Kelley v. Sakai

• Decision Date: 06 March 1913
• Citation: 130 P. 503,72 Wash. 364
• Parties: KELLEY v. SAKAI et al.
• Court: Washington Supreme Court

130 P. 503

72 Wash. 364

KELLEY v. SAKAI et al.

Supreme Court of Washington

March 6, 1913

Department 1. Appeal from Superior Court, King County; King Dykeman Judge.

Action by H. G. Kelley against G. Y. Sakai and others. Judgment for defendants, and plaintiff appeals. Affirmed.

See also, 127 P. 107.

R. B. Brown and Thos. R. Horner, both of Seattle for appellant.

Hamlin & Meier, of Seattle, for respondents.

PARKER J.

The plaintiff commenced this action to procure a decree setting aside a judgment rendered against him in the superior court for King county, upon the ground that the judgment was rendered without any service of summons upon him. The trial court denied the relief prayed for and dismissed the action being of the opinion that the validity of the judgment had been finally adjudicated against the contentions of the plaintiff in former proceedings prosecuted by him in the superior court for King county, wherein he sought to have it set aside (66 Wash. 172, 119 P. 190). The plaintiff has appealed.

The controlling facts touching the question of former adjudication appear beyond controversy in the pleadings. The trial court disposed of the cause upon these facts, rejecting offered evidence upon the other questions raised. These facts may be summarized as follows: In September, 1908, an action was commenced in the superior court for King county by respondent G. Y. Sakai against appellant, H. G. Kelley, to recover the sum of $271.80 for services rendered. Thereafter proof of personal service of the summons and complaint upon appellant, plaintiff in this action, was made by affidavit of a private citizen. Thereafter appellant, having failed to appear and answer in that action within the time prescribed by law, was by the court adjudged to be in default, and thereafter judgment was accordingly rendered against him as prayed for. Referring to the judgment and proof of service, appellant alleges in his complaint: 'That the said judgment so entered as aforesaid was fraudulently obtained, and is void for the following reasons, to wit: That said purported affidavit of personal service upon the defendant therein H. G. Kelley, plaintiff herein, is false and untrue, in that no service whatever was ever had upon said Kelley. * * *' About ten months after the rendering of the judgment, appellant moved the court to set aside the judgment, alleging as grounds therefor: 'That the defendant H. G. Kelley was never served with process in this action, and the court was without jurisdiction to render judgment against said defendant.' This motion was signed by his attorney, and was supported by the affidavit of himself attached thereto. Thereafter this motion, coming on for hearing, was by the court denied, the court in its order assigning as its reason therefor that the motion was not accompanied by an affidavit of merits. Thereafter appellant made another motion to vacate the judgment, alleging as grounds therefor the same facts in substance as in his first motion. This second motion stated that it was based upon the affidavit of H. G. Kelley, this appellant, filed therewith. We assume that this was an affidavit verifying the allegation of no service of summons, and also an affidavit of merits, though the affidavit does not appear in this record. Thereafter this second motion to vacate the judgment was regularly brought on for hearing before the court, when it was disposed of by the following order: 'Now in open court, the above-entitled matter coming on for hearing and trial, Hon. Ben Sheeks, judge presiding, parties appearing, the plaintiff F. A. Gilman, his attorney, and the defendant, H. G. Kelley, in person and by A. P. Moran, his attorney, said cause was heard and tried upon the motion of the defendant Kelley filed in this court on the 31st day of Dec., 1910, and the evidence of the respective parties being adduced and heard and the court being fully advised in the premises, it is hereby ordered that said motion be and the same is denied for the reason that the matters therein have been heretofore adjudicated against defendant, H. G. Kelley. To which order defendant Kelley excepted and exception allowed. Ben Sheeks, Judge. Dated January 27th, 1911.' Thereafter H. G. Kelley, this appellant, appealed from that disposition of his second motion to this court, which appeal was thereafter dismissed because of the insufficiency of the record brought up to enable the court to review the correctness of the order. Our decision upon that appeal is reported in 66 Wash. 172, 119 P. 190. F. A. Gilman was made a defendant in this action because he filed and claimed a lien upon the judgment; he having been attorney for Sakai in that action.

Does the order of the superior court disposing of the second motion to vacate the judgment, and the dismissal of the appeal therefrom by this court, render final as against appellant the validity of the judgment here sought to be vacated? It seems to us that this question must be answered in the affirmative. It is manifest that both the first and second motions to vacate the judgment, as well as this action, all had the same object in view, to wit, the vacation of the judgment upon the ground that appellant had never been served with summons in the action. If we were here concerned with questions of error of the superior court in denying appellant's first and second motions to vacate the judgment, it is not impossible that both could be shown to have been erroneously denied. But we have no such question here, and could not have, because this is not an appeal or proceeding to review either of those orders. Of course, there was no want of jurisdiction in making them. Nor are we here concerned with the question of the finality of the first order as an original question. It will be noticed that the second motion was denied, for the reason that the questions raised thereby had theretofore been formally adjudicated against the appellant. We assume for argument's sake that the former adjudication there referred to was that made by the first order denying the motion to vacate, though we have nothing before us so showing. This second order was in any event a final adjudication upon the effect of the first order or possibly some other order or judgment. The exact nature of the order or judgment constituting the adjudication mentioned in the second order, however, is wholly foreign to the question here involved, because this second order finally adjudicated that...