McCord v. McCord

• Decision Date: 08 April 1901
• Citation: 64 P. 748,24 Wash. 529
• Court: Washington Supreme Court
• Parties: McCORD v. McCORD.

64 P. 748

24 Wash. 529

McCORD v. McCORD.

Supreme Court of Washington

April 8, 1901

Appeal from superior court, King county; E. D. Benson, Judge.

Action by Cecilia McCord against George McCord. Judgment was rendered for plaintiff, which defendant moved to vacate. From an order denying the motion, defendant appeals. Affirmed.

J. J. McCafferty, John F. Dore, and John W Kelley, for appellant.

Preston Carr & Gilman, for respondent.

DUNBAR J.

The respondent commenced an action for divorce against the appellant by filing a complaint and summons on the 8th day of November, 1899, in the superior court of King county. The sheriff returned that he was unable to find the defendant in King county. On proper showing an order was granted to have the defendant served with summons by publication, and the first publication was made on the 15th day of November, 1899. On the 16th day of January, 1900, notice was served on the prosecuting attorney of King county that the action would be called for trial on January 20th, as a default case. On January 20th the defendant was declared in default. The case was heard, and decree for divorce was entered in favor of the respondent; also certain property was adjudged to be the property of the respondent. The appellant at the time was in the Northwest Territory, and, according to his petition, did not receive a copy of the summons until the 20th day of January, 1900, the day upon which the decree was entered. He entered into communication with one M. M. Madigan, an attorney at law in Seattle, who appeared for the defendant and on his behalf served on the plaintiff's attorney and filed in the action a motion to set aside the judgment rendered on the 20th day of January. On the 14th day of April another motion was made to set aside the judgment. On the 24th day of April the motion came on for hearing, and was denied by the court. Attorney Madigan died some time after this, and the present attorneys were employed. A petition to reopen and to vacate and set aside the judgment was heard and denied on the 19th day of September, 1900, and from the action of the court in denying this petition this appeal is taken.

A very earnest appeal in behalf of the petition of the appellant is made by counsel in their brief, and it is insisted that he has never had his day in court, and that a fraud has been perpetrated upon him by reason of the proceedings. But we are inclined to think that appellant has lost his rights in this action, if he ever had any. His petition, in which presumably was set out all the defense to the action that he had, was determined against him by the court on April 24, 1900. The ruling of the court in this respect was appealable. It is said by this court in Chezum v. Claypool, 22 Wash 498, 61 P. 157, that where the statute affords a full complete, and adequate remedy against an illegal judgment, by authorizing the aggrieved party to proceed by motion to vacate and set aside, and permitting an appeal from any order entered upon such motion, one who has attacked a judgment by motion to vacate, and has failed to prosecute an appeal from the denial of his motion, cannot subsequently maintain an action to cancel the judgment, since the question of the validity of the judgment is res judicata. The action here is, in effect, the same as it was in that case. The remedy was by an appeal from the order rendered on the 24th day of April, 1900, instead of by another motion based upon practically the same application. It is said that the attorney who represented the appellant in the first application died; but when he died, and whether he was prevented from perfecting an appeal by his illness and decease, or whether he saw fit to waive his rights to an appeal, does not appear of record. Again, the question of the vacation of a judgment is so largely a matter of discretion in the lower court that the appellate court would hesitate to reverse its judgment on that question unless it plainly appeared that the discretion had been abused. It was said by this court in Livesley v. O'Brien, 6 Wash. 553, 34 P. 134, in discussing a motion to vacate: 'Motions of this character are directed to the discretion of the trial court, and its action in passing thereon will not be reversed by this court unless the record shows an abuse of such discretion. It is not sufficient that we should find as a matter of fact that the showing was sufficient to have justified the setting aside of the judgment. We must further find that the showing was such that there was no room for the...