Bignold v. Carr

24 Wash. 413 | Wash. | 1901

The opinion of the court was delivered by

Dunbar, J.

This action was brought on August 8, 1898, in the superior court of Chehalis county, on a judgment which had been obtained by the Bank of Montesano against the appellant and others for the sum of $2,615.57 and costs. The plaintiff in this case is receiver of the Bank of Montesano. A demurrer was interposed to the original complaint, which was sustained, and an amended complaint was filed. A demurrer was interposed to the amended complaint in the fall of 1898. Ho further steps were taken by the respondent, and in June, 1899, the appellant moved for a dismissal for failure to prosecute. The motion was denied, and renewed and denied in 1899, when the demurrer to the amended complaint was heard and overruled. The appellant then answered by a general denial, and the cause was tried. Judgment was rendered in favor of the respondent.

The refusal of the court to grant a dismissal of the action for failure to prosecute is alleged as error. We do not think this contention can he sustained. At the time these motions were made the case was pending upon an issue of law raised by appellant’s demurrer to the amended complaint. It was within the power of the appellant to have noticed the demurrer for hearing, and it was as much to his interest to expedite the case by noticing the demurrer for argument as it was the plaintiff’s to have the cause prosecuted to trial. In fact, the case could not be tried until the demurrer was disposed of.

The principal contention in this case is that the statute of limitations had run before the action was brought; more than six years having expired between July 21, 1892, and the commencement of this action on August 8, 1898. This contention, however, cannot he sustained, for two reasons: The first'is that under the amended complaint it appears that for a period of one year next immediately preceding the commencement of the action the defendant was out of the state of Washington and absent therefrom, so that personal service of process could not he made upon him, and that, in addition to that, since the entry of the judgment, he had been absent from the state of Washington at intervals aggregating about two years in all. It is well established that the statute will not run during the time that the plaintiff was incapacitated from bringing the action by reason of the absence of the defendant. In the second place, the record shows and the court finds that, although judgment was entered on the 23d day of July, 1892, the judgment being a judgment of foreclosure, the mortgage which was foreclosed providing for the entry of a deficiency judgment, thereafter, after the sale of the property mortgaged, and upon the determination of the amount due on the deficiency judgment, to-wit, on the 10th day of September, 1892, a deficiency judgment in favor of the Bank of Montesano and against the defendant, H. Willis Carr, was duly docketed and entered in the superior court of Chehalis county for the sum of $1,713.15, with interest thereon at the rate of ten per cent, per annum from said September 10, 1892. This being the date of the entry of the deficiency judgment upon which this action was brought, the action was within six years from the entry of the judgment. This conclusion renders it unnecessary to determine the proposition of whether or not the six years statute of limitations applies to domestic judgments.

It is also insisted that the court erred in admitting the evidence offered to sustain the amended complaint, for the reason that the record was not authenticated according to law, and did not prove or tend to prove the allegations of the amended complaint; that the court erred in signing the findings of fact and conclusions of law, for the reason that the same were not separated as required by the statute, and in finding judgment for the respondent, for the reason that the same was not justified by the evidence and was contrary to law. The objections to the introduction of evidence seem to arise from the fact that the record was certified to by the clerk of the court, and that the judge had not certified that the clerk was the custodian of the records. We do not think that this is necessary.. Under the statute the clerk is the custodian of the records, and his certificate of any record that is under his custody is sufficient.

The objection that the proofs do not support the allegations of the amended complaint because the evidence showed that the judgment was a joint one, is not material. In the first place, if there was a defect of parties defendant, the question should have been raised before the trial. In the second place, under the doctrine laid down in Olson v. Veazie, 9 Wash. 481 (37 Pac. 677, 43 Am. St. Rep. 855), an action upon a joint judgment may be maintained against one of the judgment debtors alone.

The appellant cites Ach v. Carter, 21 Wash. 140 (57 Pac. 344), in support of the assignment of error that the court erred, in failing to sign the findings of fact and conclusions of law separately; but, whatever may be said of the merits of this contention, the ease cited by appellant will not aid him here, for the reason that that case holds that exceptions to the form of the findings or conclusions must be taken in the trial court, or be considered waived.

We think the action was brought in time, and that the proof was sufficient to sustain the judgment. The judgment is therefore affirmed.

Reavis, C. J., and Fullerton and Anders, JJ., concur.