Rayburn v. Abrams
| Decision Date | 01 April 1909 |
| Citation | 52 Wash. 414,100 P. 751 |
| Parties | RAYBURN et al. v. ABRAMS et al. |
| Court | Washington Supreme Court |
Appeal from Superior Court, King County; R. B. Albertson, Judge.
Action by J. W. Rayburn and others against Robert Abrams and others. Judgment of dismissal, and plaintiffs appeal. On motion to dismiss appeal. Motion denied.
Hughes McMicken, Dovell & Ramsey, for respondents.
A demurrer was sustained to the plaintiffs' amended complaint. There was no request to further amend, and, after the time had expired for the amendment of the complaint, a motion was made for judgment dismissing the action. The motion stated that the plaintiffs had wholly failed to plead further, or to make any application for leave to file a further amended complaint, and that the time of said plaintiffs so to do had expired. The motion was sustained by the court, and judgment of dismissal was entered. Appeal was duly taken from this judgment, and motion is made here to dismiss the appeal, for the reason that it is not an order or judgment from which an appeal will lie; the contention being that the judgment was a judgment by default.
The respondents rely on the cases of Pacific Supply Company v. Brand, 7 Wash. 357, 35 P. 72, and Hall v Skavdale, 21 Wash. 203, 57 P. 807. In the case of Pacific Supply Company v. Brand, after the sustaining of the demurrer, the appellant asked and was granted 10 days to amend his complaint. After the lapse of that time, no proceedings having been had, the respondents moved the court for an order adjudging appellant to be in default, for a dismissal of the action, whereupon the court entered an order accordingly and dismissed the action, and it was held that an appeal would not lie from a judgment of dismissal for want of prosecution. The case of Hall v Skavdale was the same kind of a case, and simply followed the former case. The fact that the appellants in the cases above cited asked leave to amend their complaints might be some indication that they had abandoned the original complaints, and that upon the failure to file the amended complaint within the time prescribed they had abandoned the whole cause of action. Still they were under no obligation to ask leave to file an amended complaint, and the cases can scarcely be distinguished in principle from the case at bar. But, after a reconsideration of this question, we are inclined to the view that the earlier cases were wrongly decided, and that the appellants were deprived of their right of appeal without just cause.
The pertinent question is: What is the particular thing that the appellants should do to preserve their right to appeal? What does the law require them to do? If there is no duty violated, it is fundamental that no penalty should attach and that there should be no deprivation of rights. There seems to be no duty prescribed, excepting the notice of appeal, which in this case was given...
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