
    [No. 593.
    Decided January 23, 1890.]
    George Lewis Gower v. Lillian Norton Gower.
    JUDGMENT — VACATING — APPEALABLE ORDER.
    Under § 109, Code Wash. T., an order of the district court vacating a judgment within five months subsequent to the adjournment of the term when rendered, is not subject to review in the supreme-court, and therefore not appealable.
    
      Appeal from District Court, Pierce County.
    
    Action by appellee in tbe district court, bolding terms at. Tacoma, to recover certain real estate. On tbe 20tb day May, 1888, tbe case came on regularly for trial before the judge at bis chambers. No proof to sustain the allegations-of tbe complaint was offered, and tbe court made its findings, and decree in favor of appellant. On the 6tb day of October, 1888, appellee filed a petition and motion to set aside-tbe findings and decree and to reopen tbe case, filing affidavits therewith. The judge, after hearing on tbe petition, made an order on November 3, 1888, granting the prayer-of tbe petition. To reverse tbe decision of tbe court in. granting said petition, this appeal has been taken.
    
      G. H. Hanford, for appellant.
    The order vacating tbe judgment, being tbe conclusion of a special proceeding, is a final decision, and is reviewable in this court. Code Wash. T., §§ 445, 446; Dryden v. Wyllis,. 51 Iowa, 534.
    
      Campbell & Poiuell, Carroll & Coiner, and Mitchell, Ash-ton & Chapman, for appellee.
    Tne action of the court in granting a motion to set aside a judgment is discretionary, and not to be reviewed in any appellate court. Code Wash. T., §§ 109, 436; Whitesidesv. Logan, 17 Pac. Pep. 34; Bolton v. McKinley, 22 111. 203;-. Breden v. Gilliland 67 Pa. St. 36; Kelly v. High, IS. E. Pep. 561; Francis v. Cox, 33 Cal. 323.
    
      The order of the district court allowing a trial of this cause upon its merits is not a final decision within the meaning of the organic act, authorizing appeal to the supreme court. Rev. Stat. U. S. § 1869; McCormick v. Walla Walla, etc., R. R. Co., 1 Wash. T. 51‘2; N. P. R. R. Co. v. Wells, Fargo & Co., 2 Wash. T. 308.
   The opinion of the court was delivered by

Anders, C. J.

The court below rendered an affirmative decree in this cause in favor of appellant, the defendant therein.

After the term of the district court at which said decree was entered, but within five months subsequent to its adjournment, the plaintiff (appellee herein) applied to the court, in the usual manner, to vacate said decree, which was accordingly done. From this order of the district court defendant appeals.

Appellee moves to dismiss the appeal for the reason that the order appealed from was not a final judgment or decision, and, therefore, not reviewable in this court.

In the case of Lilienthal v. Wright, recently decided by this court, ante, p. 1, we held that an order of the district court vacating a judgment at the same term at which it was rendered, was not subject to review in this court. And as we are of the opinion that § 109 of the code extends the time during which the court or judge may grant relief from the effects of judgments, for the period of five mouths after the adjournment of the term when rendered, the motion must be governed by that opinion and decided accordingly.

It follows, therefore, that the motion must be sustained and the appeal dismissed; and it is so ordered.

Stiles, Hoyt, Dunbar and Scott, JJ., concur.  