1 Wash. 504 | Wash. | 1889
The opinion of the court was delivered by
From the complaint of plaintiff and the statement of account included in answer of defendants it appears that the defendants were copartners doing business inWhit-man county, Washington Territory, under the firm name
“Upon request of plaintiff, judgment is rendered in favor of plaintiff and against defendants for the sum of $39.90, at 11 o’clock in the forenoon on the 25th day of August, A. D. 1887, with costs and disbursements of suit, it having appeared to the court that a true copy of complaint and notice had been served upon Con O’Brien, one of the defendants in said action, at least five days before the time mentioned in the notice for defendants to appear and answer the complaint in this action in Whitman county, Washington Territory. And, said defendant or defendants not having filed an answer or other pleadings or other paper or papers in said action, or appeared in said court in any way up to the hour of 11 o’clock in the forenoon of the 25th day of August, A. D. 1887, it is hereby ordered and adjudged by said court that default be duly entered, and judgment rendered as aforesaid against said defendants.”
Execution was issued thereon on the 25th day of August, 1887, writ of certiorari prosecuted to the district court, and the following errors assigned in the court below :
“ (1) In failing to enter on your docket the fact of the defendant Con O’Brien’s appearance in said action and the time thereof.
“ (2) In failing to enter on your docket the order of continuance of said action until the 24th day of September, 1887, which order was duly made and announced by you at the time of the appearance of the parties in said action, and in the presence and hearing of the agents of said defendants.
“ (3) You erred in rendering a judgment against defendants in said action after you had made an order continuing said action until the 24th day of September, 1887, and after the agents of said defendants had departed from your said court, relying on your said order of continuance.
“(4) You erred in not entering upon your docket the true time of entering said judgment, in this, to wit, that said judgment was given about 4 o’clock p. m. on said 25th day of August, 1887, in fact, and you have entered it in your said docket as having been given at 11 o’clock of said day.
*508 “(5) You erred in entering said judgment without any evidence or proof of plaintiff’s claim.
“ (6) You erred in rendering any j udgment against both of said defendants when said defendant Con O’Brien alone had been served or notified.”
And the justice before whom said cause was tried, in obedience to the writ of certiorari, returned the following in answer to the allegations of the affidavit therein:
“As to the first ground of error, it is true that I did not enter upon my docket the appearance of Con O’Brien, and it is also true that Con O’Brien did not at any time appear in person, and the agents representing both of the defendants did not appear until 15 minutes past 11 o’clock of said appearance day, at which time they filed the statement returned herewith.
“As to the second ground of error alleged in this affidavit, it is true that I did not enter in my docket the order of continuance of said cause until the 24th day of September, 1887. And it is true that I made such order, and announced the same, hut not until after the appearance of the defendants, and after 11 o’clock of said day as above set forth, and after plaintiff had left the court room, and said order was made in the presence and hearing of said defendants’ agents. And I will further add that said agents were present before me prior to 11 o’clock of said day, and prior to the time of plaintiff’s departure, but did not file any papers in said ease until 15 minutes past 11, and I did not know who they were until said time.
“As to. the third ground of error alleged in said affidavit the facts are these: At 11 o’clock plaintiff’s attorney, finding no papers on file for defendants, arose before me and said : ‘I now demand judgment.’ To this, shortly after-wards, the said agents, though not known to me at the time to be such, made some objection, and I then said I would have to render judgment, and said agents said they did not think I had grounds for doing so, and then plaintiff and his attorney departed; and then I again said, ‘I will have to render judgment,’and referred said agents to \ 1781 of the Code of Washington Territory; and the agents made some objection, and then filed and swore to said statement of account. The said agents also about this time read to me certain sections of the law, and requested me to order the case continued until the 24th day of September, 1887, and*509 for the purpose of obtaining such continuance they stated to me that defendant McCoy was a very material witness on his own behalf, and could not possibly be present until said date, and in support of said statement filed a telegram and affidavit with me, which are transmitted herewith. I then said, ‘ I do not know but what I can grant a continuance,’ and finally I told them that I would allow a continuance as requested, and marked the envelope containing the papers of the case, ‘ Continued until September 24, 1887, at 10 o’clock a. m.,’ and then said agents departed. About 4 o’clock p. m. of said day the plaintiff’s attorney'returned to my office and demanded execution, and I told him what had been done in his absence. Said attorney insisted that he had a valid judgment, and told me to consult a disinterested attorney, which I did, and then concluded upon such advice that it was my imperative duty, under § 1781 of the Code of Washington Territory, to render judgment as of the time of 11 o’clock of said day, and then made up my docket entries as shown.
“ As to the alleged grounds of error, it is true that I had no evidence of plaintiff’s claim other than the complaint.
“As to the sixth ground of error, it is true said judgment is against both of said defendants, and that Con O’Brien alone was served.”
These errors are for our consideration in this court. It is conceded that a justice of the peace is a creature of the statute, and the court one of limited jurisdiction. Section 1755 of the code provides: “The parties shall be entitled to one hour in which to make their appearance after the time mentioned in the notice for appearance, but shall not he required to remain longer than that time unless both parties appear; and the justice being present, is actually engaged in the trial of another action or proceeding; in such case he may postpone the time of appearance until the close of such trial.” Section 72 of the code thus defines an appearance: “ A defendant appears in an action when he answers, demurs or gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him.” It will be seen from the foregoing that a mere corporal presence of the defendant or his
The justice, in his return to the writ, says: “ As to the third ground of error alleged in said affidavit the facts are. these: At 11 o’clock, plaintiff’s attorney, finding no papers on file for defendants, arose before me and said: ‘ I now demand judgment.’ To this, shortly afterwards, the said agents, though not known to me at the time to be such, made some objection, and I then said I would have to render judgment, and the said agents said they did not think I had grounds for doing so, and then plaintiff and his attorney departed, and then I again said, ‘ I will have to render judgment,’ and referred said agents to § 1781 of the Code of Washington Territory.” This court holds that this was a rendering of a judgment by the justice, and that he was simply doing what he was required to do by law.
In entering up said judgment, however, the justice committed an error. The defendants are alleged in the complaint to be partners, but only one of them, Con O’Brien, was served. Judgment (personal) was rendered against both defendants. This was error. Judgment could only be rendered against the defendant served. Section 68 of the code provides, however, that where the action is against two or more defendants and the summons is served on one or more, but not on all of them, the plaintiff may proceed as follows: “ (1) If the action be against the defendants jointly indebted upon a contract, he may proceed against the defendants served, unless the court otherwise direct, and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served.” For error in entering up the judgment only, as here set forth, this case is remanded to the district court, with direction to enter up judgment in accordance with this opinion; all costs, however, to be taxed against the defendants (plaintiffs in error here) in this case.