12 Wash. App. 360 | Wash. Ct. App. | 1974
Grant Logan and wife, hereinafter referred to as “Logan,” seek a writ of prohibition restraining Judge Stanley C. Soderland from entering an order vacating a judgment entered in their favor by Judge Eugene Cushing while serving as judge pro tempore.
Petitioner Logan, in urging us to prohibit Judge Soder-land from entering the order of vacation, asserts that he is entitled to such relief on the ground that the precise issue underlying Judge Soderland’s decision — the question of whether Judge Cushing had jurisdiction to enter the October 11, 1973, judgment — has previously been considered by Judge Cushing on Swartz & Associates’ motion and therefore Swartz & Associates, having failed to appeal from Judge Cushing’s ruling against it, is now estopped from claiming any defect in Judge Cushing’s appointment as
Respondent Swartz & Associates argues that the proper appointment of a judge pro tempore is a requirement essential to such a judge’s jurisdiction to act and, accordingly, any proceedings commenced before an improperly appointed judge pro tempore are void ab initio. See National Bank v. McCrillis, 15 Wn.2d 345, 130 P.2d 901, 144 A.L.R. 1197 (1942); Annot., 144 A.L.R. 1207 (1943). Therefore, respondent Swartz & Associates contends, inasmuch as it never properly gave consent, pursuant to the requirements of RCW 2.08.180,
It is folly to claim that a party is not bound by an order denying relief which he himself prays for. The moving parties were before the court demanding relief, the court had full and complete jurisdiction of the subject-matter and the parties, and its decision is final until reversed, or set aside in some appropriate proceeding authorized by law. Nor does the fact that the original judgment was void change the rule. As well might it be claimed that the appellant may institute another action for the same relief upon the affirmance of the judgment appealed from. It is the order denying the motion to vacate that works the estoppel, and not the original judgment. The court does not hold the original judgment valid, but holds the parties estopped to challenge its validity.
See also Colby v. Phillips, 29 Wn.2d 821, 829, 189 P.2d 982 (1948); In re Estate of Stoops, 118 Wash. 153, 203 P. 22 (1922). Thus, respondent improperly moved to vacate Judge Cushing’s October 11, 1973, judgment before Judge Soderland. Respondent’s exclusive remedy from the October 11, 1973, judgment and Judge Cushing’s adverse ruling on respondent’s motion for a new trial was to file a notice of appeal from the final judgment within 30 days of the entry of the order denying the motion for new trial. CAROA 14; CAROA 33(1). Even assuming arguendo that the October 11, 1973, judgment was void ab initio,
For the reasons stated herein, the writ of prohibition sought by petitioner is granted.
Horowitz and James, JJ., concur.
Judge Eugene Cushing, who had retired after 21 years of service as a Superior Court Judge in Clark County, was serving in King County as a judge pro tempore pursuant to RCW 2.08.180.
Defendants Ford did not appear at trial, and judgment was entered against them by default.
Petitioner also challenges Judge Soderland’s jurisdiction on the basis that (1) Swartz & Associates allegedly failed to obtain proper service upon Logan as required by CR 60(e), and (2) the motion to vacate violated certain local rules of the King County Superior Court. In view of our disposition of the issue presented, we need not reach the merits of these contentions.
RCW 2.08.180 provides in part:
“A case in the superior court of any county may be tried by a judge pro tempore, who must be a member of the bar, agreed upon in writing by the parties litigant, or their attorneys of record, approved by the court, and sworn to try the case; and his action in the trial of such cause shall have the same effect as if he were a judge of such court.