Myers v. Landrum

• Decision Date: 17 September 1892
• Citation: 4 Wash. 762,31 P. 33
• Parties: MYERS v. LANDRUM ET AL., (BIGELOW, INTERVENER.
• Court: Washington Supreme Court

31 P. 33

4 Wash. 762

MYERS v. LANDRUM ET AL., (BIGELOW, INTERVENER.

Supreme Court of Washington

September 17, 1892

Appeal from superior court, King county; I. J. LICHTENBERG, Judge.

Proceeding under Code Proc. § 491, by John G. Myers against H. A Landrum, James H. Woolery, as sheriff, and others, to determine the right to certain personal property. I. N Bigelow intervened. From orders overruling separate motions to vacate a judgment by default, plaintiff and intervener appeal. Affirmed.

Bronson & Bronson, for appellants.

Garrett & Corliss, for respondents.

STILES J.

Appellant Myers, claiming to own the property seized by the sheriff, delivered to him an affidavit and bond under Code Proc. § 491. The sheriff accepted the bond, and delivered the property to Myers. Bigelow and one Knight were the sureties on the bond. Respondents, in response to Myers' affidavit, filed an answer and counterclaim, and Bigelow, a so-called "intervention." The answer was uncalled for, as we have decided in Chapin v. Bokee, 29 P. 936. The counterclaim stated no cause of action, as the statute provides for a judgment against the claimant for the value of the property, if he fails to make his claim good. The intervention was wholly unauthorized by the statute. The cause, under Code Proc. § 493, was on the calendar of the superior court for trial on December 16, 1891. Upon that day the court, at the time set for the hearing, in the absence of the appellants, gave judgment for the respondents in the sum of $510. Thereafter the appellant Myers and one of his sureties, Bigelow, filed separate motions to set aside the judgment rendered against them. Notices of the motions were not served upon any of the parties but Landrum. The court overruled both motions, upon which, in open court, Myers and Bigelow each gave notice of appeal to this court. These notices of appeal could apply only to the motions to set aside the judgments. To apply to the judgments themselves, the notices must have been in writing, since they were not given at the time of entry; and they must have been served upon all parties who had appeared in the action, of whom the sheriff was one. Code Proc. §§ 1405, 1406. The merits of the case are therefore not before us.

To sustain the motions to vacate, affidavits were filed under Code Proc. § 221. But the facts stated in them only show a want of attention to the case by counsel and clients. Such motions are addressed to the discretion of the court, and substantial grounds, including a showing of merits in the party's complaint or defense, should be...