39 Wash. 373 | Wash. | 1905
Respondent moves to dismiss this appeal. The notice of appeal states that the appeal is from the final judgment in the action, and also from an order entered prior to the final judgment. The order mentioned was one denying a motion to vacate an order of default previously entered. . The default order was entered April 22, 1904, and the order denying the motion to vacate the default was entered June 25, 1904. Judgment in the cause was not entered until Janu
Upon the merits of the appeal, the error assigned is that the court erred in denying appellants’ motion to vacate the order of default, and in entering judgment for respondent. The action was brought for the purpose of setting aside certain conveyances of real estate as having been fraudulently made, and to subject the land to the lien of judgments held by respondent. The service of process upon appellants- was by publication of summons. They contend that, under Bal. Code, § 5518, they have the absolute right at any time within two years, to have an order vacating the judgment. The contention is based upon the following portion of said section:
*375 ‘Wheai service of the notice is. made by publication, and judgment is given for failure to answer, at any time within two years from the entry 'thereof, the defendant, or his successor in interest as to the whole or any part of the property, shall, upon application to the court, or judge thereof, be entitled to an order vacating the judgment^ and granting him a new trial, upon the payment of the costs of the action.”
Whatever may be said of appellants’ argument if this were a case coming within the terms of said statute, it is, however, sufficient to say that the statute does not apply to this case. It relates alone to actions for the recovery of possession of real property, and this is not such an action.
Considering the application to vacate the default, with reference to either § 4880 or § 5091, Bal. Code, it will be observed that the former section provides that, when the summons is not personally served, a defendant shall “on application and sufficient cause shown,” at any time before judgment, be allowed to defend; and the latter section provides that the court may, in its discretion, before final judgment, set aside any default upon affidavit showing good and sufficient cause. Has good and sufficient cause been shown here ? And has the court abused its discretion in refusing to vacate the default in this case % One of the appellants made affidavit in support of the motion to vacate, that he resided in Boston, Massachusetts, when the summons was published; that his place of residence could have been discovered from the records of the auditor’s office, or of the treasurer’s office, of King county, and that respondent or his attorneys could have known the same by the exercise of ordinary diligence. The affidavit does not state that appellant had not actual knowledge of the pendency of the action in ample time to have appeared and defended the same. A counter affidavit made by respondent’s counsel discloses that both respondent and his counsel made diligent inquiry to ascertain the address of appellants at the time the action was commenced, and that they were •unable to discover it; that appellants had actual knowledge
Under the record before ns, and within the authority of the statutes and decisions cited, the court did not err. The judgment is affirmed.