Sound Inv. Co. v. Fairhaven Land Co.

• Decision Date: 05 January 1907
• Citation: 88 P. 198,45 Wash. 262
• Court: Washington Supreme Court
• Parties: SOUND INV. CO. v. FAIRHAVEN LAND CO.

88 P. 198

45 Wash. 262

SOUND INV. CO. v. FAIRHAVEN LAND CO.

Supreme Court of Washington

January 5, 1907

Appeal from Superior Court, Whatcom County; Geo. A. Joiner, Judge.

Action by the Sound Investment Company against the Fairhaven Land Company. From an order overruling a motion to vacate and set aside a judgment against defendant and for a new trial defendant appeals. Dismissed.

Black Kindall & Kenyon and Dorr & Hadley, for appellant.

Newman & Howard and Fairchild & Bruce, for respondent.

DUNBAR J.

This was an action foreclosing a delinquency tax certificate. The findings, conclusions, and decree were made and entered by the court on the 7th day of September, 1906, and on the 8th day of September the defendant served and filed its motion to vacate and set aside the judgment and for a new trial. The motion was in the following words: 'Comes now the defendant, Fairhaven Land Company, by Black, Kindall & Kenyon and Dorr & Hadley, its attorneys, and moves the court to vacate, modify, and set aside the findings, conclusions, and judgment heretofore made by the court in the above-entitled cause on the 7th day of September, 1906, and entered herein and especially that part thereof adjudging and decreeing a lien on the property therein described, and to grant a new trial in said action and proceeding, on the following terms viz.: (1) Insufficiency of the evidence to justify the said findings, conclusions, and judgment, and that the same are against the law; (2) error in law occurring at the trial, and excepted to at the time by this defendant.' The motion was overruled, and from the order of the court overruling the motion this appeal is prosecuted.

The respondent moves to dismiss the appeal for the reason that the orders appealed from were not appealable orders; the judgment in this cause not having been appealed from. We said in Northern Pacific. etc., R. R. Co. v. Black, 3 Wash. 327, 28 P. 538, that this court had repeatedly held that no appeal lies from an order denying or granting a motion for a new trial. See Tacoma Lumber & Mfg. Co. v Wolff, 7 Wash. 478, 35 P. 115, 755. It has been the uniform ruling of this court that a motion to vacate a judgment does not affect a substantial right, if the errors complained of are errors of law occurring at the trial; that such errors cannot be reviewed in a motion to vacate; and that, therefore, no substantial right could be invaded by a denial of the motion. It is conceded by the appellant that such is the rule of the common law, so that it is not necessary to here cite authorities from that source. But it is contended that, under the provisions of our statute, such is not the rule in this state. An examination of the cases cited from this court, we think, bears out the respondent's contention. In Dickson v. Matheson, 12 Wash. 196, 40 P. 725, it was decided that error of law committed by the court could not be corrected by petition to vacate the judgment, when no fraud had been practiced upon the court, but that such error must be reached by appeal. This case was followed and the doctrine reiterated in Greene v. Williams, 13 Wash. 674, 43 P. 938, where it was said: 'The right to the relief prayed for in said petition is based entirely upon the record, and it does not appear, from an inspection of said petition, that any reason existed for granting the same that was not considered by the court and which did not exist at the time when the previous order of the court denying the confirmation of the sheriff's sale was made. We think that the petition was wholly insufficient, under section 1393, Code Proc. (Hill's Ann. St. & Codes), which authorizes the court 'in which a judgment has been rendered, or by which or the judge of which a final order has been made, * * * to vacate and modify such judgment or order.'' To the same effect is Burnham v. Spokane Mercantile Company, 18 Wash. 207, 51 P. 363, and State ex rel. Grady v. Lockhart, 18 Wash. 531, 52 P. 315. In Roberts v. Shelton, etc., R. Co., 21 Wash. 427, 58 P. 576, it was held that the motion to vacate and modify a judgment was in the nature of an independent action, and that questions which have been passed upon by the court in the original proceeding could not be reviewed on a petition to vacate, and could only be reviewed on a regular appeal from a judgment. This exact question was before this court in Kuhn v. Mason, 24 Wash. 94, 64 P. 182, where it was held that Ballinger's Ann. Codes & St. § 5153, which authorizes a court to vacate or modify its judgment after the term at which it was rendered, for irregularity in obtaining...