40 Wash. 450 | Wash. | 1905
One hundred and three parties, owning separate and distinct parcels of land, gave notice of appeal to this court from an order confirming an assessment roll in the court below. Some of the appellants gave, or attempted to give, bonds to render their appeals effectual, others did hot. Before any further steps were taken, or expenses incurred, in the prosecution of the appeals, the appellants filed in the court below and served on the respondent, a notice that they and each of them abandoned their respective appeals. After the filing and service of such notice of abandonment, the respondent filed a short record in this court, accompanied by one hundred and three motions to dismiss,
We are of opinion that the respondent is entitled to the order of dismissal, and to its statutory costs. This court acquires jurisdiction of an appeal by the giving of notice and the filing of a proper bond, and that jurisdiction cannot be defeated by any act of the parties. An appellant cannot dismiss an appeal as a matter of right. Agassiz v. Kelleher, 9 Wash. 656, 38 Pac. 221; Allen v. Catlin, 9 Wash. 603, 38 Pac. 79; Post v. Spokane, 28 Wash. 701, 69 Pac. 371, 1104. The abandonment could only operate as an estoppel against the further prosecution of the. appeals, and the court might permit the parties to prosecute their appeals notwithstanding the abandonment, if it were made to appear that the abandonment was filed and served through inadvertence or mistake. A respondent has a right to have an appeal finally disposed of in this court and that can only he done by the court itself.
Bal. Code, § 6519, providing that no withdrawal or dismissal of an appeal which does not go to the substance or the right of appeal, shall preclude a party from taking another appeal within the time limited by law, only authorizes a party to withdraw an appeal for the purpose of taking a further appeal within the time limited by law. It does not authorize a party to. withdraw an appeal absolutely and unconditionally, as clearly appears from the decisions of this court in the cases above cited. If an appellant desires to dismiss his appeal, he may apply to this court for that purpose; and, if no costs have been incurred by the respondent in the prosecution of the appeal, and no rights of the re
Tbe contention of tbe respondent that it is entitled to costs, including statutory attorney fees, against each appellant is wholly without merit. As well might a plaintiff in tbe court below claim separate costs and attorney fees against each of several defendants on a default judgment, because tbe defendants were not united in interest and might have appeared separately and filed separate answers. If the prevailing party is entitled to recover more than one statutory attorney fee in this court in any case, a question we do not decide, be is only entitled thereto where tbe adverse parties appear separately and file separate briefs. It would bave been entirely competent for these several appellants to appear jointly in this court and file a single brief, raising only such objections to tbe assessment as were common to all of them. In fact many of them did so join in their objections in the court below. Had they pursued this course, it would scarcely be claimed that either party was entitled to more than one bill of costs, including one statutory attorney fee, and why should the respondent recover greater costs where the appellants make no appearance.
The motion to dismiss is granted, and the clerk of this court will tax the costs against all tbe appellants as upon a single appeal.
Mount, C. J., Eullerton, Hadley, Root, Crow, and Dunbar, JJ., concur.
