IMLAY v. TACOMA, 154 Wn. 162 (1929)

281 P. 487

LORIN E. IMLAY et al., Appellants, v. THE CITY OF TACOMA, Respondent, C.L. SHAW et al., Respondents-Interveners.

No. 22052. Department One.The Supreme Court of Washington.
October 19, 1929.

[1] APPEAL AND ERROR (101) — RIGHT TO APPEAL — ESTOPPEL — DETERMINATION BY COLLATERAL SUIT. An appeal from an order denying modification of a judgment will be dismissed where the court on appeal from the judgment has already modified the judgment and granted all the relief sought.

Appeal from an order of the superior court for Pierce county, Hodge, J., entered April 2, 1929, denying a petition to vacate the findings and decree in a condemnation proceeding, after a hearing by the court. Action dismissed.

Earl V. Clifford, for appellants.

PER CURIAM.

This action was instituted by the appellants in the case o Tacoma v. Nyman, ante p. 154, 281 P. 484, after the trial court had announced his decision in that case and before the entry of the decree. Conceiving that the holding of the trial court, to the effect that he was bound by the original findings and judgment which awarded $1,250 for the land taken, worked an injustice as to them, appellants in that case asked the court to withhold the entry of the decree to permit them to bring an independent action for the purpose of obtaining the vacation or modification of the original findings and decree. The trial court assenting, this action was thereupon instituted, resulting in a judgment denying any relief, and this appeal followed.

[1] We have already accorded appellants full relief in the preceding case, and nothing remains to be

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accomplished by reversing the judgment in this case and sending it back with instructions to modify a judgment which we have already modified.

Our judgment in the preceding case settles the whole controversy, and therefore this action is dismissed without costs to either party.