Pierce County v. Alexander

• Decision Date: 15 June 1908
• Citation: 96 P. 164,49 Wash. 599
• Parties: PIERCE COUNTY v. ALEXANDER et al.
• Court: Washington Supreme Court

96 P. 164

49 Wash. 599

PIERCE COUNTY v. ALEXANDER et al.

Supreme Court of Washington

June 15, 1908

Appeal from Superior Court, Pierce County; M. L. Clifford, Judge.

Action by Pierce county against G. W. Alexander and others. From an order vacating a tax judgment on motion of John H. Bunch plaintiff and the Traders' Trust Company of Tacoma, which appeared specially, appeal. Reversed, with directions to dismiss the action.

Wm. H Pratt, for appellants.

F Campbell and E. L. Culver, for respondent.

RUDKIN J.

On the 5th day of December, 1906, a tax judgment was entered in the superior court of Pierce county in a certain action entitled Pierce county against Alexander and others by virtue of a stipulation between the county attorney and the attorney for the respondent Bunch, who was the owner of the property affected by the judgment. Pursuant to this judgment, the county treasurer sold the property to the appellant Traders' Trust Company on the 22d day of December, 1906, and executed and delivered a tax deed therefor. Thereafter, and on the 27th day of May, 1907, the respondent moved to vacate the tax judgment, for the reason that the judgment was void and the court without jurisdiction to enter the same. This motion was supported by the affidavit of the deputy prosecuting attorney of the county at the time of the entry of the tax judgment setting forth that the judgment was entered in the wrong cause by mistake, that the affiant had agreed to notify the respondent of the entry of the judgment, but had failed to do so by reason of the fact that the memorandum relating to such notice was deposited in the wrong jacket, and other matters not deemed material. Service on this motion and the accompanying affidavit was accepted by the county attorney and by the attorney for the appellant Traders' Trust Company as purchaser at the tax sale. The appellant Traders' Trust Company appeared specially, and resisted the motion to vacate on the ground that the respondent was not a party to the action in which the judgment was rendered, and had not been made a party or allowed to intervene; that the court was without jurisdiction to entertain the motion; that the motion was improperly and improvidently made; and that such a proceeding was not a proper one in which to try out and determine the rights of the respondent and appellant Traders' Trust Company as purchaser at the tax sale. These objections were supported by the affidavit of the president of the Traders' Trust Company, but the subject-matter of the affidavit is not at this time material. The motion to vacate and the objections thereto were heard on the 11th day of September, 1907, and the court entered the following order, omitting the title of the court and cause; 'This cause coming on to be heard on this day on the motion of John H. Bunch, for an order setting aside the judgment in this cause entered against said defendant, foreclosing the taxes on lot one (1) to six (6), inclusive, block 7809 City addition to Tacoma, Pierce county, Wash., said defendant appearing by his attorneys F. Campbell and E. Culver, and the objections thereto by the Traders' Trust Company of Tacoma, appearing specially by its attorney Wm. H. Pratt, and the court having listened to and heard the arguments of counsel, and being fully advised in the premises, and it appearing to the court that said motion is improperly made, and that this is not a proper proceeding in which to try the rights of the said John H. Bunch and of the Traders' Trust Company in and to the property therein set forth. It is therefore ordered that said motion be denied, to which said defendant John H. Bunch excepts, and his exception is allowed.' Notice of appeal was given from this order, but the appeal does not appear to have been further prosecuted. On the 2d day of October, 1907, the respondent again moved to vacate the judgment on the ground that the judgment was void and the court without jurisdiction to enter it, but the reasons for the invalidity of the judgment and the want of jurisdiction were stated more fully than in the previous motion. The second motion was supported by the identical affidavit filed in support of the first. The appellant the Traders' Trust Company again appeared specially, and objected to the hearing of the motion on the general grounds urged against the hearing of the former motion, and on the further ground that the motion had been once heard and denied, as heretofore stated. The affidavit filed in support of the former objections was again filed by the appellant. Traders' Trust Company. On the 26th day of December, 1907, the second motion to vacate was granted, and from the order of vacation this appeal is prosecuted by Pierce county and by the Traders' Trust Company the purchaser at the tax sale.

The respondent has moved to dismiss the appeal as to both appellants and as to each of them. The grounds of the motion as to appellant Traders' Trust Company are, first, that the order is not appealable; second, that said appellant is not a party in interest and obtained no order allowing an intervention; third, that the order vacating the judgment does not affect said appellant and is not final or binding upon it; and, fourth, because said appellant appeared specially in the court below. The ground of the motion to dismiss as to the county is, among others, that the order is not appealable. In so far as the county is concerned, perhaps the order is not appealable; but, inasmuch as a reversal in favor of the other appellant will inure to the benefit of the county from the necessities of the case, we deem it unnecessary to discuss that question. We will therefore consider the appeal of the Traders' Trust Company alone and will hereafter refer to that company as if it were the sole appellant. The rule governing appeals from orders vacating judgments is thus stated in Tatum v. Geist, 40 Wash....