25 Wash. 666 | Wash. | 1901
The opinion of the court was delivered by
The appellant, who was plaintiff below, obtained a judgment by default against the respondent in the superior court of Stevens county for personal injuries alleged to have been sustained by him while working in a smelter then being operated by the respondent and another. The judgment was entered upon the 13th day of October, 1899. On January 2d following the respondent filed a petition, praying for the vacation of the judgment and for permission to appear and defend the action upon its merits. In his petition he alleged, in substance, that the affidavits filed to show service of summons upon him did not truthfully recite (the manner of the attempted service, and that in fact no service of summons in the manner required by statute had ever been made upon him; that, notwithstanding this fact, he had intended in good faith to appear in the action and defend the same upon its merits; that to this end, prior to the
The learned counsel for the appellant contend that because the respondent has elected to follow the procedure for vacating judgments prescribed by ch. 17, tit. 28 of Bal. Code, his petition must contain a statement of facts warranting relief under one or more of the causes, in that chapter especially enumerated, for which a court is empowered to vacate a judgment, and that the facts recited in the petition do not warrant the vacation of the judgment for any of the causes mentioned in that chapter. They contend, further, that, if it be conceded that the petition does state facts sufficient to warrant relief for the causes set out in § 4953 of the Code, it cannot avail the respondent, because the remedy for relief under that section is by motion, notice, and affidavit, and cannot be had by the form of procedure followed in the case before us. While, in determining questions of this character, as we said in Hull v. Vining, 17 Wash. 352 (49 Pac. 537), the court ought not to indulge in any refined distinctions which might amount to a denial of justice, we think it can fairly be doubted whether the facts recited in the petition and found by the trial court make a case for vacating the judgment within the meaning of any of the causes enumerated in the chapter of the Code above cited. On the other hand, we are clear that he has made a case of mistake and excusable neglect, within the meaning of § 4953. The question, then, is, can relief be granted him under this form of procedure ? Owing to the fact that the legislature has expressly provided that the proceedings to obtain the benefit of certain of the causes for
The statute provides (§ 5158) that a judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action in which the judgment is rendered. In the case before us the trial court made the necessary adjudication; but it is said this could only be done after a trial of the defense upon its merits, and that here there was no such trial. But the statute cannot mean that the court must hear the entire cause, and grant the petition only when it appears that the evidence preponderates in favor of the applicant. The weight and sufficiency of evidence in this form of action are questions for a jury. It is sufficient to determine the question here presented, that the court finds that the facts alleged constitute a defense to the cause of action stated in the complaint, and that there is substantial evidence to support the allegations. These matters are sufficiently shown in the present record.
The order will stand affirmed.
Bjdavis, O. J., and Duhbab, White and Andees, JJ., concur.