Docket No. 593
Decided: Thursday, January 23rd, 1890
Opinion: 1 Wash. 16 (1890)
Court: Anders1 Court (1889-1892)
Anders
Dunbar
Hoyt
Scott
Stiles
Note: We post only slip opinion(s) as published at the time of the decision. Please consult Washington Reports printed volumes for the opinion(s) in their final form. Undetermined votes indicate that the opinion(s) have not been evaluated yet.
GOWER v. GOWER, 1 Wash. 16; 24 P. 29 (1890).
No. 593.
SUPREME COURT OF WASHINGTON
January 23, 1890, Decided Appeal from District Court, Pierce County. Action by appellee in the district court, holding terms at Tacoma, to recover certain real estate. On the 20th day May, 1888, the case came on regularly for trial before the judge at his chambers. No proof to sustain the allegations of the complaint was offered, and the court made its findings and decree in favor of appellant. On the 6th day of October, 1888, appellee filed a petition and motion to set aside the findings and decree and to reopen the case, filing affidavits therewith. The judge, after hearing on the petition, made an order on November 3, 1888, granting the prayer of the petition. To reverse the decision of the court in granting said petition, this appeal has been taken.
Court: Motion sustained and appeal dismissed.
Counsel: C. H. Hanford, for appellant.
The order vacating the judgment, being the conclusion of a special proceeding, is a final decision, and is reviewable in this court. Code Wash. T., § 445, 446; Dryden v. Wyllis, 51 Iowa, 534. Campbell & Powell, Carroll & Coiner, and Mitchell, Ashton & Chapman, for appellee.
The action of the court in granting a motion to set aside a judgment is discretionary, and not to be reviewed in any appellate court. Code Wash. T., § 109, 436; Whitesides v. Logan, 17 Pac. Rep. 34; Bolton v. McKinley, 22 Ill. 203; Breden v. Gilliland 67 Pa. St. 36; Kelty v. High, 1 S. E. Rep. 561; Francis v. Cox, 33 Cal. 323. The order of the district court allowing a trial of this cause upon its merits is not a final decision within the meaning of the organic act, authorizing appeal to the supreme court. Rev. Stat. U. S. § 1869; McCormick v. Walla Walla, etc., R. R. Co., 1 Wash. T. 512; N. P. R. R. Co. v. Wells, Fargo & Co., 2 Wash. T. 303.
Judge(s) ANDERS, C. J. STILES, HOYT, DUNBAR and SCOTT, JJ., concur.
Opinion By: ANDERS The opinion of the court was delivered by ANDERS, C. J.--The court below rendered an affirmative decree in this cause in favor of appellant, the defendant therein.
After the term of the district court at which said decree was entered, but within five months subsequent to its adjournment, the plaintiff (appellee herein) applied to the court, in the usual manner, to vacate said decree, which was accordingly done. From this order of the district court defendant appeals.
Appellee moves to dismiss the appeal for the reason that the order appealed from was not a final judgment or decision, and, therefore, not reviewable in this court.
In the case of Lilienthal v. Wright, recently decided by this court, ante, p. 1, we held that an order of the district court vacating a judgment at the same term at which it was rendered, was not subject to review in this court. And as we are of the opinion that § 109 of the code extends the time during which the court or judge may grant relief from the effects of judgments, for the period of five months after the adjournment of the term when rendered, the motion must be governed by that opinion and decided accordingly.
It follows, therefore, that the motion must be sustained and the appeal dismissed; and it is so ordered.
STILES, HOYT, DUNBAR and SCOTT, JJ., concur.