned given by defendants Calhoun and wife and the casualty company is insufficient to perfect their appeal because it fails to name defendant Gassar as well as plaintiff Mogelberg as a beneficiary. Is defendant Gassar an adverse party in the cause in so far as the rights of defendants Calhoun and wife and the casualty company are here concerned? The correct answer to this question is manifestly the key to the correct disposition of plaintiff Mogelberg's motion to dismiss the appeal of defendants Calhoun and wife and the casualty company.

In the commencement of this action by plaintiff Mogelberg, it was not contemplated by him that there would be any issue in the cause other than his claim for damages against defendants Calhoun and wife and Gassar and his claim against the casualty company upon its bond. It was defendant Calhoun who brought into the case his claim for damages against his codefendant Gassar growing out of the same accident upon which plaintiff Mogelberg rested his claim against all the defendants. These two main issues were, without objection, tried at the same time, before the same court and jury, notwithstanding their separateness. Not only were they two separate causes, in substance, but they were so determined and disposed of by both the jury and the trial court. At the conclusion of the trial, two verdicts were returned and separate judgments rendered thereon, as evidenced by the following journal entry then made:

' G. W. Mogelberg, Plaintiff, v. Charles Gassar et al., Defendants, No. 111564, Tuesday, January 18th, 1916, Hon. A. W. Frater, Judge.

'At 9:30 a. m. the jury returns into open court the following verdicts:

'We, the jury in the above-entitled cause do find for the plaintiff and against C. E. Calhoun and Mary I. Calhoun, his wife, in the sum of $2,500. And against Pacific Coast Casualty Company, a corporation, in the sum of $2,500. Charles B. Brown, Foreman.

'We, the jury in the above-entitled cause, do find for the defendant, Charles Gassar and against the defendant C. E. Calhoun upon his cross-complaint. Charles B. Brown, Foreman.

'The jury is polled, eleven jurors answering that the verdicts are their personal verdicts and all jurors answering that the verdict is the verdict of the jury.

'The verdicts are received and filed and the jurors excused.

'It is ordered that plaintiff have judgment against the defendants, C. E. Calhoun and Mary I. Calhoun, his wife, and Pacific Coast Casualty Company, a corporation, and each of them in the sum of $2,500 with costs.

'It is further ordered that defendant Charles Gassar have judgment against the defendant, C. E. Calhoun cross-complainant for his costs.

'It is further ordered that defendant Charles Gassar have judgment against plaintiff for his costs in that behalf expended.'

It is true that these entries appear under the title of the case entered but once, but the verdicts and judgments are no loss separate because of being so entered. This is not a case in equity wherein a number of equitable rights of numerous persons are being determined by a decree, but it is a case wherein nothing but the purest of legal rights triable by jury are being determined, to wit, the question of plaintiff Mogelberg's right to recover damages against all of the defendants and the question of defendant Calhoun's right to recover damages against his codefendant Gassar; manifestly two controversies as separate and distinct as if separate actions and tried separately.

Within the time prescribed by statute, counsel for defendants Calhoun and wife and the casualty company served upon counsel for plaintiff Mogelberg, and filed in the superior court notice of appeal 'from the final judgment rendered in this action and from each and every part of said judgment.' This notice was addressed to plaintiff Mogelberg only, and was manifestly intended only as a notice of appeal from the judgment rendered in Mogelberg's favor against ...