Mahncke v. City of Tacoma

23 P. 804, 1 Wash. 18, 1890 Wash. LEXIS 10

• Court: Washington Supreme Court
• Decided: January 24, 1890
• Docket: No. 595
• Status: Published

Opinion

The opinion of the court was delivered by

Scott, J.

The appeal in this case is from an order refusing appellants a temporary injunction, and also dismissing the action. Appellees moved to dismiss on the ground that no appeal lies from such an order.

Under the organic act no appeal could have been taken from an order refusing a temporary injunction, as the same is not a final decision. And had the order stopped with refusing the injunction the appeal would not lie. This goes further, however, and purports to summarily dismiss the suit. The complaint states a cause of action, and, from the bare record, this part of the order is unaccountable, and manifestly erroneous. Were the record unaided in any way, the case would have .to be reversed on that ground; but counsel for appellants advisedly states to the court in his argument here, that the order dismissing the action was made at appellants’ request.

This being admitted by appellants, we think they are bound by it in this court, and that we would not be justified in viewing the case in any other light; and, as it was a voluntary dismissal, no appeal could be taken therefrom.

The motion to dismiss is therefore granted with costs.

ANdees, O. J., and Dunbar, Hoyt and Stiles, JJ., concur.