Paine-Gallucci, Inc. v. Anderson
| Decision Date | 22 December 1949 |
| Docket Number | 30963. |
| Citation | 35 Wn.2d 312,212 P.2d 805 |
| Court | Washington Supreme Court |
| Parties | PAINE-GALLUCCI, Inc. v. ANDERSON. |
Department 1.
Rehearing Denied January 31, 1950. Henderson, Carnahan & Thompson, Tacoma, for appellant.
Gagliardi Ursich & Gagliardi, Tacoma, for respondent.
Plaintiff Paine-Gullucci, Inc., a corporation, instituted this action against Eivind Anderson et al., as defendants. By its complaint, which was filed in the office of the clerk of the superior court for Pierce county, July 20, 1948, plaintiff, a subcontractor, asked for judgment against Anderson in the sum of $2,649.92, with interest, which sum plaintiff alleged to be due from defendant Anderson for materials and labor furnished defendant, who, as principal contractor, was engaged in the construction of a water main under a contract with the city of Tacoma. Plaintiff also prayed for the foreclosure of a lien and for general relief.
The defendant Anderson appeared pro se, filing a general demurrer to the complaint, based upon all of the statutory grounds. Anderson personally argued this demurrer Before the superior court. The demurrer was overruled by an order signed and filed September 13, 1948, the date of the argument.
Pursuant to the applicable rules of the superior court, after the overruling of the demurrer, the defendant was allowed three days to further plead, but, having failed to do so, the plaintiff September 22, 1948, moved for an order of default and filed in support of its motion the affidavit of its attorney, stating the proceedings above set forth, and that the defendant had not pleaded further to plaintiff's complaint and was, on the date of the affidavit, in default. The affidavit also stated that the defendant was not represented by an attorney, but had appeared in the action in person.
The defendant then appeared in the action by counsel, and plaintiff's motion for default was argued to the court October 9, 1948, and taken under advisement. October 14th, the court filed its memorandum decision, stating that the motion for default was granted. A formal order adjudging the defendant to be in default was signed October 18, 1948, and filed the following day.
Following the entry of the order of default, the trial court, October 18, 1948, made findings of fact and conclusions of law, followed the same day by the entry of a decree in plaintiff's favor and against the defendant Anderson only in the sum of $2,716.17, together with the further sum of four hundred dollars as attorney's fees, the decree adjudging that plaintiff have a lien upon certain funds retained by the city of Tacoma in connection with the contract referred to above. The decree further provided for the reformation of the contract which had been entered into between the plaintiff and the defendant to include therein a provision to the effect that the defendant Anderson pay for the replacing of an 'oil mat.' The findings, conclusions, and decree were filed October 19, 1948.
October 20, 1948, the defendant, by his counsel, moved for a new trial, the motion stating six grounds for granting of the motion, including 'accident and surprise' and error of the court in entering the order of default against the defendant.
December 1, 1948, the plaintiff moved to strike the motion for a new trial upon two grounds:
'(1) That there is no issue either of fact or of law that is subject to re-examination after trial and decision by a jury, court or referee.
'(2) That the motion for new trial is sham, frivolous and irrelevant.'
The motion was based upon the records and files in the action.
This motion came on regularly to be heard Before the court December 20, 1948, on which day the court, by order, granted plaintiff's motion to strike, allowing exception to the defendant.
From the decree entered as above stated, defendant has appealed.
The foregoing proceedings were Before Judge Fred G. Remann, who died February 5, 1949. Appellant presents the following assignment of errors:
'(1) The Court below erred in granting respondent's Motion for Default against appellant.
'(2) The Court below erred in entering judgment against the appellant in any sum whatsoever and in denying appellant's motion for a new trial.
'(3) The Court below erred in any event in including in the judgment the sum of $600.00 representing the amount expended by respondent for the reimbursing of the City for the repair of these oil mats.
'(4) The lower Court erred in any event in adjudicating a lien of said $600.00 against the retained percentage.
