28 Wash. 618 | Wash. | 1902
The opinion of the court was delivered by
— On motion to dismiss appeal and for other relief. The record shows that this action was commenced by respondent against appellant for its alleged negligence causing injuries to respondent while in the employ of appellant. Appellant filed a demurrer to the complaint. This demurrer was, after argument, overruled. Appellant, after filing an answer, got leave of the court to file an amended answer. Appellant then filed an amended answer, which, after certain denials to allegations in respondent’s complaint, set up defenses that respondent assumed the risk, that the injury was caused by the act of a fellow servant, and that respondent was guilty of contributory negligence. [Respondent then filed a reply to the amended .answer, pleading, in effect, a general denial.
Section 6500, Bal. Code, provides for appeals to this court. Subdivision six of tliat section is as follows:
*621 “From any order affecting a substantial right in a civil action or proceeding, which either, (1) in effect determines the action on proceeding and prevents a final judgment, therein; or (2) discontinues the action; or (3) grants a new trial; or (4) sets aside or refuses to affirm an award ■of arbitrators, or refers the cause back to them.”
The third statement of'the subdivision is the one upon which the appellant relies to sustain its appeal. We agree with the appellant that the laws relating to appeals are remedial statutes, and are entitled to the most liberal construction. The intent of the legislature in enacting such laws is the leading consideration where there is a. question of doubt as to the interpretation of the act. We have no doubt that the leading object of the legislature in giving the right, of appeal from any order granting a. new trial and the prevailing intention of the act. wTas to save cost and avoid unnecessary litigation involved in such retrial when the order therefor was erroneous. But it must, not be overlooked that we have uniformly held that, unless there was a clear abuse of discretion in granting a new trial, this court would not review the order. The reason given by us for this rule is that “Such an order does not conclude the rights of the party against whom the ruling is made. It simply casts upon him the burden of again submitting his case to a jury.” Kohler v. Fairhaven, etc., Ry. Co., 8 Wash. 453 (36 Pac. 253). That is all the burden that the law imposes upon the defendant, in case of a mistrial.
In the case at bar there has been no order of the court granting a new trial. There has been a mistrial by reason of the failure of the jury to agree upon a verdict. There has been no abuse of discretion by the court in discharging the jury from a consideration of the case when they failed to agree. The day has long since passed when courts are
To entertain this appeal will be to try the case piecemeal. We have held that this court will not permit a cause to be brought before it by piecemeal for review unless clearly authorized to do so by legislative enactment. In Windt v. Banniza, 2 Wash. 154 (26 Pac. 189), which was an appeal from an order dissolving an attachment when the statute at that time did not allow an appeal in express terms from such an order, and it was claimed that such an order was a “proceeding” in the action, and appeals were allowed “in all actions and proceedings,” we said:
“We are aware that appeals from orders discharging or sustaining attachments are provided for by statute in some of the states; and it may be said that our statute is broad enough to cover such cases. Our reply is: It is broad enough, but too indefinite. Taken in a literal sense, it would permit an appeal from any and every interlocutory order and decision made in the progress of an action. Ordinarily speaking, every step taken in an action is a proceeding; and, if every proceeding were appealable, then this court might be compelled to sit in judgment upon the ruling of the lower court in changing the place of trial of an action, or in overruling a demurrer. We do not believe the legislature intended that the word should be understood in any such sense. But we do believe that the court should not depart from the well known and established principles of the common law, and permit a cause to be brought before it by piecemeal for review, unless clearly authorized so to do by legislative enactment.”
*624 “A new trial is a re-examination of an issue [of fact] in tlie same court after a trial and decision by a jury, court, or referees.” Bal. Code, § 5070.
This definition contemplates in jury trials a decision of the issue by the jury. This is wholly lacking in this case. This court has repeatedly held that the words “new trial,” as found in subdivision 6, § 6500, Ballinger’s Code, are to be construed as defined in § 5070, Id.
“The technical terms and phrases of the law, when found in a statute, must be taken in their proper technical signification, unless there is something in the context to show that they were intended to bear a different meaning. Especially on subjects relating to courts and legal process, the legislature are to be considered as speaking technically, unless, from the statute itself, it appears that they used the terms in a more popular sense.” 'B1 ack, Interpretation of LaAvs, p. 130.
Section 5071, Bal.. Code, enumerates the grounds on AA’hich a new trial, as defined in § 5070, may be granted, and the disagreement of the jury is not one of these grounds. Therefore the re-examination of the issues AA’hich may result from such disagreement is not a neAV trial in the sense used in the statute giving the right of appeal from an order granting a neAV trial.
“Courts of justice can give effect to legislative enactments only to the extent, to Avhich they may be made operate by a fair and liberal construction of the language used. It is not their province to. supply defective enactments by an attempt to carry out fully the purposes which may be supposed to have occasioned those enactments. This would be but an assumption by the judicial of the duties of the legislative department.” Swift v. Luce, 27 Me. 285.
While the consideration in view by the legislature in giving an appeal from an order granting a new trial was to save the costs of a second trial, and to put an end to
“It is no idle ceremony to try an .involved and hotly contested action. When a litigant has once done this, and has been successful in obtaining a judgment, he ought not to' be driven to re-try his cause before he can review an order vacating that judgment, unless the statute permits of no other construction.”
If we fully comprehend the argument of the appellant, it is contended that the ruling of the lower court on the motions in question were orders affecting a substantial right, which, in effect, granted a new trial by causing a mistrial. The ruling of the court on the admissibility of testimony might with equal reason be said to affect a substantial right, and, if erroneous, might necessitate a new trial. It will hardly be contended that an appeal would
The motion to dismiss the appeal at the cost of the appellant is granted. The rest of the motion is denied.
Reavis, O. I., and' Fullerton, Mount, IIadley and Anders, JJ., concur.
Dunbar, J., concurs in the result.