Twigg v. James

37 Wash. 434 | Wash. | 1905

Hadley, J.

This appeal is from an order denying a motion to vacate a judgment. The judgment was entered June 8, 1899. The motion to vacate, made upon special appearance of the judgment defendants, was filed February 10, 1904. The judgment sought to he vacated was for the recovery of money upon two promissory notes of the defendants, and also contained a decree foreclosing a mortgage, ordering real estate sold to satisfy the judgment and awarding a deficiency judgment. The motion to vacate is based upon the following alleged grounds: (1) That the court had no jurisdiction to grant the relief contained in the decree; (2) that the judgment was void in that it was rendered by default without proof of service of the summons and complaint; (3) that it was procured by fraud.

We think the judgment was not void for want of jurisdiction. The complaint contained two causes .of action upon two distinct promissory notes, and alleged that the notes were secured by mortgage. The court found that the default of the defendants had been duly entered. This presupposed due service of the summons and complaint. This is not denied by anything in the record, and we do not understand that it is in fact disputed. It is also shown that the mortgaged land is in King county. It follows that the court had jurisdiction of the persons of the appellants, and of the subject matter; also-, to enter personal judgment, and to decree foreclosure of the mortgage. It is said that the mortgage in fact secured but one of the notes, but the complaint alleged otherwise and demanded foreclosure of the mortgage for the whole amount. The allegations.of the complaint supported the judgn ent. Appellants had notice of such allegations, and also of the demand in the complaint.

The point is made that the judgment was void for want of proof of service of the summons and complaint. It is true, such proof does not appear in the statemen b of facts brought here, but the above-mentioned finding of the court that the. default was duly entered meets that ob; ection.

“Although it was irregular not to have proof if service appear of record, this would not affect the jurisdiction of the court to render judgment.” State ex rel. Boyle v. Superior Court, 19 Wash. 128, 52 Pac. 1013, 67 Am. St. 724.

It is contended that the judgment was void bee mse procured by fraud. Speaking now without regard to the matter of procedure, and only upon the merits of the contention as to fraud, it is merely claimed that, after suit was brought, one of the appellants proposed to respondent’s counsel that appellants would convey the property in satisfaction of the mortgage debt; that the counsel said he would consult with his client, and let appellants know if she would accept the offer; but that he did not com] nunicate with appellants afterwards, before judgment wí s taken, which provided for a deficiency. That such a con ersation occurred is affirmed by the affidavit of one of tie appellants, and is denied by that of the counsel. If :he trial court considered the question of alleged fraud ipon its merits, its denial of the motion to vacate was ecuivalent to a finding that appellants had not established tl eir contention, and, under the evidence in the record, wj should not be disposed to disturb such finding.

Assuming that the alleged conversation did occur, the appellants were, in any event, advised by the cunplaint that judgment was demanded for the full amount of both notes, and, also, for a foreclosure as to the amount of both. The conversation amounted to no more than a mere offer which was not accepted, and, inasmuch as appellants already knew the extent and nature of the demand of the suit, they cannot claim fraud for a mere failure to accept a compromise offer, since it is not shown that they were misled by any false statements or representations. Respondent, was entitled to a deficiency judgment on the pleadings. It was so held as to this very judgment in State ex rel. Twig v. Superior Court, 34 Wash. 643, 76 Pac. 282.

Under any view of the case, she was entitled to foreclosure and a deficiency judgment as to the note which it is admitted was secured by the mortgage. It is shown here that the land was afterwards sold, under the foreclosure execution, for less than the amount of the judgment based upon that note alone. It is not disputed that the indebtedness upon the other note was valid, due and unpaid. Respondent was, therefore, entitled to a personal judgment for the amount thereof, and, inasmuch as it stands as a mere personal judgment for an unpaid debt, we are unable to see that appellants are in any way harmed. If the judgment had been taken in another action, it would have been as much a lien as it now is.

• Furthermore, even if we deemed appellants’ contention meritorious, it has neither been timely presented nor in the proper way. Under our statute, Bal. Code, §§ 5153, 5156 and 5157, an application to vacate a judgment on the ground of fraud in obtaining it must be by petition, commenced within one year after the judgment was made, and on the same notice as to time, mode of service, and return, as in ordinary actions. This proceeding was begun by a. mere motion, on special appearance, without the necessary notice and nearly five years after the rend tion of the judgment. It was field in State ex rel. Boyle v. Superior Court, supra j that the court has no authority to vacate a judgment years after its rendition, upon mere motion such as was made here. It was pointed out that a ill in equity might lie to set aside the judgment, hut that, in such case, the party iu interest would have to he legally brought in hy service of process.

For the reasons above stated, the judgment is affirmed.

Mount, C. J., Fullerton, and Dunbar, JJ., concur.

Rudkin, Root, and Crow, JJ., took no part.