28 Wash. 155 | Wash. | 1902
The opinion of the court was delivered by
— Respondent was the owner of a mortgage upon certain real property in Spokane county. After this mortgage had- been given and filed for record, the original mortgagor conveyed the title to a part of the mortgaged premises to> P. M. Daniel, and a part to Delia A. Dyer, two of the appellants. Default being made upon this mortgage, respondent brought this-action to foreclose the same, but did not include as defendants Melissa X. Daniel and E. J. Dyer. A decree was afterwards entered in this cause by default, foreclosing said mortgagei The property was sold by the
“To Zerviah B. Dane, plaintiff, and to Domer and Estep, and Happy and Hindman, her attorneys:
“You and each of you will please take notice that the defendants P. M. Daniel, E. J. Dyer and Delia A. Dyer hereby appeal to the supreme court of the state of Washington, from a certain order dated April 12, 1901, made, given and entered of record in the above entitled action, in the superior court of the state of Washington for Spokane county, on the 12th day of April, 1901, wherein the above entitled superior court did, upon the motion of the plaintiff, order, adjudge, and decree that the above entitled action be and was by said order dismissed without prejudice to any of the rights of the plaintiff and at the instance of the plaintiff in the. above entitled action and from each and every part of said order.
“And said defendants P. M. Daniel, E. J. Dyer and Delia A. Dyer further hereby appeal to the supreme court of this state from a certain order dated April 12, 1901,*161 and filed and entered of record in the office of the clerk of the above entitled superior court on the 12th day of April, 1901, wherein and whereby the said superior court did allow the. plaintiff to withdraw the sum of money theretofore deposited in the above entitled case, being the money which was ordered to be deposited in this action by an order made, given, and entered in the above entitled action in said superior court, of date 20th of March, 1901, wherein and whereby in said order the said superior court granted the. motion of the plaintiff to vacate and set aside the decree, and all proceedings had, and orders made and entered; and, by virtue of said decree in the above entitled action in said superior court, allowed the plaintiff permission to file an amended or supplemental complaint in this action, and to bring in additional parties in this action. Said money being $18.75 costs and disbursements incurred by the defendants prior to the time of the court making such order, and the further stun of $75 attorney’s fees in said action, incurred by said defendants prior to the time the court made said order. Said order requiring that said sums he paid to the defendants as a condition of the granting of said order; from which last mentioned order allowing the plaintiff to file an amended complaint in the above action the above named defendants, P. M. Daniel, E. J. Dyer and Delia. A. Dyer, hereby appeal to the supreme court of this state.”
The appellants assign as error: (1) The court erred in overruling the special appearance and objections of the appellants P. M. Daniel and Delia A. Dyer to the motion of plaintiff to vacate decree and set aside sale; (2) the court erred in granting the motion of the plaintiff to vacate and set aside the decree herein, and sale had thereon; (3) the court erred in making the further order allowing the plaintiff leave to file an amended complaint; (4) the court erred in making the order or judgment dismissing this action; (5) the court erred in making the order permitting plaintiff to withdraw the money from the office of
The respondent interposes a motion to' dismiss the appeal for the following reasons: (1) That the order overruling appellants’ special appearance; assigned as error, is in itself not an appealable order, in that it was not a final order, and is not included in the notice of appeal; (2) that the order overruling appellants’ demurrer to plaintiff’s motion to vacate the decree and set aside the sale, assigned as error, is not appealable, for the reason that the same was not a final order, and is not included in the notice of appeal; (3) that the order granting plaintiff’s motion to vacate and set aside the decree and sale is not appealable, for the reason that the same is not a final order, and is not included in the notice of appeal; (f) that the order allowing plaintiff to file an amended complaint is not appealable, for the reason that the same is not a final order, and for the further reason that this is a matter within the discretion of the trial court; (5) that the order dismissing the action is not appealable, for the reason that said order was entered ex parte, and appellants have not asked relief in the trial court, and are here without exceptions to said order, and for the further reason that, if there was any error in said order, it was, error without injury to appellants; (6) that the order permitting plaintiff to withdraw the money deposited with the clerk of the trial court is not appealable, for the reason that said order was an ex parte order, and appellants have asked no relief therefrom in the trial court, and are here without exceptions to said order, and for the further reason that, if there was any ei*ror in said order, appellants were not injured there
“The laws regulating the exercise of the right are intended to afford the party every possible facility in its furtherance consistent with a due regard to the rights of the opposite party; and they should be SO' construed as most certainly and effectually to' attain this object.” Shelton v. Wade, 4 Tex. 148 (51 Am. Dec. 722).
The order dismissing the action was final, so far as this case is concerned; and, if the appellants are thereby precluded from a hearing on the errors complained of in setting aside the judgment, they are without a remedy.
The principal question involved is, had the court the right to set aside the decree of foreclosure, and sale thereunder ? A motion to set aside a judgment is a direct, and not a collateral, attack on the judgment. Sturgiss v. Dart, 23 Wash. 244 (62 Pac. 858); People v. Mullan, 65 Cal. 396 (4 Pac. 348). We held in Dane v. Daniel, supra, that both spouses were necessary parties to a suit brought to foreclose a mortgage covering community real property. In that case we reviewed numerous decisions of this court to justify the conclusions reached by us,— many of them being decisions foreclosing mechanic’s liens on community real property, — and held such suits to be analogous to suits foreclosing mortgages. Since then we have held that a decree foreclosing a mechanic’s lien on community property was void if both spouses were not made parties to the action. Peterson v. Dillon, 27 Wash. 78 (67 Pac. 397). In Powell v. Nolan, 27 Wash. 318 (67 Pac. 712), wu held that the court had not jurisdiction over the community property, so as to enter a decree affecting the same, unless both spouses were served or appeared in the action. Says Preeman, in his work on Judgments:
“. . . If a judgment is void, it must be- from one or more of the following causes: (1) Want of jurisdiction over the subject-matter; (2) Want of jurisdiction over the parties to the action, or some of them; or (3) Want of power to grant the 'relief contained in the judgment. In pronouncing judgments of the first and second classes, the court acts without jurisdiction, while in those of the third class it acts in excess of jurisdiction. If the*165 want of jurisdiction over either the subject-matter Or tbe person appears by tbe record, or by any other admissible evidence, there is no doubt tbat tbe judgment is void.
