105 Wash. 164 | Wash. | 1919
This is an appeal from an order of the superior court requiring the plaintiffs to elect which of two causes of action they would go to trial upon. The amended complaint, which will be referred to as the complaint, contains two causes of action, separately stated. The defendants, believing that these two causes of action were inconsistent, moved the superior court to require the plaintiffs to elect. upon which of them they would proceed to trial. This motion was sustained, and an order entered requiring an election. Prom this order, the plaintiffs appeal.
The respondents move to dismiss the appeal on the ground that the order is not an appealable one. If the order is appealable, it must be by reason of Bern.
It does not follow from this, however, that the appellants are deprived of the right to have the order reviewed when a final judgment shall have been entered. If the appellants should decline to elect, as required by the order, and allow a judgment of dismissal to be taken against them, they could appeal from that judgment., But this is not their only remedy. If, after making an election, a judgment of dismissal should be entered by the trial court as to the cause of action upon which the appellants did not elect to proceed to trial, an appeal could be prosecuted from that judgment. When a cause comes to this court based upon two causes of action, separately stated, and the record or the special findings of the jury are such that the two can be segregated, the court will
It follows that the appeal must be dismissed, and it is so ordered.
Fullerton, Parker, Mount, and Holcomb, JJ., concur.