Bast v. Hysom

• Decision Date: 29 March 1893
• Citation: 6 Wash. 170,32 P. 997
• Parties: BAST v. HYSOM ET AL.
• Court: Washington Supreme Court

32 P. 997

6 Wash. 170

BAST v. HYSOM ET AL.

Supreme Court of Washington

March 29, 1893

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Petition by Engelbert Bast to vacate a judgment by default rendered against him, and in favor of Cornelius B. Hysom, Adelbert Folsom, and D. H. Moore. From an order denying the application, petitioner appeals. Reversed.

Bell &amp Austin, for appellant.

Black &amp Edwards, for respondents.

SCOTT J.

On the 21st day of April, 1892, judgment was rendered by the superior court of Snohomish county in favor of the respondents Cornelius B. Hyson and Adelbert Folsom, against the appellant, by default, for the sum of $1,359. The process in said action was served on appellant on the 31st day of March, 1892. Appellant moved to vacate the judgment upon the grounds that he had not appeared and pleaded within the time prescribed through inadvertence and excusable neglect, and because one of the attorneys for the respondents had represented to him that said cause would not come on for hearing until the June term of said court and that it would be unnecessary for him to do anything therein before said time. On the 31st day of May following, this motion was denied, and upon June 2d appellant filed a petition to vacate said judgment, setting up substantially the same grounds. At the hearing upon this petition the respective parties appeared, and proofs were submitted by each of them, and the court denied the application; whereupon an appeal was taken to this court.

The respondents urge that the appellant was barred from prosecuting this proceeding in consequence of his having previously moved to vacate the judgment on the same grounds. The appellant urges that the reason the court denied his motion was because he had not resorted to the proper proceeding; that, instead of filing a motion in the original cause, he should have proceeded by petition, as he did do subsequently. And he further insists that the respondents cannot now be heard to raise this objection, for the reason that they did not make it in the court below, but went to trial on the merits of the petition. We find nothing in the record to indicate upon what grounds the court denied the motion, but it does not appear that the respondents objected to the petition because said matters had been previously determined on the motion, or that they set up said proceedings as a bar thereto, and the parties...