Strickland v. Rainier Golf & Country Club

• Decision Date: 08 May 1930
• Docket Number: 22149.
• Citation: 156 Wash. 640,287 P. 900
• Parties: STRICKLAND v. RAINIER GOLF AND COUNTRY CLUB et al.
• Court: Washington Supreme Court

287 P. 900

156 Wash. 640

STRICKLAND v. RAINIER GOLF AND COUNTRY CLUB et al.

No. 22149.

Supreme Court of Washington, En Banc.

May 8, 1930

Appeal from Superior Court, King County; Adam Beeler, Judge.

On rehearing. Former opinion reversed, and appeal dismissed.

For former opinion, see 281 P. 491.

PARKER BEALS, and TOLMAN, JJ., dissenting.

Raymond D. Ogden and A. L. Erickson, both of Seattle (Shorett Shorett & Taylor, of Seattle, of counsel), for appellant.

John F Dore and Schwellenbach, Merrick & Macfarlane, all of Seattle for respondent.

FULLERTON J.

This is an action instituted by Ernest L. Strickland, as plaintiff, against the Rainier Golf and Country Club and others, as defendants, to recover in damages for personal injuries. The action was tried by the court below sitting with a jury, in which action a verdict was returned against the Rainier Golf and Country Club alone, the action having been dismissed as against the other defendants during the course of the trial. After the return of the verdict the country club moved for a judgment in its favor notwithstanding the verdict, and, in the alternative, for a new trial. These motions were overruled by the trial court, by a formal order dated July 22, 1929; the order, however, reciting that the motions were 'denied as of the 29th day of June, 1929.' A judgment was entered in conformity with the verdict on July 30, 1929.

On July 27, 1927, three days prior to the entry of the formal judgment, the Rainier Golf and Country Club served and filed a notice of appeal from 'said verdict and judgment, and from each and every part thereof.' Subsequent thereto the respondent moved in this court for a dismissal of the appeal, basing his motion on the ground that the appeal had been prematurely taken. The motion was heard by a department of the court, and a written opinion was handed down denying the motion. 281 P. 491. Thereafter a petition for rehearing was granted, and the motion was reargued before the court sitting en banc. At the same time the merits of the cause were also argued and submitted.

At the argument before the court en banc it was earnestly insisted that the department was in error in its conclusion, and a majority of the court are now constrained to adopt that view. It must be confessed that our decisions on the question involved are not altogether in harmony. In the early case of Marsh v. Degeler, 3 Wash. 71, 27 P. 1073, it appeared that a verdict of the jury in favor of the plaintiff in the action was returned on March 23, 1891. On March 26 following, a motion on the part of the defendant for a new trial was submitted and denied. The defendant thereupon gave a notice of appeal. A judgment was subsequently entered on the verdict. After the record had been lodged in this court, the defendant moved to dismiss the appeal. This motion the court granted, using this language:

'An appeal does not lie to this court until after final judgment. Tripp v. Magnus, 1 Wash. 22, 23 P. 805. Therefore no notice of appeal given before final judgment can be of any effect. The statutes (Acts 1890, p. 333) provided (and the present statute also provides) that a party might give notice of appeal in open court at the time of the rendition of the judgment, and it was entirely competent for the appellants in this case to give their notice in that way. But when this notice was given there was no judgment. True, the court had just taken a very important step in the action adverse to the appellants, and so it may have taken many previous steps to which there were exceptions; but there was no more propriety in giving a notice of appeal upon the denial of the motion for a new trial than there would have been upon the court's refusal to allow a challenge to a juror for cause.'

In Bartlett v. Reichennecker, 5 Wash. 369, 32 P. 96, a similar question arose, and the decision in the earlier case was followed; the court, in the course of its opinion, making this partinent observation: 'We are satisfied that at any time within six months from the date of the signing and filing of the formal judgment in this cause the aggrieved party could have appealed from such judgment. If this be so, then it must follow that before such judgment was signed and filed there had been no such decision of the cause as would sustain an appeal to this court.'

