Garrett v. Byerly

• Decision Date: 28 January 1930
• Docket Number: 21964.
• Citation: 155 Wash. 351,284 P. 343
• Parties: GARRETT v. BYERLY et al.
• Court: Washington Supreme Court

284 P. 343

155 Wash. 351

GARRETT v. BYERLY et al.

No. 21964.

Supreme Court of Washington

January 28, 1930

Department 2.

Appeal from Superior Court, Cowlitz County; Homer Kirby, Judge.

Action by Walter I. Garrett against Oliver L. Byerly. Verdict was for plaintiff, and after defendant's death, subsequent to motions for judgment notwithstanding verdict and in the alternative for new trial, judgment was entered for plaintiff nunc pro tunc, and John A. Byerly and another, executors of the estate of Oliver L. Byerly, deceased, as substituted defendants, appeal. Affirmed.

Whittemore & Truscott, of Seattle, for appellants.

Fisk &amp McCarthy, of Longview, for respondent.

FULLERTON J.

The respondent, Garrett, while driving his automobile across intersecting streets in the city of Longview, was run into by an automobile driven by a person for whose negligent acts one Oliver Byerly was liable. He brought the present action against Byerly to recover for personal injuries and for injuries to his automobile, caused by the collision. After the issues between the parties had been joined, the action was tried before the court sitting with a jury, and resulted in a verdict in favor of the respondent in the sum of $2,500. Within the statutory time after the return of the verdict and before judgment had been entered thereon, Byerly, through his attorneys, moved for judgment in his favor notwithstanding the verdict, and in the alternative for a new trial. These motions were argued and submitted to the court on December 15, 1928, at which time the court took the questions under advisement, and on January 11, 1929, entered an order overruling each of the motions. It was shortly thereafter made to appear to the court that the defendant Byerly had died on January 6, 1929, and, based on this fact, his former counsel appeared and moved the court to abate the action basing the motion on the ground that the action did not survive the death of the defendant. The respondent also appeared, and moved the court to enter a judgment on the verdict as of a date preceding the death of the defendant. These motions were heard together, at which time the court overruled the motion to abate the action and granted that of the respondent, entering a judgment as of the date of December 15, 1928, the date on which the motions for judgment notwithstanding the verdict and for a new trial were submitted and taken under advisement. Subsequently, John A. Byerly and Oliver L. Byerly were appointed executors of the deceased Byerly's estate, and were substituted as parties defendant in the action. The appeal before us is by the executors.

The appellants in their printed arguments have given a large space to the question whether an action ex delicto abates on the death of the person guilty of the delict, due possibly to a statement made by the trial court, when passing upon the several motions made by the parties subsequent to the return of the verdict. But since the respondent concedes that the death of the defendant so far abated the action and prevented a judgment therein as of a date after his death, we do not feel that we need discuss the question.

The questions presented by the appeal on which the parties are at issue are, first, whether the court has in any case jurisdiction to enter a judgment as of a date anterior to that on which it was in fact rendered; and, second, whether, if it has such jurisdiction, the present case presents a proper instance for its exercise.

Our statutes do not directly confer on the courts power to enter a judgment nunc pro tunc. They do, however, provide (Rem. Comp. Stat. § 143) that: 'The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington, nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state.'

Construing this statute, we have held that the term 'common law,' as therein used, includes not only the unwritten law of England as it was administered by its courts, but also the general statutes of that commonwealth modifying and interpreting the unwritten laws which were enacted prior to and in force at the time of our Declaration of Independence. Wagner v. Law, 3 Wash. 500, 28 P. 1109, 29 P. 927, 15 L. R. A. 784, 28 Am. St. Rep. 56; Bates v. Drake, 28 Wash. 447, 68 P. 961; Richards v. Redelsheimer, 36 Wash. 325, 78 P. 934.

