Northern Counties Inv. Trust v. Hender

• Decision Date: 13 September 1895
• Citation: 41 P. 913,12 Wash. 559
• Parties: NORTHERN COUNTIES INVESTMENT TRUST, LIMITED, v. HENDER ET UX.
• Court: Washington Supreme Court

41 P. 913

12 Wash. 559

NORTHERN COUNTIES INVESTMENT TRUST, LIMITED, v. HENDER ET UX.

Supreme Court of Washington

September 13, 1895

Appeal from superior court, Garfield county; R. F. Sturdevant Judge.

Action by the Northern Counties Investment Trust, Limited, against Henry Hender and wife, to foreclose a mortgage. Judgment for defendants. Plaintiff appeals. Appeal dismissed.

Dunbar J., dissenting.

S. G. Cosgrove and M. M. Godman, for appellant.

M. F Gose, for respondents.

ANDERS J.

The respondents move to dismiss the appeal, for the alleged reason that the court has no jurisdiction to hear and determine the matters in controversy. The specific grounds for dismissal set forth in the motion are that no notice of appeal has been given, served, or filed herein as by law required; that the appeal bond is not in form or substance such as to render the appeal effectual; that the pretended bond filed herein is void, because none of the makers of said bond have justified as by law required, or at all; and that the guardian ad litem of defendant, Henry Hender, has not been made a party to the appeal, and no notice of the appeal has been served upon him.

It is provided in section 4 of the act of March 8, 1893, relating to appeals to the supreme court (Laws 1893, p. 120), that "a party desiring to appeal to the supreme court under the provisions of this act may, by himself or his attorney give notice in open court or before the judge, if the judgment or order appealed from is rendered or made at chambers, at the time when such judgment or order is rendered or made, that he appeals from such judgment or order to the supreme court, and thereupon the court or judge shall direct the clerk to make an entry of such notice in the journal of the court. If the appeal be not taken at the time when the judgment or order appealed from is rendered or made, then the party desiring to appeal may, by himself or his attorney, within the time prescribed in section three of this act, serve written notice on the prevailing party or his attorney that he appeals from such judgment or order to the supreme court, and within five days after the service of such notice shall file with the clerk of the superior court the original or a copy of such notice, with proof or the written admission of the service thereof, and thereupon the clerk shall enter such notice, with the proof or admission of service thereof, in the journal of the court." It is conceded that the notice of appeal was given in open court, and the record shows that the notice was entered in the journal of the court by order of the judge. It was given in strict conformity to the statute, and there is no objection to it on the ground of informality. But the respondents insist that the notice was ineffectual, because it was not given at the time the judgment appealed from was rendered or made, and because said judgment was not rendered at chambers, the latter ground being based on the untenable proposition that the notice in open court or before the judge is limited to judgments or orders rendered or made at chambers. The action was brought to foreclose a mortgage, and was tried by the court without a jury. The record discloses the fact that the appeal bond and the motion for a new trial were filed on September 12, 1894. It further appears that the notice of appeal was given at the time when the motion for a new trial was overruled, and when the court ordered judgment to be entered in favor of the defendants in accordance with the findings of fact and conclusions of law theretofore made. The statute, it will be observed, requires the notice of appeal, if given in open court, to be given at the time when the judgment or order appealed from is rendered or made, and the question is, when was the judgment and decree rendered in this case? The court made findings of fact and conclusions of law in accordance with section 379 of the Code of Procedure, which is as follows: "Upon the trial of an issue of fact by the court, its decision shall be given in writing and filed with the clerk. In giving the decision, the facts found and the conclusions of law shall be separately stated. Judgment upon the decisions shall be entered accordingly." The findings and the conclusions of the court, as well as the judgment based thereon, were dated September 11, 1894; and it is urged on behalf of the respondents that the judgment was rendered on that date, and that, therefore, the notice which was not given at that time was too late to effect an appeal. The record, however, discloses that neither the findings of fact, conclusions of law, nor judgment were filed until the 12th of September; and, inasmuch as the statute requires the decisions of the court in cases tried without a jury to be given in writing and filed with the clerk, it follows that the judgment was not rendered until it was filed in accordance with the order of the court. It is not the mere signing of the findings, but the filing, that is essential to the decision contemplated by the statute. The action was not determined until the findings and judgment, or at least an order for a judgment, were filed with the clerk. This is evident from the fact that, at any time before filing, the findings might have been changed by the court, or new findings substituted. See Comstock Quicksilver Min. Co. v. Superior Court, 57 Cal. 625, and Adams v. Nellis, 59 How. Prac. 385. As the notice of appeal was given at the time when the court ordered judgment to be entered, it follows from what we have said that it was given within the time contemplated by law; that is, when the judgment was actually rendered.

But we are forced to the conclusion that the objection to the appeal bond is well taken, and that the appeal was not perfected in the manner prescribed by law. The bond filed by appellant in the court below was properly conditioned to effect the appeal, but as it was not accompanied by the affidavit of the sureties required by section 10 of the act of March 8, 1893, or by any affidavit whatever, it was absolutely without force, and was therefore, in effect, no bond at all. Section 6 of the act above mentioned 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 seven of this act, 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...