Sipes v. Puget Sound Electric Railway Co.

97 P. 723, 50 Wash. 585, 1908 Wash. LEXIS 790

• Court: Washington Supreme Court
• Decided: October 15, 1908
• Docket: No. 7544
• Status: Published

Opinions

Crow, J.

This action was commenced by Henry Sipes against the Puget Sound Electric Railway Company, a corporation, and W. S. Dimmock, to recover damages -for personal injuries. The defendants appeared by the same attorneys, but answered separately. On a jury trial a verdict was returned, upon which judgment was entered in favor of the plaintiff and against the Puget Sound Electric Railway Company, for $7,000 damages, and judgment was also entered in favor of the defendant W. S. Dimmock against the plaintiff, Henry Sipes, for costs. The defendant the Puget Sound Electric Railway Company has appealed.

The respondent has moved this court to dismiss the appeal for the reasons, that no notice thereof has been served upon the defendant W. S. Dimmock, who appeared and defended the action; that he has not joined in the appeal, and that this court has no jurisdiction. The respondent bases his motion to dismiss on Bal Code, § 6504 (P. C. § 1052), which provides that,

“When the notice of appeal is not given at the time when the judgment or order appealed from is rendered or made, it shall be served .... upon all parties who have appeared in the action or proceeding.”

He insists that the defendant Dimmock having appeared, the requirement of the statute for service upon him is jurisdictional, and that failure to make such service vitiates the appeal. ’In support of this contention, he cites the following cases, decided by this court prior to the enactment of chapter 49, Session Laws of 1899, page 79, which amends § 19 of the áct relating to appeals to the supreme court, and to which reference is hereinafter made: Cline v. Mitchell, 1 Wash. 24, 23 Pac. 1013; Nelson v. Territory, 1 Wash. 125, 23 Pac. 1013; Jones v. Sander, 2 Wash. 329, 26 Pac. 224; Cadwell v. First Nat. Bank, North Yakima, 3 Wash. 188, 28 Pac. 365; Bellingham, Bay Nat. Bank v. Central Hotel Co.,. 4 Wash. 642, 30 Pac. 671; Traders’ Bank of Tacoma v. Bokien, 5 Wash. 777, 32 Pac. 744; Johnson v. Lighthouse, 8 Wash. 32, 35 Pac. 403; Dewey v. South Side Land Co., 11 Wash. 210, 39 Pac. 368; Fairfield v. Binnian, 13 Wash. 1, 42 Pac. 621; Casey v. Oakes, 13 Wash. 38, 42 Pac. 621; Grays Harbor Commercial Co. v. Wotton, 14 Wash. 87, 43 Pac. 1095; Cornell University v. Denny Hotel Co., 15 Wash. 433, 46 Pac. 654; Pacific Coast Trading Co., v. Bellingham Bay Baseball Assn., 18 Wash. 245, 51 Pac. 382; Hopkins v. Satsop R. Co., 18 Wash. 679, 52 Pac. 349; OlNat. Bank v. O. K. Gold Min. Co., 19 Wash. 194, 52 Pac. 1065; Home Sav. & Loan Ass’n. v. Burton, 20 Wash. 688, 56 Pac. 940; Smith v. Beard, 21 Wash. 204, 57 Pac. 796.

The appellant contends that under the express provisions of Bal. Code, §§ 6503 and 6504 (P. C. §§ 1051,1052), Dim-mock is not a necessary party to this appeal. Section 6503 provides:

“If the appeal be not taken at the time when the judgment or order appealed from is rendered or made, then the party desiring to appeal may, by himself or his attorney, within the time prescribed in section 6502, serve written notice on the prevailing party or his attorney that he appeals from such judgment or order to the supreme court, and within five days after the service of such notice he shall file with the clerk of the superior court the original or a copy of such notice, with proof or the written admission of the service thereof, and thereupon the clerk shall enter such notice, with the proof or admission of service thereon, in the journal of the court. The giving or serving of a notice of appeal as prescribed in this section shall effect the appeal, . . . . ”

