First National Bank v. Carter

10 Wash. 11 | Wash. | 1894

The opinion of the court was delivered by

Dunbar, C. J.

This is an appeal from an order of the superior court commanding the defendant in a replevin action to turn over to the plaintiff a certain sum of money, the said sum having been received by the said defendant from the said plaintiff by virtue of an execution issued out of the court in said cause.

On the 24th day of September, 1891, the plaintiff, respondent here, began a suit in replevin against the defendant, appellant here. Upon the trial of the cause the jury rendered a verdict in favor of the defendant to the effect that the defendant was entitled to the possession of the property mentioned in the complaint, and also found the value of the property to be $2500. After a motion for a new trial had been overruled by the court, the court made and entered a judgment in the cause for the defendant in accordance with the verdict of the jury. In such judgment the court required the plaintiff to turn over to the defendant the identical property mentioned in the complaint within five days after the date of said judgment, and in default of such delivery within the said five days that the defendant have and recover of and from the plaintiff the principal sum of $2497.36, the same being the value of the defendant’s interest in said property, together with costs and disbursements of the action. Thereafter, on the 8th day of August, 1892, the defendant, he being the sheriff of the said county, procured to be issued out of the court in said cause a writ of execution directed to the coroner of said county, whereupon the coroner proceeded to levy upon the property of the plaintiff in a sufficient amount to make the amount of the judgment, interest, costs and increased costs, out of the property of the said plaintiff by delivering into the hands of the cashier of the plaintiff a copy of the writ of execution, and making a demand upon the cashier for the payment of the debt. Upon said demand the cashier delivered to the coroner, who took into his possession, the money of the said plaintiff in the sum of $2,973.88, who thereafter paid the same into the court. The same was afterward paid by the clerk of the court to the defendant. After the execution had been issued as aforesaid, and the money levied upon, but before the said money had been paid by the coroner to the clerk of the court, or by the clerk paid to the defendant, the plaintiff gave notice of appeal from the judgment to the supreme court, filed his supersedeas bond, and afterwards, upon the trial of the case in this court, judgment was' entered reversing and remanding said cause (6 Wash. 494, 33 Pac. 824). Upon this reversal the plaintiff made a'motion praying for the reversal of the order from which this appeal is taken.

Respondent, in a supplementary brief, filed after the time allowed for the filing of brief had expired, moves this court to dismiss the appeal herein and refuse to consider the same, for the reason that this court has no jurisdiction of the matter, inasmuch as there is no statute or law of this state allowing appeals from such orders as the one appealed from in this case. Appellant objects to the court entertaining this motion for the reason that the motion was not made in respondent’s original brief.

This motion going to a jurisdictional question, the court would entertain it at any time, even upon suggestion or upon its own motion, if it came to the attention of the court, whether or not it was incorporated in a brief. If there can be an appeal from this order at all it must be by reason of the provisions of the laws of 1893, for there were certainly no provisions of the law prior to that time providing for an •appeal from an order of this kind, and, as liberal as the law of 1893 is in relation to orders from which an appeal can be taken, we are unable to find any authority for an appeal from such an order.

Section 1 of the Taws of 1893, p. 119 provides that any party aggrieved may appeal from the final judgment entered in any action or proceeding; subdivision 2, from any order refusing to vacate an order of arrest in a civil action; subdivision 3, from any order denying or granting a motion for a temporary injunction; subdivision 4, from an order refusing to discharge an attachment; subdivision 5, from an order appointing or removing, or refusing to appoint or remove, a receiver; subdivision 6, from any order affecting a substantial right in a civil action or proceeding which determines the action or discontinues the action, or grants a new trial, or sets aside or refuses to affirm an award of arbitrators.

Certainly the right is not given in any of these subdivisions, and if it is found at all it must be in subdivision 7, which provides that an appeal may be taken from any final order made after judgment, which affects a substantial right. But this order is not an order made after judgment. The judgment of the court below was reversed, and the cause remanded by this court for a new trial, so that at the time this order was granted by the court below the cause was there for trial, as though no judgment had ever been rendered in the cause. Clearly, under the statute, which provides that an appeal from any final judgment shall also bring up for review any order made in the same action or proceeding, •either before or after the judgmeut, provision is made for the determination of this question of possession upon the final trial of the cause on its merits when it arrives here. The statute, in section i of the act above referred to, especially provides that there shall be no appeal from any other orders or judgments than those mentioned in the succeeding sections, which we have referred to.

There being no provision in the law for permitting an appeal from this kind of an order the motion must be sustained, and the appeal'dismissed.

Hoyt, Scott, Anders and Stiles, JJ., concur.