Gordon v. Hillman

• Decision Date: 11 May 1918
• Docket Number: 14243.,12186
• Citation: 173 P. 22,102 Wash. 411
• Court: Washington Supreme Court
• Parties: GORDON et ux. v. HILLMAN et ux. STATE ex rel. GORDON et ux. v. SMITH, Superior Court Judge.

173 P. 22

102 Wash. 411

GORDON et ux. v. HILLMAN et ux.

STATE ex rel. GORDON et ux. v. SMITH, Superior Court Judge.

Nos. 12186, 14243.

Supreme Court of Washington, En Banc.

May 11, 1918

Original proceeding by C. D. Hillman and wife for recall of remittiturs in an action by E. M. Gordon and wife against petitioners, and on application by the State, on the relation of E. M. Gordon and wife, against Everett Smith, one of the Judges of the Superior Court for King County. Petitions denied, with leave to bring such action as petitioners may be advised.

For former opinions, see 91 Wash. 490, 158 P. 96; 98 Wash. 100 167 P. 91, 169 P. 468.

Wilson R. Gay and Geo. H. Rummens, both of Seattle, for respondents.

HOLCOMB J.

We have here before us two concurrent petitions by the petitioners to recall remittiturs heretofore issued from this court, and also for leave to vacate judgment upon facts alleged in one of the petitions under the practice first authorized by this court in Post v. Spokane, 28 Wash. 701, 69 P. 371 1104. The cause was originally before us on appeal by the petitioners, who were defendants, in the case of Gordon et ux., Respondents, v. Hillman et ux., Appellants, No. 12186, 91 Wash. 490, 158 P. 96, an equitable action for rescission of contracts of sale of real and personal property, where a judgment and decree of the lower court was affirmed. It subsequently came before us upon an application filed here for writ of mandamus to compel the judge of the court below to sign a decree, in the case of State ex rel. Gordon v. Smith, 98 Wash. 100, 167 P. 91, 169 P 468.

In one or both of the petitions now before us one of the grounds relied upon for the relief is that, pending the appeal to this court in the original cause, Mrs. Gordon, one of the plaintiffs and a necessary party in that action, died. The original judgment was entered in the court below February 28, 1914, and it is shown now that on August 22, 1914, Eva P. Gordon, one of the plaintiffs, and wife of E. M. Gordon, died, and E. M. Gordon was on September 17, 1914, appointed and qualified as administrator of the estate of Eva P. Gordon, and that never at any time, or at any stage of the proceedings on appeal, was the administrator, or any other person, substituted as a party respondent in that cause, in lieu of or as a representative of Eva P. Gordon, deceased. It is asserted that all proceedings and all opinions by the court rendered, and all judgments made and rendered therein, were had and done at a time subsequent to the death of Eva P. Gordon, and while there was no person substituted in her place and stead, and for that reason the whole proceedings in this court subsequent to the death of Eva P. Gordon were and are void, and for that reason must be vacated and set aside, and all remittiturs recalled, and all judgments of the superior court based thereon vacated. It is also alleged that Eva P. Gordon left her surviving two minor children, and that all the real estate of which she died possessed vested immediately, as to her one-half interest therein, in the two minor sons, Donald P. Gordon and Douglas D. Gordon, who each owned an undivided one-fourth interest in and to the real estate and an undivided one-eighth interest in and to the personal property, which includes the money judgment entered in the original cause.

Respondents have appeared and demurred, and also answered, to the petitions, and as grounds of demurrer urged that this court had no jurisdiction over the respondents by the petition. One of the propositions urged under the demurrer is that all proceedings in both cases referred to herein were terminated, and remittitur filed below, prior to the commencement of the present term of court, and that this court has no jurisdiction after the close of the term at which the decisions were handed down. There is no merit in this contention. The Constitution, creating this court (article 4, § 2), provides that it shall always be open for the transaction of business, except on nonjudicial days. The statute (Rem. Code, § 4) follows the same provision, but provides, also, that regular sessions shall commence on the second Monday of January, May, and October of each year. Under the constitutional provision there are no terms of this court in the sense in which they were for merly held, but only a division of sittings into sessions for its convenience in the transaction of business. Skagit, etc., Lbr. Co. v. Cole, 1 Wash. 330, 26 P. 535. Terms of court, as they are provided for in many jurisdictions, where a court of record acquires and maintains, after which it cannot, except for a limited extended period, retain, jurisdiction, do not exist in this state.

