50 Wash. 260 | Wash. | 1908
This action was originally brought on two causes of action, on two promissory notes, one for $935 payable August 1, 1907, and the other for $930 payable August 1, 1908, both drawing interest at the rate of six per cent per annum. The notes were executed by R. H. Parker and W. M. Parker, payable to the order of Dunham, Fletcher & Coleman. On the back of each of these notes was the following: “Should I make a transfer of my real estate before this note becomes due, I agree to pay same on demand. R. H. Parker.” The original complaint was filed on March 21, 1907, before either of the notes appeared to be due upon their face. It alleged the transfer of the notes for value by the payee to the Elgin City Banking Company, and by the latter ‘company to the plaintiff for collection, and “that said R. H. Parker has since the execution of said notes made transfer of certain of his real estate, and said note, tqgether with interest thereon, is now due and payable by him.” It also alleged demand and refusal to pay. The defendant did not demur to this complaint but filed an answer, and issues were joined by a reply. At the time the complaint was filed, writs of garnishment were sued out and served upon the State Bank of Sumner and several other garnishee defendants. The State Bank of Sumner answered that it had on deposit $1,860.37 in the name of R. H. Parker, but was not able to state whether the same was the property of the said Parker or a trust fund in his name. The other garnishee defendants answered that they were indebted to said Parker in various sums.
After the issues were made in the original case as above stated, the defendant R. H. Parker on July 9,1907, moved to dissolve the garnishment on several grounds. At this hear
Respondent moves to dismiss this appeal upon the following grounds: (1) That this court has no jurisdiction of the appeal herein in so far as same purported to be an appeal from the order of July 30, 1907, dismissing the garnishment against the State Bank of Sumner, for the reason that no notice of appeal from such order was given within the time provided by law: (2) that the appellant is precluded from appealing from the judgment of dismissal of the remaining garnishments giving judgment for costs to said State Bank
There can be no doubt that the notice of appeal in this case came too late to give this court jurisdiction to review the order of July 30, discharging the writ of garnishment against the State Bank of Sumner. The notice of appeal was not given until October 5, 1907, which was much more than fifteen days required by statute in such cases. Bal. Code, § 6502 (P. C. § 1050). But the fact that the order of July 30 cannot be reviewed does not operate to dismiss the appeal as to other orders which may be reviewed. The second ground for dismissal is based upon the fact that appellant requested the court to enter the order of September 30, discharging the “remaining” writs of garnishment. The evident intent of the court in making and entering this order was to make clear the fact that these writs were discharged solely by reason of the dismissal of the main case. It was not voluntarily made at the request of the appellant. The court had ruled adversely to the appellant, and the order was made to show the facts. It was probably unnecessary to make the order of September 30, because the dismissal of the action discharged the garnishees by operation of law. Seattle Trust Co. v. Pitner, 17 Wash. 365, 49 Pac. 505.
The last ground of the motion is based upon the fact that, after the appeal Was taken, the respondent tendered to the appellant the amount of the note sued upon wit'h interest. There was no tender of costs, and appellant refused the tender. There has been no settlement of the controversy. It still exists. If appellant had accepted the offer another question would be presented. A mere offer of settlement where there is a refusal to accept does not settle the controversy. The motion to dismiss must therefore be denied.
Hadley, C. J., Fullerton, and Rudkin, JJ., concur.
Dunbar and Crow, JJ., took no part.