Schmelling v. Hoffman

• Decision Date: 07 July 1920
• Docket Number: 15771.
• Citation: 191 P. 618,111 Wash. 408
• Parties: SCHMELLING v. HOFFMAN et ux.
• Court: Washington Supreme Court

191 P. 618

111 Wash. 408

SCHMELLING v. HOFFMAN et ux.

No. 15771.

Supreme Court of Washington

July 7, 1920

Department 1.

Appeal from Superior Court, King County; Everett Smith, Judge.

Action by Julius Schmelling against August Hoffman and wife. Judgment for defendants, and plaintiff appeals. Affirmed.

Russell & Blinn, of Seattle, for appellant.

Dan Earle, of Seattle, for respondents.

MITCHELL J.

In 1913 Laura Atwood and husband owned the real property involved in this action. They entered into a written contract with one L V. Baker for the sale of the lots, which are situated in Seattle, Wash. Thereafter Baker assigned his rights under the contract to the plaintiff. In January, 1914, Mrs. Atwood and her husband sold the property to William Hoffman, subject to the Baker contract. In 1917 the plaintiff, claiming he had fully paid up on his contract and failing to get a deed brought an action against. William Hoffman and wife to acquire title to the property. In that action, upon service by publication of summons, there was no appearance by the defendants, there was judgment for the plaintiff, and a commissioner appointed by the court conveyed the property to plaintiff on October 14, 1917. By a deed dated August 14 1918 (recorded August 19, 1918), William Hoffman and wife conveyed the property to the defendant August Hoffman. Thereafter, July, 1919, the present suit was brought by plaintiff to quiet his title to the property against the claims of defendants August Hoffman and wife. The complaint was in the usual form in such cases. In their answer the defendants allege in substance that they are the owners of the real property by virtue of the deed to them from William Hoffman and wife; that the judgment obtained by the plaintiff in the former suit against William Hoffman and wife and the commissioner's deed issued thereunder were procured by fraud of the plaintiff, in that the affidavit of plaintiff therein for the publication of summons alleged that those defendants were nonresidents of the state, and could not be found therein; although during all the years from 1913 to 1919 said William Hoffman and wife were continuous residents of Seattle, that he was engaged therein as a painting contractor; their names were to be found in the official city directory, in the telephone directory of the city, and his residence was well known to his agent in Seattle, to whom the plaintiff had made certain payments for William Hoffman on the real estate contract; that none of the defendants in either suit knew anything about the former suit until about the time of the commencement of the present action; and that plaintiff has never completed the payments on his real estate contract, but that the balance due thereon is in dispute, and can be determined only by an accounting. The answer contained the prayer that the former judgment and commissioner's deed be canceled and that an accounting be had. The allegations of the answer were denied by a reply. Upon the trial, findings and conclusions were made sustaining the charges in the answer, and a judgment was entered, cancelling the deed made by the commissioner appointed in the first suit, and directing an accounting to be had. The plaintiff has appealed.

It is contended by appellant that the trial court erred in permitting the defendants in this action to attack the judgment in the former one, on the score that it is a collateral attack upon the judgment of a court of record having jurisdiction of the subject-matter of the action. The attack, however, in the present case is direct. Respondents specifically attack the regularity and validity of the judgment in the former suit upon the ground of fraud on the part of plaintiff in the taking of steps necessary under the statute to resort to the publication of summons against the defendants therein. We are satisfied that where an action is brought against the former owner or his grantee to quiet the title to property acquired by the deed of a commissioner appointed by the court in a former suit wherein there was no appearance on the part of the defendant therein, a cross-complaint by such former owner or his grantee, attacking the validity of that former judgment and commissioner's deed, constitutes a direct and not a collateral attack. Appellant's apparent confusion as to the character of the attack in this case seems to proceed largely from the fact that the portion of the answer constituting the attack is designated an affirmative defense rather than a cross-complaint. But, under our code procedure, if the facts set forth in a pleading entitle one to relief it is wholly immaterial by what name the pleading is called, especially in those cases where, as here, the facts alleged were denied by a reply and no complaint as to the designation of the answer was made unless and until evidence was offered, and even then appellant only objected unless the attack on the judgment in the former action was by reason of the fact either that a return of 'not found' was not made therein, or that no affidavit by the plaintiff or any one in his behalf that defendant therein was not a resident of the state, and could not be found within the state had been filed. The objection went not to the form or ...