Old Nat. Bank v. O.K. Gold-Min. Co.

• Decision Date: 01 April 1898
• Citation: 19 Wash. 194,52 P. 1065
• Parties: OLD NAT. BANK v. O. K. GOLD-MIN. CO.
• Court: Washington Supreme Court

52 P. 1065

19 Wash. 194

OLD NAT. BANK v. O. K. GOLD-MIN. CO.

Supreme Court of Washington

April 1, 1898

Appeal from superior court, Spokane county; William E. Richardson Judge.

Action by the Old National Bank against the O. K. Gold-Mining Company. The answer set up a counterclaim and several affirmative defenses, two of which, and to the counterclaim demurrers were sustained, and defendant appealed. George J Goodhue and another, interveners by leave of court, were afterwards dismissed on their own motion. Dismissed.

Farwell & McDonald and H. M. Stephens, for appellant.

Jay H. Adams, for respondent.

REAVIS J.

Two appeals were taken in this case. Respondent commenced an action to recover judgment on its several promissory notes, alleged to have been executed by appellant. On the 4th of August, 1897, George J. and H. M. Goodhue filed their petition for leave to intervene, and on the same day an order of court was entered, allowing the intervention. To the complaint stating the three several causes of action on the promissory notes, appellant, for answer, first denied every allegation of the complaint except the incorporation of respondent and appellant corporations. Appellant then set up a number of separate defenses, and also a counterclaim, claiming damages and a judgment against respondent. To each defense and counterclaim, plaintiff interposed a demurrer. The demurrer was overruled as to four defenses, and sustained as to two, and sustained against the counterclaim, and the counterclaim dismissed. The court also sustained a motion of respondent requiring appellant to elect between defenses, or upon which defense it would proceed to trial, for the reason that the court deemed defense No. 1 inconsistent with the others. The order sustaining the demurrer to the two defenses and the counterclaim was filed on the 28th of October, 1897, and the defendant thereupon gave notice in open court of appeal. A reply was filed, and the case put at issue. On November 23d the court, on its own motion, entered an order dismissing the counterclaim. On November 28th the court made an order sustaining the motion of the plaintiff requiring defendant to elect on which of the inconsistent defenses it would go to trial. On November 27th, appellant filed a second notice of appeal, accompanied by a bond, from the several orders heretofore mentioned. Respondent has filed a motion to dismiss the appeal on the grounds that it affirmatively appears from the record that this court is without jurisdiction to the appeals; that the record is silent as to any notice of appeal being given to the intervening defendants, Goodhues, and that no bond was filed in pursuance of the notice of appeal given in open court on the 28th day of October from the order of the court sustaining the demurrer to the counterclaim and the two defenses, and, therefore, that the appeal was ineffectual after 15 days; and because none of the orders appealed from are the subjects of appeal, within the purview of the statute.

From the supplemental record brought here by appellant, it appears that a bond on appeal was duly executed and filed within five days after the notice of appeal given in court on the 28th of October, 1897. It also appears that the interveners Goodhues, were dismissed from the action at their own request on the 27th day of December, 1897. But this dismissal of the interveners after the appeal was taken would not cure the failure to serve them with notice while they were still parties who had appeared in the cause. Then the second notice of appeal was defective in its service, in not serving all who had appeared in the cause, and for that reason the appeal founded thereon must be dismissed. But the first notice in open court was duly perfected, and the record brought here brings up the appeal from the order of the court sustaining the demurrer to the two defenses and to the counterclaim, and presents the question whether such orders are the subject of an appeal. The statute (Laws 1893, p. 119, § 1, subd. 6) is as follows, which provides that an appeal may be taken "from any order affecting a substantial right in a civil action or proceeding, which either (1) in...