National Bank of Washington, Coffman-Dobson Branch v. McCrillis

• Decision Date: 10 November 1942
• Docket Number: 28799.
• Parties: NATIONAL BANK OF WASHINGTON, COFFMAN-DOBSON BRANCH, v. McCRILLIS.
• Court: Washington Supreme Court

130 P.2d 901

15 Wn.2d 345

NATIONAL BANK OF WASHINGTON, COFFMAN-DOBSON BRANCH, v. McCRILLIS.

No. 28799.

Supreme Court of Washington

November 10, 1942

Department 1.

Action by the National Bank of Washington, Coffman-Dobson Branch, as guardian of Dorcy T. Coleman, an insane person, against Hazel McCrillis to annul a marriage between the ward and defendant. From a judgment annulling the marriage, defendant appeals.

Reversed and remanded with instructions.

Appeal from Superior Court, Lewis County; Herbert H. Sieler, Judge pro tem.

E. W Leonard, of Winlock, and James A. Stinson, of Chehalis, for appellant.

Don G Abel, of Chehalis, for respondent.

JEFFERS Justice.

This action was instituted January 15, 1940, in the superior court for Lewis county, by the National Bank of Washington Coffman-Dobson Branch, as the guardian of Dorcy T. Coleman, an insane person, against Hazel McCrillis, to annul a marriage entered into on November 1, 1932, between Dorcy T. Coleman and defendant. The basis of the complaint is that Dorcy T. Coleman was insane at the time of the purported marriage, and has been at all times since.

It appears from the complaint that the parties above mentioned lived together as man and wife until shortly Before this action was started. No children were born as the issue of this marriage.

The summons and complaint in the action were personally served on Hazel McCrillis, in Lewis county, on January 26, 1940. On April 1, 1940, plaintiff bank, by its attorney, Don G. Abel, filed a motion and affidavit for default against defendant. The default was claimed, as appears from the affidavit, on the ground that personal service of the summons and complaint had been made upon defendant in Lewis county, and that she had not served or filed any appearance in the action. On the same day the motion and affidavit were filed, Herbert H. Sieler, purporting to act as judge pro tempore, signed an order adjudging defendant to be in default.

The following is a minute entry made in the court's journal April 1, 1940, in this cause:

'Cause came on regularly in open court for trial, the plaintiff being represented by Don G. Abel; Defendant not present or represented. Three witnesses called and sworn. C. R. Mitchell called, examined by Mr. Abel, excused. The court then being duly advised in the premises, granted the plaintiff a decree of annulment of marriage.

'(Signed) Herbert H. Sieler

'Judge Pro Tem.' (Italics ours)

It will be noticed from the above record that it appears affirmatively that defendant was not present or represented at the hearing, and it does not appear affirmatively that the prosecuting attorney was present. No findings of fact, conclusions of law, or judgment were made or filed on April 1, 1940, nor prior to the death of Mr. Coleman, on December 6, 1941.

On April 1, 1940, at the time Mr. Sieler purported to act as judge pro tem, there was of record no order of a judge of the superior court appointing Mr. Sieler as such judge pro tem, nor was there of record any agreement of the parties consenting to such appointment. Nor had Mr. Sieler, at the time he purported to act, taken the oath required by the statute.

On April 10, 1940, nine days after the hearing, an order appointing Herbert H. Sieler as judge pro tem was filed. We desire to call attention to the last line of this order, which states: 'Done in open court and dated as of April 1, 1940. (Signed) C. A. Studebaker, Judge.' (Italics ours) It does not appear from the record just when this order was actually signed by Judge Studebaker, but both plaintiff and defendant have treated it as a nunc pro tunc order.

While the above order contains the following statement: ' On agreement of the parties and it appearing to the court that Mr. H. H. Sieler, attorney of Chehalis, Washington, is admitted to practice law in the state of Washington * * *' (Italics ours), it is not contended that defendant ever signed any agreement consenting to Mr. Sieler's appointment, or that she ever agreed orally in open court to such appointment, but it appears that any agreement consenting to such appointment which may have been made was made by plaintiff and the prosecuting attorney.

