The majority hold that the appeal herein is taken in a criminal cause, and that, because the record was not filed in the office of the clerk of this court within sixty days after the giving of the notice of appeal, the appeal must be dismissed under rule XII (193 Wn. 15-a).
As stated by the majority, this is an appeal from an order denying appellant's motion to vacate the judgment and sentences entered against him in an action instituted by the state by way of information charging appellant with divers crimes, to which appellant had *Page 199 pleaded guilty. Appellant's motion to vacate the judgment and sentences was based upon his contention that his pleas of guilty had been induced by fraud, coercion, threats, and duress on the part of public officers; upon the further ground that his rights under the constitution and laws of this state had been infringed; and finally, that he is innocent of the crimes with which he was charged and for which he was sentenced.
Rule XII, quoted in the majority opinion, refers to appeals in criminal causes. If this is an appeal in a criminal cause, the majority opinion is correct in dismissing the same as not timely prosecuted.
As stated in the majority opinion, this is an appeal from an order entered in a proceeding initiated under Rem. Rev. Stat., § 464 [P.C. § 8130], subd. 4, for the purpose of setting aside a judgment of guilty entered in a criminal cause instituted by the state against the appellant herein, the relief asked for being sought upon the ground of fraud practiced by officers of the state in obtaining the judgment. The merits of the judgment are not here in issue. If appellant succeeds in setting aside the judgment of guilty, the proceeding is still pending against him for trial.
It is true that this is an appeal taken within the four corners of a proceeding entitled "State of Washington v. Andrew G. Nelson," in which the defendant (appellant herein) was charged with crimes, but, in my opinion, that does not necessarily make this an "appeal in a criminal cause," within the meaning of rule XII. The rule should be construed fairly and reasonably, and should not be extended to cases possibly within its letter but by no means within its spirit. The rule was adopted in order to expedite the review by this court of judgments entered in trials in which persons were charged with offenses against *Page 200 our criminal laws. It is important to the administration of our criminal statutes that such appeals be heard and disposed of as promptly as may be, consistent with the preservation of the rights of the parties. The rule, however, should not be extended by construction to include appeals in matters which have nothing to do with the determination of the guilt or innocence of one charged with an offense, and which concern matters strictly equitable in their nature.
From an early date, this court adopted the view that a proceeding instituted for the purpose of vacating a judgment is, in effect, a new action and not a continuation of the original proceeding. Roberts v. Shelton Southwestern R. Co., 21 Wn. 427,58 P. 576.
In the case of Cooper v. Cooper, 83 Wn. 85, 145 P. 66, this court said:
"It will be noted that this proceeding by petition is, in its nature, a new and independent proceeding, in which the adverse party is brought into court as upon original process by service of a notice in the nature of a summons as in an original action. Clearly this proceeding by petition is intended as a statutory substitute for a bill in equity to set aside a judgment for certain causes, if brought within the year after its rendition. For every practical purpose, such a proceeding is, in its nature, a new and independent proceeding involving issues and requiring evidence which may be wholly independent of the issues and evidence in the original action."
In 34 C.J. 323, § 542, referring to the statutory proceeding for the vacation of a judgment, it is said that "such statutory proceeding, while incidental to the original action is, in effect, a new action equitable in character."
3 Bancroft's Code Practice and Remedies 2451, § 1857, is to the same effect.
In Denny-Renton Clay Coal Co. v. Sartori, *Page 201 87 Wn. 545, 151 P. 1088, Rem. Rev. Stat., § 464, is discussed, and in Chehalis Coal Co. v. Laisure, 97 Wn. 422,166 P. 1158, this court said: "But the statutory proceeding to vacate a judgment is but a statutory substitute for the bill in equity for the same purpose." In the case of Meeker v. Meeker, 117 Wn. 410,201 P. 786, in which a similar question was considered, we said:
"In the cases of Roberts v. Shelton Southwestern R. Co. andCooper v. Cooper, supra, we approved the procedure, but held that for every practical purpose such a proceeding, involving issues and requiring evidence which may be wholly independent of the issues and evidence in the original action, and `in which the parties, regardless of their designation in the original action, occupy the relation of plaintiff and defendant according to the issues presented by the petition, and in which those issues may take all the range of an independent bill in equity for relief against the judgment is, in its very nature, new proceeding . .. ' Cooper v. Cooper, supra."
In considering a similar question, the supreme court of Kansas, in the case of State v. Soffietti, 90 Kan. 742, 136 P. 260, said:
"The proceeding to vacate, while incidental to the original action, is, in effect, a new action, equitable in character, and the initiatory steps are therefore very material."
The supreme court of Oklahoma held that an action to vacate a judgment is a civil action rather than a special proceeding.Dardenne v. Daniels, 101 Okla. 201, 225 P. 152; Stout v.Derr, 171 Okla. 132, 42 P.2d 136.
In the majority opinion, a criminal action is defined as one instituted on behalf of the state in order to vindicate the law by the punishment of a public offense. While the original case against appellant falls within *Page 202 this classification, appellant's motion to vacate the judgment entered against him does not fall within any such classification. It is, in effect, an equitable proceeding; and while entitled in the original criminal cause, it nowise concerns the merits of that action or appellant's guilt or innocence of the offenses with which he was charged, and for which, if he prevails in his motion to set aside the judgment, he may still be tried.
By his motion, appellant merely sought to obtain what he contends are his rights to a fair trial, which rights he contends were not accorded him in the course of the proceeding leading up to the judgment which he now attacks. Appellant, by his motion, seeks an opportunity to show that in the judgment entered against him, there lurks some irregularity, some fraud, which resulted in depriving him of his constitutional and statutory rights. Appellant's motion, in my opinion, presents a new and different cause of action, entirely separate and apart from the criminal proceeding which was instituted against him.
For the reasons stated, it is my opinion that this appeal is not one prosecuted in a criminal cause, and that the appeal is not governed by rule XII, quoted in the majority opinion and above referred to. Appellant's appeal having been otherwise timely, I dissent from the dismissal thereof.
BLAKE, C.J., MAIN, and DRIVER, JJ., concur with BEALS, J. *Page 203