Williams v. Breen
| Decision Date | 30 August 1901 |
| Citation | 66 P. 103,25 Wash. 666 |
| Court | Washington Supreme Court |
| Parties | WILLIAMS v. BREEN et al. |
Appeal from superior court, Stevens county; William E. Richardson Judge.
Action by Thomas Williams against James Breen and others. From an order vacating a judgment in favor of the plaintiff as to James Breen, the plaintiff appeals. Affirmed.
J. A. Kellogg and Robertson & Miller, for appellant.
Voorhees & Voorhees, for respondent Breen.
The appellant, who was plaintiff below, obtained a judgment by default against the respondent in the superior court of Stevens county for personal injuries alleged to have been sustained by him while working in a smelter then being operated by the respondent and another. The judgment was entered upon the 13th day of October, 1899. On January 2d following the respondent filed a petition, praying for the vacation of the judgment and for permission to appear and defend the action upon its merits. In his petition he alleged, in substance, that the affidavits filed to show service of summons upon him did not truthfully recite the manner of the attempted service, and that in fact no service of summons in the manner required by statute had ever been made upon him; that, notwithstanding this fact, he had intended in good faith to appear in the action and defend the same upon its merits; that to this end, prior to the expiration of the time for answering the complaint, he sought one of his co-defendants, and was informed by him that a firm of attorneys had been retained to defend the action for all of the defendants; that, relying upon such information, and the positive belief that his interests were being taken care of, he took no further steps looking to his appearance or defense; that from this time until after the judgment was entered against him he understood and believed that his appearance had been made in the action, and that his rights were being protected, and learned for the first time after the judgment had been entered against him that no appearance had been made for him that the failure of the attorneys employed by his co-defendants to appear for him was due to a misunderstanding between them and his co-defendants as to the scope of their employment. He further alleged that he had a valid defense to the merits of the action,--the facts constituting such defense being set out in detail. The appellant demurred to the petition on the ground that it did not state facts sufficient to entitle the respondent to the relief asked which demurrer being overruled, he answered, putting in issue the facts alleged. Subsequently a trial was had in which both parties introduced evidence. From the evidence the court found the facts substantially as alleged in the petition; and as conclusions of law therefrom found that the respondent, 'by the filing of his said petition in said action, in the manner and form in which the same was filed, without specially limiting such petition to the question of the service of the summons and complaint in said action, has waived such question, and has submitted himself generally to the jurisdiction of the court in said action, and that said defendant James Breen is not entitled to have said judgments, or either of them, vacated because of any failure in the service of the summons and complaint upon him in said action,' but that he was entitled to have the judgment vacated on the other facts found by the court. An order vacating the judgment was entered accordingly. This appeal is from that order.
The learned counsel for the appellant contend, that because the respondent has elected to follow the procedure for vacating judgments prescribed by chapter 17, tit. 28, Ballinger's Ann. Codes & St., his petition must contain a statement of facts warranting relief under one or more of the causes, in that chapter especially enumerated, for which a court is empowered to vacate a judgment, and that the facts recited in the petition do not warrant the vacation of the judgment for any of the causes mentioned in that chapter. They contend further, that, if it be conceded that the petition does state facts sufficient to warrant relief for the causes set out in section 4953 of the Code, it can not avail the respondent,...
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...able to interpose a substantial defense upon a new trial, or in another proceeding involving the same cause of action.' In Williams v. Breen, 25 Wash. 666, 66 P. 103, reviewing a proceeding instituted under both of the above-mentioned sections of the statute, this court again held that, in ......
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... ... Andrews, 133 Mo. 663, 34 ... S.W. 865; Heardt v. McAllister, 9 Mont. 405, 24 P ... 263; Barlow v. Burns, 70 N.J.L. 631, 57 A. 262; ... Williams v. Breen, 25 Wash. 666, 66 P. 103; ... Montijo v. Robert Sherer & Co., 6 Cal.App. 558, 92 ... P. 512; Gumaer v. Bell, 51 Colo. 473, 119 P. 681; ... ...
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...360, 169 P. 806; Brandon v. Sullivan Tractor Co., 38 Cal.App. 268, 175 P. 906; Porter v. Bryson, 35 Cal. 688, 170 P. 1068; Williams v. Breen, 25 Wash. 666, 66 P. 103; Morse v. Callantine, 19 Mont. 87, 47 P. Kain v. Sylvester, 62 Wash. 151, 113 P. 573; Nash v. Treat, 45 Mont. 250, Ann. Cas. ......
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