Flueck v. Pedigo

• Decision Date: 13 November 1909
• Citation: 104 P. 1119,55 Wash. 646
• Parties: FLUECK v. PEDIGO et ux.
• Court: Washington Supreme Court

104 P. 1119

55 Wash. 646

FLUECK v. PEDIGO et ux.

Supreme Court of Washington

November 13, 1909

Department 2. Appeal from Superior Court, King County; George E. Morris Judge.

Action by Edwin H. Flueck against George Pedigo and wife. Judgment for defendants, and plaintiff appeals. Reversed, with directions.

William B. Bebb, E. H. Flueck, and Walter G Loewe, for appellant.

S.D King, for respondents.

RUDKIN C.J.

On the 7th day of May, 1900, the county treasurer of King county issued to the defendant George Pedigo a certificate of delinquency for unpaid taxes on lots 1, 2, 3, 4, and 5, of block 64, of Riley's addition to Riley's addition to South Seattle for the years 1891 to 1895, inclusive. On the 23d day of June, 1900, Pedigo instituted proceedings in the superior court of King county to foreclose the certificate and such proceedings were had therein that a default judgment of foreclosure and entered on the 31st day of August, 1900. A sale was made under this judgment by the county treasurer and a tax deed issued to Pedigo as purchaser on the 15th day of September, 1900. At the time the tax foreclosure was instituted Annie L. Fuller, widow of L. C. Fuller, deceased, Mabel Fuller Rossiter, Lena Fuller Beckwith, and John A. Slavin, were the owners of the property affected by the foreclosure. There was no personal service on the defendants in the foreclosure and no appearance by them, and the published summons or notice was void under the decision of this court in Thompson v. Robbins, 32 Wash. 149, 72 P. 1043, and numerous later cases. On the 3d day of June, 1903, the widow, Annie L. Fuller, Mabel Fuller Rossiter, and Lena Fuller Beckwith interposed a motion to vacate the tax judgment on the ground that the judgment was taken without their knowledge, and through their mistake, inadvertence, surprise, and excusable neglect, and on the further ground that the court had no jurisdiction of the subject-matter of the action or of the person of the defendants. This motion was denied after a full hearing on the merits on the 14th day of July, 1903, and a further motion to reconsider was denied on September 26, 1903. An appeal from the two last-mentioned orders was prosecuted to this court, but the appeal was dismissed because not taken within the time limited by law. Pedigo v. Fuller, 37 Wash. 529, 79 P. 1129. On July 9, 1907, the appellant Flueck, as successor in interest to the Fullers and Slavin, interposed a second motion to vacate the tax judgment, but by stipulation of all parties concerned this motion was afterwards dismissed without prejudice. On the 27th day of July, 1907, the present action was instituted to vacate the same judgment, and to quiet title to the property affected thereby. The defendants had judgment below, and the plaintiff appeals.

As to the undivided five-sixth interest in the property acquired by the appellant from Annie L. Fuller, Mabel Fuller Rossiter and Lena Fuller Beckwith, the judgment must be affirmed, for the reason that the order denying the motion to vacate the tax judgment is res judicata. In the case of Chezum v. Claypool, 22 Wash. 498, 61 P. 157, 79 Am. St. Rep. 955, it was held that our statute affords a full, complete, and adequate remedy against an illegal judgment by authorizing the aggrieved party to proceed by motion to vacate and set aside, and permitting an appeal from an order entered on such motion, and that one who has attacked a judgment by motion to vacate and has failed to prosecute an appeal from a denial of his motion cannot subsequently maintain an action to cancel the judgment, since the question of the validity of the judgment is res judicata. The doctrine announced in that case was reaffirmed in McCord v. McCord, 24 Wash. 529, 64 P. 748, Pierce County v. Bunch, 49 Wash. 599, 96 P. 164, and in the recent case of Meisenheimer v. Meisenheimer (Wash.) 104 P. 159, and has become the settled law of this state. The appellant seeks to distinguish these cases from the case at bar on two grounds: First,...