(dissenting) — I dissent. The majority opinion does not consider the question of whether the dispute involving application of CR 54(b) is properly before this court and by so doing, overlooks the impact of Reeploeg v. *691Jensen, 81 Wn.2d 541, 503 P.2d 99 (1972). In addition we are asked by the majority, in the interest of certainty, to (1) overrule Manion v. Pardee, 79 Wn.2d 1, 482 P.2d 767 (1971), (2) take a position contrary to that recommended by the authors relied upon by the majority, and (3) in effect, reward a litigant who, in fact, had notice he had to appeal and so did, but failed to comply with the orders of the Court of Appeals. In contrast, his opponent has at every stage complied with the respective orders of the court and has been compelled by petitioners’ actions to incur attorney fees in four additional court appearances.
If we are concerned about certainty, we should enforce our rules relating to appeals. The Court of Appeals order, entered on June 30, 1972, directing petitioners to file their opening brief on or before July 31, 1972, or in the alternative, that the appeal would be dismissed, was a clear assumption of and ruling that it had jurisdiction. Petitioners’ letter, indicating to the Court of Appeals that it was abandoning the appeal, was obviously not accepted by the court inasmuch as it took affirmative action dismissing the appeal some four days later. The remittitur certifies that “the Court of Appeals . . . considered and granted a motion to dismiss the appeal . . .” The remittitur is a final judgment and no request was made to recall it, nor were the necessary grounds present. When petitioners failed to either seek review of that order or request a recall of the remittitur, the right to question that dismissal expired. Reeploeg v. Jensen, supra.
The trial court judge, upon entry of the judgment, made an oral finding to the effect that there was no just reason for delay. It seems clear that the purpose behind CR 54(b) is to compel the trial judge to make it clear to the parties where final judgment is entered as to fewer than all of the claims or parties, that that judgment is final and may be instantly appealed. Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 512, 94 L. Ed. 299, 70 S. Ct. 322 (1950). The effect of the rule is to make it clear to a party adversely affected by a final decision, when the time for ap*692peal starts to run. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 100 L. Ed. 1297, 76 S. Ct. 895 (1956). The rule is essentially a notice rule and where notice has in fact been given it is senseless for a party who is not confused, and so indicates by the fact that he subsequently appeals, to now return and claim that his appeal was in fact invalid because he did not receive written notice. This position, as noted by the majority, is adopted in 10 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2660 which states, on page 88:
[I]f the requisite certificate has not issued simply because of inadvertence but one clearly is obtainable, it seems undesirable to dismiss the appeal and require the parties to secure literal compliance with Rule 54(b) and then commence the appellate process anew.
The trial court judge’s oral certification, although it should have been in writing, harmed no one, gave actual notice which was acted upon and was sufficient to comply with the spirit and intent of the rule.
If the petitioners believed that CR 54 (b) required a written certification before it could be appealed, the deficiency should have been pointed out to the trial court prior to entry of the notice of appeal. By filing the notice of appeal, petitioners indicated a belief that the judgment against the bond was both final and appealable, a position inconsistent with their position at this time. Manion v. Pardee, supra, is consistent with this commonsense application of our rule and should not be overruled.
Stafford, J., concurs with Utter, J.
Petition for rehearing denied October 2, 1973.