Silvain v. Benson

68 Wash. 286 | Wash. | 1912

Crow, J.

This action was commenced by L. T. Silvain as receiver of German-American Bank of Seattle, a corporation, against W. D. Benson and sixty-two other defendants, to recover unpaid stock subscriptions. Plaintiff had been appointed and qualified as receiver, by the superior court of King county, in cause No. 68,111, wherein the Washington Interior Finish Company, a corporation, was plaintiff and the German-American Bank, of Seattle, was defendant. When this action ■ was called for trial, plaintiff offered in evidence from the files and records in cause No. 68,111, the judgment and decree by which he had been appointed, his oath and bond, as receiver, his petition for the allowance of claims filed with him by creditors of the bank, the order approving and allowing such claims, his petition asking permission to bring this action, an order authorizing this action, and other orders not material to this appeal. The trial judge admitted these records and files, but upon his own motion directed that all the files and records in cause No. 68,111 be admitted in evidence. Thereupon the defendants herein moved for a nonsuit and order of dismissal, contending that, from all the records and files thus admitted, it appeared that the superior court in cause No. 68,111 had no jurisdiction of the defendant bank, that it was without authority to appoint a receiver, that the final judgment and the pretended order appointing the receiver were void, and that the receiver was not entitled to prosecute this action. The nonsuit was granted. The action was dismissed, and the receiver has appealed.

Appellant’s controlling assignment is that the trial judge erred in holding that the judgment in cause No. 68,111 appointing him as receiver was entered without jurisdiction and was void. The judgment and order appointing the receiver, in part, reads as follows:

“This cause having come on regularly to be heard on this 9th day of August, 1909, before the undersigned judge of the above entitled court upon the plaintiff’s complaint, and the defendant herein having been duly served with the summons and complaint herein, and the default of the defendant having been heretofore duly entered, and the plaintiff appearing by Shorett & Shorett, its attorneys, and the defendant failing to appear either in person or by attorney, and the court having heard all of the evidence adduced herein, and the judge who tried said cause being the judge of the above entitled court, having made and filed his findings of fact and conclusions of law, and being in all things fully advised in the premises;

“It is hereby considered, ordered, adjudged and decreed that the plaintiff have and recover of and from the defendant, The German American Bank of Seattle, a corporation, the sum of $1,150, with interest thereon at the rate of six per cent per annum from date hereof until paid, and the costs and disbursements of this action be taken herein by said court, and an attorneys fee of fifty dollars.

“That the temporary receiver [L. T. Silvain] be made a permanent receiver, that the property and all assets belonging to the company be turned over to said receiver and that he take charge of all books, papers of whatever kind or nature whatsoever belonging to said corporation.”

It will be observed that the judgment is valid on its face, and that it recites a service of summons and complaint sufficient to confer jurisdiction on the court. The question now presented is whether this finding and adjudication of service and jurisdiction has been successfully disputed by other files and orders admitted by the trial judge. The additional files and orders, so far as they are material, are: (1) Two proofs of service, made on July 15, 1909, by the affidavit of R. J. Meakim, filed on August 11, 1909, in which he deposed that on July 10, 1909, he served the summons and complaint on W. D. Benson, vice president of the bank, and that on July 14, 1909, he served them on E. C. Klyce, trustee of the bank. (2) . An affidavit of W. D. Benson, filed on July 16, 1909, in which he deposed that the summons and complaint were served on him. on July 10, 1909, that he was elected one of the officers of the bank, that he never qualified as such officer, that he at all times refused to accept the office to which he was elected, and that he was not an officer at the time of service upon him. (3) A motion and affidavit of E. C. Klyce, filed July 16, 1909, resisting the appointment of a temporary receiver. In this affidavit he deposed, inter alia, that he was one of the incorporators of the bank, but did not deny that he was a trustee. (4) An order made and entered on July 17, 1909, appointing L. T. Silvain as temporary receiver, and reciting that the defendant appeared by its attorney. (5) An order of default entered on Aug. 10, 1909, which recited that it appeared “to the satisfaction of the court from the return of the sheriff now on file herein, that said defendant was duly, legally and personally served with summons and complaint herein in said King county, Washington, on the 14th day of July, 1909.”

