White Crest Canning Co. v. Sims

Washington Supreme Court

White Crest Canning Co. v. Sims

69 P. 1094, 29 Wash. 389, 1902 Wash. LEXIS 598

CourtWashington Supreme Court

DecidedAugust 11, 1902

DocketNo. 4312

StatusPublished

This text of 69 P. 1094 (White Crest Canning Co. v. Sims) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

White Crest Canning Co. v. Sims, 69 P. 1094, 29 Wash. 389, 1902 Wash. LEXIS 598 (Wash. 1902).

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Opinion

Per Curiam.

This is an appeal from a judgment entered in an action triable de novo in this court. The respondents, in their answering' brief, moved to dismiss the appeal, and to strike the statement of facts and certain other parts of the record. Subsequently, they noted these motions for hearing on a motion da.y, at which time they were heard and the motions submitted. The grounds of the motion to dismiss are two, namely, that the bond is insufficient, and that the controversy has ceased. The objections to the bond are that it runs to the sureties upon the appellant’s (plaintiff’s) cost bond in the lower court, [390]*390as well as to' the respondents; and further that it is signed as surety by one of the persons to whom th© bond runs. These objections are without merit. The judgment ap-pealed from, it is true, was against the appellant and the sureties on its cost bond, and it was unnecessary, for that reason, that the appeal bond should run to the sureties; but it is conditioned to satisfy and perform the judgment of this court, and is therefore ample to protect the rights of the respondents. The fact that it runs to others than the necessary obligues does not render it nugatory as a bond. hTor is 'it void because signed by one of the obligees named therein. We have held that a bond executed by the parties against whom the judgment was entered was insufficient to sustain an appeal, but that is not the question here. There was another and a sufficient surety on this bond, and what we hold is that an otherwise valid appeal bond is not rendered nugatory merely because it is signed by one who is bound by the judgment.

The most the record shows on the second ground of the motion is that the controversy could have ceased since the taking of the appeal, not that it has actually ceased. This is not sufficient to warrant a dismissal. Wood v. Seattle, 23 Wash. 1 (62 Pac. 135, 52 L. R. A. 369).

The motion to strike the statement and certain parts of the record, as we are at present advised, will not, if granted,' determine the appeal. We will not, therefore, at this time determine the questions, but will consider them- when the cause is submitted upon its merits. The motion to dismiss is denied. •'

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Per Curiam.

This is an appeal from a judgment entered in an action triable de novo in this court. The respondents, in their answering' brief, moved to dismiss the appeal, and to strike the statement of facts and certain other parts of the record. Subsequently, they noted these motions for hearing on a motion da.y, at which time they were heard and the motions submitted. The grounds of the motion to dismiss are two, namely, that the bond is insufficient, and that the controversy has ceased. The objections to the bond are that it runs to the sureties upon the appellant’s (plaintiff’s) cost bond in the lower court, [390]*390as well as to' the respondents; and further that it is signed as surety by one of the persons to whom th© bond runs. These objections are without merit. The judgment ap-pealed from, it is true, was against the appellant and the sureties on its cost bond, and it was unnecessary, for that reason, that the appeal bond should run to the sureties; but it is conditioned to satisfy and perform the judgment of this court, and is therefore ample to protect the rights of the respondents. The fact that it runs to others than the necessary obligues does not render it nugatory as a bond. hTor is 'it void because signed by one of the obligees named therein. We have held that a bond executed by the parties against whom the judgment was entered was insufficient to sustain an appeal, but that is not the question here. There was another and a sufficient surety on this bond, and what we hold is that an otherwise valid appeal bond is not rendered nugatory merely because it is signed by one who is bound by the judgment.

The most the record shows on the second ground of the motion is that the controversy could have ceased since the taking of the appeal, not that it has actually ceased. This is not sufficient to warrant a dismissal. Wood v. Seattle, 23 Wash. 1 (62 Pac. 135, 52 L. R. A. 369).

The motion to strike the statement and certain parts of the record, as we are at present advised, will not, if granted,' determine the appeal. We will not, therefore, at this time determine the questions, but will consider them- when the cause is submitted upon its merits. The motion to dismiss is denied. •'

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69 P. 1094, 29 Wash. 389, 1902 Wash. LEXIS 598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-crest-canning-co-v-sims-wash-1902.

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