Morgan v. Williams

• Decision Date: 08 January 1914
• Citation: 137 P. 476,77 Wash. 343
• Court: Washington Supreme Court
• Parties: MORGAN v. WILLIAMS et al.

137 P. 476

77 Wash. 343

MORGAN v. WILLIAMS et al.

Supreme Court of Washington

January 8, 1914

Department 1. Appeal from Superior Court, Whatcom County; Wm. H Pemberton, Judge.

Action by Mary E. Morgan against Andrew Williams, as sheriff, and another. From an order overruling a motion to vacate a judgment for plaintiff, the defendant named appeals. Affirmed.

C. A. Swartz, of Bellingham, for appellant.

ELLIS J.

This is an appeal from an order overruling a motion to vacate a judgment. The action was brought by Mary E. Morgan, as plaintiff, against Andrew Williams, as sheriff of Whatcom county, and the Fidelity & Deposit Company of Maryland, as surety on his official bond, to recover damages for an alleged false return of service upon Mary E. Morgan of a summons and complaint in an action for divorce brought by her former husband. The defendant Williams demurred generally to the complaint, and the demurrer was overruled. Separate answers were filed by the defendants, and, on issue joined the jury returned a verdict against both defendants for the sum of $1,700. Judgment was entered thereon on the 24th day of March, 1911. The defendant Williams moved to set aside the verdict and for a new trial. Both motions were overruled. The defendant Fidelity & Deposit Company of Maryland appealed to this court, but the defendant Williams neither appealed separately nor joined in the appeal of his codefendant. On that appeal this court, in an opinion filed January 19, 1912 and reported in 66 Wash. at page 649, 120 P. 106, 36 L. R. A (N. S.) 292, reversed the judgment against the deposit company and remanded the cause, with direction to enter a judgment in favor of that company.

The defendant Williams on March 23, 1912, moved to vacate and set aside the judgment against him on the grounds: (1) That the judgment was irregularly obtained and without warrant of law; (2) that the judgment was obtained through fraud, misrepresentation, and wrong of the plaintiff; (3) that the complaint did not state a cause of action. From the order of the trial court overruling this motion, the defendant Williams now appeals.

On the former appeal we held that the demurrer of the Fidelity & Deposit Company of Maryland to the complaint on the ground that it did not state a cause of action, aided by the evidence, which established an estoppel as against the plaintiff to question the validity of the decree of divorce, demonstrated that the plaintiff had mistaken her remedy; and that her proper remedy, under the allegations of her complaint, as aided by her own evidence, was to be found in an action against her former husband on his agreement to pay a greater amount than that fixed for the family allowance in the decree of divorce.

It is manifest, therefore, that the judgment against the surety company was reversed for error of law on the part of the trial court; that is, error in applying the law to the facts as pleaded and established. The judgment was not held void but was reversed for error of law. It is this same error of law which is now urged as a ground for vacating the judgment as to the defendant Williams, appellant here. This is manifest from the fact that our decision on the appeal of the surety company is urged as the real ground for the vacation of the judgment as against this appellant Williams. The case thus falls squarely within the rule announced in Dickson v. Matheson, 12 Wash. 196, 40 P. 725, and Kuhn v Mason, 24 Wash. 94, 64 P. 182. In the first of those cases it is said: 'The final judgment pronounced upon a hearing upon the merits cannot be set aside by the petition under the statute for mere error into which the court may have fallen.' In Kuhn v. Mason it is said: 'The right to a vacation of judgments, while it existed at common law for certain...