43 Wash. 634 | Wash. | 1906
The facts necessary to an understanding of the issues herein presented are about as follows: In her complaint herein respondent alleges that on and from April 4, 1903, up to and including August 25, 1905, she and appellant were owners in common of certain real estate, which during all of said time was occupied and used exclusively by appellant and from which he sold a certain amount of alfalfa hay and upon which he grazed stock, and that she was entitled to onerhalf of the value of said hay and of the value of the use of said land, aggregating $11,100, in which amount she demanded judgment.
On said 4th day of April, 1903, appellant commenced an action against respondent for a decree of divorce and the settlement of property rights, their property embracing the real estate referred to in the .piresent action. The first trial of the divorce case resulted in a decree of divorce and a judgment for $15,000 in favor of respondent, from which an apipeal was taken to' this court. The decree as to' the divorce was affirmed, but as to the property, reversed and the cause
On December 6, 1905, appellant filed a motion to vacate and set aside the order of default and the judgment made and entered as aforesaid, which motion was based upon the records and files and upon the affidavit of Seabury Merritt, which was attached fi> the motion as a part thereof. This affidavit set forth the pendency of the divorce case herein-before mentioned, and showed that the property questions were therein involved; that said motion for a stay of proceedings had been served and filed as hereinbefore stated; that appellant’s attorneys made, inquiry of the Honorable R,. S. Steiner, judge of the superior court of said county, as to when the motions for default and for stay of proceedings would he heal’d, and had been informed by said judge that the clerk would advise them as to when the judge would be present and hear said matters; that on the 16th day of October, 1905, the clerk informed appellant’s, attorneys that the judge would not be in Waterville, the county seat of said Douglas county, before about the middle of Movember, and thereafter said attorneys were notified by said clerk that the judge would be present there on the 4th of December, 1905 ; that the appellant and his attorneys believed that said motions would not be heard in their absence without their being notified as per the information and assurances given * them by the judge and clerk; that appellant and his attorneys did not know, until the 4th day of December, that the order of default, findings and conclusions, and judgment had been entered as hereinbefore stated; that the appellant had a good and valid defense to said action.
The motion of appellant for a stay of proceedings appears never to have been passed upon by the trial court, but remains yet pending and undetermined. Mo counter affidavit was interposed to that of appellant’s attorney hereinbefore mentioned. Appellant’s motion to set aside the default and
The respondent moves to strike from the record and transcript the affidavit and motions of the appellant, and asks-that the judgment appealed from be affirmed, for the reason that the errors assigned are based upon matters submitted to the lower court by affidavits and papers at the time of the hearing of the motion to vacate the judgment, and are not brought up by bill of exceptions or statement of facts. Respondent makes the further motion to dismiss the supplemental appeal, for.the reason- that it was not■ accompanied by an appeal bond. The affidavit upon which appellant’s motion was based was attached to and made a part of its motion, and was necessarily before the court when considering the motion, and there is nothing to indicate that the court had anything before it other* than this affidavit and the record of the court. State v. Vance, 29 Wash. 435, 70 Pac. 34. We think it satisfactorily appears from the record before us that nothing else was before the court. The motion to strike the affidavit will be denied.
The procedure of appellant with reference to the supplemental appeal was perhaps somewhat novel; but as no motion is made to dismiss the appeal originally taken, our decision as to it renders any disposition of the supplemental appeal immaterial.
The judgment of the honorable superior court is reversed, with instructions to dismiss the action.
Mount, O. J., Eullerton, Rudkin, Hadley, Grow, and Dunbar, JJ., concur.