State v. Superior Court for King County

• Decision Date: 23 October 1931
• Docket Number: 23402.
• Citation: 3 P.2d 1098,164 Wash. 618
• Court: Washington Supreme Court
• Parties: STATE ex rel. HIBLER v. SUPERIOR COURT FOR KING COUNTY.

3 P.2d 1098

164 Wash. 618

STATE ex rel. HIBLER v. SUPERIOR COURT FOR KING COUNTY.

No. 23402.

Supreme Court of Washington

October 23, 1931

Department 1.

Application for writ of prohibition by the State, on the relation of Laverne Mary Hibler, directed to the Superior Court for King County, Hon. Howard M. Findley, Judge.

Writ directed to be issued.

Rummens & Griffin, of Seattle, for relator.

William R. Bell, of Seattle, for respondent.

BEELER J.

This is an original application in this court for a writ of prohibition, directed to the superior court for King county and to the Honorable Howard M. Findley, one of the judges thereof.

On November 10, 1928, Laverne Mary Hibler filed her complaint in the superior court for King county seeking a divorce from her husband, Lionel Hibler. On February 7, 1929 she secured the entry of an interlocutory decree of divorce. On August 18, 1930, she filed an affidavit in the divorce proceedings in which, among other things, she stated under oath that the parties had not resumed the marital relation subsequent to the entry of the interlocutory order or decree on which day the final decree of divorce was entered in that cause. The final decree was presented by relator's attorneys and had the written approval of the attorneys who represented the defendant in the divorce proceedings.

August 12, 1931, the defendant filed his petition to vacate the final decree, alleging that the affidavit of the plaintiff on which it was based was false, and that the plaintiff and defendant had cohabited between the date of the interlocutory order and the final decree. Upon filing the petition, the court, ex parte, issued a citation directed to relator to show cause why the prayer of the petition should not be granted. The citation specifically provided that service on the plaintiff might be made by serving a copy of the petition, affidavits, and order to show cause on the attorneys for the relator. Accordingly, service was made by leaving a copy of these pleadings with the stenographer employed by, and working in the office of, Rummens & Griffin attorneys. The relator was not served with copies of these pleadings. Thereafter Rummens & Griffin appeared specially on behalf of the relator, but without her knowledge or consent, and moved to quash the service on the ground that they were no longer her attorneys, and that the service upon them did not constitute legal service upon their former client. On August 26, 1931, the trial judge denied the motion to quash, and threatened to proceed with the hearing, and, unless prohibited, will do so.

The only question presented is whether, in a proceeding such as this brought by petition to vacate a judgment procured through fraud, it is sufficient to merely serve the attorney of record who appeared in the action wherein the judgment was obtained with a copy of the petition to vacate, or whether the prevailing party to the action who obtained the alleged fraudulent decree must be served personally. The answer to this query is found in the following four sections of the statute: 464, 466, 467, and 468, Rem. Comp. Stat.

Section 464, so far as material to this inquiry, provides:

'The superior court in which a judgment has been rendered, * * * shall have power, after the term (time) at which such judgment or order was made, to vacate or modify such judgment or order:--* * *

'4. For fraud practiced by the successful party in obtaining the judgment or order;'

Section 466 provides: 'The proceedings to vacate or modify a judgment or order for mistakes or omissions of the clerk, or irregularity in obtaining the judgment or order, shall be by motion served on the adverse party, or on his attorney in the action, and within one year.'

Section 467, in part, provides: 'The proceedings to obtain the benefit of subdivisions 2, 3, 4, 5, 6, and 7 of section 464 shall be by petition verified by affidavit, setting forth the judgment or order, the facts or errors constituting a cause to vacate or modify it, * * * and such proceedings must be commenced within one year after the judgment or order was made. * * *'

Section 468, provides: 'In such proceedings the party shall be brought into court in the same way, on the same notice as to time, mode of service and mode of return, and the pleadings shall be governed by the same principles, and issues be made up by the same form, and all the proceedings conducted in the same way, as near as can be, as in original action by ordinary proceedings, except that the facts stated in the petition shall be deemed denied without answer, and defendant shall introduce no new cause, and the cause of the petition shall alone be tried.' (Italics ours.)

The defendant seeks to vacate the final decree of divorce upon the ground of fraud as provided in subdivision 4 of section 464, supra. Sections 466, 467, and 468, supra, provide the method for bringing the proceedings on for hearing or trial. Sections 466 and 467 provide that an application to vacate a judgment, whether for mistakes, omissions, or irregularity, or for fraud, must be brought within one year. Section 468 provides that a proceeding to vacate a judgment upon the ground of fraud must be by petition supported by affidavit, and the party who procured the alleged fraudulent judgment must be brought into court in the same manner as in an original proceeding. Reading subdivision 4 of section 464 in connection with section 468, the conclusion is irresistible that the party must be served and brought into court. In other words, it is not sufficient to merely serve the attorney of record. On the other hand, a proceeding to vacate a judgment for mistakes, omissions, or irregularity may be brought by motion, and service may be made either on the party or on the attorney of record in the original action. It is not for us to reason why the Legislature saw fit to make this distinction as to the mode of procedure. It is sufficient to say that, since the Legislature has outlined and charted the course of procedure, that course must be followed.

However the reason for the rule which requires that the prevailing party to a judgment obtained through fraud be served personally with process in a proceeding brought to vacate such judgment is well illustrated in the instant case. Here the attorneys for the relator could not know, and in the very nature of things would not be presumed to know, the truth or falsity of the...