107 Wash. 617 | Wash. | 1919
Lead Opinion
On Petition to Recall Remittitur.
In this case an opinion was filed [103 Wash. 449, 174 Pac. 642] reversing the judgment of the lower court. Subsequently, upon application and showing made by the respondent, within a few days after the remittitur was sent down to the lower court, an order was made on February 24,1919, recalling the remittitur that we might further consider the question of the court’s jurisdiction to entertain the appeal. The point made by respondent is that the notice of appeal was not given within ninety days after the entry of the final judgment. At the hearing of the appeal on June 18, 1918, this court was not provided with any
After the order was made recalling the remittitur, respondent served and filed another motion to dismiss the appeal, duplicating, in effect, the contents of his petition to recall the remittitur on the ground that the notice of appeal was not served within ninety days, thus reminding us of what we were already aware, that the remittitur was recalled, “that the jurisdiction of this court to pass upon the case be further considered by the court.”
"We have considered the point involved as it appeared at the date of the order and as the same still appears. The affidavits in behalf of both parties used on the hearing of the petition to recall the remittitur cleared away the confusion thertofore existing concerning the fact that the county clerk, whose affidavits have been used on the hearing of all the motions, understood that the act of the actual recording of the final judgment and not the date of its being filed constituted its entry under the terms of the appeal statutes. It clearly appears now that the final judgment
There is no alternative but to set aside tbe former opinion of this court in tbe case and to dismiss tbe appeal; and it is so ordered.
Mount, Tolman, Fullerton, Main, and Mackintosh, JJ., concur.
Concurrence Opinion
(concurring)—Although compelled by tbe state of tbe case to do so, I concur in tbe above result with great reluctance, because tbe judgment appealed from was a most ill-founded one, and our former judgment of reversal was eminently correct. Moreover, tbe procedure of counsel for respondent was exceedingly inapt and highly untimely. Tbe “juggling” of tbe record below, so as to confuse it, was also reprehensible.
However, this court acquires jurisdiction only within a definite statutory period, which was exceeded, and respondent seems to have raised tbe jurisdictional question before this court bad finally lost jurisdiction to determine its jurisdiction.