Sakai v. Keeley

• Decision Date: 06 December 1911
• Citation: 119 P. 190,66 Wash. 172
• Parties: SAKAI v. KEELEY.
• Court: Washington Supreme Court

119 P. 190

66 Wash. 172

SAKAI v. KEELEY.

Supreme Court of Washington

December 6, 1911

Department 2. Appeal from Superior Court, King County; Ben Sheeks Judge.

Action by G. Y. Sakai against H. G. Keeley. From an order denying a motion to set aside a default judgment for plaintiff defendant appeals. Appeal dismissed.

H. L Smith and R. B. Brown, for appellant.

Hamlin & Meier, for respondent.

CHADWICK J.

A default judgment was entered against the defendant, H. G. Keeley, on the 26th day of February, 1910. This came to his notice on July 25, 1910. On December 10, 1910, defendant appeared specially, and moved that the order of default be set aside, and that the judgment be vacated, because entered without service of process, and therefore lacking in the element of jurisdiction over the person of the defendant. The facts showing a want of personal service were set forth in an affidavit accompanying the motion. The matter came on for hearing before Hon. Mitchell Gilliam, who denied the motion, upon the ground that it was not accompanied by an affidavit of merits, but gave leave to file another motion and an affidavit setting forth the merits of defendant's case.

The ruling that a motion going to the vacation of a judgment, void for the want of jurisdiction over the person, should be supported by an affidavit of merits, is contrary to the settled practice in this state. Lushington v. Seattle Auto & Driving Club, 60 Wash. 546, 111 P. 785; Wheeler v. Moore, 10 Wash. 309, 38 P. 1053; Hole v. Page, 20 Wash. 208, 54 P. 1123. But the error is not now material. Thereafter defendant filed another motion, and supported it by a like affidavit, showing a lack of service and a show of merit. Because of the congested state of the docket this motion was heard by Hon. Ben Sheeks, a visiting judge, who denied the motion and entered an order, the material parts of which follow: '* * * Said cause was tried and heard upon the motion of the defendant, H. G. Keeley, filed in this court on the 31st day of December, 1910, and the evidence of the respective parties being adduced and heard, and the court being fully advised in the premises, it is hereby ordered that said motion be and the same is denied, for the reason that the matters therein have been heretofore adjudicated against defendant, H. G. Keeley. To which said order defendant, Keeley, excepted, and exceptions allowed.'

Defendant brings his case here upon the motions and affidavits mentioned. His affidavits are met by a motion to dismiss his appeal, upon the ground and for the reason that there is no statement of facts settled or certified by the court, whereas it appears affirmatively that the trial judge heard and considered 'the evidence of the respective parties, * * * and the court being fully advised in the premises.' It is the contention of the appellant that, inasmuch as the affidavit of merits is attached to his motion, referred to and thus made a part thereof, it becomes a part of the record, within the rule announced in State v. Vance, 29 Wash. 435, 70 P. 34, and Chevalier v. Wilson, 30 Wash. 227, 70 P. 487. The Vance Case announced the doctrine that, notwithstanding the court had held that evidence in the form of affidavits must be brought to this court in the form of a statement of facts or a bill of exceptions, an affidavit attached to and made a part of the motion by reference would when included in the transcript, be considered as evidence without being so certified by the court. While the reasoning of the court...