As to the power of the court to grant such relief in exceptional cases, that was settled in Post v. Spokane, supra, and followed in several subsequent cases. It is proper, where the petition states facts sufficient to justify the relief demanded; and the permission of the court to take further action in the matter that has been litigated in the trial courts, and by appeal to this court, is not original jurisdiction, but is one of the powers of this court under its appellate and revisory jurisdiction. It is an inherent power of a court of equity, whether original or appellate.

Petitioners rely upon the provisions of Rem. Code, §§ 193, 967, and 1743. Section 1743 provides as follows:

'The death of a party after the rendition of a final judgment in the superior court shall not affect any appeal taken, or the right to take an appeal; but the proper representatives in personalty or realty of the deceased party, according to the nature of the case, may voluntarily come in and be admitted parties to the cause, or may be made parties at the instance of another party, as may be proper, as in case of death of a party pending an action in the superior court and thereupon the appeal may proceed or be taken as in other cases; and the time necessary to enable such representatives to be admitted or brought in as parties shall not be computed as part of the time in this act limited for taking an appeal, or for taking any step in the progress thereof.'

Section 193 provides:

'No action shall abate by the death, marriage, or other disability of the party, or by the transfer of any interest therein, if the cause of action survive or continue; but the court may at any time within one year thereafter, on motion, allow the action to be continued by or against his representatives or successors in interest.'

At common law all actions pending abated upon the death of a necessary party. But section 193, supra, abrogated this provision of the common law, and provided that no action should abate by the death of the party if the cause of action survived or continued; and there is no doubt that such a cause of action as was here originally involved was one which survived or continued. But that cause of action had then been merged in a judgment in favor of plaintiffs, and the plaintiffs had a judgment which was final, subject only to appeal, and in such action this court was required to try the cause de novo upon the record. Having merged into judgment, the cause of action could not abate upon the death of either of the plaintiffs. After the judgment the provisions of section 1743, supra, related to the abatement of the right to appeal or of an appeal taken, and it was there enacted that the death of a party after judgment should not affect any appeal taken or the right to take an appeal; but the proper representatives in personalty or realty of the deceased could come in voluntarily as parties to the cause, or, if they failed to do so, the adverse party might cause them to be substituted pending the appeal.

Although Mrs. Gordon died at about the time that the appeal from the original judgment in her favor was perfected by these petitioners, nevertheless they had secured jurisdiction of her on appeal, and this court had acquired jurisdiction of her and of the subject-matter of the appeal and the matter in controversy between them, and no suggestion was made in this court by either the appellants (petitioners here) or the respondents, of the death of Mrs. Gordon until after this court had rendered a final decision and the remittitur thereon had gone down to the court below. Under the statute the appellants in that case, having the privilege of suggesting the death of one of the necessary parties and bringing about a substitution of parties, failed to do so. While the petition does not so aver, it was stated and urged in the oral argument on these matters by the counsel for petitioners that counsel did not know of the death of Mrs. Gordon until about the time that the remittitur went down in the original cause and some matter was being presented in connection with the decree in the court below; and it is shown that petitioners themselves were during all the time in California. The first suggestion we can find in the record of the death of Mrs. Gordon is in the decree which was presented by respondents in the original cause for entry in the court below on May 3, 1917, where it was then mentioned that E. M. Gordon was the administrator of the estate of Eva P. Gordon, deceased. Upon a hearing of the application for the writ of mandamus before this court in cause No. 14243, respondents in that matter, appellants in the original cause and petitioners here, suggested the fact of the death of Mrs. Gordon to this court, and that no substitution had been made; but no action was then taken by either of the parties to the original cause for a substitution of parties. This court by its departmental decision (98 Wash. 100, 167 P. 91, 169 P. 468) noticed the death of Mrs. Gordon and in the opinion said:

'The death of one of plaintiffs

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