Although the order of default mentions a return of the sheriff, no such return appears in the record, and we are unable to determine that the sheriff did not make a return. Proofs of service had been made by R. J. Meakim, but were not filed until August 11, 1909, the day after the order of default and judgment were entered. These proofs may have been inadvertently mentioned as a sheriff’s return; but be that as it may, the judgment and order of default both found and adjudged the ultimate fact that legal service on the bank had been made. Counsel for respondents discuss many questions immaterial to the issue before us, which is the jurisdiction of the court to enter the judgment and appoint the receiver. The decree adjudicated that the jurisdiction existed, and we are unable to conclude that such adjudication has been successfully overcome or disputed by other files and orders admitted in evidence.

Appellant contends that the attack which respondents make upon the judgment is collateral, while respondents insist it is direct. Conceding, without deciding, that it is direct, as respondents contend, yet, on such an attack they would have to produce evidence sufficient to overcome the jurisdictional recitals contained in the judgment itself before it could be held void. The records upon which respondents rely, affirmatively show that service was made on IClyce as trustee and Benson as vice president of the bank, and that the bank appeared by its attorneys when the temporary receiver was appointed. While it is true that Benson filed his affidavit denying he was an officer, it will be noticed that, after its filing, the court found the ultimate jurisdictional fact that service had been made on the bank. For all that now appears, evidence may have been then produced showing that Benson was vice president notwithstanding his denial. In any event, it is apparent that the court found the fact to be that the bank was served, its determination in that regard appearing on the face of the judgment. In Meisenheimer v. Meisenheimer, 55 Wash. 32, 104 Pac. 159, 133 Am. St. 1005, commenting on a decree which found and adjudged the fact that service had been made and was regular, we said:

“An erroneous determination of a fact properly submitted cannot render a judgment void. The same is true as to every other fact relied upon for procuring the decree. The court necessarily found that there had been a proper service

Respondents assume that, on the trial of this action, we are compelled to accept as true the affidavit made by Benson, notwithstanding the findings made by the superior court in cause No. 68,111. If judgments valid on their face and showing jurisdiction, could be so easily impeached, it is manifest that, to accomplish that end, it would only be necessary for an officer of a corporation to file such an affidavit after legal service upon him, permit judgment to'be entered upon proof of service made, and then in a future action predicated upon such judgment insist that his affidavit must be accepted as true although in conflict with findings made by the court. We cannot announce any such rule. The finding and adjudication appearing on the face of the judgment must, at this time, be accepted as true, as against any such showing.

Respondents rely on subd. 8 of § 226, Rem. & Bal. Code, relative to service of summons, which reads as follows:

“If the suit be against a company or corporation other than those designated in the preceding subdivisions of this section, to the president or other head of the company or corporation, secretary, cashier or managing agent thereof.”

They now insist that the files and orders in cause No. 68,111 fail to affirmatively show that either Klyee or Benson was one of the officers mentioned in this section. We do not know what showing may have been made in that regard. The judgment recites due service on the defendant bank. Proof may have been made that the bank had no president, and that Benson was in fact its vice president. If so, it then appeared that Benson as vice president was the “other head of the company or corporation.” On the other hand, the court may have found that he was not vice president, yet service was made on Klyee as trustee. He did not deny that he was a trustee. It may have been shown that there were nó other officers of the corporation to be served, and the court may have found the fact to be that Klyee, as one of the trustees, was the “other head of the company or corporation” or that he was the “managing agent thereof.” We cannot hold that the record introduced is sufficient, in the absence of further evidence, to contradict the recitals of the judgment and show that no service had been made sufficient to confer jurisdiction upon the court.

The judgment of dismissal is reversed, and the cause is remanded for a trial upon the merits.

Dunbar, C. J., Ellis, and Morris, JJ., concur'.