Macy v. Sullivan
Macy v. Sullivan
Opinion of the Court
The judgment appealed from in this case is for $548.40 damages, and for the quieting of title to a certain tract of land by the return and annulment of a deed, given by mistake to the appellant by the respondent. The discussion of the merits of the appeal is obviated by the interposition by the respondent of a motion to dismiss the appeal and affirm the judgment, for two reasons: (1) That the judgment appealed from requires the performance of something other than, and in addition to, the payment of money, no order fixing the amount of a supersedeas bond ever having been made or entered by the trial court; and (2) that the judgment appealed from is not appealable.
It appearing in this case that the judgment did require
As to the second proposition, it appears from the record that a demurrer was sustained to the appellant’s affirmative defense to* the complaint, and at his request he was given until April 29 in which to* file a second amended answer; that he failed to file* said pleading within the time allowed, or at all, and that on May 1, respondent moved for appellant’s default for such failure; that such default was granted by the court, and no request was ever made to the trial court to set aside the default. Under such circumstances, no appeal lies. Pacific Supply Co. v. Brand, 7 Wash. 357, 35 Pac. 72; Hall v. Skavdale, 21 Wash. 203, 57 Pac. 807.
The appeal will be dismissed, a_ d the judgment affirmed.
Concurring Opinion
(concurring)— I concur in the judgment on the ground last stated.
Reference
- Full Case Name
- John W. Macy, as Administrator of the Estate of Matthew Green v. John Sullivan
- Cited By
- 2 cases
- Status
- Published
- Syllabus
- Aepeal — Bond—Supersedeas oe Other Than Money Judgment. A judgment for the recovery of a sum of money and the cancellation, of a deed, is one other than for the recovery of money, and an appeal and supersedeas bond without any order of court fixing the amount , is insufficient to give jurisdiction of the appeal. Appeal — Appealable Orders — Default on Failure to Plead Over. No appeal lies from a judgment of default entered for failure to answer within the time fixed at appellant’s request, after sustaining a demurrer to an affirmative defense, when no request was made to set aside the default.