Post v. City of Spokane
| Decision Date | 26 June 1902 |
| Parties | POST v. CITY OF SPOKANE. [1] |
| Court | Washington Supreme Court |
Appeal from superior court, Spokane county; Leander H. Prather Judge.
Action by Hiram L. Post against the city of Spokane. From a judgment for plaintiff, defendant appealed; and, after an order dismissing the appeal on appellant's motion, respondent moved for judgment of affirmance and for costs. Motion granted.
John P Judson and A. H. Kenyon, for appellant.
Norman Buck, Sullivan, Nuzum & Nuzum, and A. M. Craven, for respondent.
On motion of appellant the appeal in this case was dismissed at appellant's costs. The written motion to dismiss states that the motion is made to enable appellant to present a petition to the superior court to set aside and vacate the judgment appealed from, based upon the discovery of documentary evidence after the appeal was taken, which, it is alleged, establishes the fact that respondent was many years ago paid by appellant for the same service for which the judgment was rendered. Respondent now moves for a judgment in his favor, and against appellant, affirming the judgment of the court below, with costs of the appeal taxed in favor of respondent.
In Allen v. Catlin, 9 Wash. 603, 38 P. 79, the appeal was dismissed on motion of the appellant; and the respondents in that case afterwards moved for judgment in this court for the amount of the judgment in the lower court, with interest and costs added, against the appellant and the sureties in the supersedeas bond. The motion here is to the same effect with the exception that no judgment is asked against sureties; the appellant being a municipal corporation, and no appeal or supersedeas bond being, for that reason, in the record. The appellant in the case cited resisted the entry of judgment on the ground that this court, having ordered the appeal dismissed, had lost jurisdiction of the case. It was however, held that, while the appellant had the undoubted right to move to dismiss his appeal, yet by so doing he could not place the respondents in a worse situation than they would have been if if, upon the appellant's neglect to prosecute the appeal, the respondents had appeared, and, upon filing a short record, had procured a dismissal or affirmance, and, further, that since, under such circumstances, the right of respondents upon their own motion to have judgment entered here against appellant and his sureties would have been unquestioned, it followed that the same right existed under the circumstances shown by the record. In Agassiz v. Kelleher, 9 Wash. 656, 38 P 221, the same rule was followed, and the court observed that the appellant cannot deprive the respondent of his rights in the premises by a voluntary dismissal. In the opinion in the last-named case, reference is made to section 20, p. 130, Laws 1893, which provides that no dismissal which does not go to the substance of or the right to the appeal shall preclude any party from taking another appeal in the same case within the time limited by law. It was sought to dismiss that appeal without prejudice to the taking of another appeal....
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