
    [No. 6579.
    Decided January 5, 1907.]
    Sound Investment Company, Respondent, v. Fairhaven Land Company, Appellant.
      
    
    Appeal — Decisions Reviewable — New Trial — Denial of Vacation of Judgment. An order denying a motion to vacate a judgment and for a new .trial is not an appealable order affecting a substantial right, where the motion was based upon error of law which could only be corrected by appeal from the judgment; and an appeal from such an order will be dismissed on motion.
    Appeal from ail order of the superior court for What-com county, Joiner, J., entered September 28, 1906, overruling the defendant’s motion to set aside a judgment, and for a new trial.
    Appeal dismissed.
    
      Black, Kindall & Kenyon and Dorr & Hadley, for appellant.
    
      Fairchild & Bruce and Newman & Howard, for respondent.
    
      
       Reported in 88 Pac. 198.
    
   Dunbar, J.

This was an action foreclosing a delinquency tax certificate. The findings, conclusions and decree were made and entered by the court on the 7th day of September, 1906, and on the 8th day of September the defendant served and filed its motion to vacate and set aside the judgment and for a new trial. The motion was in the following words :

“Comes now the defendant, Fairhaven Land Company, by Black, Kindall & Kenyon and Dorr & Hadley, its attorneys, and moves the court to vacate, modify and set aside the findings, conclusions and judgment heretofore made by the court in the above entitled cause on the 7th day of September, 1906, and entered herein, and especially that part thereof adjudging and decreeing a lien on the property therein described, and to grant a new trial in said action and proceeding, on the following terms, viz: (1) Insufficiency of the evidence to justify the said findings, conclusions and judgment, and that the same are against the law; (2) Error in law occurring at the trial and excepted to at the time by this defendant.”

The motion was overruled, and from the order of the court overruling the motion this appeal is prosecuted.

The respondent moves to dismiss the appeal, for the reason that the orders appealed from were not appealable orders, the judgment in this cause not having been appealed from. We said in Northern Pacific etc. R. Co. v. Black, 3 Wash. 327, 28 Pac. 538, that this court had repeatedly held that no appeal lies from an order denying or granting a motion for a new trial. See, also, Tacoma Lumber etc. Co. v. Wolff, 7 Wash. 478, 35 Pac. 115, 755.

It has been the uniform ruling of this court that a motion to vacate a judgment does not affect a substantial right, if the errors complained of are errors of law occurring at the trial; that such errors cannot be reviewed in a motion to vacate, and that, therefore, no substantial right could be invaded by a denial of the motion. It is conceded by the appellant that such is the rule of the common law, so that it is not necessary to here cite authorities from that source. But it is contended that, under the provisions of our statute, such is not the rule in this state. An examination of the cases cited from this court we think bears out the respondent’s contention. In Dickson v. Matheson, 12 Wash. 196, 40 Pac. 725, it was decided that error of law committed by the court could not be corrected by petition to vacate the judgment, when no fraud had been practiced upon the court, but that such error must be reached by appeal. This case was followed and the doctrine reiterated in Greene v. Williams, 13 Wash. 674, 43 Pac. 938, where it was said:

“The right to the relief prayed for in said petition is based entirely upon the record, and it does not appear from an inspection of said petition that any reason existed for granting the same that was not considered by the court and which did not exist at the time when the previous order of the court denying the confirmation of the sheriff’s sale was made. We • think that the petition was wholly insufficient, under § 1393, Code Proc., which authorizes the court ‘in which a judgment has been rendered, or by which or the judge of which a final order has been made,. ... to vacate and modify such judgment or order.’ ”

To the same effect is Burnham v. Spokane Mercantile Co., 18 Wash. 207, 51 Pac. 363, and State ex rel. Grady v. Lockhart, 18 Wash. 531, 52 Pac. 315.

In Roberts v. Shelton etc. R. Co., 21 Wash. 427, 58 Pac. 576, it was held that the motion to vacate and modify a judg'ment was in the nature of an independent action, and that questions which have been passed upon by the court in the original proceeding could not be reviewed on a petition to vacate, and could only be reviewed on a regular appeal from a judgment. This exact question was before this court in Kuhn v. Mason, 24 Wash. 94, 64 Pac. 182, where it w-as held that Bal. Code, § 5153 (P. C. § 1033), which authorizes a court to vacate or modify its judgment after the term at which it was rendered, for irregularity in obtaining the judgment or order, does not contemplate that errors of law committed by the court may be corrected by motion to vacate, since the proper remedy in case of such errors is an appeal from the judgment; reaffirming the doctrine of Dickson v. Matheson, supra, and citing Black on Judgments, § 329, where the author says:

“It is not intended to be used as a means for the court to review and revise its own final judgments, or to correct any errors of law into which it may have fallen. That a judgment is erroneous as a matter of law is ground for an appeal, writ of error, or certiorari, according to the case, but it is no ground for setting aside the judgment on motion.”

To the same effect are, State v. Boyce, 25 Wash. 422, 65 Pac. 763; Coyle v. Seattle Electric Co., 31 Wash. 181, 71 Pac. 733; State ex rel. Stratton v. Tallman, 29 Wash. 317, 69 Pac. 1101.

The motion to vacate does not take the place of an appeal ixx ofdiixax-y cases. It is not the px-ovince of such a motion to secure a retrial of an issue of fact or law which has been once regularly submitted and determined by the trial court, and the only remedy in such cases is by appeal. State ex rel. Hennessey v. Huston, 32 Wash. 154, 72 Pac. 1015. Error of law cannot be corrected upon a petition to vacate a judgment, but only upon an appeal from the judgment. McInnes v. Sutton, 35 Wash. 384, 77 Pac. 736. In fact this has been the uniform holding of this court, and the last expression on the subject was in Snohomish Land Co. v. Blood, 40 Wash. 626, 82 Pac. 933, where it was said:

“The claim that the judgment is erroneous, even if well founded, is not, standing alone, a ground for vacating it. For mere error, .the statute of appeals furnishes an ample remedy, and appeal must be resorted to for its correction.”

It is true that, in the cases mentioned, the question did not arise upon a motion to dismiss the appeal, but when once wc determine, as we have, that the appeal from a refusal of the court to grant a motion to vacate a judgment will not bring before this court for review the questions which are sought to be reviewed on this appeal, it would not only be a vain thing to do to allow the appeal, but it would be an injustice to allow the appellant to go to the expense and trouble of perfecting an appeal which could not avail it anything.

The cases cited by the appellant to sustain its assertion that an appeal will lie from the order of the court denying the motion to vacate, are not in point. It is true that an appeal, will lie from such an order, but the cases cited are cases where the petition on the motion to vacate set forth the statutory grounds for vacation, and the order of the court on such motion became a final order in the case, determining the rights of the parties, and such order would be an appealable order not only under the statute providing for the vacation of judgments, but under the provision of the appeal statute — an order determining a substantial right. But in this case the substantial rights which the appellant seeks to have reviewed are rights which could be reviewed upon an appeal from the judgment. Its remedy was plain and certain. If an appeal were to be allowed in a cause of this kind, the result would be that all statutory laws in relation to the time in which appeals must be taken would be rendered nugatory, and the losing party in any case tried before the superior court could disregard such statutes and simply come within the year provided in the statute in relation to vacations of judgments, make a motion to vacate the judgment and grant a new trial, and his appeal, which brings up the merits of the case, would be assured. >

We think the appellant has misconceived its remedy in this case, and that the motion must be sustained.

Mount, C. J., Root, Fullerton, and Crow, JJ., concur.  