Agassiz v. Kelleher

39 P. 228, 11 Wash. 88, 1895 Wash. LEXIS 258

Opinion

The opinion of the co.urt was delivered by

Scott, J.

A former appeal was taken in this case, which was dismissed upon the appellant’s motion, for the purpose of allowing him to move for a correction of the judgment entry in the lower court, and taking another appeal therefrom. 9 Wash. 656 (38 Pac. 221). A default judgment had been entered against the appellant, on which the first appeal was taken. After said appeal was dismissed, this judgment was set aside and a judgment of dismissal was entered upon the order sustaining a demurrer to the complaint, the plaintiff having elected to stand thereon, and this appeal was taken from the judgment as corrected.

The respondent again moves to dismiss, one of the grounds being that the appeal was not taken in time. It is conceded to have been taken more than six months after the entry of the original judgment. The present judgment was the one that should have been entered at that time, and it ought not to be given the effect of a new judgment to extend the time for taking an appeal.

We are of the opinion that this appeal was taken too late, and the motion to dismiss is granted. The costs upon the former dismissal, having been withheld pending the time within which a second appeal could be taken, will be included herein.

Hoyt, C. J., and Anders, Dunbar and Gordon, JJ., concur.