State ex rel. Adjustment Dept. of Olympia Credit Bureau, Inc. v. Ayer

• Decision Date: 10 June 1941
• Docket Number: 27820.
• Citation: 114 P.2d 168,9 Wn.2d 188
• Parties: STATE ex rel. ADJUSTMENT DEPARTMENT OF OLYMPIA CREDIT BUREAU, Inc., v. AYER, Clerk of Superior Court.
• Court: Washington Supreme Court

114 P.2d 168

9 Wn.2d 188

STATE ex rel. ADJUSTMENT DEPARTMENT OF OLYMPIA CREDIT BUREAU, Inc., v. AYER, Clerk of Superior Court.

No. 27820.

Supreme Court of Washington, En Banc.

June 10, 1941

Mandamus proceeding by the State of Washington, on the relation of Adjustment Department of Olympia Credit Bureau, Incorporated against Ellis C. Ayer, as Clerk of the Superior Court of the State of Washington for Thurston County. From a judgment for the defendant, relator appeals.

Reversed and remanded with directions.

Appeal from Superior Court, Thurston County; D. F Wright, Judge.

Ralph L. J. Armstrong, of Olympia, for appellant.

Smith Troy, Pros. Atty., now Atty. Gen., of Olympia, and John S Lynch, Jr., of Olympia, for respondent.

ROBINSON Chief Justice.

The Adjustment Department of Olympia Credit Bureau, Inc., having secured a judgment in the justice court for Olympia Precinct, Thurston county, Washington, filed a transcript thereof in the office of the county clerk. Thereafter, in an attempt to collect its judgment, it filed an affidavit in due form, tendered such costs and deposit as required, and requested the clerk of the superior court of Thurston county to issue a writ of garnishment naming the state of Washington as garnishee. The clerk refused to issue the writ, stating that he had no authority to do so. This action was thereupon instituted, praying that the superior court direct the clerk to issue the writ. After a hearing upon the merits, the court dismissed the action. The relator appeals, and contends that it is entitled to the writ by virtue of chapter 15, Laws of 1933, p. 136, Rem.Rev.Stat. (Sup.), §§ 680-1 to 680-3, inclusive.

Before attempting to unravel the mysteries of that strikingly badly drawn statute, it seems advisable to inquire--What was the status of the judgment when the relator applied for the writ of garnishment? Rem.Rev.Stat., § 455-1, reads as follows:

'The lien of judgments upon the real estate of the judgment debtor shall commence as follows:

* * *

* * *

'(c) Judgments of a justice of peace rendered in the county in which the real estate of the judgment debtor is situated, from the time of the filing of a duly certified transcript of the docket of the justice of the peace with the county clerk of the county in which such judgment was rendered, and upon such filing said judgment shall become to all intents and purposes a judgment of the superior court for said county; * * *.'

The section is an amendment and re-enactment, by chapter 60, Laws of 1929, p. 56, of section 2 of chapter 42, Laws of 1893, p. 65; Rem.Rev.Stat. § 450; Bal. Code, § 5136, which was construed in Grant v. Cole, 23 Wash. 542, 545, 63 P. 263, 264. The provisions of that statute were substantially the same as those of the existing statute, and, in part, the language is identical, as will be noted from the first quotation hereinafter made from Grant v. Cole, supra, towit: '* * * The transcript from the justice's court was certified and filed in accordance with section 5136, 2 Ballinger's Ann.Codes & St. It will be observed that the statute declares that 'upon such filing said judgment shall become to all intents and purposes a judgment of said superior court of said county.' * * *'

The court noted that the statutes of some states require that an execution first issue from the justice court and be returned unsatisfied Before the transcript can be filed in the superior court, and that the statutes of other states require the filing of an affidavit that the judgment had not been paid, and, continuing said: '* * * But the statute of 1893 omits such requirements, and declares the judgment in the superior court when the transcript is filed. We are satisfied that upon the proper filing of the certified transcript from the justice's court, and its entry by the clerk of the superior court, under the plain language of the statute, the judgment of the justice's court then becomes to all intents and purposes the judgment of the superior court, and execution may thereafter issue from the superior court as in the case of executions upon other judgments. It would seem apparent that, upon the filing of the certified copy from the justice of the peace, the powers of the justice's court are ended, and any further proceedings in the cause must be taken in the superior court.' (Italics ours.)

In the later case of Noerdlinger v. Huff, 31 Wash. 360, 72 P. 73, 74, a judgment was recovered against Noerdlinger in a justice's court of Skagit county, and a transcript thereof was filed with the clerk of the superior court of Skagit county. An attempt was made to sell Noerdlinger's property in Chehalis county, and he brought an action in Chehalis county against the sheriff thereof to enjoin the sale, alleging that the justice court had never served process upon him, and contending that its judgment was void. The court held that the attack on the judgment was collateral and dismissed it, saying, in part: '* * * Certain stipulated facts were submitted at the hearing, which, if used as evidence in a direct attack upon the judgment, would bear upon the question of its validity. But they could not be considered in this collateral action, under the rule of this court above stated. Under section 5136, 2 Ballinger's Ann.Codes & St., when the judgment of the justice was certified to the office of the clerk of the superior court of Skagit county it became 'to all intents and purposes a judgment of said superior court,' and as such was subject to attack in that court, where evidence not in the record could be introduced to show that the judgment was void. * * *'

These decisions have not been overruled, criticized, or modified by our later decisions. Moreover, they are in accord with the general law, as stated in 34 C.J. 93, § 252: 'The effect of transferring a judgment by transcript from an inferior court to a superior court is to divest the former of all jurisdiction over the case and the judgment, and while the filing of the transcript or abstract does not make the inferior court's judgment the judgment of the higher court, it does become, in most of the states, to all intents and purposes a judgment of the latter court, at least for the purpose of enforcement, which may thereafter issue process on it, modify it, or grant other relief against it, vacate it, or strike it off the docket for cause shown. * * *'

It must accordingly be held that, when the relator filed its transcript of judgment in the superior court, the juridiction of the justice court over the cause came to an end, and the judgment became, to all intents and purposes, a judgment of the superior court of Thurston county.

Do sections 680-1 to 680-3, inclusive, authorize the issuance of a writ of garnishment against the state upon such a judgment? We quote these sections: '§ 680-1. The state of Washington, all counties, cities, towns, schools districts and other municipal corporations shall be subject to garnishment in the superior and justice courts, but only after judgment shall have been entered against the defendant in the main action: Provided, That the state of Washington shall not be subject to garnishment in justice courts.'

'§ 680-2. No regular judgment in garnishment shall be entered against the state of Washington or any municipal corporation, but the judge of the superior court, or justice of the peace shall by written order command the auditing officer, or body of such state of Washington or municipal corporation to audit and pay to the judgment creditor the amount due from the garnishee to the principal defendant, not exceeding the amount of the judgment in the main action, whereupon the same shall be paid by the garnishee: Provided, Nothing in this act shall be construed to impair the rights of defendants to claim exemptions of wages as provided by law.'

'§ 680-3. The venue of such garnishment proceeding shall be the same as the original action. The writ shall be issued by the court having jurisdiction of such original action and shall require such garnishee defendant to appear and answer such writ in said court in like manner and with the same effect as other writs of garnishment issued by such court after judgment.' (Italics ours.)

When the italicized portions of section 680-1, as above quoted are read consecutively, omitting the interstitital matter, we get the following disconcerting result: 'The state of Washington * * * shall be subject to garnishment in the * * * justice courts * * *: Provided, That the state of...