Hayworth v. McDonald

• Decision Date: 18 March 1912
• Citation: 121 P. 984,67 Wash. 496
• Court: Washington Supreme Court
• Parties: HAYWORTH v. McDONALD et al.

121 P. 984

67 Wash. 496

HAYWORTH v. McDONALD et al.

Supreme Court of Washington

March 18, 1912

Department 1. Appeal from Superior Court, Douglas County; R. S. Steiner Judge.

Action by Wilfred F. Hayworth against George M. McDonald and others. From a judgment in favor of plaintiff and from an order denying a motion to vacate the judgment, defendants appeal. Affirmed.

Sam B Hill and W. A. Reneau, for appellants.

McGuire & Hannan, for respondent.

FULLERTON, J.

Some time in September, 1909, Geo. M. McDonald and Jesse T. Cull then copartners doing business as Geo. M. McDonald & Co. began an action in the superior court of Douglas county against Wilfred F. Hayworth to recover the sum of $1,000 and interest alleged to be due upon a promissory note which the respondent had theretofore made and delivered to them. At the time of the commencement of the action, the appellants caused an attachment to issue against the property of Hayworth based on the grounds that he was about to remove a part of his property from the state of Washington with the intent to defraud his creditors, and was about to convert a part thereof into money with intent to place it beyond the reach of his creditors. The attachment bond was executed in the sum of $3,000, and was conditioned as required by statute. It did not bear the signature of the plaintiff in the action, but was signed by Geo. M. McDonald & Co., Inc., a corporation, and by two other persons named in the body of the bond as sureties; the corporation not being named therein either as principal or surety. Pursuant to the writ of attachment, the sheriff of Douglas county seized certain personal property belonging to Hayworth on October 7, 1909, and held the same until April 20, 1910, when the attachment was dissolved and the writ discharged on the procurement of Hayworth.

Thereafter and on June 14, 1910, the respondent Hayworth began an action in the superior court of Douglas county against the plaintiffs in the attachment action and the sureties upon the bond, including the corporation Geo. M. McDonald & Co., Inc., to recover for wrongfully suing out the attachment. Personal service of the summons and complaint was made upon all of the defendants on June 25, 1910; the service upon the corporation being made in Grant county, as the return recites, at 'their usual place of business.' On July 16, 1910, the plaintiff moved for default against the defendants for failing to appear in the action, accompanying his motion with the usual proofs showing that no appearance had been made. The motion was granted by the court commissioner of Douglas county, and the default of each of the defendants was formally entered. On July 19, 1910, the clerk of the court received and filed what purported to be an answer to the complaint. It was not, however, accompanied by any proof of service. On July 27, 1910, the plaintiff produced proofs of his cause of action before the court commissioner, and the commissioner on that day made findings of fact to the effect that the plaintiff had been damaged in a sum of money in excess of the penalty named in the bond, and entered judgment in appellant's favor against each and all of the defendants for that sum, namely, $3,000 together with an attorney's fee of $400, and costs of the action taxed at $21.60.

On August 2, 1910, the defendants by their attorney moved to set aside the judgment and open the default, reciting in the motion that they had a good and sufficient defense to the action, and that within 20 days after the service of summons upon them, namely, July 15, 1910, they had served upon the attorneys of record an answer in said cause, and had caused the same to be filed with the clerk of the court wherein the action was pending, and that the same was on file when the judgment in the action was taken. The motion recited that it was based on the record and files in the action, and upon the affidavit of their attorney thereto annexed and 'by reference hereto made a part of the motion.' This motion was overruled by an order entered on December 8, 1910. The appeal before us was taken on March 3, 1911. It purports to be taken from the judgment of July 27, 1910, as well as the order refusing to vacate the same entered December 8, 1910.

The appellants failed to propose or have certified into this court any statement of facts, and the case is here on a transcript of so much of the record as the appellants have seen fit to direct the clerk to transmit to this court. In the record so certified are copies of two affidavits filed for use on the motion to vacate the judgment. The respondent objects to the consideration of these affidavits on this appeal on the grounds that they are not properly a part of the record; the same being in the nature of evidence which can only be brought to this court by a statement of facts. This objection is well taken. We have in a long line of cases held that affidavits filed as proof of particular facts cannot be made a part of the record in this court by the mere certification of the clerk. State v. Lee Wing Wah, 53 Wash. 294...