19 Wash. 114 | Wash. | 1898
The opinion of the court was delivered by
This is an application for a writ of mandamus to compel the superior court of Pierce county to direct and cause to be entered in the journal of said court a personal judgment in favor of relator against the defendant Parker in the case of Holgate v. Parker, et al., upon a verdict heretofore rendered in that case. The application and the record show that the relator was plaintiff in an action against defendants Parker and Kirby, in which action a judgment was obtained in favor of the plaintiff for $500. Subsequently a motion was made for the vacation of the verdict and the granting of a new trial, which motion was sustained by the court, and a new trial ordered. The burden of the relator’s complaint is that the notice that the motion for a new trial would be made was given by defendant Kirby alone, and that inasmuch as defendant Parker did not join in said motion the setting aside of the verdict and the granting of the motion for a new trial did not affect him, and that he is now entitled to have judgment on the verdict entered against him. The complete record in this case was before this court on appeal taken by the relator from the action of the court in sustaining the motion to set aside the verdict and grant a new trial in this case. And from the whole record we are inclined to
“that it was error prejudicial to the defendants to receive in the absence of defendants’ counsel such verdict at said time, . . . for the reason that it deprived said counsel for defendants of the opportunity to poll said jury, and that defendants and their counsel did not waive their right to poll said jury by being absent at the time said verdict was received, and said jury discharged. That the reception without agreement and without notice of said verdict subsequent to the adjournment and prior to the re-convening of said court for regular business constituted an irregularity in the proceedings of the court and entitled the defendants to a new trial.”
And it was urged by the relator in his brief on appeal, that the court acted on the theory that it did not have the power to receive the verdict under the circumstances under which it was received; if this were true, the court could
“ You and each of you are hereby notified that the plaintiff in the above entitled action hereby appeals to the supreme court of the state of "Washington from the order and decision of the said superior court in the said action made and entered of record on or about the 18th day of May, 1891, wherein and whereby it was considered, ordered and adjudged by the court that the motion of defendants for a new trial should be and was allowed.”
It was evidently the understanding then of the appellant, who is now the relator,that the judgment applied to both of the defendants. The whole record and all the orders and notices given by and to the appellant show this conclusively. It has often been held by this court that an appeal cannot be taken piecemeal. It would amount to this and something more to allow a question which had been or could have been adjudicated upon an appeal which has
Scott, C. J., and Anders, Gordon and Reavis, JJ., concur.