Belles v. Miller

• Decision Date: 04 December 1894
• Citation: 10 Wash. 259,38 P. 1050
• Parties: BELLES v. MILLER.
• Court: Washington Supreme Court

38 P. 1050

10 Wash. 259

BELLES v. MILLER.

Supreme Court of Washington

December 4, 1894

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Ejectment by Peter Belles against A. N. Miller and others. Judgment for plaintiff, and defendant Miller appeals. Affirmed.

Judson Applegate and J. F. Ramage, for appellant.

H. G Rowland and Hoxie & Richardson, for respondent.

DUNBAR C.J.

Appellant Miller, and William Carroll purchased from respondent certain lands in the city of Puyallup for the sum of $5,000, paying $1,000 cash, and executed their note to Peter Belles for $4,000. A mortgage was also executed to Belles by William Carroll, Jane Carroll, and appellant, Miller, upon the land so purchased. The note not having been paid at maturity thereof, on the 3d day of May, 1892, respondent instituted suit upon both note and mortgage against William Carroll, Jane Carroll, and appellant, Miller. Summons was served upon William Carroll and Jane Carroll on the 3d day of May, 1892, and upon Miller on the 4th day of May, 1892. On the 23d day of May the attorney for respondent filed an application or claim of default as to William and Jane Carroll, and on the 24th day of May filed a similar claim as to A. N. Miller. On the 25th day of May, 1892, all the defendants appeared by their attorney, and demurred to the complaint. This demurrer was placed on the motion docket, and marked "Continued" by the judge. On the 11th day of June, and while the demurrer remained undisposed of, a default decree was entered against all of the defendants. The property described in the mortgage was sold by the sheriff under a writ, and was bid in by the plaintiff for $500. This property was afterwards redeemed by Miller. There was a deficiency, after the sale of the land on the judgment, of $4,500. To satisfy this balance, execution was issued and levied upon the land which is the subject of this suit, and which belonged to Miller. This was sold, and purchased by respondent, Belles, for an amount sufficient to satisfy his judgment. From the judgment of foreclosure Miller and others appealed, without supersedeas, to this court, and sought to reverse the judgment on the ground that it had been irregularly entered. This appeal was dismissed, because the appellants had failed to apply to the superior court to have the default set aside. See Belles v. Carroll, 6 Wash. 131, 32 P. 1060. After the dismissal of the appeal appellant applied to the lower court to vacate the judgment, which application was denied. In the meantime the respondent had received a certificate of sale from the sheriff, and instituted this action to recover possession of the land purchased. While the action was pending, the year within which the defendant had a right to redeem expired, and plaintiff received a deed from the sheriff, and then asked and obtained leave, on proper notice, to file a supplemental complaint, in which he demanded the additional relief that he be adjudged the owner in fee. Motions to make more definite and certain and demurrers were interposed by the defendant to the complaint and supplemental complaint, which were overruled. The answer of the defendant was to the effect that the judgment under which the land was sold was void, and it also alleged that the court exceeded its jurisdiction in entering the decree and the judgment for deficiency, etc. The plaintiff, in reply to that part of the answer which alleged the defects in the judgment in the original action, pleaded the judgment of the court refusing to vacate such judgment as res adjudicata.

The first assignment of error is that the court erred in refusing to sustain the motion of the defendant to direct the plaintiff to make his amended complaint more specific and certain by setting forth all the proceedings alleged to have occurred in the superior court of Pierce county, it being claimed that, as this was an action in ejectment, the plaintiff should have set forth in his complaint the nature of his estate claim, or title to the property, as provided in section 531, Code Civ. Proc. We think the motion was properly overruled by the court, for, while the law requires that the nature of his estate, claim, or title to the property should be set forth in his complaint, it certainly does not mean that all evidentiary matter should be pleaded in the complaint. The complaint alleges that the plaintiff was the owner of the land described therein, subject to the right of redemption of the defendant; and it also sets forth the manner in which he became such owner, viz. that it was by virtue of a sale under execution, describing the court, and the purpose of the execution, viz. for the purpose of satisfying a valid judgment entered in the cause, properly describing and setting forth a copy of the sheriff's certificate of sale, together with an allegation that the sale had been confirmed. While it is true that this court has announced the rule that the complaint must state a plain and concise statement of facts, and not the legal effect of those facts, or the legal conclusions from them, it seems to us that the complaint in this instance does state facts sufficiently definite to maintain itself. The same may be said of the action of the court in overruling the demurrer to the complaint.

The appellant also objects to the action of the court in allowing the plaintiff to file a supplemental complaint, claiming that it changed the nature of the action from a right to possession to one of title, and amounted in reality to the substitution of a new cause of action. We do not think that such was the effect of the supplemental complaint filed in this case. When the original complaint was filed, the plaintiff, under his certificate of sale, was entitled to the possession of the land. See Debenture Corp. v. Warren (Wash.; decided June 29, 1894), reported in 37 P. 451. The certificate in this instance conferred upon the plaintiff an inchoate title. This inchoate title ripened when the time for redemption had expired. In this instance, at the time the supplemental complaint was filed, something had happened which had not happened at the time of the filing of the original complaint. That something was the expiration of the year within which the defendant had a right to redeem. To that extent it added to the relief which the plaintiff was entitled to, viz. to have the fee declared to be in him. It seems to us that the nature of the action was not changed to such an extent that it made another and entirely different cause of action. Besides, the question of amendment is one that is largely discretionary in the trial court, and, unless this court concluded that the discretion had been abused to the extent of injuring the parties litigant, it would not interfere with the discretion vested in the trial court.

This brings us to the question-and the main question discussed in the case-as to whether the proceedings in the foreclosure of the mortgage, and the judgment for deficiency which was entered therein, were valid. It must be borne in mind that the judgment which is sought to be attacked collaterally in this case is the same judgment which was...