Tiffin v. Hendricks

• Decision Date: 10 June 1954
• Docket Number: No. 32793,32793
• Court: Washington Supreme Court
• Parties: TIFFIN et ux. v. HENDRICKS et ux.

Page 837

44 Wn.2d 837

271 P.2d 683

TIFFIN et ux. v. HENDRICKS et ux.

No. 32793.

Supreme Court of Washington, Department 2.

June 10, 1954.

Glenn E. Correa, Shelton, for appellants.

Delbert W. Johnson, Shelton, for respondents.

DONWORTH, Justice.

Defendants appeal from an order dismissing their motion to vacate a default judgment in the amount of $7,066.16 entered against them for the alleged breach of a contract to construct a house and concrete bulkhead for plaintiffs.

The facts in this case, insofar as we need notice them on this appeal, are undisputed.

Plaintiffs filed the summons and complaint in this action on June 27, 1953, and copies of the summons and complaint were personally served on defendants in Mason county on July 1, 1953. On July 10, 1953, defendants caused a written notice of their appearance in the action to be served on plaintiffs' attorney by attorney Charles R. Lewis of Shelton, but it was not filed with the clerk of the superior court until September 3, 1953, which was subsequent to the entry of the default judgment.

On July 15, 1953, plaintiffs' attorney received a letter from the law firm of Greenwood & Shiers of Port Orchard enclosing two copies of a written notice of appearance. Plaintiffs' attorney, in compliance with a request made in the letter, acknowledged service of the notice of appearance on one copy thereof and mailed it back to Greenwood & Shiers. The copy of the notice of appearance was not filed with the clerk of the superior court until August 4, 1953, which was subsequent to the entry of the default judgment.

On July 20, 1953, plaintiffs' attorney was orally notified by attorney Lewis that he had withdrawn from the case and no longer represented defendants. No formal notice of his withdrawal has ever been served or filed.

On the same day plaintiffs' attorney received a letter from the firm of Greenwood & Shiers saying that the firm had withdrawn as attorneys for defendants. On July 22, 1953, however, the attorney for plaintiffs received another letter from the same law firm advising him that the firm again was representing defendants.

On July 27, 1953, Greenwood & Shiers mailed a letter to plaintiffs' attorney, notifying him that the firm had again withdrawn as attorneys for defendants. On the same day the firm wrote defendants, giving them notice of the withdrawal.

Plaintiffs filed a motion for default on July 31, 1953, supported by their attorney's affidavit setting out the facts stated above and concluding as follows:

'That aside from the letters and copies of notices as herein stated, none of which have been filed with the Court, affiant has received no answer, appearance, demurrer or pleading of any kind and defendants are now in default.'

No three-day notice that a motion for an order of default would be made nor any copy of the motion was served on defendants or on any attorney in their behalf. On the same day (July 31, 1953) the trial court entered an order of default and, after evidence was presented by plaintiffs, signed findings of fact, conclusions of law and entered a judgment against defendants for the amount prayed for in plaintiffs' complaint.

Defendants contacted their present attorney on August 1, 1953, after receiving the letter from Greenwood & Shiers giving notice of withdrawal, and then learned that a default judgment had been entered against them.

On August 4, 1953, defendants filed a motion for vacation of the judgment, supported by an affidavit by defendant husband stating that defendants had served their two notices of appearance on plaintiffs' attorney and that they had never been served with any motion for default. He further stated facts which he claimed constituted a good and meritorious defense to plaintiffs' action. He further stated that the order of default and default judgment were premature and irregular.

A hearing on defendants' motion to vacate the order of default and the default judgment was held on August 28, 1953, and continued for further hearing on September 3, 1953. At this hearing after defendants' contention that they had appeared by serving the two notices of appearance was overruled by the court, both parties presented testimony bearing on the issue as to whether defendants had a meritorious defense.

On October 15, 1953, the trial court issued a memorandum opinion in which it held that defendants had never appeared in the action as required by law because no appearance was filed with the clerk of the superior court and that they had not proven a meritorious defense. Accordingly it was held that defendants' motion to vacate the default judgment should be denied.

The trial court on October 23, 1953, entered the following findings of fact:

'Defendants made no appearance herein prior to the taking of default and the defendants were in default upon the 31st day of July, 1953. Judgment by default was properly entered.

