Wilson v. Martin

Decision Date17 July 1906
Citation43 Wash. 95,86 P. 205
CourtWashington Supreme Court

Appeal from Superior Court, Lincoln County; W. T. Warren, Judge.

Action by Eugene T. Wilson, as receiver of the Big Bend National Bank, against A. V. Martin. From a judgment for plaintiff defendant appeals. On motion to dismiss appeal. Granted.

J. T Mulligan and H. N. Martin, for appellant.

H. A P. Myers, for respondent.


This action was brought by the plaintiff, as receiver of the Big Bend National Bank, to recover an assessment of $100 per share on 30 shares of the capital stock of the association owned by the defendant. The answer, in addition to denials contained three affirmative defenses or counterclaims. The substance of these defenses or counterclaims was as follows: (1) Fraudulent representations made by the officers of the bank in the sale of the stock to the defendant; (2) that the entire capital stock of the bank had been subscribed and issued prior to the issuance of the 30 shares held by the defendant; and (3) that the bank was indebted to the defendant in the sum of $2,500. On the 22d day of May, 1905, the court sustained a motion to strike the first and second affirmative defenses and refused leave to amend. At the same time and by the same order the court sustained a demurrer to the third affirmative defense or counterclaim, with leave to amend. The next step in the cause seems to have been taken on the 20th day of July, 1905, when the court entered an order of dismissal without prejudice on the ex parte application of the plaintiff. From this order the defendant appeals.

At the hearing in this court the respondent moved to dismiss the appeal, for the reason that the order is not appealable and that this court is without jurisdiction. The rule seems to be well established that an appeal will not lie from an ex parte order. The proper procedure is to move to vacate or set aside the order and appeal from the decision on the motion. 2 Ency. of Pl. & Pr. p. 96; 2 Cyc. 621, and cases cited. To the same effect see Pacific Supply Co. v. Brand, 7 Wash. 357 35 P. 72; Hall v. Skavdale, 21 Wash. 203, 57 P. 807. The reason for the rule is thus stated in State v. District Courts Eleventh and First Jud. Dists. (Minn.) 53 N.W. 1157: 'That appeals will lie from such ex parte orders is opposed to the obvious reason upon which all purely appellate proceedings must be supposed to rest, namely, the necessity of an appeal to correct the error supposed to have been committed. The law attaches much importance to the hearing of both the interested parties, not only as a matter of right to them, but as an aid to courts in the...

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