Harju v. Anderson

• Decision Date: 17 May 1923
• Docket Number: 17693.
• Court: Washington Supreme Court
• Parties: HARJU v. ANDERSON.

215 P. 327

125 Wash. 161

HARJU v. ANDERSON.

No. 17693.

Supreme Court of Washington

May 17, 1923

Department 2.

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

Action by N.E. Harju against Einor W. Anderson. From an order quashing service of notice accompanied by petition to vacate default judgment against him, defendant appeals. Reversed and remanded.

J Bruce Polwarth, of Portland Or., and Edward E. Gray, of Astoria, Or., for appellant.

Mathison & Mannix, of Astoria, Or., for respondent.

PARKER J.

The defendant, Anderson, seeks vacation of a default judgment rendered against him in favor of the plaintiff, Harju, in the superior court for Cowlitz county. This proceeding is by petition and notice entitled and filed in the action in which the judgment was rendered, and is prosecuted under sections 464, 467, and 468, Rem. Comp. Stat. The proceeding comes to this court upon appeal by Anderson from orders of the superior court quashing services of notices accompanied by his petition, upon Harju and his attorneys at Astoria, Or.

The judgment which Anderson seeks to have vacated was rendered against him by default on December 10, 1920. His claim for relief is rested upon the ground that the rendering of the judgment was obtained by fraud, in that he was never served with summons in the action, and that the proof of personal service upon him, upon which the court assumed jurisdiction over him and rendered the judgment against him is not true. Claiming to have first discovered the existence of the judgment several months after it was rendered, he thereafter filed his verified petition in the case and caused it, together with a notice of the commencement of the proceeding, to be served at Astoria, Or., personally upon Harju, and also to be served at Astoria, Or., personally upon his only attorneys of record in the case who had represented him in the obtaining of the judgment. The notice so served specified '20 days, exclusive of the day of service,' as the time within which Harju should appear in the proceeding and resist the prayer of the petition. Thereafter Harju, by his attorneys of record who had represented him in obtaining the judgment, entered his special appearance in the proceeding for the sole purpose of moving to quash the service of the notice and petition so made upon him, and moved the court accordingly. Thereafter the motion being submitted to the court upon argument of counsel for the respective parties, the court sustained the motion and entered its order quashing the service of the notice and petition so made. Anderson thereafter caused another service of another notice and the petition upon Harju and his attorneys at Astoria, which was also ordered quashed upon motion of Harju's attorneys. Thereafter Anderson appealed to this court from these dispositions of the motions to quash the services of the notices and petition.

In view of our conclusion that the service of the notice and petition first above mentioned was sufficient to compel Harju to respond to Anderson's petition or suffer a hearing and disposition thereof by default, our discussion hereafter will relate wholly to that service and the court's ruling with reference thereto; the question of the validity of that service being the one principally argued by counsel upon both sides. The provisions of our statutes to be here noticed, relating to the vacation of judgments having reference to the sections of Remington's Compiled Statutes, are the following:

'Sec. 464. The superior court in which a judgment has been rendered, * * * shall have power * * * to vacate * * * such judgment. * * *

'4. For fraud practiced by the successful party in obtaining the judgment or order. * * *'

'Sec. 467. The proceedings to obtain the benefit of subdivisions * * *4, * * * of section 464 shall be by petition verified by affidavit, setting forth the judgment or order, the facts * * * constituting a cause to vacate or modify it, and if the party is a defendant, the facts constituting a defense to the action; and such proceedings must be commenced within one year after the judgment or order was made. * * *'

'Sec. 468. In such proceedings the party shall be brought into court in the same way, on the same notice as to time, mode of service, and mode of return, and the pleadings shall be governed by the same principles, and issues be made up by the same form, and all the proceedings conducted in the same way, as near as can be, as in original action by ordinary proceedings, except that the facts stated in the petition shall be deemed denied without answers. * * *'

It is contended by counsel for Harju that the service of the notice and petition upon him and his attorneys at Astoria, Or., is fatal to the jurisdiction of the superior court for Cowlitz county in this state, because such service was made in the state of Oregon and outside the territorial jurisdiction of that court; that is, that such service could not be validly so made as a personal service; which, of course, it was intended to be, because of the time specified in the notice for the appearance of Harju in the proceeding being 20 days. If this were a proceeding wholly independent of the action in which the judgment sought to be set aside was rendered, the contention would seem to have some sound ground to rest upon. But such is not the case. The action in which the judgment was rendered, continued to be still pending in the superior court of Cowlitz county for the period of one year following the rendering of the judgment for the purposes...