State v. Boyce

• Decision Date: 01 July 1901
• Citation: 65 P. 763,25 Wash. 422
• Court: Washington Supreme Court
• Parties: STATE v. BOYCE.

65 P. 763

25 Wash. 422

STATE v. BOYCE.

Supreme Court of Washington

July 1, 1901

Appeal from superior court, Pierce county; W. H. Snell, Judge.

Eben L Boyce was convicted to murder, and he appealed. The judgment was affirmed by the supreme court (see 64 P. 719), and a remittitur was sent to, and filed and entered in, the superior court. From an order over ruling a motion in the latter court to set aside and vacate the judgment, defendant appeals. Motion by the state to dismiss the appeal. Motion sustained.

F. Campbell, Charles O. Bates, and Walter W Harvey, for the state.

DUNBAR J.

On the 26th day of April, 1900, final judgment was rendered in the superior court of Pierce county in the case of State of Washington v. Eben L. Boyce on the verdict of the jury finding the said Boyce guilty of murder in the first degree sentencing the said Boyce to be hung. An appeal was prosecuted to the supreme court from said final judgment and sentence, and the same was affirmed (64 P. 719), and on the 4th day of June, 1901, the remittitur from the supreme court was sent to the superior court, and filed and entered in said superior court. Afterwards the appellant, Boyce, moved the said court to set aside and vacate the said judgment, which said motion was by the superior court overruled on the 6th day of June, 1901. Exceptions were taken to said ruling, and notice of appeal given to the supreme court. This is a motion by the state to dismiss the appeal thus taken.

It is contended by the respondent that the order of the court attempted to be appealed from is not an appealable order, and is not a final order from which an appeal will lie to this court. This contention must be sustained. The record shows that the appeal is taken from alleged errors occurring before judgment, and which errors were or could have been litigated upon the appeal from the original judgment. We do not think that the order made by the court refusing to vacate and set aside the judgment is appealable as an order affecting a substantial right under the statute. An order made by the court refusing to vacate and set aside a final decree is not appealable as an order affecting a substantial right under Laws 1893, p. 120, § 1, subd. 7 (Ballinger's Ann. Codes & St. § 6500), providing that any party aggrieved may appeal from any final order made after judgment which affects a substantial right. Association v. Simpson, 21 Wash. 16, 56 P. 844. It is conceded that all the questions raised by this motion to set aside and vacate the judgment and sentence were passed upon by the supreme court in the original appeal, or that they might have been passed upon had they been raised. Questions determined on an appeal, or which might have been if presented, will not be considered by an appellate court upon a second appeal of the same action. Dennis v. Kass, 13 Wash. 137, 42 P. 540.

The superior court was not clothed with jurisdiction to vacate a judgment which had been affirmed by this court, and which was in reality a judgment of this court. Where a cause has been appealed, and a judgment rendered by the appellate court, no interference therewith will be tolerated on the part of the lower court by any proceeding in the cause other than such as is directed by the appellate court. State v. Superior Court of Spokane Co., 8 Wash. 591, 36 P. 443. An order denying a motion to vacate an appealable order cannot be appealed from. The appeal must be taken from the original order. 2 Enc. Pl. & Prac. p. 95, and cases cited. The appeal in this case was taken from the original order or, rather, the original judgment, and the appeal sought here would, in effect, be a second appeal sought here would, in there can be any authority which will sustain the contention of the appellant that he has a right to prosecute this second appeal, for the...