Hays v. O'Brien , 56 Wash. 67 ( 1909 )

Per Curiam.

It is quite difficult to determine from a reading of this record what the object of the action was, or how the plaintiff could expect to derive any benefits from it under any known system of judicial proceedings. It is not necessary to again give the history of this case, as it has been more than once before this court. But it was probably the intention to wipe out all prior judgments of this court and of the superior courts on the subject of the alleged nuncupative will of John Sullivan, deceased, and establish plaintiff’s interest in the property of the Sullivan estate under a contract for attorney’s fees with Marie Carrau, the beneficiary of said will and one of the defendants in this action. This action was brought by plaintiff against Terrence O’Brien, as administrator of the estate of John Sullivan, deceased, and Marie Carrau and others. Carrau and O’Brien had demurred to the complaint, and after about a year from the interposition of the demurrers, the same not having been disposed of, the appellant obtained leave to file a supplemental complaint. The appellant objected to going to trial until after the disposal of the demurrers before mentioned, and alleges error of the court, in overruling his objection to do so; in going to trial without requiring O’Brien to answer the supplemental complaint; in dismissing plaintiff’s case in pursuance of the motion of defendants Piles, Donworth, Howe & Farrell, as to defendants Terrence O’Brien and Marie Carrau; in overruling plaintiff’s motion to set aside the order of the court made on March 9, 1909, whereby the court overruled plaintiff’s objection and motion against proceeding to trial under the circumstances; and in overruling plaintiff’s motion on March 11, to set aside the order made on March 9, just referred to. Some other errors are alleged in regard to the statement of facts, but they are not material. Upon the court refusing to sustain objections to proceeding to trial, the plaintiff and his attorney left the court room, announcing that that was the end of it, and they did not appear again in the action. The respondents proceeded to put in their proof, and final judgment was rendered. From this final judgment, no appeal has been taken, but on May 5, 1909, a motion to vacate the judgment and decree was filed, which motion was heard and denied on May 19, 1909. No motion for a new trial has ever been made.

If this could be construed to be an appeal from a motion to vacate the judgment, it was decided by this court in Nelson v. Denny, 26 Wash. 327, 67 Pac. 78, that an order vacating a judgment is not appealable under any of the provisions of Bal. Code, § 6500 (P. C. § 1048), authorizing the right of appeal. All the other alleged errors of the court could have been reviewed on an appeal from the final judgment in the cause; and that being true, the appeal in this case will not lie, for the r'eason stated many times by this court, that a case cannot be brought here on appeal piecemeal.

The motion to dismiss will therefore be granted.