Hamilton v. Johnson

• Decision Date: 22 December 1925
• Docket Number: 19381.
• Citation: 137 Wash. 92,241 P. 672
• Parties: HAMILTON et al. v. JOHNSON et al.
• Court: Washington Supreme Court

241 P. 672

137 Wash. 92

HAMILTON et al. v. JOHNSON et al.

No. 19381.

Supreme Court of Washington

December 22, 1925

Department 1.

Appeal from Superior Court, King County; Tallman, Judge pro tem.

Suit by Frank Hamilton and another against Sophia Johnson, in which Johnson & Hamilton intervened. From a judgment for plaintiffs, defendant and intervener appeal. Affirmed.

Carl J. Smith and H. E. Foster, both of Seattle for appellants.

Wingate & Benz, of Seattle, for respondents.

FULLERTON J.

This suit was instituted as a suit for the partition of real property. It is alleged in the complaint that the respondents, Hamilton as a community, and the appellant Johnson, a widow, are the owners as tenants in common of the property sought to be partitioned; the community on the one part and Johnson on the other each owning an undivided half thereof. It was further alleged that the property is so situated that partition in kind cannot be made without great prejudice to the respective owners. The prayer of the complaint is in the alternative. It is asked first that the property be divided according to the respective rights of the parties, if the court finds that it can be so divided without prejudice to their respective rights, or, if the court does not so find, that the property be sold and the proceeds of the sale be so divided.

The appellant Johnson, answering the complaint, admitted that she, together with the respondent, owned the described property in fee, but denied that they owned it as tenants in common. By a separate answer and cross-complaint, she alleged that they owned the property, with other property, as copartners; that no accounting of the partnership had been had; and that no partition or division of the partnership property could be made, or their respective rights therein determined, until such an accounting was had. The prayer of his answer is that an accounting be had, and that the court render such a decree in the cause as it should find meet and equitable upon the accounting.

After issue had been joined, the appellant Johnson & Hamilton, a corporation, was allowed to file a complaint in intervention. In its complaint it alleged that it had a leasehold interest in the property. The prayer of its complaint was also for general equitable relief.

Issue was joined on the affirmative matters set forth in the answer of Mrs. Johnson, and the allegation of the intervener's complaint, which the lower court after a trial determined. As between the respondents and the appellant Johnson, it found that they owned the property as tenants in common and not as copartners; found that the respondents were entitled to a partition thereof; found that the property could not be partitioned between the parties in kind without great prejudice to the respective owners; and found that the appellant was not entitled to relief under her cross-complaint. As between the respondents and the intervener, it found that the intervener had not 'established its right to any relief whatever under the allegations of its complaint.'

In its decree entered pursuant to its findings, the court dismissed both the cross-complaint and the complaint in intervention ordered that the real property be sold on terms and conditions which it prescribed in its order; and appointed a referee for the purpose of making the sale, vested the referee with authority to execute the order, and provided that he should make due return to the court as to the manner in which he executed his trust. Both Mrs. Johnson and the intervener appeal from the decree.

The appellants assign error on the refusal of the court to sustain their challenge to the sufficiency of the complaint. This question was raised for the first time after issue had been joined and after the cause had been called for trial by an objection to the introduction of evidence. The objection came too late. The Code provides (Rem. Comp. Stat. § 263) that, if no objection to the complaint be taken either by demurrer or answer, 'the defendant shall be deemed to have waived the same, excepting always the objection that the court has no jurisdiction, or that the complaint does not state facts sufficient to constitute a cause of action, which objection can be made at any stage of the proceedings either in the superior or supreme court.' This statute has been upon the statute books substantially in its present form since the first session of the territorial Legislature of 1854. See Laws 1854, p. 139. The first of these objections, that the court has no jurisdiction, is still in full force and effect; but it neither adds to nor restricts the powers of the court. A judgment entered without jurisdiction is a nullity, and no court, whether it be the court of original or of appellate jurisdiction, will continue an action or proceeding where it is made to appear to it that it is without jurisdiction. The second of the provisions has been much modified and limited by subsequent statutes. The most pertinent of these are the statutes relating to amendments of pleadings. Now a party may amend his pleadings when attacked in the superior court almost as a matter of course, and this court, in considering an appealed cause, is admonished to disregard all technicalities, and 'consider all amendments which could have been made as made.' It is, of course, at once apparent that, if the provision of the statute under consideration is to be given its apparent literal meaning--if, in other words, a complaint may be searched for any sort of defect at any stage of the proceedings--the benefit of the provision of these amendatory statutes will, in many instances, be denied the litigant. It is undoubtedly still the rule that, if the complaint shows upon its face that the plaintiff has no cause of action and under no circumstances can have a cause of action, the court will stay the action at the earliest time the matter is brought to its attention. But technical defects, or defects that can be cured by amendment, can avail the objector only in the case he raises the objection either by motion or demurrer before he enters upon the trial. These rules have been repeatedly announced by this court. In Bonne v. Security Savings Society, 35 Wash. 696, 78 P. 38, we said:

'The complaint consisted of three causes of action, each of which was separately stated. To it the appellant took issue by answer, both by denying its affirmative allegations, and pleading new matter in defense thereto. At the trial, when the respondents commenced the introduction of evidence, it, for the first time, made the objection. This, as we have repeatedly held, was too late to take advantage of any technical defect in the complaint; there must be a defect in substance, incapable of being cured by amendment, before courts will hold the complaint bad, when the objection to it is raised on the trial for the first time. The objections urged by the appellant against the sufficiency of the complaint before us are not matters of substance. At most they are but technical defects and omissions which

...