Nor has our attention been called to any case where we have authoritatively determined whether the court has power to enter a judgment nunc pro tunc, although we have a number wherein the matter has been referred to, and others in which the power has been exercised in a limited degree. In Puget Sound Agricultural Co. v. Pierce County, 1 Wash. T. 75, it was held that the court was without power to enter as of a past term of the court a decree rendered in vacation, even with the consent of the parties. It was not there determined that the court was without inherent power under any circumstances to enter a judgment nunc pro tunc, but it was pointed out that the statute did not confer such power, and some of the inconveniences of such a practice were discussed. There is no doubt that the case was correctly decided, although possibly it could have been better rested on different grounds. In Hays v. Miller, 1 Wash. T. 143, the power was recognized, but it was held that to permit it in that instance would work an injustice on innocent parties; the court saying that such judgments were entered 'to answer the purposes of justice, but never to do injustice.' The question again arose in the territorial court in the case of Hale v. Finch, 1 Wash. T. 518. The application was denied, because the court thought the circumstances did not present a proper instance for its exercise, although the court said that it entertained 'no doubt of the power of a district court during term to direct the entry of a judgment nunc pro tunc. * * *'

The question seems to have arisen in the state court for the first time in the case of Sears v. Kilbourne, 28 Wash. 194, 68 P. 450. Sears had in a prior action recovered a judgment against the Seattle Street Railway Company, from which judgment the railway company appealed, giving a supersedeas bond. This court affirmed the judgment and entered a judgment against the sureties on the bond for the amount of the judgment. It was afterwards discovered that the judgment was in excess of the obligation assumed by the sureties, and on motion we set aside the judgment and directed a new one to be entered for the proper amount as of the date of the earlier judgment. Sears in the cited case (Sears v. Kilbourne) sought to revive the judgment against the sureties. The application to revive was objected to on the ground that it was not made within the statutory time, and this question depended on the further question whether the judgment became effective as of the date the court ordered the judgment to be entered, or as of the date the court made the corrective order. We held that the judgment became effective from the earlier date, and affirmed the judgment of the trial court, which denied the right to revive the judgment, saying that the court had power to antedate its orders, and power in 'certain well-defined cases' to direct a judgment nunc pro tunc. To the same effect is Barthrop v. Tucker, 29 Wash. 666, 70 P. 120. The question again arose in AEtna Insurance Co. v. Thompson, 34 Wash. 610, 76 P. 105, where we held, without discussing the power of the superior court to enter a judgment nunc pro tunc, that the facts did not present a proper instance for its exercise. In Schulze v. Oregon R. & Nav. Co., 41 Wash. 614, 84 P. 587, we held that, where a part of the defendants are dismissed from an action before judgment and a judgment is entered against them inadvertently, the judgment could corrected by an order entered nunc pro tunc. In Furman v. The Bon Marche, 71 Wash. 238, 128 P. 210, we held that, where no formal judgment was entered at a time when a plaintiff took a voluntary dismissal of his action, the omission could be corrected by a judgment entered nunc pro tunc.

But, while the foregoing cases may not be authoritative as judicial precedents for the rule that the courts of this state have power to enter a judgment nunc pro tunc in a case, such as is here presented, where there has been no judgment in the lifetime of the party, and where the action will abate if a judgment may not be entered nunc pro tunc, they, in our opinion, rather support than deny the power. Certainly they do not sustain the contention of the appellant that no such power exists.

Turning to the English decisions, and to the decisions of our sister states in which the common law has been adopted as the rule of decision by statute or by common consent, the decisions with substantial uniformity hold that the courts have inherent power to enter a judgment nunc pro tunc. The cases so holding are many, but it is unnecessary to collect them here. They will be found collected and analyzed in the note to the case of In re Pillsbury, 3 A. L. R. 1396, loc. cit. 1403 et seq. The principle of the statute of 17 Car. II, c. 8, also has a bearing under the rule to which we have hereinbefore called attention. It specifically provides 'that in all actions, personal, real or mixt, the death of either party between the verdict and the judgment shall not hereafter be alleged for error, so as such judgment be entered within two terms after such verdict.' The force and effect of the statute will be more apparent when it is remembered that at common law all actions, whether real, personal or mixed, abated on the death of a sole party to a cause.

The foregoing considerations lead to...