Seattle & Northern Ry. Co. v. Bowman

• Decision Date: 26 March 1907
• Citation: 89 P. 399,46 Wash. 90
• Court: Washington Supreme Court
• Parties: SEATTLE & NORTHERN RY. CO. v. BOWMAN et al.

89 P. 399

46 Wash. 90

SEATTLE & NORTHERN RY. CO. v. BOWMAN et al.

Supreme Court of Washington

March 26, 1907

Appeal from Superior Court, Skagit County; George A. Joiner, Judge.

Action by the Seattle & Northern Railway Company against the Union Wharf Company, in which Anne C. Bowman and others intervened. From an order sustaining a demurrer to the complaint in intervention and one denying leave to amend the same interveners appeal. Dismissed.

For dissenting opinion, see 96 P. 837.

Frank Quinby, for appellants.

L. C Gilman and B. O. Graham, for respondent.

ROOT J.

This action was originally brought by respondent against the defendant wharf company. Subsequently the appellants asked and were granted permission to file a complaint in intervention. To this complaint a demurrer was interposed and sustained. Appellants then asked permission to amend their complaint by adding thereto a new paragraph which was set out. This motion was by the court denied. An order sustaining the demurrer and one denying leave to amend the complaint in intervention were signed and entered by the court. No judgment was ever entered. From the orders mentioned, this appeal is taken.

Respondent moves to dismiss the appeal, upon the ground that neither of said orders is appealable. Appellants, in their reply brief admit that the order sustaining the demurrer was not appealable, but contend that the order denying leave to amend the complaint in intervention is appealable. They base their right to appeal upon subdivisions 6 and 7, § 6500, Ballinger's Ann. Codes & St., which are as follows:

'(6) From any order affecting a substantial right in a civil action or proceeding, which either, (1) in effect determines the action or proceeding and prevents a final judgment therein; or (2) discontinues the action; * * * .'

'(7) From any final order made after judgment, which affects a substantial right; * * * .'

We think this was not a final order. It did not 'prevent a final judgment,' nor necessarily 'discontinue the action.' Appellants had intervened. Their complaint had been held insufficient upon demurrer. They sought by a motion permission to amend. This permission was denied. They had the privilege of standing upon their original complaint, or of asking to have it amended in some different manner, or perhaps could have proceeded in some other way. The order of the court did not necessarily terminate their rights. This could have been done only by a judgment of dismissal, or some order or proceeding equivalent thereto. This and other courts have repeatedly held such orders to be nonappealable. In State ex rel. Small v. Fleming, 37 Wash. 531, 79 P 1115, this court said: 'The respondents move to dismiss the appeal in this case upon the ground that the same is taken or sought to be taken from an order sustaining a demurrer to appellant's complaint. This court has repeatedly held that such an order is not appealable. Potvin v. McCorvey, 1 Wash. 389, 25 P. 330; Olsen v. Newton, 3 Wash. 429, 30 P. 450; Mason County v. Dunbar, 10 Wash. 163. 38 P. 1003; Padley v. Gregg, 26 Wash. 322, 67 P. 72. The motion must be granted, and the appeal is hereby dismissed.' In Flannigan v. Lingren, 122 Wis. 445, 100 N.W. 818, the Supreme Court of that state used this language: 'It is entirely plain that the order submitted to us for review is not within the appealable class. It is not even claimed to fall within any except the first subdivision of section 3069, Rev. St. 1898: 'An order affecting a substantial right, made in any action, when such order, in effect, determines the action and prevents a judgment from which an appeal...