Sipes v. Puget Sound Elec. Ry. Co.

• Decision Date: 15 October 1908
• Citation: Sipes v. Puget Sound Elec. Ry. Co., 97 P. 723, 50 Wash. 585 (Wash. 1908)
• Court: Washington Supreme Court
• Parties: SIPES v. PUGET SOUND ELECTRIC RY. CO. et al.

97 P. 723

50 Wash. 585

SIPES v. PUGET SOUND ELECTRIC RY. CO. et al.

Supreme Court of Washington

October 15, 1908

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by Henry Sipes against the Puget Sound Electric Railway Company and another. Judgment for plaintiff against the railway company alone, and it appeals; and plaintiff moves to dismiss the appeal. Motion denied.

James B. Howe, Hugh A. Tait and A. J. Falknor, for appellant.

John E Ryan, for respondent.

CROW J.

This action was commenced by Henry Sipes against the Puget Sound Electric Railway Company, a corporation, and W. S. Dimmock to recover damages for personal injuries. The defendants appeared by the same attorneys, but answered separately. On a jury trial a verdict was returned upon which judgment was entered in favor of the plaintiff and against the Puget Sound Electric Railway Company for $7,000 damages, and judgment was also entered in favor of the defendant W. S. Dimmock against the plaintiff, Henry Sipes, for costs. The defendant the Puget Sound Electric Railway Company has appealed. The respondent has moved this court to dismiss the appeal for the reasons that no notice thereof has been served upon the defendant W. S. Dimmock, who appeared and defended the action, that he has not joined in the appeal, and that this court has no jurisdiction.

The respondent basis his motion to dismiss on section 6504 Ballinger's Ann. Codes & St. (Pierce's Code, § 1052), which provides that, 'when the notice of appeal is not given at the time when the judgment or order appealed from is rendered or made, it shall be served * * * upon all parties who have appeared in the action or proceeding.' He insists that, the defendant Dimmock having appeared, the requirement of the statute for service upon him is jurisdictional, and that failure to make such service vitiates the appeal. In support of this contention he cites the following cases, decided by this court prior to the enactment of chapter 49, p. 79, Sess. Laws 1899, which amends section 19 of the act relating to appeals to the Supreme Court (Sess. Laws 1893, p. 129, c. 61), and to which reference is hereinafter made: Cline v. Mitchell, 1 Wash. 24, 23 P. 1013; Nelson v. Territory, 1 Wash. 125, 23 P. 1013; Jones v. Sander, 2 Wash. 329, 26 P. 224; Cadwell v. First National Bank, 3 Wash. 188, 28 P. 365; National Bank v. Central Hotel Company, 4 Wash. 642, 30 P. 671; Traders' Bank v. Bokien, 5 Wash. 777, 32 P. 744; Johnson v. Lighthouse, 8 Wash. 33, 35 P. 403; Dewey v. South Side Land Company, 11 Wash. 210, 39 P. 368; Fairfield v. Binnian, 13 Wash. 1, 42 P. 632; Casey v. Oakes, 13 Wash. 38, 42 P. 621; Gray's Harbor Commercial Co. v. Wotton, 14 Wash. 87, 43 P. 1095; Cornell University v. Denney Hotel Co., 15 Wash. 433, 46 P. 654; Pacific Coast Trading Co. v. Bellingham Base Ball Ass'n, 18 Wash. 245, 51 P. 382; Hopkins v. Satsop Ry. Co., 18 Wash. 679, 52 P. 349; Old National Bank v. O. K. Gold Mining Co., 19 Wash. 194, 52 P. 1065; Home Savings & Loan Ass'n v. Burton, 20 Wash. 688, 56 P. 940; Smith v. Beard, 21 Wash. 204, 57 P. 796.

The appellant contends that, under the express provisions of sections 6503 and 6504, Ballinger's Ann. Codes & St. (Pierce's Code, §§ 1051, 1052), Dimmock is not a necessary party to this appeal. Section 6503 provides: '* * * If the appeal be not taken at the time when the judgment or order appealed from is rendered or made, then the party desiring to appeal may, by himself or his attorney, within the time prescribed in section 6502, serve written notice on the prevailing party or his attorney that he appeals from such judgment or order to the Supreme Court, and within five days after the service of such notice he shall file with the clerk of the superior court the original or a copy of such notice, with proof or the written admission of the service thereof, and thereupon the clerk shall enter such notice, with the proof or admission of service thereon, in the journal of the court. The giving or service of a notice of appeal as prescribed in this section shall effect the appeal. * * *'

