Rhode Island Mortg. & Trust Co. v. City of Spokane

• Citation: 19 Wash. 616,53 P. 1104
• Court: United States State Supreme Court of Washington
• Decision Date: 20 July 1898
• Parties: RHODE ISLAND MORTGAGE & TRUST CO. v. CITY OF SPOKANE.

53 P. 1104

19 Wash. 616

RHODE ISLAND MORTGAGE & TRUST CO. v. CITY OF SPOKANE.

Supreme Court of Washington

July 20, 1898

Appeal from superior court, Spokane county; William E. Richardson Judge.

Action by the Rhode Island Mortgage & Trust Company against the city of Spokane. There was a judgment for plaintiff, and defendant appeals. Reversed.

Dunbar J., dissenting.

A. G. Avery, for appellant.

Blake & Post, for respondent.

REAVIS J.

Respondent commenced suit against the city of Spokane, appellant, to recover judgment for the amount of numerous street-grade warrants transferred to respondent by the contractor who did the grading and other work for which the warrants were issued. The complaint alleges the cause of action, in substance, on each warrant, as follows: That as part payment for the grading of Adams street (Third district), in the city of Spokane, the city made, executed, and delivered, in pursuance of a contract so to do, to one Clark, certain warrants of said city (numbering and dating them respectively, and stating the amount), said warrants being made payable to said Clark or bearer, out of Adams street (Third district) grade fund; that each of the warrants was presented to the treasurer of the city on the 17th of September, 1892, for payment, but payment was refused, and the treasurer indorsed the same, "Not paid for want of funds;" that the warrants were made and delivered by the city as part payment for the contract for the grading curbing, and guttering of Adams street, in the city, as part payment for work and labor done and performed in pursuance of and in conformity to said contract made and entered into by the city with said Clark for the improvement of said street; that the city has wholly failed and neglected to make or levy any assessment or tax upon the property benefited by the work and labor done upon the street, and has failed to provide any street-grade fund whatever for the payment of said warrants, or any part thereof, and has not now, and never has had, any fund set aside or created for the payment of the warrants or any portion thereof, and has never at any time created or levied any valid or any assessment or tax for the payment of the warrants, and that the city has exhausted its power and authority to make and levy any local or special assessment or create such fund, and has no power or authority so to do; that respondent demanded payment for each of the warrants out of the general fund of the city, or any fund liable for payment thereof, and the city had refused to pay the warrants or any part thereof, to the plaintiff's damage in the amount specified in the warrants. Default was made by the city, and, for failure to answer, judgment was entered in favor of the respondent according to the prayer of the complaint. The city of Spokane has appealed from such judgment.

1. Respondent has moved to dismiss the appeal, on the ground that no appeal lies from a judgment entered by default in the superior court. Our statute (2 Hill's Code, § 193) provides: "If no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting always the objection that the court has no jurisdiction or that the complaint does not state facts sufficient to constitute a cause of action, which objection can be made at any stage of the proceedings, either in the superior court or supreme court." The California act relating to appeals is substantially the same as ours; and in Hallock v. Jaudin, 34 Cal. 167 plaintiffs had judgment by default in the lower court upon a complaint on a promissory note, and defendants appealed. A motion was made to dismiss the appeal, because it was from a judgment by default. The court observed: "As to the right of appeal, there is no distinction between judgments by default and judgments after issue joined and a trial. The former is as much a final judgment as the latter, and the statute gives a right to appeal from all final judgments without distinction. From this it follows that all errors disclosed by the record can be reviewed and corrected on an appeal from the former class of judgments as well as the latter. This is too plain for...