Harter v. King County

• Citation: 119 P.2d 919,11 Wn.2d 583
• Decision Date: 11 December 1941
• Docket Number: 28378.
• Parties: HARTER v. KING COUNTY et al. PRITCHARD v. SAME.
• Court: United States State Supreme Court of Washington

119 P.2d 919

11 Wn.2d 583

HARTER v. KING COUNTY et al.

PRITCHARD v. SAME.

No. 28378.

Supreme Court of Washington

December 11, 1941

Department 2.

Error to Superior Court, King County; Howard M. Findley, Judge.

Suit by Grace L. Harter, also known as Grace L. Nelson, against King County, the State of Washington, and the Commissioner of State Lands of the State of Washington, to have that portion of a street abutting upon plaintiff's property adjudged vacated and title quieted in plaintiff, consolidated with a suit by Jessie H. Pritchard, against the same defendants. From adverse judgments, King County alone appeals.

Affirmed.

BLAKE J., dissenting.

Smith, Matthews & Wilkerson, of Seattle, for appellant.

Case &amp Laube, of Seattle, for respondents.

JEFFERS Justice.

Grace L. Harter and Jessie H. Pritchard, each claiming to be the owner of property abutting on Cable street, in Central addition to East Seattle, King county, Washington, instituted separate actions in the superior court for King county against King county, state of Washington, and the commissioner of state lands, to have that portion of Cable street abutting upon their property adjudged vacated and title quieted in the respective plaintiffs.

While we have Before us only the pleadings in the Harter case, in view of the stipulation entered into between counsel for Grace L. Harter and Jessie H. Pritchard, and King county, that the two cases might be consolidated for the purpose of this appeal, we assume that the same general allegations were made and the same proceedings had in each case.

The complaint, after alleging plaintiff to be the owner of certain property in Central addition to East Seattle and all shore lands adjacent thereto, further alleged:

'III. That according to the plat of Central addition to East Seattle, dedicated August 4, 1890, and filed with the county auditor of King county August 6, 1890, and recorded in volume 7 of Plats, page 13, records of King county, Washington, and according to the Lake Washington shorelands survey prepared pursuant to the provisions of section 2, chapter 150, Session Laws of 1917, the south 8 1/2 ft. of lot 12 and all of lots 13, 14, 15 and 16, block 1, and lots 1, 2, 3, 4 and 5, block 2, of the said Central addition to East Seattle, and the shorelands adjacent thereto, are adjoined and bordered on the south by Cable street, a street 75 feet in width, dedicated to the use of the public, running in an easterly and westerly direction from Navy Yard avenue on the east to the shoreline of Lake Washington on the west.

'IV. That chapter 19, Laws of 1890, of the state of Washington, section 32, page 603, provides as follows:

"Any county road, or part thereof, which has heretofore been or may hereafter be authorized, which remains unopened for public use for the space of five years after the order is made or authority granted for opening the same, shall be and the same is hereby vacated, and the authority for building the same barred by lapse of time.'

'That this statute remained in full force until amended and modified by chapter 90 of the Laws of 1909. That for the five years immediately following the effective date of this act and for many years thereafter Cable street from Navy Yard avenue to Lake Washington was not in any way used or improved or open for public use even though authority was granted for the opening of the same by the dedication, filing and recording of the said plat of Central addition to East Seattle as above set forth. That, therefore, Cable street from Navy Yard avenue to the shoreline of Lake Washington became vacated by operation of law and title to the property covered by the north one-half of Cable street from the said Navy Yard avenue to the said shoreline of Lake Washington became the absolute property of the then owner of the property now owned by the plaintiff.'

The complaint was verified on January 25, 1940, and filed in the clerk's office on March 15th following. On February 2, 1940, B. Gray Warner, prosecuting attorney for King county, filed an appearance for King county, notifying plaintiff that all further pleadings should be served upon him. On March 2, 1940, the prosecuting attorney filed and served, on behalf of King county, a demurrer to plaintiff's complaint on all the statutory grounds. On March 20th, the demurrer came on for hearing Before Honorable Calvin S. Hall, who, after hearing the arguments of counsel, entered an order overruling the demurrer. The record shows that no further pleading was filed by King county.

