44 Wash. 404 | Wash. | 1906
The appellants brought this action to remove a cloud from title. In the complaint it is alleged that the appellants are the owners of certain real property situated in the county of Pierce; that on August 27, 1892, in an action brought in the superior court of that county, the respondent recovered a judgment against Joshua Peirce for the sum of $1,489 on a contract for the payment of money; that on August 23, 1898, a few days before an action would have been barred by the statute of limitations, the respondent brought an action against him on the former judgment, and caused summons to be personally served on him in the manner required by statute; that he made no appearance in the action, and on December 22, 1898, the respondent caused the summons with proof of service, an affidavit of no appear
To this complaint a demurrer was interposed and sustained. The appellants thereupon elected to stand on the complaint, when a judgment of dismissal was entered. The appeal is from that judgment.
To sustain their complaint, the appellants make two contentions: First, that the statute providing for the entry of default judgment upon contracts for the recovery of money only makes it mandatory upon the court to enter judgment immediately upon the filing of the proof of service; and, second, that by the long and unexplained delay in entering its judgment, the action was abandoned by the plaintiff, and the court was without jurisdiction, at the time it purported to enter judgment, to enter any judgment in the case.
The statute relied upon to sustain the first contention is found at §' 735 of Piei’ce’s Code (Bal. Code, § 5090). This section provides that in any action arising on contract for the recovery of money only, the plaintiff may file proof of personal service of the summons and complaint on one or more of the defendants, and that the court “shall” thereupon enter judgment for the amount claimed. But we cannot think this statute mandatory in the sense that it requires the court, under the penalty of a loss of jurisdiction over the subject-matter of the action, to enter judgment immediately on the filing of proof of service on one or more of the defendants. The section is only one of a number enacted to
The other contention is of more moment, but Ave do not think it fatal to the validity of the judgment. Had the defendant, after the lapse of a reasonable time, and before judgment Avas finally entered, moved the court to dismiss the action for want of prosecution, doubtless the court Avould have been justified in granting the motion, especially in the absence of a showing that there was some just cause for the delay. And it may be that the trial court would have been justified, on its own motion, in refusing to enter judgment after so long a delay, at least, until further notice was served on the defendant. But after judgment is entered, Ave think the defendant’s right to have the action dismissed for mere delay is foreclosed, and that any successful attack on the
The cases cited by the appellants, as we read them, do not support their contention. The case of Den, ex dem. Rutherford v. Fen, Folger, Tenant, 20 N. J. L. 299, is most nearly in point, but there is a wide difference between that case and the one at bar. That was an action in ejectment brought against the casual ejector, Richard Fen, and the tenant in possession, without joining the real owner of the land. The tenant afterwards became a lunatic and ceased to occupy the premises. Nothing was done in the action until a lapse of nearly twenty years, when the plaintiff moved for'judgment against the casual ejector. This motion was denied by the trial court, and its ruling was affirmed on appeal. In the case before us the trial court did not refuse to enter judgment. The question in the one case was, therefore, did the trial court abuse its discretion in refusing to enter judgment after so long delay, while in the other it is, is the judgment void. As we think the judgment not void, the judgment appealed from must be affirmed. It is so ordered.
Mount, C. J., Hadley, Dunbar, Chow, Rudkin, and Root, JJ., concur.