63 Wash. 486 | Wash. | 1911
The defendant being charged with the crime of assault in the first degree, pleaded not guilty, and in addition thereto, that he was insane or mentally irresponsible at the time of the commission of the crime charged -against him, and that since then he has recovered his sanity and is now mentally responsible. This plea was made in substantial compliance with Rem. & Bal. Code, § 2174. The issues being thus made, the case proceeded to trial before the court and a jury, resulting in a verdict rendered on January 5, 1911, finding the defendant not guilty by reason of insanity
“Comes now James L. Tenney, the defendant in the above entitled cause, by his attorneys Thomas R. Horner and Alfred Gfeller, and gives notice that he appeals from the order denying his motion to vacate the judgment of this court committing him to the insane ward of the penitentiary at Walla Walla, which order was made and entered upon the record herein on the 11th day of February, 1911, to the supreme court of the state of Washington.”
It seems too clear to admit of argument to the contrary that this is not an appeal from the -final judgment rendered upon the verdict; but is an attempted appeal from the order denying the motion to vacate the judgment. This court has held, in harmony with the rule elsewhere, that such an order is not appealable for the purpose of reviewing errors committed by the trial court affecting the correctness of the judgment sought to be vacated.
In Sound Investment Co. v. Fairhaven Land Co., 45 Wash.
“It has been the uniform ruling of this court that a motion to vacate a judgment does not affect a substantial right, if the. errors complained of are errors of law occurring at the trial; that such errors cannot be reviewed in a motion to vacate, and that, therefore, no substantial right could be invaded by a denial of the motion.”
To permit an appeal from such an order would in effect enable a losing party to extend the statutory time for taking an appeal to review errors occurring in the cause in which the judgment is rendered.
Counsel for appellant insist that since their motion to vacate the judgment is based upon want of jurisdiction of the trial court because of the unconstitutionality of the statute authorizing such a judgment, there is something more involved in their appeal than a question of error in the rendition of the judgment. We are not able to agree with this contention. In the case of In re Newcomb, 56 Wash. 395, 105 Pac. 1042, we held that the existence of the law under which the trial court rendered judgment was a question for the trial court to determine in the case, and that its decision upon that question could only be reviewed by appeal, since it involved nothing but a question of whether or not such decision was erroneous. That was a habeas corpus case; but as in this case, it was an attempt to review alleged errors in a cause leading up to and including the rendering of the final judgment therein otherwise than by an appeal from such judgment. We are not able to see that the question of the constitutionality of this law affects the question here involved any differently than would the question of the existence of the law.
Counsel for appellant ask that they be permitted to amend their notice of appeal so as to have it refer to the judgment instead of to the later order, in the event we conclude it is
Dunbar, C. J., Mount, Gose, and Fullerton, JJ., concur.