On April 23, 1940, the cause came on for hearing Before Honorable Roger J. Meakim, apparently on the complaint of plaintiff, and after testimony taken, the court, on the same date, made and entered findings of fact, conclusions of law and decree in favor of plaintiff and in accordance with the allegations of the complaint.

The following notation appears at the bottom of the findings and conclusions: 'Approved: F. M. Reischling, attorneys for defendant, King county.' The same notation also appears at the bottom of the decree. While the findings, conclusions and decree were approved by the attorney general, neither the state nor the commissioner of state lands appealed from the decree entered.

On May 20, 1940, King county, appearing by attorneys Smith, Matthews and Wilkerson, filed a motion and petition to vacate the judgment entered on April 23, 1940. It is alleged in the petition that the court, on April 23, 1940, entered its judgment quieting in plaintiff the title to the north half of Cable street, from the west boundary of Navy Yard avenue to the east boundary of Lake Washington shore lands, second class, on the west, same being in the Central addition to East Seattle, according to the plat of Central addition, filed August 4, 1890.

It is further alleged that the Harter action was commenced by filing with the clerk a complaint, and serving the same upon the auditor of King county; that the auditor failed to notify the board of county commissioners (who will hereafter be referred to as the board) of the commencement of the action, but instead mailed the summons and complaint to the prosecuting attorney for King county, who also failed to call the attention of the board to the commencement of the action, or to notify it of the pendency of the action. It is further alleged that the board had no knowledge whatsoever of the action until after the decree had been entered; that the prosecuting attorney, without right and without authority, and without first consulting the board, stipulated with the attorneys for the plaintiff that a decree in favor of plaintiff and against the county might be entered, thus, without right or authority, stipulating away his client's right; that had the board known of the pendency of such action, it would have insisted that an answer be filed and the case defended, as it was the opinion of the board that the county had acquired title to the land in question, and had a good defense or defenses to the action.

It is further alleged in paragraph VIII that the decree was irregularly and fraudulently obtained by plaintiff, as the records show that no witness other than William T. Laube, Jr., was sworn or testified at the time the judgment was entered; that Laube was not born until 1912, and because of that fact, could not possibly have had any knowledge or information concerning the facts alleged in the complaint, which all occurred between the years 1890 and 1895; that no facts were proved sufficient to warrant the granting of the relief given plaintiff. It is further alleged that King county has two valid defenses to the action, which purported defenses are then set out.

Plaintiff Grace L. Harter demurred to the motion and petition of King county, on the ground that the same did not allege facts sufficient to authorize the vacation of the judgment. On June 15, 1940, as appears from a minute entry, Judge Meakim overruled such demurrer.

On January 29, 1941, the motion and petition came on for hearing Before Honorable Howard M. Findley. At the opening of this hearing, plaintiff Grace L. Harter again orally demurred to the motion and petition, on the ground hereinBefore stated, and the court, after hearing argument of counsel, on February 5, 1941, entered an order sustaining plaintiff's demurrer and dismissing the motion and petition to vacate. King county has appealed from the judgment entered.

Error is assigned upon the action of the trial court in sustaining the demurrer to the motion and petition, and in dismissing the motion and petition.

Appellant bases its principal contention for a reversal upon the proposition that the prosecuting attorney for King county, without the knowledge of the board, consented to the entry of a decree against the county and in favor of respondent, in the original proceedings to quiet title. Appellant further contends that the prosecuting attorney was without authority from the board or under the statute to permit entry of a consent decree against the county, and that the decree so entered is either void or voidable, and must be vacated.

In support of its petition that a consent decree was entered appellant places considerable reliance upon the fact that the findings of fact and conclusions of law, as well as the decree entered in the quiet title action, each bear the notation, 'Approved: F. M. Reischling, Attorneys for defendant, King County.' Mr. Reischling was an assistant prosecuting attorney. We are of the opinion that this notation, under the facts of this case at least, should not be construed as being other than the customary approval as to the form. Bank of Gauley v. Osenton, 92 W.Va. 1, 114 S.E. 435; McMaster v. Radford, 16 Ont.Pr. 20. While it may be that...