State v. Williams, 28136.

• Decision Date: 23 September 1940
• Docket Number: 28136.
• Parties: STATE v. WILLIAMS et al.
• Court: Washington Supreme Court

105 P.2d 723

5 Wn.2d 419

STATE v. WILLIAMS et al.

No. 28136.

Supreme Court of Washington

September 23, 1940

Department 2.

Condemnation proceeding by the State of Washington against Frank P Williams and Eleanor Briggs Williams, his wife, and the Occidental Life Insurance Company, and others. From a judgment in favor of the named defendants, the plaintiff appeals, and the named defendants separately move to dismiss the appeal.

Appeal dismissed.

Appeal from Superior Court, King County; James B Kinne, judge.

Smith Troy, P. H. Winston, and L. C. Brodbeck, all of Olympia, for appellant.

Jones &amp Bronson and Story Birdseye, all of Seattle, for respondents Williams.

Bogle Bogle & Gates, of Seattle, for Occidental Life Ins. Co.

BEALS Justice.

This proceeding was instituted by the state of Washington, for the purpose of condemning an easement through what is known as 'Mount Baker Ridge,' in the city of Seattle, in aid of the construction of the tunnel which forms a part of the floating bridge which has been constructed across Lake Washington, by the Washington Toll Bridge Authority. Satisfactory settlements were made with most of the respondent landowners, and when the proceeding was called for trial, only three property owners appeared to submit the questions at issue for trial. Frank P. Williams and wife, as owners of the south forty-five feet of the west eighty feet of lot 6, of block 42, of Burke's Second Addition to the City of Seattle, appeared by Jones & Bronson, their attorneys, and presented for adjudication their claim for damages on account of the improvement. Occidental Life Insurance Company, a corporation (hereinafter referred to as the insurance company), as mortgagee of the above described property, also appeared by its attorneys, Bogle, Bogle & Gates. Mr. and Mrs. Williams and the insurance company were named as respondents in the action, and all of these respondents participated in the preliminary proceedings and the hearing.

The trial was Before the court, a jury having been waived. The court found that the compensation which the state should pay because of damage to the property above described amounted to four thousand dollars, and a judgment and decree of appropriation was regularly entered, providing that upon payment of that amount to the respondents, or into the registry of the superior court, the state of Washington should become the owner of the necessary easement under and through the real property. The judgment also provided for payment of costs taxed at forty-six dollars. The amount of costs included $30.50, claimed by Mr. and Mrs. Williams, and $15.50, claimed by the insurance company.

The state of Washington, within thirty days after the entry of the judgment, gave notice of appeal, directing the same to Mr. and Mrs. Williams and their attorneys, the insurance company not being named or referred to in the notice, which was served upon counsel for Mr. and Mrs. Williams, and regularly filed. The notice was not served upon the insurance company, nor upon its counsel.

The notice of condemnation which the state issued herein was directed both to respondents Williams and the insurance company, and was served upon the latter party, as appears from the return of the sheriff of Thurston county. The order adjudicating public use, entered on motion of the attorney general, recites the appearance of the insurance company at the hearing by its counsel of record. It also appears that the insurance company joined with other respondents in moving for a continuance of the trial, and that in noting the case for trial, the notice prepared by the state was directed to the insurance company and the other respondents.

During the course of the trial, respondents Williams and the insurance company entered into the following stipulation, regularly entitled and filed in the proceeding:

'It is stipulated and agreed by and between the respondents, Frank P. Williams and Eleanor B. Williams, his wife, and Occidental Life Insurance Company, a corporation, by their attorneys undersigned that should the respondents Williams be entitled to damages in the above entitled case, judgment may be entered in favor of respondent Occidental Life Insurance Company, a corporation, for a portion of said damages, the amount thereof to be determined by agreement between the undersigned attorneys.

'Jones & Bronson,

'Attorneys for Respondents,

'Frank P. Williams and Eleanor

B. Williams, his wife

'Bogle, Bogle & Gates,

'Attorneys for Respondents,

Occidental Life Insurance Company.'

Respondents Williams and respondent insurance company, appearing by their respective counsel, have separately moved this court that the appeal on behalf of the state of Washington be dismissed, for the reason that no notice of appeal was ever served upon respondent insurance company.

Both the findings of fact and the judgment are entitled 'The State of Washington, Petitioner, v. Frank P. Williams and Eleanor Briggs Williams, et al., Respondents.' The judgment recites the appearance of respondents Williams by their counsel, awards the compensation above referred to 'to all owners, tenants, encumbrancers and all other persons interested therein,' and in connection with the payment of the amount awarded, refers 'to said respondents hereinBefore named.' In the title to its petition for condemnation, the state of Washington, as petitioner, named Mr. and Mrs. Williams and the insurance company, and in paragraph 6 thereof again named Mr. and Mrs. Williams and the insurance company as interested in the lands which were the subject matter of the condemnation proceeding.

The statement of facts discloses that when the proceeding was called for trial, respondents Williams appeared...