Summary
upholding a court rule requiring notice of appeal within 30 days
Summary of this case from Marriage of LemonOpinion
No. 21506. Department Two.
December 31, 1928.
APPEAL AND ERROR (180) — REQUISITES — LIMITATIONS — APPEAL FROM FINAL JUDGMENTS. An appeal from a final judgment must, under supreme court Rule X (Rem. 1927 Sup., § 308-10) be taken within thirty days, or it will be dismissed.
COURTS (29) — RULES OF COURT — POWER TO REGULATE PROCEDURE. Supreme court Rule X (Rem. 1927 Sup., § 308-10) limiting the time for taking an appeal is authorized by Rem. 1927 Sup., § 13-1.
Appeal from a judgment of the superior court for King county, Ronald, J., entered April 3, 1928, dismissing the plaintiffs' action upon their refusal to plead further after the sustaining of a demurrer to their complaint. Dismissed.
Edgar S. Hadley, for appellants.
Huffer, Hayden, Merritt, Summers Bucey, for respondent.
Respondent has moved to dismiss the appeal herein and affirm the judgment, on the ground and for the reason that the notice of appeal was not served or filed within the time limited by law. Final judgment was signed, filed and entered on April 3, 1928. Notice of appeal was served and filed on May 4, 1928.
[1] Section 1 of Rule X of this court, adopted January 14, 1927, and published in 140 Wn., p. xxxv, provides:
"In civil actions and proceedings an appeal from any final judgment must be taken within thirty days after the day of the entry of such final judgment; . . ." (Rem. 1927 Sup., § 308-10).
Prior to the adoption of this rule, the time for taking such an appeal was fixed at ninety days, and it has been the oft repeated holding of this court that the service of appeal was jurisdictional, and that if served more than ninety days after final judgment the appeal would be dismissed. Lindsay v. Scott, 56 Wn. 206, 105 P. 462; Mathison v. Anderson, 107 Wn. 617, 182 P. 622.
Counsel for appellant has questioned the constitutional authority for the making of this rule on a number of grounds, all of which have been decided adversely to appellant's position in State ex rel. Foster-Wyman Lumber Co. v. Superior Court, 148 Wn. 1, 267 P. 770.
[2] While it is true that the right of appeal is a substantive right, and one which cannot be taken away by the rule-making power of the court, yet, clearly, the time within which an appeal may be taken, the method to be pursued and the steps to be taken in perfecting an appeal are purely questions of procedure and come within the purview of our statute. Laws of 1925, Ex. Ses., p. 187 (Rem. 1927 Sup., §§ 13-1, 13-2).
Notice of appeal not having been served within thirty days, the appeal must be dismissed. Neis v. Pool, 148 Wn. 646, 269 P. 801.
It is so ordered.
FULLERTON, C.J., PARKER, and MAIN, JJ., concur.