Borg-Warner Acceptance Corp. v. McKinsey
| Decision Date | 20 July 1967 |
| Docket Number | No. 38701,BORG-WARNER,38701 |
| Citation | 430 P.2d 584,71 Wn.2d 650 |
| Court | Washington Supreme Court |
| Parties | ACCEPTANCE CORPORATION, a Delaware Corporation, Appellant, v. Earl McKINSEY and Roxanne McKinsey, his wife, Defendants, Evergreen Rambler, Inc., Respondent. |
Williams & Turner, Harvey S. Poll, Seattle, for appellant.
Delbridge, Christie & Thompson, William b. Christie, Seattle, for respondent.
This action was commenced by appellant as assignee of a conditional sale contract between defendants, 1 as purchasers, and Murphy's Furniture in Kenmore Washington, as sellers. Appellant sought recovery from defendants in the sum of $1,298.95, which it alleged was due and owing on the contract because of their default in payments thereunder, plus costs and attorney's fees. Defendants, having departed from the state of Washington, were duly served by publication pursuant to RCW 4.28.100.
Upon affidavit filed on behalf of appellant that it believed that respondent was indebted to defendants as employer of defendant husband, a writ of garnishment issued and was served upon respondent on June 21, 1964.
Defendants not having appeared in response to the summons and complaint and respondent having failed to answer the writ of garnishment within the statutory period, an order of default was entered against each of them on October 27, 1964.
June 22, 1965, findings of fact and conclusions of law and final judgment were entered by the Superior Court of King County in favor of appellant against both defendants and respondent in the sum of $1,493.79, plus costs.
Then, on August 3, 1965, respondent moved the superior court for an order vacating the judgment against it. The case was submitted on an agreed statement of facts, and a hearing was had on August 13, 1965. An order vacating the judgment as to respondent was signed on August 20, 1965. This appeal followed.
The sole question presented by this appeal is whether the court abused its discretion in vacating the default jdugment entered against respondent on August 20, 1965.
In its motion to vacate, respondent alleged (and the allegations are not disputed by appellant) that defendant husband had previously been in their employ, but that the relationship had terminated about April 1, 1964; that all accounts between defendants and respondent had been settled on that date; and that thereafter respondent had no property or funds of any kind belonging to defendants.
Respondent, therefore, presented a complete and absolute defense on the merits of the garnishment proceeding, to wit, that at the time of the service of the writ it owed defendants nothing.
To excuse its failure to answer the writ of garnishment, respondent asserted that, a short time previous to receiving the writ in the present action, it had been served with another writ against the same defendants, which was substantially similar in form and appearance. An answer had been filed to the earlier writ, setting forth the same defense presented in this action. It is respondent's contention that it was the confusion resulting from the similarity between the two writs tht occasioned its failure to answer the writ in the case at bar.
RCW 4.32.240 provides, in part:
The court may, in furtherance of justice, and on such terms as may be proper 2 * * * relieve a party * * * from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.
It is well settled in this state that a motion to vacate a judgment or order under this provision is directed to the discretion of the trial court, and its action in passing thereon will not be reversed by this court in the absence of a manifest abuse of its discretion. Roth v. Nash, 19 Wash.2d 731, 144 P.2d 271 (1944).
In the absence of willful disobedience on the part of respondent, we deem the applicable rule to be that stated by this court in Merrell v. Hamilton Produce Co., 55 Wash.2d 684, 686, 349 P.2d 597, 598 (1960), i.e.:
In determining what constitutes a sufficient excuse for neglect within the purview of the statute, courts look...
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Little v. King
...85 Wash.2d 241, 245, 533 P.2d 380 (1975); White v. Holm, 73 Wash.2d 348, 351, 438 P.2d 581 (1968); Borg-Warner Acceptance Corp. v. McKinsey, 71 Wash.2d 650, 652, 430 P.2d 584 (1967); Paine-Gallucci, Inc. v. Anderson, 35 Wash.2d 312, 318-19, 212 P.2d 805 (1949); Graham v. Yakima Stock Broker......
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Fahlen v. Mounsey
...absence of a manifest abuse of discretion. Martin v. Pickering, 85 Wash.2d 241, 245, 533 P.2d 380 (1975); Borg-Warner Accep. Corp. v. McKinsey, 71 Wash.2d 650, 652, 430 P.2d 584 (1967). Generally, where a judgment is based upon a prior judgment, when the judgment from the first case is reve......
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Commercial Courier Service, Inc. v. Miller
...will vacate the default judgment. Merrell v. Hamilton Produce Co., 55 Wash.2d 684, 349 P.2d 597 (1960); Borg-Warner Acceptance Corp. v. McKinsey, 71 Wash.2d 650, 430 P.2d 584 (1967); Yeck v. Department of Labor & Indus., 27 Wash.2d 92, 176 P.2d 359 Defendant's showing of a meritorious defen......
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Beckett v. Cosby, 39183
...will vacate the default judgment. Merrell v. Hamilton Produce Co., 55 Wash.2d 684, 349 P.2d 597 (1960); Borg-Warner Acceptance Corp. v. McKinsey, 71 Wash.Dec.2d 637, 430 P.2d 584 (1967); Yeck v. Department of Labor & Ind., 27 Wash.2d 92, 176 P.2d 359 We do not agree, however, that the recor......