In Re Yand's Estate , 23 Wash. 2d 831 ( 1945 )

I do not think this appeal should be dismissed. When the parties to this case requested that it be remanded to the lower court so that action might be taken upon a stipulation into which they had entered, attention was called to the fact that the notice of appeal with proof of service had not been filed within five days after the service of such notice. This was done of our own motion and was no doubt prompted by the fact that in a case decided not long before it had been suggested, but not decided, that such filing might be a jurisdictional step to be taken in effecting an appeal to this court. It is my opinion that until we promulgate a rule of court making such a step jurisdictional, we should follow the rule pronounced in Reynolds v. Reynolds, 42 Wash. 107,84 P. 579, in which this court construed chapter 49, Laws of 1899 (Rem. Rev. Stat., § 1734). It may be that we might be justified in believing that the court placed the wrong construction on that act, but we have consistently followed the Reynolds case in all of our subsequent cases in which the same question of appellate practice and procedure was raised.

The attorneys who have practiced before this court have known the construction placed by it upon the act ever since theReynolds case was decided in 1906. The judges who construed the statute were jurists of outstanding ability and no doubt realized that its purpose was to simplify appellate procedure, and to prevent the dismissal of appeals upon technical grounds. Even though we might disagree with them and those who later adopted their views, this does not justify the overruling of the cases we have decided adhering to the construction given the statute in the Reynolds case. I recognize that occasionally it becomes advisable and necessary to overrule previous decisions because of the enactment of a statute, or by reason of changed conditions and the progressive development of the law, and it may happen that time will demonstrate that a rule previously pronounced is unsound. In such an event the hardship suffered by a respondent who may have relied on our former decisions cannot be avoided by the court, but when the subject matter involved in an appeal is a rule of appellate practice and procedure recognized by this court for a long time and upon which the bar has relied, we do not need to make a change by overruling previous decisions but should follow our decisions in the instant case, and then if we feel a change should be made in the rule of practice and procedure, we can do so by rule under our rule-making power and make it prospective in its operation so that pending appeals may not be affected. That is what I think we should do in this case.

We should grant the request to remand the case to the lower court for such further proceedings as that court and the parties to the action may determine should be taken.

BLAKE and MALLERY, JJ., concur with GRADY, J.

November 16, 1945. Petition for rehearing denied.