Garrett v. Nespelem Consol. Mines, Inc.

• Decision Date: 30 June 1943
• Docket Number: 29005.
• Parties: GARRETT v. NESPELEM CONSOL. MINES, Inc., et al.
• Court: Washington Supreme Court

139 P.2d 273

18 Wn.2d 340

GARRETT v. NESPELEM CONSOL. MINES, Inc., et al.

No. 29005.

Supreme Court of Washington

June 30, 1943

Department 1.

Action by J. F. Garrett against the Nespelem Consolidated Mines Inc., for recovery of an amount due plaintiff for services as watchman and caretaker of defendant's mining property and appointment of a receiver for defendant, in which Glenn E Cunningham was appointed receiver and made an additional defendant. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Spokane County; R. M Webster, judge.

Fred'k. R. Burch, of Seattle, for appellant.

Funkhouser & Twohy, of Spokane, for respondent.

MILLARD Justice.

Plaintiff, by counsel other than that now representing him, commenced an action November 24, 1939, to recover against Nespelem Consolidated Mines, Inc., seventeen hundred dollars for services rendered as caretaker of the property of defendant and prayed that, as defendant corporation was insolvent, had no income and had no assets other than its mining property, a receiver be appointed for defendant. February 26, 1940, the court entered an order appointing one Glenn E. Cunningham (who duly qualified) as receiver of and for defendant corporation with power, under the control and subject to the order of the court to care for and keep possession of the corporation property, to collect debts and moneys, and generally to do such acts as may be ordered by the court or be sanctioned by law. The receiver's petition, filed October 26, 1940, for authorization to employ attorneys to represent him in all legal matters in connection with the receivership, was granted.

By first amended complaint, served and filed July 20, 1942, plaintiff, represented by his present counsel, sought recovery against defendant corporation in the amount of thirty-five hundred and fifty dollars for alleged services as watchman and caretaker for twenty-six and one-half months at the rate of one hundred dollars monthly and for assessment work in the amount of nine hundred dollars.

August 3, 1942, plaintiff noted for hearing August 15, 1942, his motion, which was served upon counsel for defendant corporation July 30, 1942, for an order of default and judgment for failure to appear or answer the amended complaint. The then attorney for defendant corporation filed and served August 3, 1942, upon counsel for plaintiff and upon the receiver for defendant corporation notice of his withdrawal as attorney for the corporation. The following day the receiver for the corporation filed a petition that he be substituted as defendant in the action, as the corporation's attorney, instead of pleading to the amended complaint, had withdrawn from the action and defendant corporation was without legal representation; and that receiver as such defendant be permitted to file an answer and put plaintiff upon his proof. Plaintiff moved that receiver's petition for substitution as defendant be stricken. Hearing had September 9, 1942, resulted in entry of an order adding the receiver as an additional defendant in the cause and authorizing him to file an answer therein. Plaintiff's motion for default was denied with permission to renew the motion after the hearing on the defense raised by the answer of the receiver of defendant corporation, which answer the court required the receiver to file within one week from date of entry of the order. The receiver duly filed answer to the first amended complaint.

The matter came on regularly for trial December 16, 1942, in the superior court for Spokane county. Prior to the introduction of any evidence plaintiff moved for a default judgment against defendant corporation and objected to the right of the receiver to offer any defense to the cause of action alleged in plaintiff's amended complaint. The court ruled that the receiver had the right to contest the action and announced that ruling upon the motion for default judgment against the corporation would be deferred until the issue between plaintiff and the receiver had been determined. Plaintiff's attorney stated that he would stand upon his motion and objections and refused to proceed further with the trial, whereupon the court entered judgment dismissing the action. Plaintiff appealed.

Counsel for appellant argues that the statutory (Rem.Rev.Stat. § 411) provision that judgment by default may be had if defendant fail to answer, within the time fixed by statute, the complaint in any action arising on contract for the recovery of money only is mandatory and that the court is without discretion in the matter.

Appellant's position that the corporation was in default in excess of two years, computing the time from date of filing and service of the original complaint in 1939 is not tenable. The filing of the amended complaint constituted an abandonment of the original complaint; and the action rests on the amended complaint which was served July 20, 1942. Default was claimed July 31, 1942. Prior to the service of the amended complaint upon the then attorney of record for the corporation (which attorney gave notice of his withdrawal August 1, 1942, as counsel for the corporation) a receiver was appointed for the corporation and the court authorized the receiver to employ counsel to represent the receiver. The receiver, upon learning that the attorney of record for the corporation had withdrawn and that the corporation was without legal representation, immediately filed petition that he, as receiver for the corporation, be substituted as defendant in the action. Clearly, the default in appearing and answering for the corporation covered only a few days.

We can not agree with counsel for appellant that the statute (Rem.Rev.Stat. § 411) does not permit any latitude for the exercise of discretionary power in the...