Russell B. Swartz & Associates, Inc. v. Logan

• Decision Date: 23 December 1974
• Docket Number: No. 2626--I,2626--I
• Citation: 529 P.2d 1121,12 Wn.App. 360
• Court: Washington Court of Appeals
• Parties: RUSSELL B. SWARTZ & ASSOCIATES, INC., Respondent, v. Grant LOGAN and Josephine M. Logan, his wife, Petitioners, and Stanley C. Soderland, as Judge of the Superior Court for King County, Respondent, Kenneth E. Ford and Jane Doe Ford, his wife, Defendants.

Page 360

12 Wn.App. 360

529 P.2d 1121

RUSSELL B. SWARTZ & ASSOCIATES, INC., Respondent, v. Grant LOGAN and Josephine M. Logan, his wife, Petitioners and Stanley C. Soderland, as Judge of the Superior Court for King County, Respondent Kenneth E. Ford and Jane Doe Ford, his wife, Defendants.

No. 2626--I.

Court of Appeals of Washington, Division 1.

Dec. 23, 1974.

Aiken, St. Louis & Siljeg, Gerald L. Bopp, Seattle, Wilson & Reardon, Harry C. Wilson, Bellevue, for petitioners.

Matsen, Cory, Matsen & Sprague, Joseph D. Murphy, Seattle, for respondents.

SWANSON, Chief Judge.

Grant Logan and wife, hereinafter referred to as 'Logan,' seek a writ of prohibition restraining Judge Stanley C. Soderland from entering an order vacating a judgment entered in their favor by Judge Eugene Cushing while serving as judge pro tempore. ¹ Russell B. Swartz & Associates petitions for a writ of mandate directing Judge Soderland to enter his order of vacation pursuant to his oral ruling. In response to these writs, this court granted review on February 1, 1974.

The underlying merits of this litigation are not relevant to this appeal; however, Swartz & Associates originally brought suit to recover a real estate commission allegedly due from defendants Ford and Logan. ² The cause was assigned by the King County Superior Court Presiding Judge's Department to Judge Cushing. At the conclusion of the trial, Judge Cushing announced orally that he would rule in favor of Logan. Thereafter, the plaintiff Swartz & Associates, apparently not having realized previously that Judge Cushing was sitting pro tempore, moved for a new trial on the ground that because it had not consented to having the trial heard by a judge pro tempore, Judge Cushing had acted without jurisdiction. This motion was heard by Judge Cushing on October 11, 1973, who denied the motion and subsequently entered findings of fact, conclusions of law, and judgment in favor of defendants Logan. Swartz & Associates did not appeal, but on October 25, 1973, moved to vacate the same judgment, presumably pursuant to CR 60(b)(5). On November 5, 1973, this motion was heard by Judge Soderland who orally announced that he would enter an order in favor of Swartz & Associates vacating the October 11, 1973 judgment of Judge Cushing. It is the pending entry of this order of vacation which is the subject of our review.

Petitioner Logan, in urging us to prohibit Judge Soderland from entering the order of vacation, asserts that he is entitled to such relief on the ground that the precise issue underlying Judge Soderland's decision--the question of whether Judge Cushing had jurisdiction to enter the October 11, 1973 judgment--has previously been considered by Judge Cushing on Swartz & Associates' motion and therefore Swartz & Associates, having failed to appeal from Judge Cushing's ruling against it, is now estopped from claiming any defect in Judge Cushing's appointment as judge pro tempore. Moreover, petitioner contends that similar reasoning requires the conclusion that Judge Soderland acted in excess of his jurisdiction when he considered the merits of Swartz & Associates' motion to vacate. ³

Respondent Swartz & Associates argues that the proper appointment of a judge pro tempore is a requirement essential to such a judge's jurisdiction to act and, accordingly, any proceedings commenced before an improperly appointed judge pro tempore are void ab initio. See National Bank of Washington v. McCrillis, 15 Wash.2d 345, 130 P.2d 901 (1942); Annot., 144 A.L.R. 1207 (1943). Therefore, respondent Swartz & Associates contends, inasmuch as it never properly gave consent, pursuant to the requirements of RCW 2.08.180, ⁴ to having Judge Cushing hear its case, all proceedings before Judge Cushing were void. Moreover, respondent urges that under such circumstances Judge Soderland clearly had jurisdiction to review the validity of Judge Cushing's appointment and, upon a determination that the appointment was not valid, properly may enter the order vacating Judge Cushing's October 11, 1973 judgment. In support of this latter contention, respondent relies primarily upon Philips v. United States, 206 F.2d 867 (9th Cir. 1953) where the court indicated that a resident federal district court judge has the power to overrule the decision of a visiting judge to consolidate two condemnation cases where the consolidation order clearly was erroneous because one of the lawsuits previously had been terminated.

The Philips case is inapposite to the instant controversy. Not only is it distinguishable because it involved a pretrial consolidation order which properly could be modified at the time of trial, but also because in the instant case, respondent brought the alleged error--the question of jurisdiction--to the attention of the judge alleged to have committed it--Judge Cushing--in the course of respondent's motion for a new trial and then failed to exercise its right to appeal Judge Cushing's denial of its motion. Under such circumstances, we must agree with the petitioner's contention that respondent, having sought relief from Judge Cushing, is estopped by Judge Cushing's denial of tht relief. As...