Peterson v. Dillon

• Decision Date: 26 December 1901
• Citation: 67 P. 397,27 Wash. 78
• Parties: PETERSON v. DILLON et al.
• Court: Washington Supreme Court

67 P. 397

27 Wash. 78

PETERSON v. DILLON et al.

Supreme Court of Washington

December 26, 1901

Appeal from superior court, Adams county; C. H. Neal, Judge.

Action by M. O. Peterson against Abraham Dillon and Susan Dillon his wife, and C. Arthur. From a judgment in favor of the plaintiff, the defendants Dillon appeal. Modified.

Dunbar J., dissenting.

O. R. Holcomb and C. H. Spaulding, for appellant.

W. W Zent, for respondent.

WHITE J.

We do not think the motion to dismiss the appeal is well founded and it is denied. The facts in this case are as follows: On November 2, 1899, an action was commenced in the superior court of Adams county by the respondent against Abraham Dillon and C. Arthur to foreclose a lien for work done by the respondent as a carpenter at the request of Arthur, as contractor, on a frame building on a certain lot in Ritzville. The complaint contained the usual averments, and alleged that said Abraham Dillon was the owner and reputed owner of said lot. The work was alleged to have been done between the 6th of April and the 22d of May, 1899. Abraham Dillon answered, but did not deny the allegation that he was the owner and reputed owner of said lot. Such proceedings were taken in this action that a trial was had on the 9th day of April, 1900, and the court rendered a judgment in favor of the respondent against Abraham Dillon for $88.55 and costs and attorney's fees, and also decreed a sale of said lot to satisfy the same. Execution was issued on this judgment on the 3d day of May, 1900. On the 9th day of June, 1900, the lot was sold to the respondent on said judgment. On the 31st of May, 1900, before such sale, Abraham Dillon filed a motion, supported by affidavit, to set aside the judgment and decree of foreclosure and order of sale because of defect of parties, in that Susan Dillon, the wife of the said Abraham Dillon, was the owner of a community interest in said property, and she had not been made a party. On June 9, 1900, said Susan Dillon and Abraham Dillon commenced an action against said respondent and the sheriff of said county to restrain any sale under said execution. It was alleged in the complaint that the lot was the community property of Abraham Dillon and Susan Dillon, and that the sale by the sheriff would cast a cloud upon the title, etc. A temporary restraining order was also prayed for. The temporary restraining order, restraining the sheriff from selling the lot, was granted on the 9th of June, 1900. On the 15th of September, 1900, on the hearing of a motion to dissolve such restraining order and a demurrer to the complaint in that action brought by Abraham Dillon and Susan Dillon, the court made an order that said last action be consolidated with the action of the respondent against Abraham Dillon and C. Arthur, and vacated and set aside the decree of foreclosure and order of sale and sale thereunder made in said last-named action, as the court recites in the order vacating said judgment, 'for the purpose of permitting the plaintiff herein, Susan Dillon, to appear and set up any defense to said action, and for that purpose she is hereby given twenty days from date hereof to appear and plead.' No further pleadings were filed by Susan Dillon. On October 10, 1900, a motion was made for default against Susan Dillon, Abraham Dillon, and C. Arthur, for the reason that said defendants have not answered or appeared herein within 20 days from September 15, 1900. The service of this motion was made on October 6, 1900, on the attorney for said Susan Dillon, Abraham Dillon, and C. Arthur. The motion was granted by the court commissioner of Adams county. The parties served did not appear to resist the same. On the 23d of October, 1900, a trial was had before said court commissioner on application for entry of judgment on said default. The court commissioner found the facts to be that the work was performed by the respondent on the house on the lot mentioned in the complaint in the first action, for the time mentioned, on a contract made with C. Arthur, the contractor; that Arthur was the agent of Abraham Dillon and Susan Dillon, and that the lot was the community property of Abraham Dillon and Susan Dillon, etc.; and established the lien of the respondent on said lot. On the findings and conclusions filed by the court commissioner judgment was given and entered by the court commissioner for $88.55 and costs and attorney's fee, and a sale of the lot was decreed to satisfy the same. On this judgment execution and order of sale were issued, and on the 15th of December, 1900, the said lot was sold by the sheriff under the same to the respondent. On the 11th of December, 1900, a motion was made by Susan Dillon, appearing specially, to set aside the findings of fact, conclusions of law, and judgment and decree entered on October 23, 1900, for the following reasons: '(1) That the said C. Staser, court commissioner, had and has no jurisdiction over the person or property of the said Susan Dillon. (2) That the said superior court had and has no jurisdiction over the person or property of the said Susan Dillon or the subject-matter in this action as against the said Susan Dillon. (3) That the findings of fact and conclusions of law in said action, in so far as the said Susan Dillon is concerned, had and have no basis or foundation in or by any pleading or proof on the part of the plaintiff in said action, and are irrelevant and immaterial to the said judgment and decree and to the said Susan Dillon. (4) That said pretended judgment and decree as against the said Susan Dillon is absolutely and wholly void.' On the 5th of January, 1901, a motion was filed by Susan Dillon for the default of the defendants for want of an answer to her complaint in the action brought by her. On the 8th of February, 1901, the court confirmed the last sale made by the sheriff on the judgment in the consolidated cause, and denied the motion to vacate and set aside such judgment except in so far as said judgment gives or attempts to give the respondent a personal judgment against Susan Dillon, and also denied the motion of said Susan Dillon for default against the defendants in the action brought by her for want of an answer. From that order this appeal is taken.