. ” 1 Freeman, Judgments, § 116.
It is universally conceded that a judgment void for want of jurisdiction over the person of the defendant may be vacated on motion, irrespective of the lapse of time. 1 Freeman, Judgments, § 98, and cases cited. The mere service on one spouse does not give the court jurisdiction over the community. Powell v. Nolan, supra. The contention of the appellants, that want of jurisdiction must appear from an inspection of the record, and cannot be brought to the attention of the court dehors the record, is not sustained by the authorities, and we see no good reasons for so bolding, because the motion to set aside a judgment is a direct attack upon tbe judgment. Ladd v. Mason, 10 Ore. 308; People v. Mullan v. supra; Hanson v. Wolcott, 19 Kan. 207; 1 Black, Judgments, § 307 ; 1 Freeman, Judgments, § 116. We think, in tbe absence of any statute, the court has a right to set aside a void judgment. This power is inherent in the court. Sturgiss v. Dart, supra; In re College Street, 11 R. I. 472; Ladd v. Mason, supra. The first portion of § 4953, Bal. Code, so far as it bears upon void judgments, is merely declaratory of the inherent power of tbe court.
Appellants contend that they should have bad twenty days’ notice of the motion to set aside the judgment, and cite Chehalis County v. Ellingson, 21 Wash. 638 (59 Pac. 485), in support thereof, wherein it was held that, under § 4953, supra, twenty days’ notice was required. It is true that in Chehalis County v. Ellingson we so held, but that case on this point has been expressly overruled in Spokane & I. Lumber Co. v. Stanley, 25 Wash. 653 (66
“We do not think that the statute [§ 4953] contemplates in its provisions a case of this kind, where the p,arty moves to dismiss his own action, but that it is a judgment that is taken against him by his adversary.”
This language was used with reference to the facts in that case; that is, that a party had no right to dismiss his action, and then afterwards move to reinstate it under that section. The first portion of § 4953 is broad enough to include a proceeding to set aside a void judgment instituted by the person in whose favor the judgment was rendered. This is a remedial statute, and must be liberally construed.
The appellants contend that the motion should have been served on the defendants in the original action, and not upon their attorney who appeared for them in that action. We held in Sturgiss v. Dart, supra, that an attorney’s authority to represent his client does not cease until a judgment not subject to vacation has been recovered, and that service of a motion to vacate a void judgment could be made upon such attorney after the entry of such judgment
Appellants demurred to' the affidavit of S. P. Domer. Thereby they confessed the facts stated in the affidavit. This affidavit, taken in connection with the decision of this court in the case of Dane v. Daniel, supra, which was referred to in the motion, and which the trial court was bound to notice, was certainly sufficient to show the trial court that it had rendered and entered a void decree; and when this fact was called to. its attention, it was the duty of the court to clear its record of such a decree. The appellants cannot be heard to complain, for a void decree can neither injure nor benefit any one.
Appellants contend that the court erred in dismissing this action, because defendant E. J. Dyer had filed and served his demand for a cost bond, and this stayed all proceedings in the case until the cost bond was filed; that the court was thereafter without jurisdiction to take any steps whatever in the action until such time as plaintiff filed a cost bond. Section 5186, Bal. Code, provides:
“When a plaintiff in an action resides out of the county, or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff may be required by the defendant. When required, all proceedings in the action shall be stayed until a bond, executed by two or more persons, be filed with the clerk,
The proceedings to be stayed until such bond is filed are proceedings in furtherance of the action. On failure to file the bond the moving party would have a right to have the action dismissed. The respondent voluntarily dismissed her action. This is all the appellants could have required of her for failure to- file the bond. We do not think, therefore, that the mere voluntary dismissal of the
It is next, contended by the appellants that the court erred in dismissing the action on the motion of the respondent. When the decree was vacated and the case re-established, it was for all purposes and stood as though no decree had ever been entered. The appellants not having claimed any affirmative relief, they could not have made any objection to the dismissal, even if they had been notified of the intention of the respondent, to dismiss, and no reversible' error can be predicated on that account.
It is next claimed that the court erred in permitting the plaintiff to dismiss the action without paying to the defendants the costs, amounting to $18.75, and attorney’s fee of $75, ordered to be paid by the court when the court vacated the decree. The record shows that this money, was at that time deposited in the case with the clerk, and all the appellants had to do was toi take it. The court was not required to wait, until the appellants-took the money before granting the motion to dismiss, for, if this was the case, the appellants by continuing to refuse to accept the money, could keep1 the action on the docket forever. The court could not make them take the money, yet they now claim that until they did so the court could not dismiss the suit, though at that time the money was on deposit with the clerk of the trial court for them. Respondent was excused from taking the money to them, for they had stated that they would not accept it. We do not think that it was error in the court to allow the respondent to withdraw this money after the appellants had refused to accept it. If there was any error in this respect-, it was cured by the subsequent tender before this appeal was taken.
We conclude that the decree of the court foreclosing the mortgage and ordering a sale of the community real es-
The judgment of the1 court below is therefore affirmed; the respondent to'recover her costs on this appeal.
Reavis, O. J., and Eulleeton , Hadley, An dees, Mount and Dunbab, JR, concur.