In Hays v. Dennis, 11 Wash. 360, 39 P. 658, there was a seeming departure from the earlier rule. In that case the notice of appeal was given before the judgment had been 'made, signed and entered,' but after the court had announced the 'terms of the judgment.' The court refused to dismiss the appeal, resting its conclusion on the ground that the appeal statute should be liberally construed, and that such a construction required, a denial of the motion. The court, however, did not in its opinion notice the prior cases, possibly because, as the briefs in the case show, they were not called to its attention.

The case has been cited but twice by us since it was handed down. The first time in O'Neile v. Ternes, 32 Wash. 528, 73 P. 692, where it was mentioned with apparent approval. But it will be observed from an examination of the case that the question now involved was not there presented. In that case the notice of appeal designated the judgment appealed from as a judgment entered on the 20th day of a certain month, whereas the record showed that the judgment actually entered in the cause was entered on the 21st day of the named month. The motion to dismiss was based on the ground that it did not appear from the notice that the judgment appealed from was the judgment filed and entered in the cause. The court denied the motion on the ground that the notice designated the judgment appealed from 'not only with reasonable, but with absolute certainty,' and was not thus indefinite. The purpose of citing the case of Hays v. Dennis was to show that the defect in the appeal notice could not avail the respondent, even had the notice been defective in the manner for which he contended. It is noticeable here also that the court did not refer to its prior conflicting decisions.

The case is cited the second time in Robertson v. Shine, 50 Wash. 433, 97 P. 497, and then only for the purpose of showing its inapplicability to the question there presented. This case is noticeable for another reason; it questions the soundness of the cited case.

Since the decisions in the cited case we have determined many cases in direct conflict with the principle there announced.

In Russell v. Schade Brewing Co., 49 Wash. 362, 95 P. 327, 328, the court, after reviewing the facts before it, and citing numerous cases, used this language: 'At no time did the court make a decision in writing favorable to appellant; and we think, particularly in view of our statute, that a distinction must be made between a mere opinion of a trial court and its decision. * * * It follows that, when an action at law is tried by the court without a jury, the mere announcement of an oral opinion is not the decision within the meaning of our statute, since the 'decision' as it is named in the statute 'shall be given in writing and filed with the clerk.' Until that has been done, the decision that shall be rendered is still within the mind of the court and under its control. In the case at bar the court did not review any actual decision; and but one was rendered within the meaning of our statute.'

In Robertson v. Shine, supra, the defendant sought to appeal from an oral pronouncement of the court made at the conclusion of the trial. The court held that an appeal would not lie, as the oral pronouncement 'was nothing more than an announcement of the court of its conclusions from the evidence, which must be expressed in a formal written judgment before it becomes binding upon either party.' In Re Christensen's Estate, 77 Wash. 629, 138 P. 1, the trial court, in deciding the case, filed a memorandum opinion in which it announced its findings and conclusions. An appeal was taken before any formal judgment was entered, and, passing on a motion to dismiss the appeal made in this court, we used this language: 'Whether or not it is possible that the merit of this case could be as conveniently discussed under the present appeal as if a formal order had been entered below, we are neverthless constrained to hold, in the interest of orderly procedure, that the appeal is premature. It has been the practice of this court--and, in the light of the statute (sections 442, 1716 Rem. & Bal. Code [P. C. 81, §§ 787, 1193]), no other practice should be tolerated--to treat a memorandum decision of the superior judge as a direction to counsel in the preparation of the formal orders contemplated by our practice acts. We think, therefore, that, until a formal order is entered denying the petition of the administrator and the petition in intervention of the German-American State Bank, no appeal can be prosecuted.'

In Inman v. Seattle, 86 Wash. 603, 150 P. 1055, a verdict was returned against the defendant city. The city moved for judgment notwithstanding the verdict, and, without waiting for the final judgment, appealed to this court. On motion we dismissed the appeal using this language: 'The respondent moves that the appeal be dismissed, and that the cause be remanded to the superior court in order that the plaintiff's motion for a new trial may be passed upon by that court. This motion must be sustained for two reasons First, the record shows neither that the statutory judgment had been entered upon the verdict by the clerk, nor that a formal written judgment had been signed by the trial judge and entered; and, second, since the plaintiff's motion for a new trial was pending and undisposed of at the time the appeal was...