'The default was due to the neglect of the defendnats.

'Defendants have failed to show any substantial evidence of the existence of a good and meritorious defense and the Court hereby finds that none exists.

'Plaintiffs accordingly has shown good cause why the order of default, findings of fact and judgment heretofore entered should not be vacated.'

From the resulting order of dismissal, defendants appeal.

Appellants urge these propositions:

(1) That a defendant appears in a lawsuit by serving on plaintiff's attorney through defendant's attorney written notice of appearance, even if the notice of appearance never is filed with the clerk of the superior court.

(2) That the withdrawal from the case of an attorney who has served a written notice of appearance for a defendant does not operate to withdraw the appearance.

(3) That a default judgment entered against a defendant who has appeared in a case in this manner is tantamount to a void judgment if the defendant is not in default and if no notice has been given the defendant as required by RCW 4.28.210.

(4) That a defendant against whom a judgment has been entered by default under the circumstances described above may have it vacated as a matter of right, without alleging or proving a meritorious defense.

Respondents, on the other hand, assert:

(1) That a defendant does not appear until his attorney serves on plaintiff's attorney and files with the clerk of the superior court a written notice of appearance.

(2) That the withdrawal of an attorney who has served a written notice of appearance on behalf of a defendant effects a withdrawal of the appearance of his client.

(3) That, even if defendants did appear in this action, prior to the entry of the order of default, the entry of the default judgment against them would be a mere irregularity.

(4) That a judgment irregularly entered may be vacated only by alleging and proving a meritorious defense, and then only if the trial court in its discretion believes the judgment should be vacated.

We shall now consider these conflicting legal propositions insofar as necessary to a decision in this case.

The statute which defines an appearance in a civil action is RWC 4.28.210, which provides:

'A defendant appears in an action when he answers, demurs, makes any application for an order therein, or gives the plaintiff written notice of his appearance. After appearance a defendant is entitled to notice of all subsequent proceedings; but when a defendant has not appeared service of notice or papers in the ordinary proceedings in an action need not be made upon him. * * *' (Italic ours.)

We have held in several cases that service of interrogatories, a demurrer or a written notice of appearance constitutes an appearance, even if the interrogatories, demurrer or written notice of appearance are not filed. State ex rel. Trickel v. Superior Court, 52 Wash. 13, 100 P. 155: Jesseph v. Carroll, 126 Wash. 661, 219 P. 429; Hofto v. National Casualty Co., 135 Wash. 313, 237 P. 726.

Respondents contend that the foregoing cases no longer are the law since the adoption of subparagraph (2) of Rule 1 of the General Rules of the Superior Courts, 34A Wash.2d 110, which says:

'Pleadings in all cases must be filed on or before the time fixed by the notice of the adverse party for the hearing of any motion or demurrer addressed thereto. The party whose pleading is not filed within such time may be adjudged in default.' (Italics ours.)

Respondents' contention is wrong for two reasons. First the foregoing rule was adopted July 26, 1910, effective November 1, 1910, before Jesseph v. Carroll, supra, and Hofto v. National Casualty Co., supra, were decided, and were carried forward into 34A Wash.2d unchanged. Second, the rule applies only to pleadings, and a written notice of appearance is not a pleading in the technical sense in which the word is used in the above quoted rule.

Black's Law Dictionary (4th ed.) 1312, defines 'pleadings' thus:

'The formal allegations by the parties of their respective claims and defenses, for the judgment of the court * * *.

'The term 'pleadings' has a technical and well-defined meaning. Pleadings are written allegations of what is affirmed on one side, or denied on the other, disclosing to the court or jury having to try the cause the real matter in dispute between the parties.'

Measured by the foregoing definition, it is plain that a notice of appearance is not a 'pleading.' The 'pleadings' which subparagraph (2) of Rule 1, supra, requires to be filed to avoid a default are written allegations of claims or defenses to which an opposing party may address some motion, demurrer or denial. A notice of appearance asserts no claim or defense and is not a 'pleading' within the meaning of the rule referred to.

Since neither of the written notices of appearance served on respondents in appellants' behalf needed to be filed with the clerk of court in order to constitute an appearance, appellants appeared in this action before respondents moved for an order of default.

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