10 Wash. 41 | Wash. | 1894
The opinion of the court was delivered by
This is an appeal from an order purporting to dissolve an attachment after the rendition of judgment in the action in which it was issued. Respondents move to dismiss, on the ground that an appeal from such an order does not lie.
The law of 1893 (Laws, p. 119) provides for an appeal from an order refusing to dissolve an attachment, but makes no provision for an appeal from an order dissolving one, from which it is argued by the respondents that the legislature having provided for the appeal in the one case, its failure to so provide in the other must negative any intention to provide for such appeal which may be gathered from other provisions of the statute. There is much force in this contention, but we do not feel called upon to decide it in this case. This order, while in form one for the dissolution-
Upon the merits it is only necessary to say, that, before the final judgment was rendered in the cause, a motion to dissolve the attachment had been made, and, after full'hearing upon affidavits, denied. From the order denying this motion an appeal to this court could have been taken. Hence it was a final determination by the superior court of the question whether or not the attachment should be dissolved, and it was error on the part of the lower court to again enter into the consideration of that question. But, even if we concede the right of the court to entertain another motion to dissolve the attachment, it would be authorized to decide such motion only upon facts of record in the cause or brought into it as evidence upon the hearing of the motion." It appears that the court in passing upon this motion assumed to decide it upon facts which had been made to appear in another action, without having them made a part of the record in this cause, and in so doing we think 'it committed error.
There has been some discussion as to the correct practice in entering judgment in a cause wherein property has been attached pending the litigation, but the question is not so
The order appealed from must be reversed.
Dunbar, C. J., and Anders, Scott and Stiles, JJ., concur.