102 Wash. 241 | Wash. | 1918
The respondent, John W. Hartford, as plaintiff, brought this action in replevin to recover as his own property an automobile seized by the sheriff under an execution issued upon a judgment in an action in which M. S. Stout was plaintiff and William T. Hartford, father of the respondent, was defendant. Issue was taken on the complaint and a trial had before the court sitting without a jury. At the conclusion of the trial, the court filed a written memorandum announcing his conclusion upon the evidence and the law applicable thereto, and directed counsel for the defendants, the conclusions being in his clients’ favor, to prepare formal findings of fact, conclusions' of law, and a judgment in conformity therewith. In his memorandum decision the trial judge did not find that the plaintiff was not the actual owner of the automobile, but intimated that his conclusion on the facts was to the contrary, resting the judgment on the ground that the plaintiff was estopped to claim title, since, as he recited in his written opinion, the plaintiff, in order to maintain his claim of title, had to prove a violation on his part of a positive mandatory statute. Findings of fact, conclusions of law, and a judgment were prepared by counsel and submitted to the court for signing. These complied with the judge’s memorandum, save as to his conclusions on the facts. Instead of a finding showing an estoppel on the part of the plaintiff to claim title, it was found that plaintiff had no title. The court nevertheless signed the papers and handed them to counsel to be filed with the entry clerk. No sooner had counsel left the court room, however, than it occurred to the judge that he had probably been mistaken as to the order of the proofs; that is, whether the plaintiff had himself introduced evidence tending to show his violation of the statute, or whether such evidence had been introduced by the defendant to dis
In the argument in support of the first of these objections it is not contended, of course, that mistakes, neglect, or omission of the clerk are not grounds provided by statute for the vacation of a judgment, but it is contended that the neglect of the clerk shown in this instance is not the neglect contemplated by the statute. It is said that the mistake, if a mistake at all, was the mistake of the judge; that, after signing the judgment, he concluded he had drawn an erroneous legal conclusion from the facts, and sought to correct it after the cause had passed from his jurisdiction; that the order given by him to the clerk was one beyond his power to give, and hence it was not a mistake, neglect, or omission of thé clerk for which any legal right arises, even if the clerk did not give heed to the order. This suggests an inquiry as to the point of time when the trial judge so far loses control over a proceeding tried before him that he may not arrest the proceeding on his own motion. We have held that point of time to be when the judgment is rendered and entered. Here we think the judge had not lost that control when he gave the order to the clerk. The judgment had not then been entered. True, the judge had signed a formal order for a judgment, but the order was nothing more than a direction to enter the judgment, as much within his control as it would have been had he merely out
The claim of want of jurisdiction of the persons of the judgment creditors is founded on the fact that the notice served with the petition required them to appear within three days after the service, whereas the statute governing the procedure (Rem. Code, §468), provides that the party shall he brought into court in the same way, on the same notice as to time, mode of service, and mode of return, as in an original action by ordinary proceedings; which means in the present case that they should have been given twenty days in which to appear. But the statute also provides that the proceedings shall he governed, with certain specified exceptions, by the rules governing ordinary actions, and it is not necessary in an ordinary action that a summons he issued and served in order to obtain jurisdiction of the person of the defendant. The defendant may waive the issuance of the summons by appearing voluntarily, either in person or by an authorized attorney, and a judgment entered after such an appearance is neither void nor voidable for want of jurisdiction over the person. In this instance the defendants did appear at the time appointed and contest the application upon its merits without suggesting want of proper service of summons upon them. We have not overlooked counsel’s contention that the record fails to show an appearance by them. It is true the formal order vacating the judgment does not so recite, hut it so appears in the hill of exceptions upon which we are asked to review the order. This recites that the de
Counsel, in his brief, after calling attention to the shortness of the time in which his clients were required to appear, and to the fact that they filed no formal pleadings, says this:
“From this it will be apparent that respondents were given no opportunity to plead or prepare to meet the allegations of the petition, not even to have a demurrer heard. All counsel could do was to object and remain in a belligerent attitude.”
But belligerency is all that is required of the defendant in such a proceeding. The code (supra) requires no formal pleadings. All he needs to do is to make his objections and see that they are properly preserved in the final record. It is not here held that the objections now made cannot be reviewed because of want of formality in presenting them. It is held that they came too late; that they should have been urged when the cause came on for hearing, and, not being then urged, were waived.
On the merits of the controversy, we think the evidence clearly establishes that the automobile was the property of the plaintiff and not the property of his father, the judgment debtor in the writ under which the car was seized. While it was shown that the title to the car when purchased was taken in the name of
The judgment of the court was for a return of the property, or if return thereof could not be had, then
The other errors assigned are met by the view we have taken of the principal questions discussed and require no separate notice.
The judgment is affirmed.
Ellis, C. J., Parker, Webster, and Main, JJ., concur.