City of Spokane Falls v. Browne

27 P. 1077, 3 Wash. 84, 1891 Wash. LEXIS 125

• Court: Washington Supreme Court
• Decided: November 12, 1891
• Docket: No. 313
• Status: Published

Opinions

The opinion of the court was delivered by

Andeks, O. J.

Respondents move the court to dismiss this appeal for the alleged reasons that the notice of appeal was not given within the time prescribed by law; that the statement of facts is not certified, as required by law; that the notice, or pretended notice, of appeal was never legally served; and that no transcript has been prepared and filed in this' court, as required by law. The argument of counsel for respondents upon the motion was mainly directed to the objection that the notice of appeal was not filed or served in time. It is claimed by counsel that the appeal was taken by giving notice thereof in open court on the 5th day of January, 1891, and that, having abandoned that appeal, appellant could not appeal again by subsequently giving written notice. It appears from an examination of the record that on the day above mentioned the judge who tried the cause announced in open court that he found for the defendant, whereupon counsel for plaintiff, no doubt thinking that judgment in the cause had been rendered by the court, gave notice of appeal to the supreme court. The fact is, however, that the court did not render judgment on said day, but on the 2d day of February, 1891, at which time the court filed its findings of fact and conclusions of law, and ordered the action dismissed at the cost of plaintiff. There being no judgment to appeal from, the first notice of appeal was treated by appellant as a nullity; and we do not think that by so doing appellant should be deprived of the right to appeal from the judgment by which it claims to have been injured. To hold that a party is estopped, by giving a premature and ineffectual notice, from thereafter prosecuting his appeal, would be to deprive him of a legal right upon a mere technicality, unsupported by reason, and contrary to the spirit and policy of the law. We cannot assent to such a doctrine, and therefore hold that the written notice of appeal was properly given, if not barred by lapse of time. This second notice was served on July 25,1891, but was not filed in the office of the clerk until August 3, 1891. As the six months’ limitation expired on the 2d day of August, counsel for respondents insists that the filing of the notice was one day too late. That would be true under ordinary circumstances, but in this instance the last day of the time limited fell upon Sunday, and, according to the rule of computation prescribed by the legislature, that day must be excluded. See Code Wash. § 743. The notice was therefore served and filed intime. The remaining objections to the statement of facts are not well taken. The certificate to the statement of facts is sufficient, and the amended proof of service of the notice of appeal shows that it was not served on Sunday, as claimed by respondents. The motion to strike the statement is denied.