'(5) The Court below erred in any event in entering judgment for an attorney's fee of $400.00 or in any sum in excess of $10.00.'
While appellant's second assignment of error refers to the denial of his motion for a new trial, this assignment is sufficient to present the question of any error committed by the trial court in striking appellant's motion.
Shortly after appellant appealed to this court, respondent moved to dismiss the appeal, upon the ground that more than thirty days had elapsed since the date of the entry of the decree, and that more than fifteen days had elapsed since the entry of the order of the superior court striking appellant's motion for a new trial. Respondent contended that the appeal was not timely, unless this court considered that appellant's motion for a new trial extended the time within which an appeal from the decree might be prosecuted, notwithstanding the fact that the superior court struck the motion from the record.
Respondent's motion to dismiss the appeal was argued to a Department of this court, and the motion was denied without any opinion. We are invited by respondent to discuss this question, but, respondent's motion having been argued and denied, we are not inclined to consider the matter further.
However, we will call attention to one matter in connection with the question just discussed. In support of its argument on this appeal, respondent cites Rem.Rev.Stat. § 398, which reads as follows:
'A new trial is a re-examination of an issue [of fact] in the same court after a trial and decision by a jury, court, or referees.'
The section referred to, as enacted by the Legislature, is found in Laws of 1854, chapter 20, § 215, p. 170, in which the words 'of fact' do not appear.
In respondent's brief upon its motion to dismiss the appeal, respondent cited decisions of the supreme court of California. In that state, the statute (California Code of Civil Procedure, § 656) defines a new trial as
'* * * a re-examination of an issue of fact in the same court after a trial and decision by a jury, court or referee.'
Apparently, the words 'of fact,' in brackets, as contained in Remington's Revised Statutes, were inserted in § 398 by some condifier. It does not appear that the statute, as enacted by the Legislature of 1854, has ever been amended, and, consequently, in this jurisdiction a new trial is a re-examination of an issue of fact or law, and the decisions of the supreme Court of California are not in point.
We shall first consider appellant's assignment of error based upon the entry of findings of fact, conclusions of law, and decree, all of which, as above stated, were entered at the same time the order of default was filed.
Appellant appeared generally in the action when he filed and argued his demurrer to the complaint, but it does not appear, from the record, that any notice whatever was given to appellant, prior to the entry of the findings, conclusions, and decree, that the same would be presented to the court at the time they were signed or at any other time.
Rem.Rev.Stat. § 411, provides for the entry of default judgments. Subdivision 1 refers to the entry of default judgments in actions 'arising on contract for the recovery of money only.' Subdivision 2 refers to 'OTHER ACTIONS,' THE LAST PORTION OF THE PAragraph reading as follows: '* * * If the defendant give notice of appearance in the action Before the expiration of the time for answering, he shall be entitled to five days' notice of the time and place of application to the court for the relief demanded in the complaint; * * *.'
While respondent's attorney promptly delivered to appellant's counsel copies of the findings, conclusions, and decree, after the same had been signed and filed, it does not appear that any advance notice whatever of the presentation of the decree was given to appellant or his counsel.
The foregoing section of the statute is not referred to in the briefs filed herein, but is applicable to the situation here presented.
Appellant argues that the trial court erred in entering the order of default against him.
While, apparently, appellant did not deny a considerable indebtedness to respondent, during his conversations with respondent's counsel, he did clearly indicate that it was his contention that he was not indebted to respondent in connection with certain items for which respondent sought recovery by its complaint.
After the conclusion of the argument on the demurrer, appellant called on Judge Remann and asked when the action could be tried, having been informed, as stated by appellant in an affidavit, that the case might be tried during the latter half of November following or go over until after the first of the next year.
Thereafter appellant twice called upon one of respondent's counsel at the latter's office and discussed the case with him, in an endeavor to reach a settlement satisfactory to both parties. When appellant became satisfied that no agreement could be reached, he took the complaint to a lawyer in Tacoma and discussed the matter with him. The attorney informed appellant that, at that time, he was extremely busy and could not discuss the situation in...
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