Shephard v. Gove

• Decision Date: 03 December 1901
• Citation: 67 P. 256,26 Wash. 452
• Parties: SHEPHARD v. GOVE et al.
• Court: Washington Supreme Court

67 P. 256

26 Wash. 452

SHEPHARD v. GOVE et al.

Supreme Court of Washington

December 3, 1901

Appeal from superior court, King county; Arthur E. Griffin, Judge.

Action by Charles Shephard against G. W. Gove and another. From a judgment in favor of defendant Gove, plaintiff appeals. Affirmed.

Byers &amp Byers, for appellant.

Brady &amp Gay and Metcalfe & Jurey, for respondent.

DUNBAR, J.

On June 5, 1886, appellant and another recovered judgment in the district court of the Third judicial district of the territory of Washington for the sum of $490.82, and $27.35 costs. Thereafter appellant acquired the interest of the other plaintiff in said judgment, and about November 1, 1900 brought suit thereon in the superior court of King county. The complaint was in the usual form. Defendant Wilson defaulted, and defendant Gove (respondent here) appeared and filed a demurrer on two grounds: (1) Because the complaint did not state facts sufficient to constitute a cause of action; (2) because said action had not been commenced within the time limited by law. This demurrer came on for hearing before Judge Jacobs, who was then a judge of the superior court of King county, and was by him overruled. Thereafter the defendant Gove answered, among other things, to the effect that the cause of action mentioned in the complaint did not accrue within six years before the commencement of the action. These affirmative defenses were denied by plaintiff, and on March 28, 1901, the cause came on for trial before Hon. Arthur E. Griffin, judge of the superior court of King county, who had succeeded Judge Jacobs. No evidence was introduced by the respondent, but it is asserted by the appellant that the respondent argued in support of his affirmative defense as thought it was a demurrer to the complaint on the ground that the action was not brought within the time limited by law. Judge Griffin decided the case, and directed judgment in favor of the defendant Gove from which judgment this appeal was taken.

The appellant assigns five errors: (1) In considering that the question of the statute of limitations was an open one in this case; (2) in considering the question of the statute of limitations, for the reason that a demurrer on this ground had been interposed and overruled, and that the respondent had thereafter answered in the case, and thereby waived his right to interpose the plea; (3) in signing the findings and conclusions over the objection of the appellant that they were not separated as required by law; (4) in denying appellant's motion for a rehearing; and (5) in holding that the statute of limitations of the state of Washington applied to an action on a domestic judgment.

The first and second assignments may be considered together. It is insisted by the appellant that Judge Griffin had no right to overrule a decision made by Judge Jacobs in the case. But the succession of judges cannot be considered by this court. The office is a continuing one. The personality of the judge is of no legal importance. The action of Judge Griffin was in legal effect a correction of his own action, which he deemed to have been erroneous; and it were far better that he should correct it, than to perpetuate an error which would have to be corrected by this court. As to the right of the respondent to interpose by answer the plea of the statute of limitations, it appears from...