Smith v. Stiles

• Decision Date: 02 May 1912
• Citation: 68 Wash. 345,123 P. 448
• Parties: SMITH et al. v. STILES.
• Court: Washington Supreme Court

123 P. 448

68 Wash. 345

SMITH et al. v. STILES.

Supreme Court of Washington

May 2, 1912

Department 2. Appeal from Superior Court, Kitsap County; John B. Yokey Judge.

Action by Sheldon H. Smith, as executor of the estate of Warren Smith, deceased, and others against A. W. Stiles. Judgment for plaintiffs by default. Defendant's petition for vacation of the judgment was dismissed, and he appeals. Affirmed.

Bryan & Ingle, of Bremerton, for appellant.

Lewis &amp Legg, of Seattle, and C. D. Sutton, of Port Orchard, for respondents.

ELLIS J.

In April, 1908, Sheldon H. Smith, as executor of the estate of Warren Smith, deceased, brought an action against the appellant, A. W. Stiles, in the superior court for Kitsap county, Wash., to cancel a contract for the sale of certain real estate, and to quiet title thereto. Service of summons in that action was made by publication. On June 30, 1908 judgment by default was rendered, canceling the contract and quieting title to the N. 1/2 of the land in Ralph Q. Smith and Cora A. Smith, and to the S. 1/2 in Olive M. Smith, as heirs of Warren Smith, deceased, as against the appellant.

On June 28, 1909, and within one year after the entry of the judgment, the appellant, Stiles, applied by motion in that action, supported by affidavits, for the vacation of the judgment, upon the ground that the service of the summons was made by publication. This motion was served upon the attorney for the plaintiff alone. To this motion, the plaintiff Sheldon H. Smith, as executor, appeared specially and objected to the jurisdiction of the court to entertain it, on the ground that the statute required such proceedings to be by petition and notice served as in original actions. This objection was sustained by the court by an order entered on August 14, 1909.

On October 2, 1909, and after the expiration of one year from the entry of the judgment, the appellant, Stiles, filed a petition, entitled an 'amended petition,' to vacate the judgment, on the ground it was rendered upon service by publication, and other grounds. This was also served upon the attorney for the plaintiff alone. The plaintiff Sheldon H. Smith, as executor, again appeared specially and objected to the jurisdiction, upon the ground that there was no notice served nor any service of the petition, as required by the statute. On the same day, the court entered an order sustaining this objection to the jurisdiction.

On October 25, 1909, the appellant served another petition, also styled an amended petition, and a summons upon Sheldon H. Smith, as executor of the estate of Warren Smith, deceased. Sheldon H. Smith appeared personally by special appearance and disclaimed any interest in the subject-matter of the suit, and alleged that he had settled his account as executor; that the real estate in question had been distributed; and that on July 25, 1908, he had been discharged as executor of the estate.

On March 19, 1910, upon motion of the appellant, the court ordered that Ralph Q. Smith, Cora A. Smith, and Olive M. Smith be made parties to the proceeding, and that they be served with summons and petition therein. They were thereupon named by amendment of the last-mentioned petition as defendants with the appellant, Stiles, and were served with the summons and petition. This service, though not appearing in the transcript, it is admitted by the respondent, was made on May 26, 1910. The respondents Ralph Q. Smith and Cora A. Smith, minors, by their guardian, jointly demurred to the petition, and Olive M. Smith demurred separately; both demurrers being upon the ground that the petition did not state facts sufficient to entitle the petitioner to relief, and on the further ground that the proceeding was not commenced within the time limited by law. These demurrers were sustained by the court on January 7, 1911, and on the same day the amended petition was filed. The appellant elected to stand upon his last-amended petition, and on March 27, 1911, a judgment against him, dismissing the proceeding, with costs, was entered. From that judgment, this appeal was taken.

Upon this much confused record, our task is to determine under what statute the appellant was attempting to proceed in these various petitions, and under what statute he was entitled to proceed, with a view to determining which period of limitation applied to the proceeding--the one year provided by the general statutes relating to the vacation and modification of judgments (Rem. & Bal. Code, §§ 235 and 464, et seq.), or the two years provided by the statute relating to vacation of judgments by default on service by publication in actions for the recovery of possession of real property. Rem. & Bal. Code, § 806.

The first application having been by motion, was clearly intended to invoke the provisions of Rem. & Bal. Code, § 466, permitting a vacation of judgment for mistake, omission, or irregularity in obtaining the same. The period of limitation for proceeding under that section is one year from the entry of the judgment. The holding of the court that it had no jurisdiction to entertain the motion, in that the application should have been made by petition and notice served, as in original actions, was a final and appealable order.

The second application was plainly directed to Rem. & Bal. Code § 235, the general statute providing for the vacation of judgment, when rendered upon service by publication, on such terms as may be just, and was framed under sections 467 and 468, prescribing the procedure by petition and notice served as in original actions. The petition was based mainly upon the ground that service in the original...