This language is susceptible only of the construction that the service of notice of appeal on the prevailing party, who in this case was the respondent, and not the defendant Dimmock, followed by the filing of proof of such service within five days thereafter, is all that is necessary in the matter of notice and service, to effect the appeal and give this court jurisdiction. Dimmock was a successful litigant. There was no order from which he could appeal, and we fail to understand how the neglect to serve him with appellant's notice deprived any party of benefits to be derived from the appeal, or prevented the respondent from perfecting an appeal in his own behalf against the defendant Dimmock. While it is true that section 6504 directs that service be made upon all parties who have appeared, it is apparent that the sole purpose of such notice to appearing parties, other than the prevailing one mentioned in section 6503, was that, in the event of their having an interest in the appeal, they might join therein, if they so desired. In other words, the object of the statute was to require all interested parties to jointly prosecute their appeals and cross-appeals, instead of bringing them to this court by piecemeal. It is true that, in some of the earlier cases above cited by respondent, this court technically enforced section 6504 by dismissing appeals for failure to serve notice on all parties who had appeared. A more liberal construction, however, should now be placed upon said section, by applying thereto the provisions of chapter 49, p. 79, Sess. Laws 1899, since enacted, which are that where, upon the hearing of a motion to dismiss an appeal which 'does not go to the substance of the appeal, or to the right of appeal, and the court shall be of the opinion that the moving party can be compensated in costs or by the imposition of other terms for any delay of the appellant which is made the ground of any such motion, * * * the court in its discretion may deny the motion on such terms as may be just. The court shall upon like terms allow all amendments in matters of form curative of defects in proceedings, to the end that substantial justice be secured to the parties, and no appeal shall be dismissed for any informality or defect in the notice of appeal, the appeal bond, or the service of either thereof, * * * if the appellant shall forthwith upon order of the Supreme Court perfect the appeal.' This statute is broad in its scope, and while, in State v. Seaton, 26 Wash. 305, 66 P. 397, we have held that it did not relieve an appeal from jurisdictional defects arising out of failure to comply with certain mandatory provisions, we have since its enactment granted relief in other cases to appellants from defects which, not being jurisdictional, did not affect the substance of the appeal, or the right to appeal. See Brown v. Calloway, 34 Wash. 175, 75 P. 630; James v. James, 35 Wash. 655, 77 P. 1082; Westland Publishing Company v. Royal, 36 Wash. 399, 78 P. 1096; Reynolds v. Reynolds, 42 Wash. 107, 84 P. 579. The condition of the record before us shows that the failure of the appellant to serve its notice of appeal upon Dimmock does not go to the substance of the appeal, nor to the right of appeal. Dimmock was satisfied with the judgment in his favor. Not being an aggrieved party, he could not appeal. Failure to serve him deprived him of no rights; neither did it prevent the respondent, Sipes, from appealing as against Dimmock, either by original or cross-appeal. How, then, would the presence of Dimmock aid this court in disposing of the issues arising on this appeal between the respondent, Sipes, and the appellant, the Puget Sound Electric Railway Company; or how could his absence interfere with a complete administration of justice as between them? Evidently the failure to serve him does not, on the record now before us, create any jurisdictional defect in the appeal of the Puget Sound Electric Railway Company for which it should be dismissed.

The respondent, however, citing the following additional cases, decided by this court since the enactment of the statute of 1899, insists, on their authority, that the appeal should be dismissed: First Nat. Bank v. Gordon Hardware Co., 31 Wash. 682, 72 P. 464; Wax v. Northern Pacific Ry. Co., 32 Wash. 210, 73 P. 380; O'Connor v. Lighthizer, 34 Wash. 152, 75 P. 643; Davis v. Tacoma Ry. & Power Co., 35 Wash. 203, 77 P. 209, 66 L. R. A. 802; Willard v. Fisher, 36 Wash. 229, 78 P. 917; Collins v. Kinnear, 37 Wash. 454, 79 P. 995. An examination of these cases and the original records in which the motions to dismiss were made shows either (1) that a judgment had been entered against the party who had appeared and was not served with notice of appeal, or (2) that the party not served had a material interest in the prosecution of the appeal, or (3) that this court refused to dismiss the appeal. It appearing that no judgment has been entered against Dimmock from which he can prosecute either an original or cross-appeal, and that he has no interest in the appeal now being prosecuted by the Puget Sound Electric Railway Company, we conclude that, in view of the statute of 1899, these cases do not require us to enter an order of dismissal herein.

In the lower court Attorneys James B. Howe and Hugh A. Tait represented the appellant company and also the defendant Dimmock. The notice of appeal was prepared by Mr. Tait and signed by them for the Puget Sound Electric Railway Company. At all times since July 7, 1908, the date of its service on respondent and its filing in the superior court, a copy of the notice has been in their possession, they being also attorneys for ...