[No. 11962.

Department One.

June 25, 1914.]

#### John Burke *et al., Respondents,*v. Northern Pacific Railway Company, *Appellant.**1*

Appeal—Decisions Appealable—Granting New Trial. An order, vacating a judgment against minors ior fraud in procuring it, and allowing the guardian to substitute his complaint for the original complaint in the action, and providing for further proceedings therein according to law, is appealable as an order affecting a substantial right which grants a new trial, within Rem. & Bal. Code, § 1716, subd. 6.

Motion to dismiss an order of the superior court for Spokane county, Huneke, J., entered March 18, 1914, vacating a judgment and granting a new trial.

Denied.

*Cannon, Ferris & Swan,*for appellant.

*A. O. Colburn*and *Luby & Pearson,*for respondents.

1

Reported in 141 Pac. 364.

Gose, J.

On the 10th day of August, 1909, a compromise judgment was entered in this action, in favor of the plaintiffs and against the defendant, for the sum of $1,000 damages, for the death of Edward Burke, the husband of the plaintiff Birdie Burke and the father of the minor plaintiffs, in consequence of the alleged negligence of the defendant, which judgment was later paid and satisfied of record. On the 18th day of March, 1914, upon the petition of the minor plaintiffs, by Joseph B. Stell, their guardian, the judgment was vacated as to the minors, on the ground of constructive fraud. The conclusion of law is that there was constructive fraud participated in and practiced by the defendant railway company, Birdie Burke, and her attorney, in obtaining the judgment in the action, resulting in erroneous proceedings against the minors. The order is “that Joseph B. Stell, as guardian of the petitioners, be and he is *189hereby substituted for Birdie Burke as guardian *ad litem,*and permitted to substitute for the original complaint in this action the complaint tendered with the petition herein, and that further proceedings be had in this action according to law and the rules of this court.” The defendant has appealed.

The respondents have moved to dismiss the appeal. They contend that the order only vacates the judgment and hence is not appealable, citing *Tatum v. Geist,*40 Wash. 575, 82 Pac. 902; *Jones v. Paul,*56 Wash. 355, 105 Pac. 625; *Wilson v. McGillivray,*58 Wash. 291, 108 Pac. 620; *Molloy v. Union Transfer etc. Co.,*60 Wash. 331, 111 Pac. 160. In each of these cases, a default judgment had been entered in favor of the plaintiff, and the judgment was vacated at the suit of the defendant. They hold that an order vacating a judgment is not appealable.

Our statute, Rem. & Bal. Code, § 1716, subd. 6 (P. C. 81 § 1183), authorizes an appeal “from an order affecting a substantial right in a civil action or proceeding, which either, (1) in effect determines the action or proceeding and prevents a final judgment therein; or ... (3) grants a new trial.” We think the effect of the judgment is to grant a new trial. The respondents had no other purpose in moving to vacate the judgment. The order vacating the judgment will be of no value to them except as it permits them to re-prosecute the same action or to prosecute an independent action for the same cause. It permits the guardian to substitute his complaint for the original complaint in the action, and provides that further proceedings be had according to law and the rules of the court. This means, of course, a new trial, and we think distinguishes the case from the authorities cited. In each of those cases the only purpose of the defendants was to have the judgment vacated. A new trial, if any, was at the option of the party adversely affected by the vacation of the judgment. A different question is presented *190where a judgment in favor of the plaintiffs is vacated at their suit in order that they may have a new trial of the issues.

The motion is denied.

Crow, C. J., Ellis, Main, and Chadwick, JJ., concur.