18 Wash. 460 | Wash. | 1898
The opinion of the court was delivered by
This action was commenced on the 25th day of November, 1895, in the superior court of Whitman county by the appellant to recover on the principal note of $400 and two coupon notes of $26 each. The appellant alleges that on the 26th day of November, 1895, he filed in said superior court the affidavit of one J. M. Hill and the return of the sheriff of Whitman county that the respondents could not be found in Whitman county, state of Washington. The affidavit and the return of the sheriff cannot be found in the files of the court, but the appearance docket in the clerk’s office shows the filing of the affidavit of Hill. On the said 26th day of November, one Daniel Drew, as agent for and on behalf of appellant, filed his affidavit for attachment, setting forth the nature of the action as alleged in the complaint, and, for grounds of attachment, that the defendants had absconded from their usual place of abode in the state of Washington, so that the ordinary process of law could not be served upon them, and that they were then non-residents of the state of Washington. Affidavits as a basis of service for publication were filed,
Respondents move to dismiss the action, for the reason that the judgment of the court was not an appealable order. We think this was a final order which affected a substantial right, and it was therefore appealable under the statute. The other causes of motion are equally without foundation and will be denied.
This judgment, we think, will have to be reversed for several reasons. In the first place we think the court erred in denying appellant’s motion to strike the objections of respondents to confirmation, for the reason that they were
" Upon the return of any sale of real estate as aforesaid, the clerk shall enter the cause on which the execution issued, by its title, in the docket of the term next after such return, and mark opposite the same ‘ sale of land for confirmation,’ and the following proceedings shall be had:
1. The plaintiff shall be entitled, on motion therefor, to have an order confirming the sale at the term next following the return of the execution, or if it be returned in term time, then at such term, unless the judgment debtor, or in case of his death his representatives, shall file with the clerk ten days before such term, or if the writ be returned in term time, then five days after the return thereof, his objections thereto.”
This statute seems to be plain and decisive of the rights of the objector. It is true that under the provision of the constitution the terms of court are to a certain extent abolished, yet by rules of the superior courts throughout the state they have sessions which are practically synonymous, so far as these provisions of the law are concerned, with terms, and it is evidently not the intention of the law to allow an indefinite time to elapse before an objection to a confirmation is made. But, even if this were not true, subdivision two of the section above quoted provides that
"If such objections be filed, .the court shall, notwithstanding, allow the order confirming the sale, unless on the hearing of the motion it shall satisfactorily appear that there were substantial irregularities in the proceedings concerning the sale, to the probable loss or injury of the party objecting. In. the latter case, the court shall disallow the motion, and direct that the property be resold, in whole or in part, as the case may be, as upon an execution received of that date.”
It will thus be seen that the only question which the court has a right to investigate is a question of irregularity
It is said that appellant had a mortgage upon eighty acres of land to secure these notes, and that he waived the mortgage and sued upon the notes and attached an additional eighty acres of land. We know of no law which will prevent a party from waiving at any time any security that he may have, and suing upon his note, and it is certainly not against morals, for, under the law existing at the time this mortgage was given, if the appellant had foreclosed his mortgage, and the security had not been ample, execution would have run against the other land attached.
We have examined the cases cited by the respondents and do not think that any of them are in point. But, outside of the question of the faith and credit which is to be given to judgments of courts of general jurisdiction when attacked collaterally, the provisions of our statute plainly give the right to the appellant in this case to have this sale confirmed.
The judgment will therefore be reversed and the cause remanded with instructions to the lower court to confirm the sale in accordance with the motion of the appellant.
Anders, Gordon- and Reavis, JJ., concur.