Barker v. City of Seattle

• Decision Date: 04 August 1917
• Docket Number: 13909.
• Citation: 166 P. 1143,97 Wash. 511
• Court: Washington Supreme Court
• Parties: BARKER v. CITY OF SEATTLE.

166 P. 1143

97 Wash. 511

BARKER v. CITY OF SEATTLE.

No. 13909.

Supreme Court of Washington

August 4, 1917

Department 2. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by F. W. Barker against the City of Seattle. From judgment for plaintiff, defendant appeals. Reversed.

Hugh M Caldwell and Jas. A. Dougan, both of Seattle, for appellant.

Kerr &amp McCord, of Seattle, for respondent.

PARKER J.

The plaintiff, F. W. Barker, seeks recovery of damages from the defendant city of Seattle because of its failure to provide a local improvement fund by special assessment to pay compensation awarded in eminent domain proceedings for the taking of land for the extension of Phinney avenue in that city. Warrants were issued against the contemplated local assessment fund for the amount of the award, one of such warrants being now held by the plaintiff as assignee of Olof Nelson, to whom the award was made and the warrants issued. Trial in the superior court for King county resulted in findings and judgment against the city, awarding to the plaintiff damages in the sum of $1,689, the amount of the warrant held by him, together with interest thereon from January 10, 1911, the date of the issuance of the warrant. From this disposition of the cause the city has appealed to this court.

In August, 1909, there was passed and approved by the city council and mayor of the city of Seattle an ordinance providing for the acquisition by eminent domain proceedings of a strip of land 80 feet wide for the extension of Phinney avenue in that city. The ordinance also provided that the land so acquired should be paid for by special assessment upon the property benefited by such extension, and that any part of the cost of such extension not finally assessed against the property specially benefited should be paid from the general funds of the city. Eminent domain proceedings were accordingly instituted in the superior court for King county, resulting in a verdict and judgment rendered thereon in January, 1911, awarding to Olof Nelson, as the owner of the land to be taken, the sum of $5,898. Neither the city nor Nelson appealed from that judgment, but, both being then satisfied therewith, the city issued to Nelson against the prospective special assessment fund four warrants, aggregating the total amount of the judgment and costs, one of which warrants' was the $1,689 warrant here in question. In the body of this warrant after the direction of payment from the special assessment fund appears the following:

'This warrant is not a general debt of the city of Seattle and is payable only out of the proceeds of the collections of the special assessment made for the condemnation for which it is issued.'

Upon receiving these warrants Nelson satisfied the judgment upon the records of the superior court. Thereafter, by mesne assignments and by bequest, respondent became the holder of the $1,689 warrant, and as such succeeded to all of the rights of Nelson. In December, 1911, the city filed its petition in the superior court for King county, seeking vacation and annulment of the verdict and judgment awarding compensation to Nelson as owner of the land. Nelson was duly notified and appeared generally in the vacation proceeding, and, the question of the vacation of the verdict and judgment being presented to and submitted to the superior court upon the merits, that court, on April 20, 1912, entered its order, vacating and setting aside the verdict and judgment awarding to Nelson compensation for which the warrants against the prospective local assessment fund were issued. This order of vacation has never been appealed from, vacated or set aside. While the warrant here in question was assigned by Nelson before the vacation of the eminent domain judgment, no one was made a party defendant in the vacation proceeding other than Nelson, the judgment creditor, so none of Nelson's successors in interest, including respondent, ever had an opportunity to resist the city's application to vacate the judgment. Nor did any of Nelson's successors in interest learn of the city's application to vacate that judgment or of the order vacating it until long after the order of vacation was entered. The record before us compels us to proceed upon the assumption that, at the time the city applied to vacate the judgment and at the time of the entering of the order of vacation, the city had no notice that Nelson had prior thereto assigned the warrant here in question. The ground of the city's application for vacation of the judgment in the eminent domain proceeding appears to be that it was discovered, after the rendering of that judgment, that Nelson was not in fact the owner of the whole of the 80-foot strip of land sought to be condemned, but was the owner of only a 20-foot strip along the east side thereof. This, however, as we proceed we think will appear to be of no moment so far as our present inquiry is concerned, since it would have to do only with questions of error in the entering of the order of vacation, which order, as we have noticed, has never been appealed from or set aside. There has never been any special assessment made and confirmed looking to the creation of a fund to pay the warrants issued to Nelson following the rendering of the judgment awarding him compensation in the eminent domain proceeding. In January, 1912, the city council and mayor of the city passed and approved an ordinance purporting to amend the original ordinance providing for the acquisition of the 80-foot strip of land for the extension of Phinney avenue, in effect repealing the provisions of that ordinance in so far as it contemplated acquisition of the entire 80-foot strip, and providing for the acquisition by eminent domain proceedings of a 20-foot strip of land along the east side of the 80-foot strip for use as a part of Phinney avenue.

If this action were being prosecuted by Nelson, to whom the warrants were originally issued, it would seem plain that he could not recover because of the order vacating and setting aside the judgment awarding him compensation for which the warrants were issued. It may be that error was committed by the superior court in vacating that judgment such as would call for the reversal of the order of vacation upon appeal, but we have seen that Nelson was a party to the vacation proceeding; that he received due notice and appeared generally therein; that the issues in that proceeding were disposed of upon the merits, resulting in a final order vacating the eminent domain judgment; and that the order of vacation has not been appealed from or set aside, but remains in full force and effect in so far as the rights of Nelson are concerned. That superior courts have jurisdiction of the subject-matter of the vacation of final judgments, and that their final orders rendered in vacation proceedings are as conclusive as other judgments is thoroughly settled by our decisions. Chezum v. Claypool, 22 Wash. 498, 61 P. 157, 79 Am. St. Rep. 955; Wilson v. Seattle Dry Dock, etc., Co., 26 Wash. 297, 66 P. 384; Peyton v. Peyton, 28 Wash. 278, 68 P. 757; Meisenheimer v. Meisenheimer, 55 Wash. 32, 104 P. 159, 133 Am. St. Rep. 1005; Flueck v. Pedigo, 55 Wash. 646, 104 P. 1119; Newell v. Young, 59 Wash. 286, 109 P. 801; Kelley v. Sakai, 72 Wash. 364, 130 P. 503.

Contention is made in respondent's behalf that because the judgment awarding Nelson compensation was rendered in an eminent domain proceeding, it was not within the power of the superior court to vacate it, that in doing so that court acted without the jurisdiction of the subject-matter, and that therefore its order of vacation is void and not conclusive upon any one. Counsel argue that our general statute relating to the vacation of judgments, Rem. Code, § 464 et seq., has no application to the vacation of judgments in eminent domain proceedings, and that our eminent domain...