Garvey v. Skamser

• Decision Date: 08 July 1912
• Citation: 69 Wash. 259,124 P. 688
• Parties: GARVEY v. SKAMSER et al.
• Court: Washington Supreme Court

124 P. 688

69 Wash. 259

GARVEY v. SKAMSER et al.

Supreme Court of Washington

July 8, 1912

Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by M. Garvey against Thomas B. Forsyth to foreclose a certificate of delinquency, in which defendant by cross-complaint sought to foreclose a mortgage executed by Eric Skamser. There was judgment for defendant Forsyth. From an order dismissing his petition to vacate the judgment Skamser appeals. Reversed, with directions.

W. B Osbourn, of Buckley, for appellant.

Garvey, Kelly & MacMahon, of Tacoma, for respondent.

GOSE J.

This is an appeal from an order denying a petition to vacate a judgment and decree of foreclosure. The essential facts as disclosed by the record are as follows:

The plaintiff, Garvey, commenced an action in the superior court of Pierce county for the foreclosure of a certificate of delinquency. The respondent, Forsyth, filed an answer and cross-complaint. By the cross-complaint he sought to foreclose a mortgage executed by the appellant, Skamser, upon the property covered by the certificate of delinquency. On June 19, 1911, a decree was entered on the cross-complaint, foreclosing the respondent's mortgage. The decree recites that the appellant, pending the tax foreclosure proceedings, paid the taxes, interest, and costs to the county treasurer of Pierce county. On July 19, 1911, the appellant, the owner of the mortgaged property, filed a petition for the vacation of the foreclosure decree. The substance of the petition is that, pending the tax foreclosure proceeding, he paid and satisfied the tax lien in full; that he relied upon the promise of the respondent that he would dismiss the cross-bill, and did not answer, and in effect that the decree was obtained by overreaching and fraud. On the last-named date an order was made by Judge Easterday, one of the superior court judges of Pierce county, setting the petition for hearing on the 14th day of August. On the latter date the hearing on the petition was continued until the 4th day of September, by Judge Card. On September 2d, by 'consent of counsel,' the hearing was continued to September 9, 1911, at 2 o'clock. p. m. On September 9th counsel for the appellant filed the statutory motion and affidavit for a transfer of the cause from the department presided over by Judge Clifford to some other department of the superior court. The affidavit made by the appellant's counsel states 'that this affidant believes that the said Judge Clifford is prejudiced against this affiant, and by reason thereof believes that he cannot have a fair and impartial trial before said judge, and requests that the said cause be transferred to another department of said court.' On the same day the following transfer order was entered: 'Upon reading the affidavit of W. B. Osbourn filed herein, and upon motion of attorney for defendant, Eric Skamser, it is ordered that this proceeding be and the same is hereby transferred to department No. 3 of said court. And the said proceeding is hereby ordered continued pending the order of the judge of said department. Dated this 9th day of September, 1911. M. L. Clifford, Judge.' Thereafter, and upon the same day, an order was entered by Judge Clifford, dismissing the petition to vacate the judgment and decree. This is the order sought to be reviewed by the appeal.

The last order recites that the transfer order was entered upon the representation of counsel for the appellant that the attorneys for the respondent consented to the order of transfer; that the order was signed in reliance upon that representation; that later in the day the respondent's attorney appeared and informed the court that they had not consented to the order; that thereupon the court instructed the attorneys for the respondent that,...