Heman v. Rinehart

• Decision Date: 13 December 1906
• Court: Washington Supreme Court
• Parties: HEMAN v. RINEHART et al.

87 P. 953

45 Wash. 1

HEMAN v. RINEHART et al.

Supreme Court of Washington

December 13, 1906

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Frank J. Heman against W. V. Rinehart and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Geo McKay, for appellants.

Ira Bronson and D. B. Trefethen, for respondent.

CROW, J.

This is an action to quiet title to 80 acres of land in King county. The plaintiff, Frank J. Heman, alleged: That on October 11 1893, a judgment which had been rendered on September 16 1893, was entered in the superior court of King county, in cause No. 16,254, in favor of W. V. Rinehart, one of the defendants herein and plaintiff therein, against Alf H Turner and others, defendants therein, for $5,500, interest and costs. That on the date of the entry of the judgment, Alf H. Turner was the owner of the legal title to the land in controversy in this action. That, afterwards, on September 26, 1899, a motion was entered to revive the judgment, and served on all the defendants therein except the defendant Alf H. Turner. That the judgment was afterwards revived as to all the defendants except Turner. That the judgment creditor W V. Rinehart is now asserting a lien under his alleged judgment on the land which formerly belonged to Turner, but which now belongs to the plaintiff, who purchased the same from Turner without any knowledge of the pretended claim of Rinehart to a lien thereon. That the plaintiff, Frank J. Heman, owns the land in law and in equity, discharged and free from any claims of the defendant W. V. Rinehart or others claiming through or under him, and that the claim asserted by Rinehart casts a cloud upon the plaintiff's title. The defendant W. V. Rinehart and the defendant H. C. Hollenbeck, to whom he assigned his judgment, for their first affirmative defense, alleged: That W. V. Rinehart obtained his judgment against Turner on October 11, 1893; that the judgment has never been reversed, vacated, or set aside, but is still in full force and effect. That at the date of its entry, Alf H. Turner was the owner of the fee-simple title to the land now claimed by plaintiff. That on November 23, 1893, Alf H. Turner commenced action No. 16,877 in the superior court of King county against W. V. Rinehart, one of the defendants herein, and others, to enjoin the collection and enforcement of the judgment against him, and that on the same date, November 23, 1893, he obtained the following restraining order: 'It appearing from the complaint in the above-entitled action that a judgment was rendered in cause No. 16,254 in favor of W. V. Rinehart and against Alfred H. Turner, plaintiff herein; and it further appearing to the satisfaction of the court that plaintiff is entitled to have the collection of said judgment enjoined as to himself, and is entitled to have a restraining order and injunction herein, restraining said defendant W. V. Rinehart, plaintiff in said cause No. 16,254 in the superior court of King county from taking any further steps or proceedings whatever for the enforcement of said judgment against said plaintiff Turner until the further order of this court, and that plaintiff is further entitled to the relief against said judgment asked for in his complaint herein; now, therefore, * * * it is hereby ordered and decreed by the court that the said defendant W. V. Rinehart, his agents, servants, and every other person whomsoever, be, and they are, hereby enjoined and restrained from collecting or in anywise proceeding to enforce the collection of the said judgment or from taking any steps or proceedings whatever under authority of the said judgment rendered against said Alf H. Turner in favor of said W. V. Rinehart in said cause numbered 16,254 of the superior court of King county, Wash., or under any execution issued by authority of said judgment until the further orders of this court; and that said defendant W. V. Rinehart be, and hereby is, cited to appear before this court upon the 5th day of December, 1893, at 9:30 a. m., to show cause why this injunction should not be made perpetual.' That the foregoing order has never been vacated. That although the injunction has never been made permanent, it is still in full force and effect. That on June 17, 1905, the defendant Rinehart appeared in the injunction suit and filed and served his answer, since which time no further proceedings have been had. That the injunction suit is still pending. That on March 7, 1905, Alf H. Turner conveyed the land to the plaintiff Frank J. Heman, who took the same with notice of the judgment lien of the defendants. That the sum of $12,200 remains due and unpaid on the judgment. That to preserve the judgment lien it became necessary to pay the taxes on the land. And that the defendants had paid such taxes, amounting to $221.20, the last payment made being taxes for the year 1904. For their second affirmative defense the defendants Rinehart and Hollenbeck alleged that, since the rendition of the judgment in favor of Rinehart and against Turner, he, the said Turner, has been absent from and resided out of the state of Washington for periods of time equal to eight years in all. To each of these affirmative defenses the plaintiff Heman interposed a general and special demurrer, the grounds of special demurrer being (1) that the action has not been commenced within the time limited by law; and (2) that several causes of action have been improperly joined. The demurrers being sustained to both defenses, the defendants declined to plead further. Thereupon judgment was entered in favor of the plaintiff, quieting his title, and the defendants have appealed.

The appellants contend that the restraining order pleaded in their answer is still in full force and effect, that by reason thereof they have been continually enjoined from taking any steps or proceedings whatsoever to enforce or collect their judgment, that they have been unable to proceed by execution or by a motion to revive. They further contend that the respondent, Heman, bought the land during the pendency of the injunction suit; that by the injunction they have been continuously prevented from instituting any proceeding whatever on the judgment, and that their judgment lien on respondent's land, which formerly belonged to Turner, has therefore continued until the present time. On the other hand, the respondent contends that, under section 5132, Ballinger's Ann. Codes & St., the judgment against Turner ceased to be a lien after five years from the date of its rendition. He further contends that the appellants Rinehart and Hollenbeck have not been enjoined from reviving the judgment against Turner, and that having neglected to do so, they now hold no lien whatever against the land. The restraining order above set forth seems to have been granted without notice, upon the allegations of the complaint, as an emergency order. It...