123 Wash. 310 | Wash. | 1923
This is a motion to dismiss the appeal. The action was brought against H. B. Jensen and wife and Franklin County School District No. 1, seeking to recover damages for personal injuries. The district appeared by separate answer and by its own counsel. The cause proceeded to trial and resulted in a verdict against the district, as well as against the other defendants named. Jensen and wife moved for a new
The first ground of the motion to dismiss is based on the failure to serve the district. In Sipes v. Puget Sound Elec. R. Co., 50 Wash. 585, 97 Pac. 723, it was held that, where a judgment was entered in a personal injury case upon a verdict in favor of the plaintiff against one of the defendants for damages and in favor of a codefendant for costs, and an appeal was taken by the unsuccessful defendant, failure to serve notice of appeal upon, the codefendant did not deprive this court of jurisdiction or work a dismissal of the appeal. That case is controlling upon the first ground stated in the motion;
•. The case of. Wax v. Northern Pac: R. Go., 32 Wash. 210,.73.Pac. 380, is distinguishable. .There,- there were two defendants and a judgment against both. One of the defendants appealed and did not serve notice of the appeal, upon.the .codefendant, and. it. was held that the appeal should be dismissed for this reason-.. • The difference between that case and the present is that here the plaintiff obtained a judgment against only one of the defendants, and, under the holding in the Sipes’ case, that defendant, in taking the appeal, was not required to serve notice thereof upon the other defendant against whom the plaintiff had not obtained a judgment.
The second ground of the motion is that the clerk’s transcript was not filed within the time allowed by law, and that a sufficient excuse had not been given for such failure. The judgment was entered on Feb
This case is distinguishable from Picco v. Roney, 107 Wash. 202, 181 Pac. 522, in that there no excuse was given for the delay in filing the transcript on appeal within ninety days, while here, as already indicated, there appears to have been a sufficient excuse.
The motion to dismiss the appeal will be denied.