40 Wash. 686 | Wash. | 1905
This is an appeal from an action of the superior court of Spokane county vacating a judgment. Respondents move to dismiss the appeal, for the reason that an order vacating a judgment is not appealable. That an order vacating a judgment is not appealable is the settled law of this state. See, Freeman v. Ambrose, 12 Wash. 1, 40 Pac. 381; Nelson v. Denny, 26 Wash. 327, 67 Pac. 78. Of course,
“We held in Freeman v. Ambrose, 12 Wash. 1, 40 Pac. 381, that an o-rder of this kind, when made upon motion in the original action, was not appealable. But it is claimed by the appellants that from the fact that this order was made in an original proceeding instituted for the purpose of having the judgment vacated, it does not come within the rule announced in that case. Ho good reason can be given for the distinction thus sought to be made. The object is the same whether the proceeding be by motion in the original case or by petition in a new one, and the effect of the order, whether made in one proceeding or the other is the same.”
See, also, State ex rel. Post v. Superior Court, 31 Wash. 53, 71 Pac. 740; Post v. Spokane, 35 Wash. 114, 76 Pac. 510.
Outside of authority, it is manifest that the only result of the action in either case is to obtain a new trial. Hence, it is in effect a proceeding in the case, and the form of the action is entirely immaterial.
The motion to dismiss will be sustained.
Mount, O. J., Root, Crow, Rudkin, and Hadley, JJ., concur.