Schulze v. Oregon R. & Nav. Co.

• Decision Date: 16 February 1906
• Court: Washington Supreme Court
• Parties: SCHULZE et ux. v. OREGON R. & NAVIGATION CO. et al.

84 P. 587

41 Wash. 614

SCHULZE et ux. v. OREGON R. & NAVIGATION CO. et al.

Supreme Court of Washington

February 16, 1906

Appeal from Superior Court, Spokane County; George W. Belt, Judge.

Action by Alexander Schulze and wife against the Oregon Railroad &amp Navigation Company and others. From a judgment in favor of plaintiff, defendants prosecute separate appeals. Appeals dismissed.

W. W. Cotton, Samuel R. Stern, and James G Wilson, for appellant Oregon R. & Navigation Co.

Wm. T Muir, J. C. Veazie, Samuel R. Stern, for appellant Burns Bros.

Munter & Jesseph, for respondents.

ROOT J.

This cause came on for trial before the judge and jury in the trial court, and resulted in a verdict for plaintiffs against all the defendants, excepting John Burns and James Burns, who were dismissed from the action before the verdict was returned. Judgment thereafter, to wit, on the 27th day of December, 1904, was entered against all of the defendants. Thereafter an appeal was taken from said judgment to this court, which appeal was dismissed, on the 28th day of April, 1905. On the 11th day of September, 1905, the appellants Oregon Railroad & Navigation Company, John Burns, and James Burns, and Burns Bros., a copartnership, filed a motion in the superior court to vacate and modify the judgment which had been entered on the 27th of December, 1904, basing their motion on several grounds. On the 13th of September, 1905, the respondents filed a motion in the superior court to amend, nunc pro tunc, the judgment entered December 27, 1904, in such a manner as to eliminate the names of James Burns and John Burns as judgment debtors, and to show that the action had been dismissed as to said James Burns and John Burns. The court denied the motion of appellants and granted that of respondents. Thereafter appellants appealed from what they term the 'judgment rendered and entered on September 20, 1905, modifying said judgment and order of December 27, 1904, and from said judgment and order of December 27, 1904, as modified.' The Oregon Railroad & Navigation Company appealed in its behalf. John Burns and James Burns join in a separate appeal, and Burns Bros., a copartnership, prosecutes still another appeal.

The respondents move to dismiss all of these appeals. They contend that the order of the court made September 20, 1905 made no change whatever in the judgment of December 27, 1904, in so far as it affected the rights or interests of the appellant, the Oregon Railroad & Navigation Company, or the appellant Burns Bros., a partnership, They contend that said order of September, 1905, could not be appealed from by James Burns a...