Rogers v. Savage

• Decision Date: 15 November 1921
• Docket Number: 16158.
• Citation: 117 Wash. 521,201 P. 768
• Court: Washington Supreme Court
• Parties: ROGERS v. SAVAGE et ux.

201 P. 768

117 Wash. 521

ROGERS v. SAVAGE et ux.

No. 16158.

Supreme Court of Washington, En Banc.

November 15, 1921

Appeal from Superior Court, King County; John L. Corrigan, Judge.

Action by Ada M. Rogers against John E. Savage and another. Judgment for the plaintiff, and defendants appeal. Reversed, with directions to sustain the defendants' demurrer.

Piles &amp Halverstadt, of Seattle, for appellants.

Van C Griffin, of Seattle, for respondent.

MACKINTOSH J.

This case was before this court on a prior appeal by the plaintiff from an order of the trial court vacating a judgment entered by the clerk on the verdict of the jury, and granting a new trial. Rogers v. Savage, 112 Wash. 246, 192 P. 13. It was there held that the record failed to show any order or instruction by the court directing the clerk not to enter a judgment on the verdict; that the judgment was properly entered by the clerk on the verdict, in accordance with the mandate of the statute (Rem. Code 431) and the trial court, having regularly denied the motion for judgment non obstante veredicto and a motion for a new trial could not thereafter reconsider the motion for a new trial, grant the same, and direct the judgment to be set aside. The order of this court was:

'Reversed and remanded to the trial court, with direction to set aside the order granting the respondent's motion to set aside the judgment, and also to set aside the order of December 18, 1919, vacating and setting aside the order of November 7, 1919, denying the motion for a new trial.'

The trial court complied with the ruling of this court upon the going down of the remittitur, and set aside both orders on September 25, 1920, and thereafter, on October 4, 1920, the defendants gave notice of appeal to this court from the original judgment, which was entered by the clerk on November 7, 1919.

The plaintiffs, respondents here, moved to dismiss the appeal because not taken within the statutory time from the rendition of the judgment appealed from. The defendants, appellants here, first contend that the prior decision of this case has been overruled by this court in Buckley v. Harkens, 195 P. 250, but in that case the record clearly shows, and this court found, that the trial court instructed the clerk to withhold the entry of the judgment on the verdict until its further order; hence the two cases are clearly distinguishable.

It is next contended that, the judgment of the trial court setting aside the judgment entered by the court having been annulled by this court on appeal, the statutory time for appeal from the first judgment begins to run only from the time the decision of this court becomes effective. The statute (Rem. Code, § 1718) provides:

'In civil actions and proceedings an appeal from any final judgment must be taken within ninety days after the * * * entry of such final judgment.'

And it would seem at first through that this is conclusive, though to so construe the statute would work great hardship in such a case as this, because the appellants, who were the judgment debtors, would be, under the circumstances of this case, denied the right of appeal, which the statute clearly intends that they shall have. The judgment against them from which they now appeal was rendered on November 7, 1919. It was set aside by the court on December 6, 1919; hence within 30 days, or before the time for appeal had expired, there became nothing from which they could appeal, and, the court having made an order granting their motion for a new trial, all reason for appeal upon their part ceased. The plaintiff, however, feeling aggrieved by the court's order of December 6, 1919, setting aside the judgment, exercised her right to take an appeal from that order, which appeal was successful, resulting in a holding that the order of December 6, 1919, was in excess of the trial court's jurisdiction, and therefore void, and a reinstatement of the judgment of November 7, 1919. This decision was filed on August 18, 1920, and the remittitur putting it into effect reached the trial court on September 26, 1920, when for the first time appellants were apprised of the fact that there was something from which they could appeal. The right of, or reason for, an appeal being suspended by the setting aside of the judgment, the time for appeal should likewise be held to be suspended during the same period. Authorities are not numerous upon this subject, and the industry of counsel has brought to our attention only the following:

'Where the right of appeal is suspended, an appeal is in time if taken within the statutory period after the right is restored. Therefore, where a judgment of the lower court substituted by it in place of one previously rendered has been annulled on appeal, there is the statutory period from the time of this decision of the appellate court in which to appeal from the first judgment.' 2 R. C. L. 105, § 80.

This text seems to be based upon only the case of Flint v. Cuny, 7 La. 379, 26 Am. Dec. 505, which squarely so holds. In the absence of any contrary authority, and in the interests of justice, we feel justified in adopting the rule as quoted, and the motion to dismiss is therefore denied.

The errors assigned upon the merits bring up only the following:

Plaintiff by her first or original complaint, alleged as one cause of action:

'That on or about December 29, 1918, the defendants, without just cause or provocation, and acting together and jointly, assaulted and attacked plaintiff, pulled her hair, struck her many angry and violent blows upon the head and in her face, and upon her arms, and wrenched and twisted her arms in a most cruel manner, causing her most excruciating pain, humiliation, and mental anguish.

III. 'That on or about the 29th day of December, 1918, at the Hotel New Cecil, in Seattle, King county, Wash., said defendants, and each of them in the presence of plaintiff and other people maliciously spoke of and concerning the plaintiff herein defamatory words and language, which injured and impaired the reputation of plaintiff for virtue and chastity, and which exposed her, or tended to expose her, to contempt and ridicule, the said plaintiff then and there being a female person over the age of 12 years.'

The defendants moved against this complaint, asking that it be made more definite and certain by separately and...