23 Wash. 244 | Wash. | 1900
The opinion of the court was delivered by
In November, 1896, one Homer J. Sbinn, as executor of the estate of Edwin K. Sturgiss, deceased, began an action in the superior court of the county of Spokane to reform and foreclose a mortgage executed by Gorham P. Dart and wife to Edwin K. Sturgiss upon certain real property in that county, making defendants in the foreclosure action the respondent John Ellinger, and others. Summons was duly issued and served upon certain of the defendants personally, and a purported service by publication was made on Ellinger. On February 19, 1891, default was taken against all of the defendants, and, after proof of the amount due upon the mortgage, a judgment of foreclosure was entered in accordance with the prayer of the complaint. In March following, the executor, Shinn, filed his final account with
The appellant first contends that the order of the court which vacated and set aside the judgment of foreclosure and the subsequent judgment entered in favor of the respondent are nullities, because the procedure followed by respondent was insufficient to give the court jurisdiction to act in the premises. He argues that the application to vacate the judgment was based upon the cause specified in subdivision 2 of § 5153 of the Code (Ballinger’s), and hence is governed by the procedure prescribed by §§ 5156 and 5157 thereof; that inasmuch as these sections require that an application to vacate a judgment for the cause mentioned in subdivision 2 must be made by petition, verified by affidavit, setting forth the judgment, the facts or errors constituting a cause to vacate it, and, if the moving party is defendant, the facts constituting a defense to tlie action, and further require that the adverse party must be brought into court in the same way, and on the same notice as to time and mode of service, as in an original action, a trial court is without power to vacate a judgment for this cause oh motion, and cannot acquire jurisdiction of the plaintiff in the action by any other manner or form of service than that required by the Code for the commencement of an
The appellant next contends that the trial court erred in holding that the record shows the judgment of fore■elosure to be invalid, and that this question is before us for review. He insists (1) that his appeal brings up for review the order vacating the judgment by virtue of subdivision T, of § 6500 of the Code, which provides that an appeal from any final order made after judgment brings up for review any previous order in the same action or proceeding which involves the merits and necessarily affects the order appealed from; and, (2) if this be not so, it is before us because the order vacating the judgment was made without notice to him, and consequently he may question its validity in any proceeding where the order is invoked to deny to him the rights he acquired by reason of the judgment.
As to the first branch of the contention, while the language of the section of statute cited is general, we cannot think it can be so construed as to permit an appeal from an order quashing a writ of execution issued on a vacated judgment to bring before this court for review the order vacating the judgment. Indeed, if the argument be sound, slight consideration will show that the principle involved must apply to all orders made in a cause which in any way affected the final judgment entered, and would
The second branch of the contention presents a more difficult question. The order vacating the judgment recites in what manner and upon whom the motion to vacate the judgment was served, thus leaving no room for the presumption which ordinarily obtains in favor of the judgments of courts of superior and general jurisdiction, namely, that the service of the process necessary to bring a party before the court was regularly made, unless the contrary appears on the face of the record. This recital shows the motion to have been served upon the attorney of record appearing for the plaintiff in the action, and the appellant insists that the attorneys cease to represent the parties' after judgment, and hence notice to them is in effect no more than notice to strangers to the record, and is insufficient to bring the parties before the court. But, whatever may have been the rule of the common law, it is not the rule under the present practice that the attorney’s authority to represent his client after the entry of judgment ceases for all purposes. By the express terms of the statute a variety of motions attacking the judgment can be made, notice of which may be given the
“But it is said that the plaintiffs having obtained judgment, for want of an answer, the relation of the counsel to the action ceased, so that he had no further connection with or control over it, and, therefore, notice to him was not sufficient. We do not think so. The action in this case was not completely ended when the judgment was obtained. A variety of motions might, in the order of procedure, be made in respect to the judgment. A motion might be made to set it aside for alleged irregularity. So a motion might be made at any time within twelve months to set it aside, because of mistake, surprise or excusable neglect. There might be a motion to modify the provisions of the judgment, or as to the character of the execution, in a case like this, or like motions might be made, some of them at a subsequent term, some of them in vacation. The course of the law and the progress of the action contemplate that such motions may be made after judgment. Surely neither the client nor the counsel in an action would ever agree that the counsel’s services in it were ended v[hen he simply obtained a judgment thus open to attack. It has been held, in many cases, that, in actions to recover money, the counsel might give directions in respect to the execution, and give receipt for the money when collected. It may be said, generally, that the relation of the counsel to the action does not cease, in any case, until the judgment in the court where it is pending is consummated; that is, made permanently effectual for its purpose, as contemplated by law. In this case, we are sure that
In Beach v. Beach, 6 Dak. 371 (43 N. W. 701), it was said:
“The general rule undoubtedly is, that the power of an attorney under a general retainer expires when judgment is finally rendered, for usually there no longer exists any occasion for his services. The judgment is the final determination of the matters about which the attorney was retained. Macbeath v. Cooke, 1 Moore & P. 513. But this is not so for every purpose, for at the common law the attorney’s power was supposed to continue a sufficient length of time after entry of judgment to permit him, where successful, to issue execution, and until such action as might be necessary for the collection and satisfaction of the judgment. Gilb. Ex’ns. 93. This rule has become a part of the statute law of this territory to such an extent that the attorney of record for the successful party may at any time collect the judgment and execute satisfaction therefor, § 5107, Comp. Laws. So after final judgment, if appeal be taken or writs of error brought, the employment of the attorney of record, in the absence of special notice indicating the contrary, is presumed to have continued, and the statute provides that notice shall be served upon them in such case. § 5336, id. This was also the rule before the Oode. If the judgment be entered irregularly, shall not the attorney whose duty it was to enter it properly be served with notice of motion that it be corrected ? It would seem that he more than any other person, even the party himself, is the one that ought to be notified; for, having been attorney of record, and conducted the matters to a conclusion, he is best able to resist any attack upon it.”
It is true that a motion to vacate and set aside a judgment for the reason that it is void is not a ground of attack for which direct authority can be found in the Oode. It is, however, a ground of attack recognized by the well established practice, and is also a direct atack on the judgment. It is a proceeding in the cause not required to be brought by the service of original process, and falls within the rule permitting service to be made on the attorney of record. This being true, this court is without power in this proceeding to review the order. Having been made after due notice to the parties, it is not void for want of jurisdiction, and is binding on the appellant, even though it may have been erroneous.
The appellant further contends that he is an assignee of the judgment, and, whatever the rule may be as to the original plaintiff, the 'attorney of record of that plaintiff cannot be held to be his representative. But, we think, the appellant has mistaken his relation to the judgment. He is not its assignee in a legal sense, but is a legatee thereof, and takes title by virtue of the will of Edwin K. Sturgiss, and not as a purchaser from the executor. Whatever force his contention might have were he a subsequent purchaser, it cannot avail him, because of this fact. The action was prosecuted for his benefit, and he at all times had the equitable title to the property. The relation of the attorneys to the cause did not change by his succession to the legal title.
•Lastly, it is urged that the interest of the respondent affected only a part of the real property included within the mortgage, and the court should have permitted a sale of that part in which the respondent had no interest. It
The order appealed from is affirmed.
Dunbar, C. J., and Reavis, J., concur.
Anders, J., not sitting.