Richman v. Wenaha Co.

• Decision Date: 18 July 1913
• Citation: 74 Wash. 370,133 P. 467
• Court: Washington Supreme Court
• Parties: RICHMAN v. WENAHA CO.

133 P. 467

74 Wash. 370

RICHMAN v. WENAHA CO.

Supreme Court of Washington

July 18, 1913

Department 1. Appeal from Superior Court, Benton County; O. R. Holcomb Judge.

Action by A. B. Richman against the Wenaha Company. Motion to set aside a judgment entered upon default denied, and defendant appeals. Reversed.

J. G Thomas and W. A. Tomer, both of Walla Walla, and McGregor &amp Fristoe, of Prosser, for appellant.

H. Dustin, of Prosser, for respondent.

MORRIS J.

Appeal from an order denying motion to open up a default, and judgment entered thereon. The action was brought in Benton county, and service was made upon the appellant corporation in Walla Walla county on July 30, 1912. On August 22d, no appearance having been made, respondent made and filed a motion for default. On August 28th appellant filed a demurrer and motion for change of venue to Walla Walla county, setting forth in support of the motion for change of venue that it was not then, nor at the time when the cause of action arose, transacting any business in Benton county, nor had any office therein for the transaction of business or person representing it upon whom process might be served. On September 4th, without notice to appellant, the motion for default was granted and judgment entered. On September 18th appellant moved to set aside the default, which, being denied, it appeals.

Appellant, having appeared in the case prior to the entry of default, was entitled to notice of all subsequent proceedings under section 242, Rem. & Bal. Code. It was therefore technical error to grant the default without notice.

Rulings of lower courts upon motions to open up default, being so largely a matter of discretion, will not be disturbed here, even though technical error might be committed, unless it appears that such a ruling is prejudicial to defendant or that more than technical error has been committed. We believe this to be a sound rule, and before we will disturb the ruling of the lower court in such matters it must affirmatively appear that more than a technical right has been invaded.

We think such a showing was made upon the application for change of venue. Section 206, Rem. & Bal. Code, provides: 'An action against a corporation may be brought in any county where the corporation transacts business or transacted business at the time the cause of action arose; or in any county where the corporation has an office for the...