Bergren v. Adams County
| Decision Date | 01 May 1973 |
| Docket Number | No. 581--III,581--III |
| Citation | 8 Wn.App. 853,509 P.2d 661 |
| Parties | James C. BERGREN, Respondent, v. ADAMS COUNTY, a municipal corporation and political subdivision of the State of Washington, Appellant, and Franklin County, a municipal corporation and political subdivision of the State of Washington, Defendant. |
| Court | Washington Court of Appeals |
Richard W. Miller, Admas County Pros. Atty., Ritzville, for appellant.
Joe McAdams, Moses Lake, for respondent.
Defendant, Adams County, appeals from an order denying a motion to vacate a default judgment entered against it in favor of plaintiff, James C. Bergren.
On May 9, 1969, plaintiff was injured and his car demolished in a single-car accident. As a result, on September 2, 1969 he filed a claim for damages with the Adams County Board of Commissioners. The board did not notify plaintiff of any action taken on his claim. On December 17, 1969, plaintiff commenced this action against Adams County and Franklin County for damages. The complaint alleged in part:
II
That on or about May 9, 1969, Plaintiff was operating a motor vehicle on a public highway known as 'Booker Road'; that said 'Booker' Road is located in Adams County and Franklin County, Washington; That Plaintiff, in operating his said automobile, was traveling from Adams County toward Franklin County, and near the boundary line between the said two counties approximately one-half mile northwesterly of the intersection of said 'Booker Road' with the public highway known as 'Washington State Highway No. 17'.
III
That at the said time and place the surface of the road was permitted by the said Defendants to become hazardous and dangerous for travelers using said 'Booker Road' and said Defendants failed in any way to properly indicate such hazardous and dangerous condition by erecting appropriate signs, and as a proximate result of the failure of the Defendants to maintain the surface of said 'Booker Road' in a safe and proper condition and failure to properly indicate such condition, the Plaintiff lost control of his automobile which overturned and was totally demolished, and the Plaintiff sustained bodily injuries as a proximate result of the aforesaid negligence by the said Defendants.
Plaintiff sought a recovery of $50,000 for personal injuries and $2,300 for property damage.
Adams County failed to enter an appearance. On November 25, 1970, plaintiff obtained an order of default against it. Findings of fact, conclusions of law and judgment were thereupon entered awarding plaintiff $13,192.59 in damages, $2,300 for property damage and $10,892.59 for bodily injuries. We do not have a statement of facts covering the default proceedings. However, the findings and conclusions recite that plaintiff appeared in person with his attorney; further, the claim filed with the Adams County Board of Commissioners on September 2, 1969 was admitted as an exhibit in the default proceedings. This claim asserts that Adams County allowed Booker Road within Adams County to become hazardous to travelers by allowing an abrupt termination of a blacktop surface into a relatively deep crushed rock or gravel surface without providing any warning to travelers with respect thereto. Plaintiff, who was traveling below the minimum posted speed limit on Booker Road in Adams County, lost control of his car when it passed from the blacktop surface into the crushed gravel. As a result, plaintiff sustained damages.
On January 28, 1972, defendant moved to vacate the November 25, 1970 default judgment. Pursuant to stipulation of counsel, the court on February 18, 1972 heard testimony presented by defendant with respect to the motion, following which the motion was denied. This appeal followed.
In support of its motion, defendant relied upon the following portions of CR 60(b) On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;
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(4) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;
(5) The judgment is void;
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(11) Any other reason justifying relief from the operation of the judgment.
The trial court correctly refused to vacate the judgment based on CR 60(b)(1) for mistake, inadvertence, surprise, excusable neglect, or irregularity. CR 60(b) allows vacation upon this ground if the motion to vacate is presented 'not more than 1 year after the judgment . . . was entered or taken.' CR 60(b). CR 6(b) prohibits an extension of the time for taking any action under CR 60(b). Adams County filed its motion to vacate 14 months after judgment was entered against it; thus, it comes too late.
It is next contended the judgment should have been vacated because it was void. In support of this contention, defendant alleges that the accident did not occur in its county; that it had no duty to warn of a danger located in Franklin County; and that it is in no way responsible to plaintiff. We disagree. The contentions of defendant present a factual issue that could have been litigated if defendant had appeared. It did not appear and cannot now litigate this issue under CR 60(b)(5) allowing vacation of a void judgment. A judgment is void if the court lacks jurisdiction of the parties or of the subject matter, or lacks the inherent power to make or enter the particular order involved. Dike v. Dike, 75 Wash.2d 1, 448 P.2d 490 (1968); Metropolitan Fed. Sav. & Loan Ann'n v. Greenacres Memorial Ass'n, 7 Wash.App. 695, 502 P.2d 476 (1972); See 4 Orland, Wash. Prac. 422 (2d ed. 1968); See 7 J. Moore's Federal Practice, 296 (2d ed. 1972). In the instant case, the court had jurisdiction over the parties and the subject matter and it had the power to enter the judgment. The trial court properly refused to vacate the judgment under CR 60(b)(5) because the judgment was not void.
Neither does the record support the defendant's contention that judgment should have been set aside for fraud, misrepresentation, or misconduct of plaintiff under CR 60(b)(4). There is no evidence to support this contention.
Next, it is contended the judgment should have been vacated for other reasons under CR 60(b)(11). We disagree. Defendant's position rests again upon a challenge to the findings and conclusions entered by the court based upon the assertion that defendant has a meritorious defense, namely, the accident did not occur in Adams County and defendant had no duty to warn of a defect in Franklin County. Defendant seeks to argue a question of fact that comes too late. It tardiness is explained only by the argument of excusable neglect or mistake by its auditor and attorney. 1 This does not constitute an 'other reason' within CR 60(b)(11); rather, it falls within CR 60(b)(1) and cannot be asserted after 1 year from the date of judgment. , 4 Orland, Wash.Prac. 423 (2d ed. 1968); 7 J. Moore's Federal Practice, 60.27 at 352 (2d ed. 1972). Furthermore, defendant has not presented a prima facie defense of non-liability. 2
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