Reitmeir v. Siegmund , 13 Wash. 624 ( 1896 )

The opinion of the court was delivered by

Hoyt, C. J.

This appeal was from an order which set aside a default and gave the defendants leave to answer. Respondents moved to dismiss on the ground that an appeal would not lie from such order.

We held in Freeman v. Ambrose, 12 Wash. 1, (40 Pac. 381), that an order of this kind, when made upon motion in the original action, was not appealable. But it is claimed by the appellants that from the fact that this order was made in an original proceeding instituted for the purpose of having the judgment vacated, it does not come within the rule announced in that case. No good reason can be given for the distinction thus sought to be made. The object is the same whether the proceeding be by motion in the original case or by petition in a new one, and the effect of the order, whether made in one proceeding or the other is the same.

But it is not necessary for us to decide at this time whether or not an appeal would lie from the order in question, for the reason that we are satisfied that the showing was such that the superior court was entirely justified in making the order. The facts disclosed by the record are such as not only to show that there was no abuse of discretion in granting the order, but that it would have been a great abuse of such discretion to have denied it.

The order will be affirmed.

Dunbar, Scott, Anders and Gordon, JJ., concur.