32 Wash. 154 | Wash. | 1903
The opinion of the court was delivered by
Original application is made in this court for a writ of mandate directed to the superior court of Pierce county and to the Honorable Thad Huston, one of the judges thereof. The petition recites, substantially: That on or about the 16th day of January, 1902, the petitioners commenced an action in said court, in which the Tacoma Smelting & Refining Company, a corporation, and others, were defendants; that at the time of filing their complaint in said action they applied to the respondent, one of the judges of said court, for a temporary restraining order, and that such order was thereupon duly made by respondent in said cause; that on the same date the relators filed in said cause their motion for the appointment of a receiver of the lands and estate of said Tacoma Smelting & Refining Company; that thereafter issues were joined under said complaint and a supplemental complaint by answers and replies; that on the 24th day of February, 1902, said cause came on for hearing before the respondent upon said motion for the appointment of a receiver, and upon said temporary restraining order, and the order to show cause why the same should not be continued in force until the final determination of said action;
“This cause came on for hearing on this February 24th, 1902, upon the order heretofore made on the 16th day of January, 1902, and upon the pleadings and evidence adduced ; and, after listening to the evidence adduced by the respective parties and arguments of counsel, the case was taken under advisement until this 6th day of March, A, D. 1902. The court, being well advised in the premises, finds that there is no ground for the appointment of a receiver, or for an injunction, and that there is no equity in the complaint; and that the equities of this case are with the defendants.
“It is therefore ordered, adjudged, and decreed by this court that plaintiffs’ application for receiver and for an injunction is overruled and denied, and that this action be, and the same is hereby, dismissed at plaintiffs’ cost.
“To all of which plaintiffs duly excepted, and their exceptions are allowed.”
That no demurrer, motion, or other pleading was at any timie served or filed in said cause by any of the defendants therein, except as hereinbefore stated, and that said judgment of dismissal was entered by the respondent of his own motion, without any other or different hearing, opportunity for hearing, or consideration of said cause than as hereinbefore stated; that no trial or opportunity for trial of the issues raised by the pleadings of the respective parties was at any time had; that thereafter, on the 12th day of March, 1902, these relators, as plaintiffs in said cause, served and filed their motion to vacate said judgment; that on March 19, 1902, said motion to vacate came on for hearing before the respondent, and after argument by counsel was taken under advisement by respondent until January 2, 1903, when the same was denied by
It is the contention of relators, first, that the judgment of dismissal entered March 6, 1902, was an irregular judgment, in that the court entered the judgment of its own motion after issue joined under the pleadings, and without any hearing of the issues so joined; second, that before the plaintiffs in said action could have appealed from said judgment of dismissal they were obliged to first call the attention of the trial court to the error complained of by motion to vacate the judgment and to secure a ruling upon such motion; third, that the time for appealing from said judgment of dismissal did not run while the motion to vacate was pending and held under consideration by the court; fourth, that the appeal from the order denying the motion to vacate the judgment brings up for consideration the judgment itself; fifth, that therefore
It will be observed that the motion upon which the order of January 2, 1903, was entered cannot be treated as an ordinary motion for a new trial, since it does not purport to be such, and in any event was not filed within the time limited by law for filing motions for new trials. It must, therefore, be treated as a proceeding under the statute for the vacation of the judgment of March 6, 1902. Section 5153, Bal. Code, enumerates the grounds upon which such a proceeding may be based. If the judgment sought to be vacated is an irregular one, as contended by relators, it must come within the description of subd. 3 of the above cited section, which is as follows: “For mistakes, neglect, or omission of the clerk, or irregularity in obtaining the judgment or order.” It cannot be said that there was any irregularity here, because of “mistakes, neglect, or omission of the clerk,” and if any portion of the statute is applicable, it must be the somewhat indefinite words, “irregularity in obtaining the judgment or order.” Was there such irregularity in obtaining this judgment as is comprehended by the above statute? The hearing upon which the judgment was entered was upon an application to appoint a receiver in tbe cause, and also for the continuance pending the action of the temporary restraining order theretofore issued. But the issues had already been joined by the complaint, supplemental complaint, answers thereto, and replies. The hearing was therefore in the nature of an interlocutory one, which may be said to have been merely auxiliary to the main issues, and was not a final hearing on general testimony submitted under the issues joined in the pleadings. The judgment which was entered, being one of dismissal, was final in its nature, and was intended to conclude and determine all matters
“Irregularities which are generally invoked for the purpose of vacating a judgment, and which will justify a vacation of the judgment after term time, are where a judgment was entered in favor of the plaintiff before the time for answering had expired, or where the judgment was entered while there was an answer or demurrer on file and not yet disposed of, and other irregularities of tiiis character.”
We believe, therefore, that the question of law arising upon the sufficiency of the complaint was prematurely determined, there being nothing to challenge that sufficiency until the issues of fact came on to he heard, and that the judgment of dismissal based thereon was for that reason irregularly entered, within the meaning of the statute.
Having determined that the judgment was irregular, the next question for examination is whether an appeal lies directly from such a judgment, without calling the at
The motion against an irregular judgment being a necessary preliminary to an appeal from the judgment, we are next to inquire when the time for appeal and for filing a proposed statement of facts in support of such appeal begins to run. It seems logically to follow that it must begin to run when the motion to vacate has been determined by the court. Otherwise, the relief intended by the statute against such irregularity would he burdensome and often impracticable. If such were not the rule, then in all such eases a proposed statement would have to he prepared and filed within the usual thirty days, or extended period of ninety days, notwithstanding the statute affords the means of relief against the judgment at any time within one year, which may possibly render a statement of facts and an appeal unnecessary. The respondent cites this court to a number of its decisions where it has held that the proposed statement of facts must be filed within thirty days, or within ninety days, by extension of time under the court’s order, and that the utmost limit of time within which it can he filed is ninety days
It is urged by respondent that the motion to vacate attacked only the few words of the judgment which purported to dismiss the action, and left without attack that portion of it which determined that the complaint did not state a cause of action and that the equities were with the defendants. The portion attacked was, however, the active and vital part of the judgment; the judgment itself, in fact, since the remaining words were but the statement of a conclusion of law. With the portion attacked vacated, there would have still been a cause of action pending which could have been finally and regularly heard, at which time the court’s view of the law as applied to the complaint under offered evidence would have become vital and active, and might then have regularly entered into a final judgment, We think the motion was, therefore, sufficiently broad upon which to base, a vacation of the judgment.
For the reasons herein assigned, we believe the relators are entitled to have their proposed statement of facts certified, and it is ordered that the writ shall issue.
Fullerton, O. <T., and Mount, Anders and Dunbar, J J"., concur.