Morsbach v. Thurston County

• Citation: 148 Wash. 87,268 P. 135
• Decision Date: 13 June 1928
• Docket Number: 21099.
• Parties: MORSBACH et al. v. THURSTON COUNTY.
• Court: United States State Supreme Court of Washington

268 P. 135

148 Wash. 87

MORSBACH et al. v. THURSTON COUNTY.

No. 21099.

Supreme Court of Washington

June 13, 1928

Department 1.

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Action by Rudolph Morsbach and another against Thurston County, a municipal corporation. Judgment for plaintiffs, and, from an order vacating the judgment, plaintiffs appeal. Affirmed.

P. C Kibbe, of Tenino, for appellants.

W. J Milroy and Leonard E. Top, both of Olympia, for respondent.

TOLMAN J.

The complaint in this action in substance alleges that in the year 1872 the then owner of certain lands in Thurston county by deed conveyed to the Northern Pacific Railroad Company a right of way for the construction of its railroad over and across the lands in question; that plaintiffs are the successors in interest of the grantors in that deed that the Northern Pacific Railroad Company has abandoned its right of way, and the plaintiffs have resumed possession thereof; and that thereafter the defendant county entered upon the abandoned right of way, and began grading a roadway thereon. The prayer is that the defendant be restrained from trespassing upon the plaintiffs' land, and that the plaintiffs recover $500 as damages already done to the land by the defendant and $1,000 as damages for the deprival of access to, and use of, the parts of land cut off by the defendant's acts. A demurrer was interposed to this complaint, written briefs were filed by both parties, and both parties appear to have indicated to the trial court that its ruling on the demurrer would be decisive of the case. The demurrer was overruled. The county gave notice of appeal to this court, and then, probably discovering that no final judgment had been entered from which an appeal would lie, filed a written election to stand on its demurrer, and gave oral notice to plaintiffs to present their final judgment. Thereafter, without formal notice to opposing counsel, and in his absence, on September 6, 1927, plaintiffs presented to, and had entered by, the trial court a judgment, which, so far as material here, recites:

'This cause comes on regularly for trial, on the 6th day of September, 1927, P. C. Kibbe, Esq., appearing as counsel for plaintiff, and Leonard E. Top, Esq., for the defendant, a trial by a jury having been waived by the respective parties, the cause was tried before the court, sitting without a jury, whereupon witnesses on the part of plaintiff and defendant were duly sworn and examined, and, defendant having demurred, and his demurrer overruled, and he having elected to not plead further, the evidence being closed, the cause was submitted to the court for consideration and decision, and, after due deliberation thereon, the court orders that judgment be entered herein for the plaintiff as prayed. Wherefore, by reason of the law and evidence aforesaid, it is ordered, adjudged, and decreed that plaintiff do have and recover of and from the defendant the sum of $1,500 as prayed, and defendants are restrained from further trespassing on said land,' etc.

It is admitted that, on the day following the entry of the judgment, a copy thereof was received by counsel for the defendant by mail from counsel for plaintiffs. The record discloses nothing further until December 6, 1927, when by written motion the defendant sought the vacation of the judgment upon the following grounds:

'I. By irregularities in obtaining the judgment in the above entitled cause by the adverse parties.

'II. For fraud practiced by the successful parties in obtaining said judgment.

'III. Misconduct of prevailing party.

'IV. Error in the assessment of the amount of recovery.

'V. Insufficiency of the evidence to justify the judgment.

'VI. That the judgment is against law.

'VIII. Newly discovered evidence, material for the party making application, which could not have with reasonable diligence been discovered and produced at the trial.'

This motion was supported by affidavit setting forth, in addition to certain facts which we have already stated:

'That the signature of the judge of the court in the above judgment was procured by fraud, misrepresentation, and irregularities of the plaintiff; that there never were any witnesses sworn in said cause; that judgment in the sum of $1,500 for damages against said defendant was entered herein without notice to said defendant until after the same had been filed; that the defendant, Thurston county, has, by thorough investigation, learned that it has a meritable defense to said cause of action; that an answer is herewith filed, setting forth said meritable defense to said action; that, at the time of signing said judgment, the court was not informed of the contents of said judgment; that a fraud was practiced by the attorney for the plaintiff in obtaining the signature of the court to said judgment.'

An exhaustive controverting affidavit was filed which does not assert that witnesses were sworn and heard upon the question of damages, and upon the evidence so presented the trial court found there were irregularities in obtaining the judgment which justified its vacation, and entered a written order vacating and setting aside the judgment in its entirety. From this order the plaintiffs have appealed.

The motion to vacate seems to be framed with the idea of claiming the benefit of both section 465 and section 466 of Remington's Compiled Statutes. But since by its terms the aid of section 465 can only be invoked by petition, and since there is no showing of reasonable diligence in the discovery of the defense now set up, clearly section 465 is inapplicable. We shall treat the issue, therefore,...