Aetna Ins. Co. v. Thompson

• Citation: 76 P. 105,34 Wash. 610
• Court: Washington Supreme Court
• Decision Date: 06 April 1904
• Parties: AETNA INS. CO. v. THOMPSON et al.

76 P. 105

34 Wash. 610

AETNA INS. CO. v. THOMPSON et al.

Supreme Court of Washington

April 6, 1904

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by the AEtna Insurance Company against Robert G. Thompson and others. From a judgment for defendants, plaintiff appeals. On motion to dismiss. Dismissed.

Carr & Preston, for appellant.

Byers &amp Byers, for respondents.

DUNBAR J.

This case was brought by the plaintiff in the court below to recover from defendants money paid to them upon a fire insurance policy, which payment it was alleged was induced by fraudulent representations made by defendant Thompson. After a trial on the merits, judgment was rendered against plaintiff and John Davis and F. K. Struve, sureties on a cost bond filed by the plaintiff for the costs of the action to be taxed. Judgment was obtained by defendants, which judgment was appealed from, and the respondents move to dismiss this appeal for the reason that the sureties on the cost bond did not join in the appeal and were not served with notice of the appeal.

We decided in O'Connor v. Lighthizer (Wash.) 75 P 643, that, where judgment was entered against the sureties on the cost bond, in order to make the appeal effectual said sureties should either be served with notice of the appeal or join in said appeal. It is, however, contended by the appellant that this case is removed from the operation of the rule therein announced by the fact that, after the appeal had been taken, the court, upon motion of the sureties, vacated the judgment against said sureties for the reason that the same had been entered without authority of law, without jurisdiction by the court, and by an inadvertence of the court. Affidavits in support of the motion to vacate were filed by the sureties and by E. M. Carr, one of the attorneys for the appellant herein. The affidavit of surety Struve does not seem to be pertinent to the discussion of this motion to dismiss. The substance of it is that neither he nor his co-surety knew of the rendition of the judgment against them until a long time after the same was rendered with the assertion that it was irregularly obtained. There is a further allegation in the affidavit that it was obtained by fraud practiced upon the sureties, but it is a bare allegation, without any statement of the matters constituting fraud. The fact that the sureties did not know that a judgment was entered against them is not important. The attorney Carr testified, in substance, that he did not know that a cost bond had been given by the plaintiff; that when a copy of the form of judgment was handed to him he did not read the same further than to see that it was in form a final judgment in favor of the plaintiff, and for costs; and that he did not discover that the judgment had gone against the sureties until some time afterwards. The affidavit, it seems to us, is not pertinent. The court vacated the judgment against the sureties, setting forth in his order the reasons for the same, which are to the effect that the sureties had never had legal notice of the pendency of the action; that they never in any wise appeared in the action; that the court had never had any jurisdiction whatsoever over the persons of the sureties and that the court was wholly and entirely without jurisdiction to direct or render any judgment of any kind whatsoever in the action against the sureties; that the signing of the judgment entry by the court was absolutely and entirely without jurisdiction, and said judgment was obtained irregularly by the defendants in said action, and by surprise upon the plaintiff in the action and upon the sureties and upon the court, and that the court signed said judgment inadvertently and unknowingly; and that said judgment against said sureties is, and at all times since its signing by the court has been, absolutely null and void. There is no finding by the court that the judgment was obtained by fraud, or that the court was in any manner imposed upon by the plaintiff's or defendants' attorneys, and it may be very well concluded that the inadvertence referred to by the court was an inadvertence in the construction of the law governing such cases. Courts are presumed to have knowledge of the judgments which they solemnly decree and order entered upon their records, and, while there was probably sufficient showing made to have authorized the court to vacate the judgment before the appeal was perfected, when the appeal was perfected the jurisdiction of the trial court was ended, and any remedy which was sought to be obtained must necessarily be obtained in the appellate court which had obtained jurisdiction by the appeal. It is evident that jurisdiction of the case could not rest in the two different courts at the same time. There is not enough in the statement of the court to show that this second entry was a nunc pro tunc entry of a judgment, or the entry of a judgment which the court intended to...