Marston v. Humes

• Decision Date: 07 December 1891
• Citation: 3 Wash. 267,28 P. 520
• Parties: MARSTON ET AL. v. HUMES, JUDGE, ET AL.
• Court: Washington Supreme Court

28 P. 520

3 Wash. 267

MARSTON ET AL. v. HUMES, JUDGE, ET AL.

Supreme Court of Washington

December 7, 1891

Petition by H. L. Marston and others for a writ of certiorari against T. J. Humes, judge of the superior court of King county, and others, to set aside an order vacating a judgment. Denied.

Austin & Baker, for petitioners.

Preston, Carr & Preston, for respondent.

HOYT, J.

It appears from the petition filed herein that petitioners duly obtained judgment in the superior court of King county against John H. McGraw, one of the defendants herein; that at the time of the rendition of such judgment, said superior court had jurisdiction of the subject matter of the action and of the person of the said John H. McGraw; that said judgment remained in full force on the records of said court for more than one year after its rendition; that during said year no appeal had been taken, nor had any proceedings been instituted in said superior court to reverse, modify, or set aside said judgment; that on the 13th day of October, 1891, and when said judgment was in full force, and a part of the records of said county, and entirely unsatisfied, one of the other defendants, the Hon. T. J. Humes, one of the judges of said superior court of King county, made and caused to be entered in the cause in which said judgment was rendered the following order: "This cause came on regularly to be heard in open court on this 10th day of October, 1891, before the Honorable T. J. Humes, one of the judges of said court, upon the motion of the defendant, J. H. McGraw, that the judgment heretofore, on to-wit, the 2d day of August, 1890, entered herein against him, the said J. H. McGraw, for the sum of $850 and costs, and for the return of certain personal property, or, in case a return of said property could not be had, for judgment against him for the additional sum of $2,650.92, be vacated; the said J. H. McGraw appearing by his attorneys, the Hon. J. A. Stratton and Messrs. Preston, Carr & Preston, and the plaintiffs appearing by their attorneys, Messrs. Austin & Baker. After hearing and considering the affidavits filed herein in support of the motion, and the counter-affidavit of Fred Page Tustin, and hearing argument of counsel, and the court being fully advised in the premises, it is by the court here and now ordered that upon the payment by the defendant, J. H. McGraw, of the costs of said action to this date, the said judgment be vacated and set aside. And now, on this 12th day of October, 1891, it appearing to the court that said costs have been by the defendant fully paid, it is here and now ordered that the judgment heretofore, on the 2d day of August, 1890, rendered herein against the said defendant, J. H. McGraw, and the whole and every part thereof, be, and the same is hereby, vacated and set aside. Further ordered that the defendant, McGraw have until October 25, 1891, to file his answer herein. Dated at Seattle this 12th day of October, 1891. T. J. HUMES, Judge." And the petitioners allege that the action of said judge in making and entering said order was in excess of the jurisdiction of said court, and that the order so entered was and is absolutely void; that, so long as the same remains apparently in force, they could not collect their said judgment; and that for that reason they were entitled to have the record certified here, and the said order set aside as having been made without jurisdiction.

The particular grounds upon which the court made said order do not appear in the petition herein, and, this being so, it is conceded in the argument that if said court had the power in any case to vacate a judgment regularly entered after the expiration of one year from the date of the rendition thereof the petition should be denied; but it is contended that under our statutes the power of the court to interfere with a judgment so entered was expressly limited to one year, and that as one year had elapsed in this case the court was powerless to relieve the defendant, under any circumstances that might be made to appear. Some other questions were argued, but the conclusion to which we have come as to the statute law of this state on the subject of this controversy makes them immaterial. The provisions of the Code of 1881, so far as they are material to this inquiry, are contained in sections 437, 438, and 439, contained in the chapter relating to the reversal, vacation, and modification of judgments in the courts in which rendered, and in section 109 of the chapter relating to mistakes in pleadings and amendments. Under the provisions of the first three sections above mentioned, the trial court is authorized to vacate judgments for certain reasons therein specified, but the time in which this may be done is limited to one year; and by the provisions of section 109, above mentioned, the court was likewise allowed to vacate a judgment within a reasonable time, not exceeding five months after the adjournment of the term at which it was rendered. And if these provisions of the Code are now in force, the contention of the petitioners, that under the circumstances of this case their interest in the judgment became vested at the end of one year, so that the trial court could not interfere therewith, must be sustained. The legislature of 1891, however, amended, or attempted to amend, all of the sections above referred to. The amendment to the three sections contained in the chapter relating to vacation of judgments was, so far as this question is concerned, immaterial, as the limitation of time contained in the sections amended was also contained in the amendatory sections. There is, however, a provision in the same act which thus amended the sections under discussion, contained in section 4 of said act, which is somewhat material to the consideration of the questions to be hereafter discussed. Said section 4 is as follows: "The provisions of this chapter shall not be so construed as to affect the power of the court to vacate or modify judgments or orders, as elsewhere in this Code provided; nor shall any judgment of acquittal in a criminal action be vacated under the provisions of this chapter." From this provision it will be seen that the legislature evidently had in mind the provisions of section 109 of said Code, above referred to, and intended to preserve to the court the right to relieve against a judgment as provided in said section; but, as the relief provided for under that section could only be extended during a period of five months after the adjournment of the term, if it had been left by the legislature as it stands in the Code, it would have been immaterial, so far as the discussion of this question is concerned; but the same legislature passed an act entitled "An act relating to pleadings in civil actions, and amending sections 76, 77, and 109 of the Code of Washington of 1881," by the provisions of which act said section 109 was so amended that the limitation of five months therein contained was entirely omitted, and the limitation of time within which relief might be extended thereunder entirely removed; and if this section, as amended, was the law at the time the order complained of was entered in the court below, it is practically conceded by the petitioners that, excepting for one proposition, which we shall hereafter discuss, the court had jurisdiction to enter the order in question, and the petition must be denied. The proposition above referred to is this: The said act amending section 109 did not go into effect until some 10 months after the rendition of the judgment in question, and it is contended by petitioners that, inasmuch as under said section 109, as it stood at the time of the rendition of their judgment, the relief thereunder was confined to five months, that at the expiration of that time their interest in said judgment became a vested one, so far as said section 109 is concerned; and that thereafter no amendment of said section could affect their rights. With this contention, however, I cannot agree. Their right in the judgment did not become vested until the court had lost all power to relieve against the same, whether under section 109 or any other provision of the Code; and, not being vested, it was competent for the legislature to extend or change the time within which it could be attacked in the court where rendered by any legislation which it thought proper to effect such result.

It is contended on the part of the petitioners that the act amending said section 109 is void for the reason that the subject of such act is not clearly expressed in the title and that if the first clause of said title can be held to sufficiently state the object of the act, so far as it related to pleadings, the change made in section 109, relating to the time in which the court might vacate a judgment, was not within such title, as it had no relation to the question of pleading. I think, however, that as the provision as to vacating of judgments was a part of the original section 109, which was contained in the chapter relating to pleadings, and as the relief sought thereunder is always obtained by the filing of some pleading, or other paper in the nature of a pleading, it is sufficiently germane to the subject to stand as a part of an act relating to pleadings, and if the first part of said title sufficiently indicates the subject-matter to authorize legislation upon the subject of pleadings the provisions enacted thereunder are valid and binding as a part of the laws of this state. I am of the opinion that said act can be thus sustained; but assuming for the purpose of this discussion that the first portion of said title had been entirely omitted, and the act was simply entitled, "An act to amend sections 76, 77, and 109 of the...