Dickson v. Matheson

• Decision Date: 28 June 1895
• Citation: 40 P. 725,12 Wash. 196
• Parties: DICKSON v. MATHESON ET AL.
• Court: Washington Supreme Court

40 P. 725

12 Wash. 196

DICKSON v. MATHESON ET AL.

Supreme Court of Washington

June 28, 1895

Appeal from superior court, Kittitas county; Carroll B. Graves Judge.

Action by G. E. Dickson against David Matheson and another on a note. Defendants confessed judgment, and filed a petition to set the same aside because it included costs to which plaintiff was not entitled. A demurrer to the petition was sustained, and defendants appeal. Affirmed.

Hoyt C.J., dissenting.

Edward Pruyn, for appellants.

Wager &amp Graves, for respondent.

GORDON J.

An action was commenced by the respondent in the superior court of Kittitas county against David Matheson and Charles Dickson, partners as Matheson & Dickson, upon a promissory note, and personal service of summons in said action was had upon each of said partners on August 11, 1894. On the 18th day of August, 1894, the said Charles Dickson made subscribed, and acknowledged a written statement and confession, consenting to and authorizing the entry of judgment in favor of plaintiff for the amount claimed in the complaint, which amount included the sum of $68 attorney's fees, provided in the note to be paid in case of suit or action being brought. The written instrument and confession thus made set out the facts upon which the indebtedness arose in compliance with the statute, and authorized the entering of a judgment in favor of the plaintiff and against the defendants for the sum aforesaid; and upon such statement judgment was duly entered in favor of respondent against appellants, David Matheson and Charles Dickson, and said judgment provided that the same should be satisfied out of the joint property of Matheson and Dickson and the separate property of said Charles Dickson, in compliance with 2 Hill's Code, § 416. Thereafter a petition was filed by appellants to vacate and set aside said judgment, and from an order sustaining respondent's demurrer to an amended petition filed therein this appeal is taken.

The principal ground relied upon by the appellants for the reversal, and the only one that need be considered, is that the court erred in including the sum of $68 as attorney's fees in said judgment upon confession, inasmuch as respondent had not appeared by attorney in said action. Assuming without deciding, that respondent was not entitled to any allowance as attorney's fees in said judgment, we think that appellants have mistaken their remedy, and that the demurrer to the amended petition was properly sustained. The statement made by Dickson, upon which the judgment was entered, sets out fully each of the items going to make up the amount for which judgment was entered, viz. principal, interest, and attorney's fees. Nothing was withheld or concealed from the court. And upon this statement judgment was entered. No fraud was...