Kuhn v. Mason

• Decision Date: 23 February 1901
• Citation: 64 P. 182,24 Wash. 94
• Parties: KUHN v. MASON et al.
• Court: Washington Supreme Court

64 P. 182

24 Wash. 94

KUHN v. MASON et al.

Supreme Court of Washington

February 23, 1901

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

Action by Aaron Kuhn against Charles S. Mason and another. From a judgment in favor of the defendants, the plaintiff appeals. Affirmed.

S. J. Chadwick and Wm. J. Bryant, for appellant.

Wyman & Neill, for respondents.

DUNBAR J.

The appellant sought by petition under the provisions of chapter 17, tit. 28, 2 Ballinger's Ann. Codes & St., to vacate a certain order of the court below discharging respondent Charles S. Mason, an involvent debtor, from further liability on account of any indebtedness existing against him, and discharging the respondent A. A. Miller, assignee, from his trust as such. The order of discharge was made on September 13, 1898, and the proceedings to vacate were commenced on September 9, 1899. A demurrer was interposed to the petition on the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained and from the judgment of the court in sustaining said demurrer this appeal was taken.

The question involved is the sufficiency of appellant's petition. The petitioner was a creditor of the estate. The promissory note, the basis of the appellant's claim against respondent Mason, was executed in August, 1892. The insolvency law of 1890 was then in force, and it is contended by the appellant that a creditor under a contract executed while the act was in effect is entitled to all the rights conferred by it, and that a debtor is charged with a full performance of all the requirements of that act before he can obtain a discharge in insolvency. The act of 1890 provided that no discharge could be obtained unless a showing was made that not less than 50 per cent. of the full amount of the indebtedness of the insolvent over and above all expenses of the assignment had been realized from the estate, and the contention is that the settlement must be made under the provisions of the law in effect at the time that the contract was made, and not in accordance with the provisions of subsequent enactments. It is also claimed that even under the existing law, the report of the assignee was not sufficient. We are of the opinion that the court did not err in sustaining the demurrer to this petition, and for several reasons: First. The petition does note allege such an interest in the petitioner as would justify him in asking for an order vacating the judgment. A stranger to a judgment cannot ask for its vacation, for it is no concern of his whether the judgment be right or wrong. It is true, the petitioner alleges that he is a creditor of the estate, but he does not allege that he has presented his claims or brought himself within the statute so far as the duty of a creditor is concerned. Neither does he allege such an interest in the judgment as would warrant him in applying for its vacation; nor does he allege that, if the judgment were vacated, the subsequent proceeding would not result in the same judgment. It is true, he alleges that a certain report was not made by the assignee, which, under the statute, should have been made; but he does not allege that the report could not be made under the existing facts, and unless the petition negatives the conclusion that a retrial of a cause will eventuate in a different judgment, the judgment will not be vacated. Judgments are not vacated to vindicate abstract law. The proceeding is an equitable one and cannot be invoked excepting in the aid of practical benefit. It was said by this court in Manufacturing Co. v. Wolff, 7 Wash. 478, 35 P. 115, 755: 'It is not enough to entitle a party to have a judgment against him vacated that he should show that it had been irregularly entered. He must, in addition thereto, establish to the satisfaction of the court the fact that such judgment is unjust and inequitable as against him. Proceedings of this kind are of an equitable nature, and courts will not interfere with the judgment simply because it may have been erroneously entered, unless, in addition thereto, it is made to appear that it is unjustly burdensome to the moving party. In such a proceeding pure technicalities can have little influence upon the decision of the court, if the judgment sought to be vacated is not of such a nature that, if it were set aside, the moving party would be able to interpose a substantial defense upon a new trial, or in another proceeding involving the same cause of action.' The right to a vacation of judgments, while it existed at common law for certain specific reasons, viz. fraud and collusion, is in this state statutory; and, if appellant brings himself within the statute at all, it is within the provisions of subdivision 3, § 5153, 2 Ballinger's Ann. Codes & St., which provides for the vacation of a judgment for mistakes, neglect, or omission of the clerk, or irregularity in obtaining the judgment...