Krutz v. Batts

• Decision Date: 11 January 1898
• Citation: 18 Wash. 460,51 P. 1054
• Parties: KRUTZ v. BATTS ET UX.
• Court: Washington Supreme Court

51 P. 1054

18 Wash. 460

KRUTZ v. BATTS ET UX.

Supreme Court of Washington

January 11, 1898

Appeal from superior court, Whitman county; William McDonald, Judge.

Action by Thomas S. Krutz against Neander Batts and another, by attachment. There was a judgment in favor of plaintiff, under which certain land was sold on execution, and, from an order denying confirmation of such sale, plaintiff appeals. Reversed.

J. N Pickrell, for appellant.

R. G. Blair, for respondents.

DUNBAR J.

This action was commenced on the 25th day of November, 1895, in the superior court of Whitman county by the appellant, to recover on the principal note of $400 and two coupon notes of $26 each. The appellant alleges that on the 26th day of November, 1895, he filed in said superior court the affidavit of one J. M. Hill, and the return of the sheriff of Whitman county that the respondents could not be found in Whitman county, state of Washington. The affidavit and the return of the sheriff cannot be found in the files of the court, but the appearance docket in the clerk's office shows the filing of the affidavit of Hill. On the said 26th day of November, one Daniel Frew, as agent for and on behalf of appellant, filed his affidavit for attachment, setting forth the nature of the action as alleged in the complaint, and for grounds of attachment, that the defendants had absconded from their usual place of abode, in the state of Washington so that the ordinary process of law could not be served upon them, and that they were then nonresidents of the state of Washington. Affidavits as a basis of service for publication were filed. Publication was duly made. The respondents' default was duly taken, and judgment was entered for appellant in accordance with the prayer of his complaint. Execution was issued, and on the 17th of March 1896, by virtue of said execution, the sheriff levied on the lands of the respondents theretofore attached, advertised the same for sale, and on the 18th of April, 1896, sold the same to the appellant for the sum of $535. On the 20th of April, 1896, the return was placed upon the motion docket of the court and on the same day called up by appellant, and passed by the court for confirmation. Nothing further was done until the 17th of May, 1897, when the sale was called up on motion by the appellant for confirmation; and it was discovered that on the 15th of May, 1897, respondents had filed objections to the confirmation. The appellant moved to strike the objections, which motion was overruled. Affidavits and counter affidavits in regard to the service of the summons and other matters were filed. On the 11th of June, the court rendered a judgment denying the motion of the appellant to strike the objections to the confirmation of sale, for the reasons announced by the court, that the judgment entered therein was null and void, and that the law does not require the court to do a useless or needless thing. From that judgment, appeal is taken to this court.

Respondents move to dismiss the action, for the reason that the judgment of the court was not an appealable order. We think this was a final order, which affected a substantial right, and it was therefore appealable under the statute. The other causes of motion are equally without foundation, and will be denied. This judgment, we think, will have to be reversed for several reasons. In the first place, we think the court erred in denying appellant's motion to strike the objections of respondents to confirmation, for the reason that they were not in time. Section 508 of the Code of Procedure is as follows: "Upon the return of any sale of real estate as aforesaid, the clerk shall enter the cause on which the execution issued, by its title, in the docket of the term next after such return, and mark opposite the same 'sale of land for confirmation,' and the following proceedings shall be had: (1) The plaintiff shall be entitled, on motion therefor, to have an order confirming the sale at the term next following the return of the execution or if it be returned in term time, then at such term, unless the judgment debtor, or in case of his death his representatives, shall file...