The order refusing to vacate and set aside the judgment is a final order, made after judgment, which affects a substantial right, and from it an appeal lies to this court. It presents for our consideration but one question: Was the judgment on which the sale of the lot was finally made void? No question is made affecting the regularity of the sale, other than that it was made, as claimed by appellants, on a void judgment. The appellants contend that the court commissioner had no jurisdiction to render any judgment against Susan Dillon, and had no jurisdiction to render any judgment except one subject to revision by the court, and that the judgment entered on the 23d day of October, 1900, was not a final judgment. Section 23, art. 4, of the constitution, is as follows: 'There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number who shall have authority to perform like duties as a judge of the superior court at chambers, subject to revision by such judge, to take depositions and to perform such other business connected with the administration of justice as may be prescribed by law.' Under this provision of the constitution the legislature has enacted: 'Every court commissioner shall have power,--(1) To hear and determine all probate matters and to issue all proper orders therein. To grant defaults, and after ten days from the entry of a default by the clerk of the court, to enter judgment thereon. To issue temporary restraining orders and to perform like duties as a judge of the superior court at chambers, subject to revision by the judge of the superior court of the county.' Section 4729, Ballinger's Ann. Codes & St. Section 6, art. 4, of the constitution, declares that the superior courts shall always be open, except on nonjudicial days. Under our present system, when an act of a judicial nature is performed by the judge, it is, in contemplation of law, done in open court, although the act may in reality be done in the private room or office of the judge. When the framers of the constitution used the term 'at chambers' in speaking of the duties performed by the judges at chambers, they had in view a certain object, and, in order to ascertain what this was, we must have recourse to the meaning of the term 'at chambers' as it was understood at the time this particular provision of the constitution was framed. The courts established by the constitution were to supersede the territorial courts. The men who framed the constitution were familiar with the powers then exercised by the judges at chambers, and in using that term it is fair to infer that they had reference to such powers. Winsor v. Bridges (Wash.) 64 P. 780. Under the law as it then existed, judges of territorial courts could not chambers entertain, try, hear, and determine all actions, causes, motions, demurrers, and other matters not requiring a trial by jury. Section 2138, Code 1881. However, even if this construction is not correct, we think the legislature, under the provisions of section 23, art. 4, supra, had the power to provide by law for the entry of defaults and judgments thereon by court commissioner, subject to revision by the superior court, as the same is connected with the administration of justice. It is true that a judgment entered by the court commissioner is subject to revision by the judge of the superior court. If no steps are taken by the party who conceives himself aggrieved by the...