Wilson v. Seattle Dry Dock & Ship Bldg. Co.

• Decision Date: 17 October 1901
• Citation: 26 Wash. 297,66 P. 384
• Court: Washington Supreme Court
• Parties: WILSON v. SEATTLE DRY DOCK & SHIP BUILDING CO. et al.

66 P. 384

26 Wash. 297

WILSON v. SEATTLE DRY DOCK & SHIP BUILDING CO. et al.

Supreme Court of Washington

October 17, 1901

Appeal from superior court, King county; E. D. Benson, Judge.

Action by Charles E. Wilson against the Seattle Dry Dock & Ship Building Company, a corporation, and another. From an order denying a petition to set aside a judgment of dismissal plaintiff appeals. Affirmed.

J. D. Jones and I. D. McCutcheon, for appellant.

Allen &amp Allen and Preston, Carr & Gilman, for respondents.

FULLERTON J.

In April 1898, the appellant commenced an action in the superior court of King county to recover for personal injuries alleged to have been suffered by him because of the negligence of the respondent. Issue was joined upon the complaint, and the cause regularly assigned for trial on the 17th day of October, 1899. The appellant did not appear at the time fixed for the trial, and the action was dismissed for want of prosecution. On the 18th day of January, 1900, the appellant filed a petition in the superior court, praying that the judgment of dismissal be set aside and vacated, and that he be granted a trial upon the merits of the action. This petition was heard on February 2, 1900, on oral evidence submitted by the appellant, at the conclusion of which the court entered an order denying the petition. No appeal was taken from this order. Thereafter, on May 2, 1900, the appellant, without leave of court, filed a second petition setting up substantially the same ground as the first, and praying for the same relief. This petition was heard on the 14th day of June, 1900, and denied by the court, the order therefore, after reciting the appearances of the parties being as follows: 'And it appearing to the satisfaction of the court that before the filing of this petition another petition setting forth the same facts was served herein, and that on the 2d day of February, 1900, a hearing was had upon said petition, and witnesses were sworn and a trial had, and upon due consideration at said trial the court denied said petition, being fully advised in the premises and that without obtaining leave to do so the said plaintiff files this petition upon the same facts, asking substantially the same ultimate relief; and upon this hearing it appearing to the satisfaction of the court that no new state of facts has arisen since the former hearing, and that the said plaintiff was not prevented by reason of surprise, excusable neglect, or any cause whatsoever from having a fair, full, and impartial hearing upon the said former trial, and that no cause is now shown or offered why whis court at this time should again hear proof of the same facts tried on the former trial, and the court being satisfied with his ruling upon the said former hearing: Now, therefore, it is hereby ordered, adjudged, and decreed that the said petition be and the same is hereby denied.' This appeal is from this last mentioned order. The appellant seems to contend that his appeal brings up fror review the order denying his first application, presumably by virtue of the statute which provides that an appeal from any final order made after judgment shall bring...