This language is susceptible only of the construction that the service of notice of appeal on the prevailing party, -who in this case was the respondent and not the defendant Dim-mock, followed by the filing of proof of such service within five days thereafter, is all that is necessary in the matter of notice and service, to effect the appeal and give this court jurisdiction. Dimmock was a successful litigant. There was no order from which he could appeal, and we fail to understand how the neglect to serve him with appellant’s notice deprived any party of benefits to be derived from the appeal, or prevented the respondent from perfecting an appeal in his own behalf against the defendant Dimmock. While it is true that § 6504 directs that service be made upon all parties who have appeared, it is apparent that the sole purpose of such notice to appearing parties, other than the prevailing one mentioned in § 6503, was that in the event of their having an interest in the appeal, they might join therein, if they so desired. In other words, the object of the statute was to require all interested parties to jointly prosecute their appeals and cross-appeals instead of bringing them to this court by piecemeal. It is true that, in some of the earlier cases above cited by respondent, this court technically enforced Bal. Code, § 6504, by dismissing appeals for failure to serve notice on all parties who had appeared. A more liberal construction, however, should now be placed upon said section by applying thereto the provisions of chap. 49, Laws 1899, page 79, since enacted, which are, that upon the hearing of a motion to dismiss an appeal which

“does not go to the substance of the appeal, or to the right of appeal, and the court shall be of the opinion that the moving party can be compensated in costs or by the imposition of other terms for any delay of the appellant which is made the ground of any such motion, .... the court in its discretion may deny the motion on such terms as may be just. The court shall upon like terms allow all amendments in matters of form curative of defects in proceedings, to the end that substantial justice be secured to the parties, and no appeal shall be dismissed for any informality or defect in the notice of appeal, the appeal bond, or the service of either thereof ... if the appellant shall forthwith, upon order of the supreme court, perfect the appeal.”

This statute is broad in its scope, and while in State v. Seaton, 26 Wash. 305, 66 Pac. 397, we have held that it did not relieve an appeal from jurisdictional defects arising out of failure to comply with certain mandator}' provisions, we have since its enactment granted relief in other cases to appellants from defects which, not being jurisdictional, did not affect the substance of the appeal, or the right to appeal. See, Brown v. Calloway, 34 Wash. 175, 75 Pac. 630; James v. James, 35 Wash. 650, 77 Pac. 1080; Westland Publishing Co. v. Royal, 36 Wash. 399, 78 Pac. 1096; Reynolds v. Reynolds, 42 Wash. 107, 84 Pac. 579.

The condition of the record before us shows that the failure of the appellant to serve its notice of appeal upon Dimmock does not go to the substance of the appeal, nor to the right of appeal. Dimmock was satisfied with the judgment in his favor. Not being an aggrieved party, he could not appeal. Failure to serve him deprived him of no rights, neither did it prevent the respondent Sipes from appealing as against Dim-mock, either by original or cross-appeal. How, then, would the presence of Dimmock aid this court in disposing of the issues arising on this appeal between the respondent Sipes and the appellant, the Puget Sound Electric Railway Company, or how could his absence interfere with a complete administration of justice as between them? Evidently the failure to serve him does not, on the record now before us, create any jurisdictional defect in the appeal of the Puget Sound Electric Railway Company for which it should be dismissed.

The respondent, however, citing the following additional cases, decided by this court since the enactment of the statute of 1899, insists on their authority that the appeal should be dismissed. First Nat. Bank of Seattle v. Gordon Hardware Co., 31 Wash. 682, 72 Pac. 464; Wax v. Northern Pac. R. Co., 32 Wash. 210, 73 Pac. 380; O’Conmer v. Lighthizer, 34 Wash. 152, 75 Pac. 643; Davis v. Tacoma R. & Power Co., 35 Wash. 203, 77 Pac. 209, 66 L. R. A. 802; Willard v. Fisher, 36 Wash. 229, 78 Pac. 917; Collins v. Kinnear, 37 Wash. 453, 79 Pac. 995. An examination of these cases and the original records on which the motions to dismiss were made, shows either (1) that a judgment had been entered against the party who had appeared and was not served with notice of appeal, or (2) that the party not served had a material interest in the prosecution of the appeal, or (3) that this court refused to dismiss the appeal. It appearing that no judgment has been entered against Dimmock from which he can prosecute either an original or cross-appeal, and that he has no interest in the appeal now being prosecuted by the Puget Sound Electric Railway Company, we conclude that, in view of the statute of 1899, ilhese cases do not require us to enter an order of dismissal herein.

