No. 7069 | Wash. | Nov 19, 1907
Respondent moves to dismiss this appeal, first, on the ground that the action is one at law for the recovery of money in which the original amount in controversy is less than $200. The appellant, as defendant in the action, interposed a counterclaim for the sum of $244.
“When the defendant files a counterclaim in the trial court and then appeals from a judgment against him, he occupies*595 substantially the position of a plaintiff appealing from an adverse judgment, and therefore the amount so claimed affirmatively by him becomes the appellate amount in controversy.” 1 Ency. Plead. & Prac., p. 734.
A number of authorities are cited in support of the above text. See, also, Sorrill v. McGougan, 44 Wash. 558" court="Wash." date_filed="1906-12-05" href="https://app.midpage.ai/document/sorrill-v-mcgougan-4727631?utm_source=webapp" opinion_id="4727631">44 Wash. 558, 87 Pac. 825.
It is, however, further contended that the allegations of the answer do not constitute a counterclaim. We are not willing at this time to say' that the facts stated will not support a counterclaim and that we are without jurisdiction for that reason. Inasmuch as there was a trial upon the facts, we think the facts, both alleged and found, must be considered together before finally determining upon their sufficiency, and to do so calls for an examination of the appeal upon its merits.
The second ground of respondent’s motion is that the appeal is premature and is not from a final judgment. Findings of facts and conclusions of-law were entered on July 5, 1907. The findings were generally in favor of the appellant upon his counterclaim, but the conclusions of law were that the counterclaim is barred by the statute of limitations. On the same day that the findings were entered, judgment was also entered to the effect that both parties are denied recovery by reason of the bar of the statute of limitations. On July 25, respondent filed what he called a “motion to strike findings, conclusions, and judgment.” The transcx-ipt discloses no order of the court upon the above motion, and it is apparently still pending. The appeal of appellant was taken on August 2, after the filing of the above motion. We are not aware of any authorized procedure- for the mere striking of a judgment. Perhaps the motion is, in legal effect, to vacate for irx’egularity that part of the judgment which denies respondent the x-ight to recover. It is necessax’ily limited to the vacation of that part of the judgment, inasmuch as respoxxdent has no interest in vacating that part which is in his favor and which
The appellant proposed no statement, of facts in this case, his contention for the purposes of the appeal being that the conclusions of law and judgment as against him do not follow from the facts found. The respondent, however, did propose a statement of facts which was certified, and appellant has moved to strike it. The first ground of this motion is that the' statement was proposed by respondent for the sole purpose of aiding him to dismiss this appeal, and that the same was settled without jurisdiction or power in the premises and over the protest of appellant. It is argued, in effect, that the party who appeals is alone competent to propose a statement of facts. Bal. Code, §§ 5057 and 5058 (P. C. §§: 674, 675), certainly authorize any party to any action or proceeding, and at any stage thereof, to propose and cause .to be certified a statement of facts or bill of exceptions. It is therefore competent for one who does not appeal to propose a statement and procure its certification, a right which respondent had in this case.
The next ground of the'motion is that respondent has not appealed, that the appellant has not excepted to the findings
Crow, Mount, Dunbar, and Root, JJ., concur.
Fullerton and Rudkin, JJ., took no part.