19 Wash. 628 | Wash. | 1898
The opinion of the court was delivered by
-The appellants and the respondent, Simpson, each applied to the board of state land commission-
The respondent moves to dismiss the appeal herein on the grounds and for the reasons that the notice of appeal was not given or the appeal taken from the order of the •superior court within the time limited by law, viz., fifteen days after the service of a copy of the order and the written notice of the entry thereof upon appellants’ attorneys; and that this court has no jurisdiction over the person of respondent or the subject matter involved in this proceeding. Both grounds of the motion are jurisdictional and, in effect, the same, for, if it is true that the appeal was not taken within the time prescribed by statute, then this court has no jurisdiction to hear and determine the cause. The •order from which this appeal is taken was made and entered on January 28, 1897, and the notice of appeal herein was served on respondent’s attorney on April 23, 1897 —eighty-five days after said order was entered and notice thereof given. Section 1 of the act of March 8, 1893, relating to appeals to the supreme court (Laws 1893, p. 119, Bal. Code, § 6500) provides that, “ Any party aggrieved may appeal ”... 1. From the final judgment entered in any action or proceeding,” etc., and “ 6. From any mder affecting a substantial right in a civil action or proceeding, which either, (1) in effect determines the action or proceeding and prevents a final judgment therein; or
“ In civil actions and proceedings an appeal from any final judgment must be taken within ninety days after the date of the entry of such final judgment; and an appeal from any order, other than a final order, from which an appeal is allowed by this act, within fifteen days after the entry of the order. . . .”
And it is contended by counsel for the respondent that, while a judgment of dismissal is so far a final judgment that it may be appealed from, it is not a final judgment in the sense used in this act; that the final judgment mentioned in the first paragraph of § 1 is a judgment rendered after issue joined and trial had, and that it is from such a judgment only that the ninety days are allowed in which to appeal. And it is argued that such must have been the legislative intention, for otherwise there was no reason for the enactment, of subdivisions 1 and 2 in paragraph 6 of said section. This argument is exceedingly plausible, and would be entitled to serious consideration were it not for the provisions of the amendment above quoted. It will be observed by an inspection of this amendment that final orders, as such, are not only recognized by the statute as it now stands, but are excepted from the operation of the-fifteen days’ limitation within which appeals must be taken, from other appealable orders. A formal judgment of dismissal of the appeal from the board of commissioners was-made by, and entered in the records of, the superior court; but whether it be called a judgment or order is not material, for the court will look at the effect rather than the form of the entry. An order in form may sometimes constitute a judgment in fact. It is said in Elliott on Appellate Procedure that,
*631 “ Form is not a matter of much importance in determining whether a judgment is or is not final. If the controversy is ended between the parties so far as the court can end it, then the judgment is inal, regardless of mere matters of form. This must necessarily be true, since if the order terminates the litigation in the court where it is pending, nothing more can there be done, except, perhaps, to prepare for an appeal. It is obvious that under this rule an order dismissing a case over the objection of the plaintiff may constitute a final judgment.” Elliott, Appellate Procedure, § 94.
And the doctrine there laid down seems to be supported by numerous cases cited in the note. That the ruling of the superior court determined the proceeding then pending before it is scarcely open to question. The general rule of law is that a dismissal, discontinuance or non-suit (and they all, in legal effect, amount to the same thing) in a legal proceeding without a trial upon the merits, operates as a final determination of the action and carries the entire cause out of court, and all the parties to the original proceeding. 6 Enc. PL & Pr., pp. 978, 979. It seems clear to us that the judgment appealed from was a final judgment and that the appeal was taken within the period (ninety days) prescribed by the statute. It follows therefore that the motion to dismiss the appeal must be denied.
This brings us to the consideration of the only remaining question, which is, whether or not the appeal from the board of tide land commissioners was properly dismissed. The statute in relation to such appeals provides that,
“ Any person who is an applicant to purchase any tide lands may appeal from any finding or decision of the board of state land commissioners, as to the prior right to purchase such tide lands or any part thereof, which appeal shall be to the superior court of the county in which such tide lands are situate. Such appeal shall be taken by the party desiring to appeal serving upon the party in whose favor*632 said deeison and determination is made, and also npon all other parties who have appeared in the contest before said board, or upon their attorneys, a notice in writing that he appeals from said decision and determination to the said superior court, which said notice of appeal must be served as aforesaid, and together with the proof or admission of service indorsed thereon or attached thereto, must be filed with the said board of state land commissioners within thirty days from and after said decision and determination is filed in writing or entered in the records of said board of state land commissioners.” Laws 1895, § 82, p. 561.
The decision of the board from which the appeal was taken to the superior court was made and entered on June 30, 1896, and on the 27th of July following a notice of appeal was duly prepared and served upon one Eben Smith, who acknowledged due service of the same on said date in the name of “ Smith & Littell, Attorneys for Sol. G. Simpson.” The motion to dismiss the appeal was based upon the alleged grounds that no notice of appeal, either in writing or otherwise, had ever been served upon said Simpson or his attorney, and that all the pleadings, papers and record entries required by law had not been prepared and certified to the clerk of the superior court. It is shown by the affidavit of counsel for the respondent filed in the superior court, as well as by the records of the proceedings before the board of state land commissioners, that Thomas T. Littell was the sole attorney for Simpson in the contest between the latter and the appellants; and it is not claimed that Mr. Smith, at the time he assumed to acknowledge service of the notice of appeal, was a partner of Mr. Littell, or authorized to accept service of the notice for him. And the question is, was a service of the notice upon Smith such a service as is contemplated by the statute above quoted in relation to appeals from the decision of the land commissioners? It is a well settled rule that ap
But it is contended by tbe learned counsel for tbe appellants that it is morally' certain that tbe respondent did in fact have notice of tbe appeal, for tbe reason that it is shown by tbe affidavit of said Eben Smith that, on receiving tbe notice, be delivered it “ without delay ” to tbe respondent’s attorney. We are of tbe opinion, however, that that act did not constitute a compliance witb tbe mandatory provisions of tbe statute. Appellants were required to serve their notice either upon the respondent or his attorney, and file tbe proof or admission of service witb tbe commissioners witbin thirty days from tbe date of tbe entry of tbe decision appealed from. Tbe record shows an admission of service by Smith & Littell, and not by Thomas T. Lit-tell, who alone was authorized to admit service for tbe respondent; and this record evidence could not properly be changed or contradicted after tbe expiration of tbe time in which tbe admission of service could be filed. Graham v. Conrad, 66 Minn. 471 (69 N. W. 334).
It is further contended upon tbe part of tbe appellants that tbe respondent, by moving to strike tbe complaint in intervention, appeared generally in tbe cause, and ought not to be beard to question tbe notice. But it is a sufficient answer to this proposition to observe that, if tbe court
Our conclusion is that the superior court, not having-obtained jurisdiction, did not err in dismissing the appeal from the land commissioners, and the judgment will therefore be affirmed.
Reavis and Dunbar, JJ., concur.
I concur in the result, but not in holding-that a record cannot be changed so as to show the fact of service, after the expiration of the time fixed by the statute-
