Pelly v. Behneman

• Court: Washington Supreme Court
• Writing for the Court: HERMAN, J.
• Citation: Pelly v. Behneman, 168 Wash. 465, 12 P.2d 422 (Wash. 1932)
• Decision Date: 20 June 1932
• Docket Number: 23489.
• Parties: PELLY et ux. v. BEHNEMAN.

12 P.2d 422

168 Wash. 465

PELLY et ux. v. BEHNEMAN.

No. 23489.

Supreme Court of Washington, En Banc.

June 20, 1932

Appeal from Superior Court, King County; James B. Kinne, Judge.

Suit by Bernard Pelly and wife against Belle T. Behneman and husband in which named defendant filed a cross-complaint. From a judgment dismissing the cross-complaint, named defendant appeals.

Reversed.

Mark M. Litchman and Lawrence Seltzer, both of Seattle, for appellant.

Hyland Elvidge & Alvord, of Seattle, for respondents.

HERMAN J.

Plaintiffs sued to rescind a real estate contract entered into between them and defendant September 20, 1927. The suit was instituted against both defendant and her husband. They answered separately, denying, among other things, that the contract was a community obligation. Defendant Belle T Behneman's answer also contained an affirmative defense and cross-complaint relating to or alleged to have grown out of the transaction upon which the cause of action alleged in the complaint arose. The trial court entered an order March 23, 1931, sustaining a demurrer to the affirmative defense and cross-complaint of the aforesaid defendant. June 18, 1931, the trial court entered a judgment reciting that the matter had previously come on for hearing upon the demurrer of the plaintiffs to the cross-complaint and counterclaim of defendant Belle T. Behneman; that the court had theretofore entered an order sustaining the aforesaid demurrer; and that the defendant had refused to plead over. It contained the following provision: 'It is hereby ordered, adjudged and decreed that the cross-complaint and counter-claim of the defendant, Belle T. Behneman, be and the same is hereby dismissed with prejudice.' From the foregoing judgment of dismissal, defendant Belle T. Behneman has appealed.

The trial court has not yet entered any other judgment in the action, from which it follows that the judgment of dismissal appealed from was premature. Since, however, the trial court entered the judgment of dismissal 'with prejudice,' appellant was compelled to take this appeal in order to protect her right to have the merits of the ruling inquired into at the proper time under the statute. The correct procedure would have been to have entered no order other than that sustaining the demurrer.

The judgment here appealed from differs from that entered in Old National Bank v. O. K. Gold Mining Co., 19 Wash. 194, 52 P. 1065, 1066, in that the order dismissing the counterclaim in that case was not entered 'with prejudice.' The judgment here appealed from is similar to the order entered in the case of Snohomish County v. Ruff, 15 Wash. 637, 47 P. 35, 441,

in that it affected a substantial right and determined the action as to the particular matter in issue, and was in effect a judgment thereon against the appellant.

The question whether the trial court was right in sustaining the demurrer would be reviewable upon an appeal from a final judgment covering all the other issues in the case.

Rem. Comp. Stat. § 1736, provides: 'Upon an appeal from a judgment, the supreme court may review any intermadiate order or determination of the court below which involves the merits and materially affects the judgment, appearing upon the record sent up from the superior court. * * *'

The question of whether or not the trial court was correct in its conclusion that the demurrer should have been sustained is not Before us. The only question to be decided is whether the judgment dismissing the appellant's affirmative defense and cross-complaint with prejudice was prematurely entered. We hold that it was, and that its effect was to compel appellant to appeal, is the would protect her right to have the merits of the ruling inquired into at the proper time. The ruling complained of in effect requires appellant to appeal piece by piece. In Freeman v. Ambrose, 12 Wash. 1, 40 P. 381, the court said: 'We think it against the policy of the law to give the act a construction that would multiply appeals, and permit litigants to bring their causes here by piecemeal. * * *'

Reversed.

TOLMAN, C.J., and MITCHELL, PARKER, MAIN, BEALS, and MILLARD, JJ., concur.

HOLCOMB J. (dissenting).

The foregoing opinion is erroneous both in reasoning and result. Its interpretation of our decision in the Old National Bank Case, supra, is incorrect. The statute, which remains the same at present, was quoted, 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 effect determines the action or proceeding and prevents a final judgment therein; or (2) discontinues the action.'

It was then said:

'The language of the statute seems to be clear. The order must, in effect, determine the action, and prevent a final judgment, or discontinue the action. It is maintained, however, by appellant, that the orders are appealable under the announcement made by the court in Snohomish County v. Ruff, 15 Wash. 637, 47 P. 35, 441. That was an action on the official bond of the county auditor, and one among several allegations made was that the auditor was ex officio clerk of the board of county commissioners, and in such capacity had received money, and failed to account for $1,818.71. The suit was against the auditor and his sureties on his official bond. The motion to strike this allegation from the complaint was granted by the superior court, and the county appealed therefrom. All that this court said was:

"It is next contended that it was not an appealable order, but this cannot be sustained, for it affected a substantial right, and determined the action as to the particular matter in issue, and was, in effect, a judgment against the plaintiff thereon.'

'This court, in McElwain v. Huston, 1 Wash. 359, 25 P. 465, held that 'an order of the superior court striking out a portion of the defendant's answer is not an appealable order.' And in Olsen v. Newton, 3 Wash. 429, 30 P. 450, it was held that an order sustaining a demurrer to plaintiff's complaint when no final judgment was entered was not appealable. In the case at bar a demurrer to two defenses and the counterclaim contained in the answer was sustained. The statute of appeals declares that not only must a substantial right to affected, but it must, in effect, determine the action or proceeding, and prevent a final judgment. Certainly in this case the whole cause of action stated in the complaint was left unaffected, and the general denial of defendant, together with several affirmative defenses, was left unaffected after the ruling upon the demurrers. The action, therefore, was not, in effect, determined. * * * In the case of Snohomish County v. Ruff, supra, two of the judges dissented; one not stating the grounds of his dissent, and

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