In the lower court, attorneys James B. Howe and Hugh A. Tait represented the appellant company and also the defendant Dimmock. The notice of appeal was prepared by Mr. Tait and signed by them for the Puget Sound Electric Railway Company. At all times since July 7, 1908, the date of its service on respondent, and its filing in the superior court, a copy of the notice has been in their possession, they being also attorneys for the defendant Dimmock, and as such attorneys they have at all times since had full knowledge of the appeal taken by the Puget Sound Electric Company, of its service upon respondent and of the filing of proof of such service. After the filing, but prior to the hearing of respondent’s motion to dismiss, the appellant caused the following acceptance of service to be filed in the lower court, and transmitted to this court by supplemental record:

“We, the undersigned, James B. Howe and Hugh A. Tait, attorneys of record for the above named defendant W. S. Dimmock, now, on this 1st day of September, 1908, hereby acknowledge and accept, as of the 7th day of July, 1908, due service of the notice of appeal to the supreme court of the state of Washington, given in said action on said 7th day of July, 1908, by the defendant therein Puget Sound Electric Railway, a copy of said notice of appeal served on the plaintiff’s attorney on said 7th day of July, 1908, being on said 7th day of July, 1908, and ever since said date, in our possession as attorneys for said W. S. Dimmock. James B. Howe, Hugh A. Tait, Attorneys for defendant W. S. Dim-mock.”

Attached to this acceptance, is the undisputed affidavit of Mr. Hugh A. Tait, in which he in substance states, that he had been at all times since the commencement of the action attorney for appellant Puget Sound Electric Railway Company and defendant W. S. Dimmock; that he has had exclusive charge of the cause; that he prepared all pleadings and papers therein for both defendants; that he tried the cause for them; that the notice of appeal to the supreme court given in the cause by the Puget Sound Electric Railway Company was prepared by him; that he, as one of the attorneys for th.e defendant Dimmock, had full knowledge of such appeal from the judgment in favor of respondent and against the Puget Sound Electric Railway Company; that on July 7, 1908, the day on- which the Puget Sound Electric Railway Company gave its notice of appeal, he, as attorney for W. S. Dimmock, had, and ever since has had, in his possession a copy of the notice of appeal, and that it has never been Dim-mock’s purpose or intention to take an appeal in the cause, or to join in or contest any appeal taken by any other party. The fact that attorneys for the appellant Puget Sound Electric Railway Company were also attorneys for the defendant Dimmock did not debar them'as attorneys for appellant from serving themselves with the notice of appeal as attorneys for Dimmock, there being no conflict of interest between their clients. Smalley v. Laugenour, 30 Wash. 307, 70 Pac. 786; Woelflen v. Lewiston-Clarkston Co., 49 Wash. 405, 95 Pac. 493.

Under the provisions of the statute of 1899, we conclude that the above-quoted acceptance and proof of service sufficiently cures any alleged defect in the service or the proof of service of the notice of appeal upon Dimmock. In Howard v. Shaw, 10 Wash. 151, 38 Pac. 746, decided prior to the enactment of the statute of 1899, this court, on a similar state of facts, denied a motion to dismiss. The original record in that case shows that two foreclosure actions had been consolidated; that in one of them judgment was sought against A. M. Murphy, J. F. McEwen, and one Wilson, all of whom appeared by the same attorney and answered and defended, and that final judgment affecting all of their interests was entered in favor of the respondent Howard, one of the foreclosure plaintiffs. Murphy alone appealed. He neither directed his notice of appeal to McEwen or Wilson, the other appearing defendants, nor did he file any proof of service upon them on April BO, 1894, the date on which he filed the notice of appeal, with proof of service on Howard, the prevailing party. On August 15, 1894, the attorney who had appeared for Murphy, and also for McEwen and Wilson, filed a proof of personal service upon them, dated April SO, 1894, and acknowledged by himself as their attorney. The respondent Howard moved to dismiss the appeal, and in support of this motion contended that, under Bal. Code, § 650B, proof of service upon McEwen and Wilson should have been filed within five days after service upon them. Proof of service on Howard the prevailing party had been filed within five days. Appellant’s attorney in his brief made the following argument in support of his appeal:

