Seattle & M. Ry. Co. v. Johnson

• Decision Date: 31 July 1893
• Citation: 7 Wash. 97,34 P. 567
• Court: Washington Supreme Court
• Parties: SEATTLE & M. RY. CO. v. JOHNSON ET AL.

34 P. 567

7 Wash. 97

SEATTLE & M. RY. CO. v. JOHNSON ET AL.

Supreme Court of Washington

July 31, 1893

Appeal from superior court, King county; Richard Osborn, Judge.

Proceeding by the Seattle & Montana Railway Company against Thomas Johnson and others to condemn land of defendants. From an order denying a motion to vacate a judgment for defendants on the verdict of a jury impaneled to assess damages, plaintiff appeals. Reversed.

Burke Shepard & Woods, for appellant.

White &amp Munday, for respondents.

ANDERS, J.

The appellant instituted proceedings in the superior court of King county to condemn a right of way for railroad purposes over certain lands owned by Thomas Johnson and Ann Johnson his wife, in which proceeding some thirty other parties were made defendants by reason of their having some lien upon, or interest in, said premises. A jury was impaneled to assess the damages, and a verdict was returned against the railroad company, and in favor of the defendants collectively, for the sum of $3,000. A motion for a new trial was filed by the petitioner and overruled, and some time there after judgment for said sum of $3,000 was entered in favor of Thomas Johnson and Ann Johnson, his wife, only. No appeal was taken from the judgment, and the amount of damages awarded by the jury together with the costs of the proceeding, was paid into court by the petitioner. Subsequently, however, the railroad company filed a petition to vacate and set aside the judgment and decree of appropriation, and to substitute therefor a judgment in conformity with the verdict of the jury and the statute respecting decrees of appropriation of land in condemnation proceedings. The respondents Thomas and Ann Johnson filed an answer to the petition, and a hearing was had upon the petition and answer, resulting in a denial by the court of the relief sought by the petitioner. From that order of the court the petitioner appealed to this court.

No bill of exceptions or statement of facts appears in the record and for that reason the respondents Thomas Johnson and Ann Johnson move to strike from the transcript all thereof except the petition of appellant to condemn the premises described in the petition, and the decree entered thereon, and also to dismiss the appeal, for the same and other reasons which, in our opinion, are not well founded. This court has heretofore held that an order denying a petition or motion to vacate a judgment is a final order in such proceeding, and therefore appealable, ( Railroad Co. v. Black, 3 Wash. St. 327, 28 P. 538;) and the appeal will not be dismissed on the ground that the order appealed from was not final. The objection that the notice of appeal was not served on all of the respondents may be sufficiently answered by the observation that the notice seems to have been served on all of the respondents who appeared in the proceeding, and that was all that the statute required. Code Proc. § 1406. ^[1]

The appeal cannot be dismissed on the ground that the bond is defective. If the appeal bond was deemed insufficient, a motion should have been filed in this court to discharge it, in accordance with section 1421 of the Code of Procedure. ^[2]

While it may be true that matters are included in the transcript which cannot be considered here, for the reason that they are not embodied in a bill of exceptions or statement of facts yet the facts legitimately in the record are sufficient to enable us to determine the only question presented for our determination, namely, the regularity of the judgment and decree, and therefore neither a...