Pelly v. Behneman

12 P.2d 422, 168 Wash. 465, 1932 Wash. LEXIS 859

• Court: Washington Supreme Court
• Decided: June 20, 1932
• Docket: No. 23489. En Banc.
• Status: Published

Opinions

Herman, J.

Plaintiffs sued to rescind a real estate contract entered into between them and defendant September 20, 1927. The snit was instituted against both defendant and her husband. They answered separately, denying, among other things, that the contract was a community obligation. Defendant Belle T. Behneman’s answer also contained an affirmative defense and cross-complaint relating to or alleged to have grown out of the transaction upon which the cause of action alleged in the complaint arose. The trial court entered an order March 23,1931, sustaining a demurrer to the affirmative defense and cross-complaint of the aforesaid defendant.

June 18, 1931, the trial court entered a judgment reciting that the matter had previously come on for hearing upon the demurrer of the plaintiffs to the cross-complaint and counterclaim of defendant Belle T. Behneman; that the court had theretofore entered an order sustaining the aforesaid demurrer; and that the defendant had refused to plead over. It contained the following provision:

“It is hereby ordered, adjudged and decreed that the cross-complaint and counterclaim of the defendant, Belle T. Behneman, be and the same is hereby dismissed with prejudice. ’ ’

Prom the foregoing judgment of dismissal, defendant Belle T. Behneman has appealed.

The trial court has not yet entered any other judgment in the action, from which it follows that the judgment of dismissal appealed from was premature. Since, however, the trial court entered the judgment of dismissal “with prejudice,” appellant was compelled to take this appeal in order to protect her right to have the merits of the ruling inquired into at the proper time under the statute. • The correct procedure would have been to have entered no order other than that sustaining the demurrer.

The judgment here appealed from differs from that entered in Old National Bank v. O. K. Gold Mining Co., 19 Wash. 194, 52 Pac. 1065, in that the order dismissing the counterclaim in that case was not entered “with prejudice.” The judgment here appealed from is similar to the order entered in the case of Snohomish County v. Ruff, 15 Wash. 637, 47 Pac. 35, 441, in that it affected a substantial right and determined the action as to the particular matter in issue, and was in effect a judgment thereon against the appellant.

The question whether the trial court was right in sustaining the demurrer, would be reviewable upon an appeal from a final judgment covering all the other issues in the case.

Rem. Comp. Stat., §1736, provides:

“Upon an appeal from a judgment, the supreme court may review any intermediate order or determination of the court below which involves the merits and materially affects the judgment, appearing upon the record sent up from the superior court.”

The question of whether or not the trial court was correct in its conclusion that the demurrer should have been sustained, is not before us. The only question to be decided is whether the judgment dismissing the appellant’s affirmative defense and cross-complaint with prejudice was prematurely entered. We hold that it was, and that its effect was to compel appellant to ap-. peal, if she would protect her right to have the merits of the ruling inquired into at the proper time. The ruling complained of, in effect, requires appellant to appeal piece by piece. In Freeman v. Ambrose, 12 Wash. 1, 40 Pac. 381, tbe court said:

“We think it against the policy of the law to give the act a construction that would multiply appeals and permit litigants to bring their causes here by piecemeal, ...”

Beversed.

Tolmaet, C. J., Mitchell, Parker, Main, Beals, and Millard, JJ., concur.