67 Wash. 496 | Wash. | 1912
Lead Opinion
Sometime in September, 1909, Geo. M. McDonald and Jesse T. Cull, then copartners doing business as Geo. M. McDonald and Company, began an action in the superior court of Douglas county against Wilfr.ed F. Hayworth, to recover the sum of $1,000 and interest, alleged to be due upon a promissory note which the respondent had theretofore made and delivered to them. At the time of the commencement of the action, the appellants caused an attachment to issue against the property of Hayworth, based on the grounds that he was about to remove a part of his property from the state of Washington with the intent to defraud his creditors, and was about to convert a part thereof into money with intent to place it beyond the reach of his creditors. The attachment bond was executed in the sum of $3,000, and was conditioned as required by statute. It did not bear the signature of the plaintiff in the action, but was signed by Geo. M. McDonald & Co., Inc., a corporation, and by the two other persons named in the body of the bond as sureties, the corporation not being named therein either as principal or surety. Pursuant to the writ of attachment, the sheriff of Douglas county seized certain personal property belonging to Hayworth, on October 7, 1909, and held the same until April 20, 1910, when the attachment was dissolved and the writ discharged on the procurement of Hayworth.
Thereafter, and on June 14, 1910, the respondent Hayworth began an action in the superior court of Douglas county against the plaintiffs in the attachment action and the sureties upon the bond, including the corporation Geo. M. McDonald & Co. Inc., to recover for wrongfully suing out the attachment. Personal service of the summons and complaint was made upon all of the defendants on June 25, 1910, the service upon the corporation being made in Grant county, as the return recites, at “their usual place of business.” On July 16, 1910, the plaintiff moved for default against the defendants for failing to appear in the action, accompanying
On August 2, 1910, the defendants, by their attorney, moved to set aside the judgment and open the default, reciting in the motion that they had a good and sufficient defense to the action, and that within 20 days after the service of summons upon them, namely July 15, 1910, they had served upon the attorneys of record an answer in said cause, and had caused the same to be filed with the clerk of the court wherein the action was pending, and that the same was on file when the judgment in the 'action was taken. The motion recited that it was based on the record and files in the action, and upon the affidavit of their attorney thereto annexed, and “by reference hereto made a part of the motion.” This motion was overruled by an order entered on December 8, 1910. The appeal before us was taken on March 3, 1911. It purports to be taken from the judgment of July 27, 1910, as well as the order refusing to vacate the same entered December 8, 1910.
The appellants failed to propose or have certified into this court any statement of facts, and
With these affidavits eliminated, there is only one question open for review, namely, is the judgment sought to be vacated void upon its face, or on the face of the record properly before us. The first contention in this respect is that the judgment was entered' after an answer had been filed putting in issue the material allegations of the complaint. But the objection to this is that the answer is improperly in the record. It was filed after default had been taken and entered, and without leave of the court, and was not served upon the plaintiff. This did not constitute such an appearance in the case as the statutes contemplate, and the court properly proceeded to enter judgment in disregard of the answer.
Next, it is said that a judgment was entered against the bondsmen obligated on the bond sued upon in excess of the penalty thereof. As we have stated, the penalty of the bond was in the sum of three thousand dollars, while the judgment was in that sum together with the sum of four hundred dollars taxed as attorney fees, and twenty-one dollars and sixty cents taxed as costs.- There may be some question whether, under the statute, an attorney’s fee and the costs of the action may be recovered against the obligors on an attachment bond in excess of the penalty fixed therein; but, if it be so conceded, the fact does not render the judgment void. It would be error merely which must be corrected by aii appeal from the judgment, or by some revisory proceeding afforded by the statute attacking the judgment upon this ground. It was not so attacked in this case. This objection appears to
Finally, it is said that the judgment is void as to'fhe corporation because not brought in a county where the corporation has an office for the transaction of business, or in a county where some person resides upon whom process may be served against the corporation. McMaster v. Advance Thresher Co., 10 Wash. 147, 38 Pac. 670, and the cases following that case are cited as maintaining the contention. But the statute has been materially changed since these cases were determined. It is now provided that an action against a corporation may be brought in any county in which the corporation transacts business, or transacted business at the time the cause of action arose. There is nothing in the record that tends to show that the corporation in question does not transact business in Douglas county, the county in which the action was brought, and the court will presume, in the absence of some showing to the contrary, that it did so transact business. Furthermore, the execution of the bond which gives rise to the cause of action against it was executed by it for use in Douglas county. This would be such a transaction of business in that county as to authorize an action upon the bond therein.
There is no reversible error in the record, and the judgment will stand affirmed.
Parker, and Gose, JJ., concur.
Dissenting Opinion
(dissenting) — I cannot agree that a judgment upon a bond may be taken for more than the face of the bond with costs. I therefore dissent.