No. 4433 | Wash. | Apr 5, 1904
Larris Cain, as receiver, appeals from the following. order made by the superior court of King county, in the case of John O. Fisher, plaintiff (respondent), against Puget Sound Brick, Tile and Terra Cotta Company, defendant (also a respondent), in which action Larris Cain is named as receiver of said company:
“The motion of Larris Cain to vacate the findings of fact, conclusions of law and decree made and entered herein, came on regularly for hearing before the Honorable Frank P. Lewis, Judge pro tempore, herein, upon the 16th day of April, 1902, the said Larris Cain appearing by his attorney, James J. McCafferty, and the defendants, Puget Sound Brick Tile and Terra Cotta Company and William A. Trinkle, appearing by their attorney, B. B. George, and by G. E. de Steiguer, of counsel.
“Thereupon at the commencement of said hearing, the said Lands Cain, by his counsel, objected to said motion being heard by the said Frank P. Lewis, judge pro tempore herein, and excepted to the jurisdiction of said judge pro tempore, which said objections and exceptions*580 were overruled by tbe court, to wbieb ruling the said Larris Cain, by his counsel, excepted, and such exception was allowed; and thereupon, said hearing proceeded.
“Affidavits were read in support of and against said motion, and after the argument of counsel, said hearing was duly continued till this 17th day of April, 1902. And now, at the time and place to which said continuance was had, the court being fully advised in the premises, denies said motion.
“Wherefore, it is hereby ordered, adjudged and decreed, that said motion of the said Larris Cain to vacate and set aside said findings of fact, conclusions of law and decree, be and the same is hereby denied, to which denial of said motion said Larris Cain, by his counsel excepts, which said exception is by the court allowed; and said Larris Cain gave notice in open court that he appeals from this order to the supreme court.
“Done in open court this 17th day of April, 1902.”
It is first contended by appellant that Hon. Frank P. Lewis, as judge pro tempore in the court below, was without authority and jurisdiction to hear and determine the motion to vacate the findings, conclusions, and decree designated in the above order. Ho question is raised regarding the regularity of the appointment of the judge pro tempore. The record shows that this motion was regularly entered, on the motion calendar of said court, for hearing on March 29th 1902, and upon that day this motion came on for argument before Hon. G. Meade Emory, the presiding judge of such court. Judge Emory held “that he had no jurisdiction to hear this motion and that it should come up before the Hon. Frank P. Lewis, who presided as judge pro tempore, and made the original findings and decree.” Judge Emory, therefore, dropped the motion from his calendar, to which Cain excepted. We are of the opinion that the superior court, per Judge Emory presiding, committed no error in refusing to enter
It is next urged that the trial court erred in denying appellant’s motion to vacate and set aside the above findings, conclusions, and decree. The record shows that on May 14th, 1901, Judge Lewis made certain findings and conclusions of law, which were filed in the clerk’s office of the lower court on the same day. On the 25th day of May, 1901, said judge signed the decree based upon these findings and conclusions, which decree was filed on June 12, 1901. On March 25, 1902, J. J. McCafferty, Esq., made and filed an affidavit in this cause, in which he stated, “that he is and was at all times the attorney of record for Larris Cain, as receiver, in the above entitled action; that no service of the alleged findings of fact, conclusions of law, and decree, was ever made upon this affiant, and that he had no knowledge of such findings of fact, conclusions of law, and decree until long after the same Was entered; and that it was his intention to appeal from the decree so entered had he had notice of the time of same in time therefor.” This affidavit was the basis of appellant’s motion to vacate the findings, conclusions, and decree to which reference has already been made in the consideration of appellant’s first assignment of error.
The chief contention made by appellant in the affidavit of Mr. McCafferty is that it was the intention of the receiver Cain to appeal from the decree, had he received notice thereof in time. It is significant to note in this connection that Mr. McCafferty fails to state in his affidavit that he had no knowledge or information as to the signing of such findings, conclusions, and decree until after the time had elapsed for taking an appeal to this court. He leaves that important feature to be inferred, by stating that he had no such knowledge until a long time after the decree was entered. "What he considered “a long time” is shrouded in uncertainty. Moreover, we have the uncontroverted sworn statements of attorney George that appellant’s attorney was served with a copy of the decree in question, in the manner above stated, and that he was personally cognizant of the entry of such decree in time to have appealed therefrom to this court. The appellant fails to allege any sufficient excuse for not excepting to the findings and conclusions of the trial court within five days after he
“It appears that the trial court entered a judgment immediately upon filing its findings of fact and conclusions of law, which were filed in the absence of and without notice to the appellant’s counsel. It is contended that the statute (§ 5052, Ballinger); inasmuch as it allows the party desiring to except to the findings five days in which to do so after service of the same upon him when signed subsequently to the hearing and in his absence contemplates that the judgment shall not he entered until the exceptions are filed, or the time for excepting has expired. While, perhaps, this may he the better practice, as it gives to the trial court an opportunity to review its findings in the light of the exceptions, it does not constitute reversible error. The losing party may still except within the time, and appeal in the regular way. It does not drive him, as the appellant suggests, to a motion or petition to vacate, in order to have the judgment reviewed on appeal.”
See, further, Irwin v. Olympia Water Works, 12 Wash. 112" court="Wash." date_filed="1895-06-11" href="https://app.midpage.ai/document/irwin-v-olympia-water-works-4721129?utm_source=webapp" opinion_id="4721129">12 Wash. 112, 40 Pac. 637; Braely v. Marks, 13 Wash. 224" court="Wash." date_filed="1895-12-11" href="https://app.midpage.ai/document/braely-v-marks-4722743?utm_source=webapp" opinion_id="4722743">13 Wash. 224, 43 P. 27" court="Wash." date_filed="1895-12-10" href="https://app.midpage.ai/document/city-of-ballard-v-keane-4722738?utm_source=webapp" opinion_id="4722738">43 Pac. 27.
No reversible error appearing in the record, the order and judgment appealed from must be affirmed.