State v. Gormley

• Citation: 40 Wash. 601,82 P. 929
• Court: Washington Supreme Court
• Decision Date: 06 December 1905
• Parties: STATE ex rel. REED v. GORMLEY, County Treasurer (EATON, Intervener.

82 P. 929

40 Wash. 601

STATE ex rel. REED v. GORMLEY, County Treasurer (EATON, Intervener.

Supreme Court of Washington

December 6, 1905

Appeal from Superior Court, King County; A. W. Frater, Judge.

Suit by the state, on the relation of R. O. Reed, against M. H Gormley, as county treasurer of King county, in which H. H Eaton intervenes. From a decree in favor of complainant intervener appeals. Reversed.

H. H Eaton, P. C. Sullivan, and W. R. Bell, for appellant.

Kenneth Mackintosh and R. G. Prigmore, for respondent Gormley.

Blaine, Tucker & Hyland, for respondent Reed.

DUNBAR J.

The complaint alleges that on the 29th day of October, 1903, the board of county commissioners of King county, state of Washington, made and entered into a certain agreement with one H. H. Eaton. The substance of the agreement is to the effect that the commissioners would employ said Eaton to act as special attorney and counsel to assist in recovering real property situate in said county, and any interest therein of which any person may have died seised, not having devised the same, and leaving no husband, wife, or kindred, and for the recovery of personal property or any right or interest therein, the owner of which may have died being resident of said county at the time of his death, not having disposed of the same by will, and leaving no husband, widow, or kindred; that the said Eaton should advance all sums necessary to the prosecution of said suits and receive no compensation for services in any unsuccessful proceeding, but that in successful proceedings he should be reimbursed for one-half the amount he may have advanced, and should also receive one-half of the actual cash value of any such real or personal property that might be recovered in such proceedings through his agency; that under said agreement said Eaton claims to have performed certain services in causing certain lands to be escheated to the state of Washington for the benefit of the common-school fund of King county, and that the county commissioners had, in accordance with their contract, caused the claim to be allowed to the said Eaton for $7,000, being one-half of the value of a certain estate which had been escheated to the state of Washington for the benefit of the school fund of King county, and had directed the auditor of King county to make, execute, and deliver, in the manner and form provided by law, 14 warrants, each for the sum of $500, drawn in favor of H. H. Eaton upon the current expense fund of King county, Wash.; that thereafter the auditor of King county did issue the said warrants upon said fund; that thereafter the said Eaton caused the said warrants to be presented to the county treasurer of King county, who stamped upon the back thereof that the same had been presented and were not paid for want of funds; and it is alleged that the county commissioners had no authority to enter into said contract or to approve the bill of the said Eaton or to order the delivery of the warrants above referred to, and that the warrants are not a legal or lawful debt of said King county. It is alleged that, unless restrained by order of the court, the county commissioners will pay said warrants, to the irreparable injury and damage of the plaintiff and all other taxpayers of King county. This action is brought in the name of the state, on relation of one R. O. Reed. The amended complaint also alleges that the said H. H. Eaton is not the owner of said warrants at the present time, that the names of the true owners are unknown to the plaintiff, and that after diligent search and inquiry plaintiff has been unable to learn the names of the owners of said warrants. The petition prays that the treasurer be enjoined and restrained from paying in any manner any of said warrants, and that said warrants, and each of them, be declared illegal and void, and of no effect or force, and be declared to be no right, lien, or debt against King county or the state of Washington. A demurrer was interposed to this complaint on the grounds (1) that there is a defect of a parties defendant, and (2) that said complaint did not state facts sufficient to constitute a cause of action. There were other proceedings and pleadings in the case, but we have stated sufficient upon which to base a decision. The demurrer was overruled and judgment entered perpetually enjoining the trasurer from paying the warrants.

We will not enter into a discussion of the alleged invalidity of the agreement recited in the complaint, for the reason that a question is presented at the threshold which seems to us to be decisive of the case; and that is, that there was a defect of parties defendant. It is a rule of law, as old as the law itself, that a court cannot adjudicate the rights of parties who are not actually or constructively before it, with an opportunity to defend or maintain their rights in the action. In this case, the holders and owners of the warrants not having been made parties to the action, the court has neither jurisdiction of the persons or the thing. If it had either there might be some basis upon which it could proceed. But it is inconceivable what effect a judgment would have which was rendered without jurisdiction of either the parties or the thing which is the subject of the controversy. If it is an action in personam, confessedly upon the alleged amended complaint the court has not obtained jurisdiction of all the parties in interest. If it could be construed to be an action in rem, it is equally manifest that there is no jurisdiction of the res. The parties would not be bound by the judgment, and it would be purely a moot question which would be determined by the court. As was said in City of Anthony v. State ex rel. Beebe (Kan.)...