Batchelor v. Palmer

• Decision Date: 28 March 1924
• Docket Number: 18133.
• Citation: 224 P. 685,129 Wash. 150
• Parties: BATCHELOR v. PALMER et ux.
• Court: Washington Supreme Court

224 P. 685

129 Wash. 150

BATCHELOR v. PALMER et ux.

No. 18133.

Supreme Court of Washington, En Banc.

March 28, 1924

Appeal from Superior Court, King County; Frater, Judge.

Action by Chester A. Batchelor against George L. Palmer and wife. Judgment for plaintiff. From an order denying motion to vacate judgment, defendants appeal. Reversed and remanded with directions.

Chas D. Fullen and Geo. L. Palmer, both of Seattle, for appellants.

Glenn C. Beechler and Arthur C. Bannon, both of Seattle, for respondent.

FULLERTON J.

This is an appeal from an order denying a motion to vacate a judgment entered as a judgment upon default.

The summons and complaint in the action were personally served upon the defendants, appellants here, on August 11, 1919. On September 2, 1919, an order of default for want of appearance was entered against them, and, following that, a judgment according to the prayer of the complaint. On the same day but subsequent to the entry of the judgment, the appellants appeared in the action by serving upon the attorneys for the plaintiff a motion to make the complaint more definite and certain, and filing the motion with the clerk of the court. They did not, however, file with the motion the proofs showing its service.

On September 23, 1919, the appellants filed and served a motion to vacate and set aside the order of default and the judgment entered thereon on the ground of premature entry. At the same time they filed proofs of the service of their original motion, but made no showing, by affidavit or otherwise, that they had a meritorious defense to the action. The trial court, on the hearing of the motion, refused to vacate the order and judgment, and entered an order to that effect. This appeal is from the order so entered.

It is the appellants' contention that the order of default and the judgment were entered before the time had expired in which they had the right to appear in the action; that the entries were thus premature; and that, since they appeared within the time, they had the right to have the entries vacated on motion, without the necessity of showing a meritorious defense to the action. The respondent takes issue upon these propositions, and makes certain contentions on his own behalf. These will be noticed in their order.

The case is before us on a transcript of the record, no statement of facts or bill of exceptions having been settled or allowed by the trial judge. The respondent insists that the affidavit filed to show service of the original motion is not a part of the transcript, and cannot be brought to this court other than by a statement of facts or bill of exceptions, and in consequence there is no sufficient showing of an appearance by the appellants in the action on September 2, 1919. But the Code permits the service of a summons or other notice by a private person, and permits proofs thereof to be made by an affidavit. Such an affidavit is therefore in the nature of an officer's return of service, and is as much a part of the record in the court below as is the paper served. It is thus sufficiently shown by a transcript of the record.

The cases cited by the respondent as maintaining his contention are not applicable. They relate to causes where the default judgment was taken after the time for answer had expired, and the defendant sought relief therefrom on some one or more of the grounds provided for in the Practice Act; such, for example, as a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect. When such an application is made based upon affidavits, the affidavits are in the nature of evidence which must be brought to this court by a statement of facts or bill of exceptions. The cited cases do no more than to so hold; they do not hold that a return of service, even if in the form of an affidavit, must be brought to this court otherwise than in the transcript of the clerk.

By the provisions of the Code (Rem. Comp. Stat. tit. 2, c. 6) a defendant personally served with summons in an action has at the least 20 days in which to appear therein. By another section ( Id. § 411) it is provided that a default judgment may be taken against a defendant only after the expiration of the time for answering. Another section of the statute, relating to the computation of time ( Id. § 150), provides that----

The 'time within which an act is to be done * * * shall be computed by excluding the first day and including the last, unless the last day is a holiday or Sunday, and then it is also excluded.'

By a reference to the date above given as to the time the summons was served, it will be observed that the defendants would normally have had all of the day of August 31, 1919, in which to appear. By a reference to the calendar of that year it will be seen that this day fell upon Sunday. By a reference to the Code ( Id. § 62) and the same calendar, it will be observed that the following day, Monday, September 1, 1919, was a legal holiday. It follows, therefore, that, if the statute cited relating to the computation of time has application to the situation, the defendants had all of the day of September 2, 1919, in which to appear, and were thus not in default when the default judgment was taken against them. The respondent, however, contends that this particular statute is not applicable to the situation. He points to another section of the statute ( Id. § 252) enacted as a part of the act of 1893 relating to the commencement of actions, which is subsequent in time to the cited section, and contends that it supersedes that section, and does not permit the exclusion of a legal holiday when the last day of the time in which a defendant has the right to appear falls upon such a day. This section is similar to the one first cited except as to its concluding sentence. This sentence reads: 'If the last day falls on a Sunday it shall be excluded.' But, notwithstanding the plausibility of the argument, we are not persuaded that it is tenable. There was no direct repeal of the earlier act by the later one. It is true the later act concluded with the sentence, 'All acts and parts of acts inconsistent with this act are hereby repealed,' but this is not a direct repeal. It is but declaratory of what would be the legal effect of the act without the provision. As is said in Hess v. Reynolds, 113 U.S. 73, 5 S.Ct. 377, 28 L.Ed. 927:

'The usual formula of a repealing clause intended to be universal is, that all acts on this subject, or all acts coming within its purview, are repealed, or the acts intended to be repealed are named or specifically referred to,'

--and further, in the same case, that language such as is here used 'implies very strongly that there may be acts on the same subject which are not thereby repealed.'

Comparing the sections of the statutes the one with the other it is at once apparent that there is no necessary conflict between them. While the first is somewhat broader in its terms than the other, they are couched in similar language, and the language in each is general in its terms. Both can stand and be given effect in all instances to which they are generally applicable. Repeals by implication and indirect repeals are not favored in law, and it seems to us that it would be an unnecessary refinement, and a refinement that would tend to confusion, to say, as the respondent asks us to say, that the last of the sections must be construed as the controlling section with reference to the commencement of actions, and the first to all other situations.

The precise question now before us seems not to have been...