“In this connection we call the court’s attention to the fact that section 4, page 121, Laws of 1893 (Bal. Code, § 6503), provides that the notice of appeal with proof of service upon the prevailing party (in this case Howard) shall be filed with the clerk of the superior court within five days after service; but that section does not provide that, proof of service of the notice of appeal upon the other parties to the action shall be filed within such time. Section 5 of the act (Bal. Code, § 6504), provides that service of notice of appeal shall be made upon the other parties to the action who have appeared, but it does not provide within what time after service such proof shall be filed. . . . The only important thing is that such proof should be filed before the hearing in the supreme court, so that it may appear that the supreme court has jurisdiction of the cause. We respectfully submit that it was not the intention of the legislature that proof of service of notice upon parties who had not prevailed in the court below should be filed with the clerk of the superior court within the time limited for filing proof of service of notice upon the prevailing party.”

While the above facts, which we state from the original record, are not detailed in the opinion of this court, it is apparent from them when stated that the contention of the appellant in the case now before us was there sustained. In de.nying the motion of the respondent Howard to dismiss, this court said:

“Proof of service of the notice of appeal upon the prevailing party was filed within five days after the service. This, with the filing of the bond, effected the appeal. Laws 1893, Ch. 61, § 4 (p. 120). The act does not prescribe when proof of the service upon co-parties with the appealing party shall be filed. Id. § 5 (p. 321).”

Messrs. Howe and Tait, attorneys for Dimmock, had at all times full knowledge of the appeal taken by them on behalf of their other client the Puget Sound Electric Railway Company. At all times since July 7, 1908, the notice of appeal has been in their possession, the proof of service now on file shows that fact, and is sufficient to sustain the appeal, under the authority of Howard v. Shaw, as elucidated by the record in that case. Since the enactment of the statute of 1899 substantially the same holding has been made by this court. In the case of In re Murphy's Estate, 26 Wash. 222, 66 Pac. 424, the prevailing parties were the heirs of an estate. The attorney who represented the administrator also represented the heirs, all of whom had appeared, but the notice of appeal was acknowledged by him only as attorney for the administrator. After commenting upon and quoting from the law of 1899 and the case of Home Savings & Loam Assn. v. Burton, 20 Wash. 688, 56 Pac. 940, this court said: torney of the administrator, Filley, to dismiss for want of proper notice, did not have sufficient notice. His knowledge as attorney for Filley cannot be segregated from his knowledge as attorney for the heirs, who were of the prevailing parties.”

“Certainly it cannot be said that Mr. Agnew, the attorney of record for the heirs, and who now appears here as the at-

Prior to the law of 1899, this court held that failure to file proof of service upon the adverse party within five days was sufficient ground for dismissal of the appeal. Puckett v. Moody, 17 Wash. 609, 50 Pac. 494. As an illustration, however, of the relaxing effect of the 1899 amendment upon the prior law relating to appeals, the case of Reynolds v. Reynolds, 42 Wash. 107, 84 Pac. 579, may be cited. In that case this court said:

“It is conceded in this case that a proper notice was served within time, and that proof thereof was subsequently made, but not within time. This later statute was evidently intended to cover such cases. Since the appeal appears not to have been delayed, or respondents injured in any way, the motion to dismiss is denied without terms.”

See, also, Main Investment Co. v. Olsen, 43 Wash. 480, 86 Pac. 657.

We think the earlier cases from this court cited by respondent, decided prior to the enactment of the statute of 1899, do not, in view of that statute, require us to enter an order dismissing this appeal. We so hold for the following reasons: (1) That, upon the record before us, the alleged defect arising from the want of service on the defendant Dimmock does not affect the substance of the appeal, nor the right to appeal; (2) that the defendant Dimmock has no substantial interest in the appeal now .being prosecuted by the Puget Sound Electric Railway Company; and (3) that, in any event, the possession of the notice of appeal by Dimmock’s attorneys, who made and served it as attorneys for the appellant the Puget Sound Electric Railway Company, was sufficient service on them as Dimmock’s attorney to be actual notice of the appeal taken, and that the proof of service on Dim-mock filed on September 1, 1908, is sufficient filing of proof of the service, mentioned in § 6504, upon a party who had appeared but who was not the prevailing party in the judgment from which the appeal was taken.

The motion to dismiss is denied.

Hadley, C. J., Dunbar, Mount, and Root, JJ., concur.