It will be remembered that Mr. Coleman died on December 6, 1941. On December 20, 1941, defendant filed a notice of appearance in the action. On the same day, defendant filed a motion to set aside default and to dismiss. This motion was based upon the record and an attached affidavit. This affidavit states in part that affiant and Dorcy T. Coleman were legally married in Chehalis, on November 1, 1932, and that the marriage continued until about December 6, 1941, the date of her husband's death; that the parties lived together until on or about August 22, 1939, when she was forced to leave home through fear of personal violence threatened to be inflicted upon her by her husband; that at the time of the marriage, affiant did not know her husband had been adjudicated insane, and she then believed, and still believes, her husband was competent to and did contract a valid marriage with her; that affiant has not heretofore appeared in this action because she was afraid that her husband would inflict grievous bodily harm upon her.

On December 29, 1941, defendant filed an instrument entitled 'Objection to Further Proceedings in this Case.' In this document, defendant challenged the jurisdiction of the court to take further proceedings in the action, other than a dismissal thereof, for the reason that, plaintiff's ward having died, the guardian has no power to proceed.

Defendant also, on December 29, 1941, filed a motion to vacate order of default and for dismissal. The grounds for this motion are in substance as follows:

1. That the plaintiff is the successor to Coffman-Dobson Bank & Trust Co., and that such bank was appointed guardian of the estate of Dorcy T. Coleman, and as such has no power to prosecute this action;

2. That Mr. Coleman died December 6, 1941, and the power of plaintiff as such guardian has now terminated, except as to settlement of accounts;

3. That the subject matter of the action has ceased to exist;

4. That the order of default is signed by one Herbert H. Sieler, purporting to act as judge pro tem, and that no valid order for his appointment is of record, in that (a) no agreement in writing for his appointment is of record in the case, and no consent thereto is of record in the case, made by either party to the action, and no consent thereto, either orally or otherwise, has been made by defendant, and (b) no oath as judge pro tem has been filed or made by Herbert H. Sieler in the case;

5. That there is another action pending in the superior court for Lewis county, to which the parties here are the parties;

6. That the defendant has a full and complete defense to the action on the merits, in that Dorcy T. Coleman was not insane at the time of the marriage, and well knew and understood the nature of the contract into which he then entered;

7. That ever since the marriage, and down to about August 22, 1939, the parties cohabited and lived together as husband and wife, and were so living at the time of the commencement of this action, all of which was well known to plaintiff guardian;

8. That defendant feared to appear in the cause prior to the death of Dorcy T. Coleman, because of threats made by him to defendant as to possible physical injury to her should she do so.

The above motions were noted for hearing Before the court on January 19, 1942, and on that date, as appears from a minute entry in the court journal, the cause came on for argument on motion to vacate the order of default, whereupon Judge Studebaker 'denied the motion by reason of the court's refusal to hear matter previously assigned to Judge Pro Tem Sieler.'

On January 19, 1942, a petition to intervene by the brothers and sisters of Mr. Coleman was filed and noted for hearing. After the petition was filed, and when the matter came on to be heard, defendant objected to jurisdiction of the court to hear the matter, and after argument the hearing was continued to January 29, 1942, at which time the matter came on for hearing, as appears from the court journal, on special appearance of defendant objecting to the court's jurisdiction, all parties, including interveners, being represented. After argument, Mr. Sieler ruled 'that the court had jurisdiction to hear the case and now has jurisdiction.' The matter of intervention and of taking oath as judge pro tem was taken under advisement, and a hearing was set for February 9, 1942, for consideration of intervention and entering a nunc pro tunc decree. On the last mentioned date, the matter was further continued to February 16, 1942.

The following appears from the court journal of February 16, 1942, in this cause:

'Cause came on for hearing re. matter of intervention by J. W. Coleman, et al., and for entry of nunc pro tunc decree the plaintiff being represented by Don G. Abel, and Jas. A. Stinson and E. W. Leonard appearing specially for the defendant; Grant Armstrong present on behalf of the intervenors.

'Statement was made by Mr. Leonard, who asked the defendant's special appearance be preserved and objected to the jurisdiction of the court and objected to the entry of a nunc pro tunc decree.

'C. R. Mitchell called, sworn, examined by Mr. Abel, exc. The court then stated it would enter a nunc pro tunc decree if the original decree could not be found. Defendant's motion to set aside default, etc., was denied by the court. Defendant's objections to further proceedings was overruled by the court. Motion to vacate default was denied. Motion to intervene to be decided later by the court. The objections to jurisdiction filed on January 19, 1942,

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