« ΠροηγούμενηΣυνέχεια »
providing for the manner of its service, and for and incumbrance upon the property described the filing of the copy of the complaint, the court in the plaintiff's complaint. The reply of the acquires jurisdiction of defendant by the filing of the complaint and the service of summons
plaintiff denied the material allegations of the as prescribed therein.
affirmative defense of defendants Surver and 2. It being once ascertained, in a collateral
Eagan, and set up the fact that the action attack upon certain proceedings, that the court
referred to in the defendants' answer was an had jurisdiction of the person and subject-mat. ter, the presumption attaches that it continued.
action wherein Baer, Surber, Eagan, and oth3. The court having had jurisdiction of the ers were partners doing business under the person and subject-matter of an action, its judg.
firm name of the Blaine Improvement Comment rendered therein cannot be collaterally attacked where it is being contended that such
pany; that said action was brought by plainjudgment, by transcript to another county, be- tiffs upon a certain joint contract for the fur. came a lien prior to the mortgage sought to be nishing of materials for the construction of a foreclosed.
wharf; that the plaintiffs in said action were Appeal from superior court, King county; the same persons as the defendants Surber J. W. Langley, Judge.
and Eagan in this action, and that the deAction by Frank L. Baldwin against Mil- fendant M. L. Baer in said action was the ton L. Baer, W. H. Surber, Frank Eagan, same person as the defendant Milton L. Baer and others to foreclose a mortgage executed in this action, and that the defendant Milton by defendant Milton L. Baer. Defendants L. Baer was never at any time served witb Surber and Eagan set up a judgment pre- any copy of the complaint in said action in viously recovered against Milton L. Baer in the superior court of Whatcom county, but the superior court of Whatcoin county as a that, notwithstanding no complaint was serv. prior lien. From a judgment for plaintiff | ed upon the said Baer, the superior court of declaring the judgment set up as a prior lien Whatcom county attempted, by a certain ilvoid, defendants Surber and Eagan appeal. legal, unauthorized, and void entry, to enter Reversed.
and adjudge the default of said Baer in said Burke, Shepard & Woods, for appellants. action in Whatcom county, and that, in Greene & Turner, for respondent.
brief, judgment was entered against Baer
without his ever having been served with a DUNBAR, C. J. This action was begun in copy of the complaint. Upon these issues the September, 1893, in the superior court of King cause went to trial, and the court found that county, for the foreclosure of a mortgage the judgment entered by the superior court given by defendant Baer to the respondent of Whatcom county was void, upon the on the 1st day of June, 1892, the mortgage ground that the said court had never obtained being duly recorded in the proper county. jurisdiction of the person of the defendant The defendant J. L. Howe and the appellants, Baer. The main question to be determined, W. H. Surber and Frank Eagan, were made therefore, is, can the judgment of the What. parties defendant to the action, on the ground com county court be collaterally attacked in that they claimed some interest in the mort- King county? or, in other words, did the gaged premises, the complaint alleging that court in Whatcom county act without juris. said interest was subsequent and subject to diction? the plaintiff's mortgage. The appellants, Sur- It is a well-settled rule of law that, juris. ber and Eagan, filed an answer denying any diction having once attached in the original knowledge or information sufficient to forin a case, everything done within the power of belief as to most of the allegations of the com- that jurisdiction, when collaterally questioned, plaint, and denying generally and specifically is to be held conclusive of the rights of the that their lien and interest in the premises de- | parties, unless impeached for fraud. Cornett scribed in the complaint was subsequent or v. Williams, 20 Wall. 226. Appellants cite a inferior to the mortgage which the action was great many authorities in support of the propbrought to foreclose. They also set up as osition that mere errors or irregularities of the an aflirmative defense that in February, 1891, court must be taken advantage of by appeal, they recovered in the superior court of What- and cannot be attacked collaterally. This com county, in the state of Washington, a doctrine is so well settled that it is not necesjudgment against certain parties defendant, sary to discuss it here; in fact, it is frankly among whom was one of the defendants to conceded by respondent. His contention, how. this action, Milton L. Baer, for the sum of ever, is that it was necessary to serve the de $2,855.27, with interest, and costs, setting fendant with a copy of the complaint, to give forth a copy of such judgment in the answer; the court jurisdiction of the person of the de. that after obtaining said judgment, viz. on fendant, and, the jurisdiction never having atthe 13th day of April, 1891, a certified copy tached, all subsequent proceedings were abof the judgment of the superior court of What- solutely void. Section 59 of the Code of 1851 com county was duly tiled for record, and provides that: “Civil actions in the several duly recorded, in the office of the auditor of district courts in this territory shall be comKing county; and alleged that the same be- menced by the filing of a complaint with the came a lien upon the property in controversy clerk of the court in which the action is upon which the plaintiff was seeking to fore- brought, and the issuing of a summons theretlose his mortgage, and that the judgment of on." And section 62 provides that the sumthe appellants was a prior and superior lien mons shall be served by the sheriff, or his
deputy, and when so served it shall be re- without it is plainly shown to the contrary, turned, with the certificate or affidavit of the that the court continued to act within its officer of its service, and of the service of the jurisdiction to the end of the case. copy of the complaint, to the office of the The judgment will be reversed, and the clerk from which the summons issued. How- cause remanded, with instructions to the lowever, the legislature (Laws 1887-88, pp. 24–28) er court to enter a decree declaring the judg. passed a new law providing for the com- ment of the appellants a prior and superior mencement of civil actions, providing that lien to the mortgage of the respondent. civil actions in the several district courts of this territory may be commenced by filing HOYT, SCOTT, and STILES, JJ., concur. a complaint and issuing summons signed by the clerk of the court, and under the seal of the court, giving the form of summons, pro
(10 Wash. 422) riding for the manner of serving the sum
DENNY et al. v. SAYWARD. mons, and making other provisions for filing
(Supreme Court of Washington. Dec. 28, a copy of the complaint. So that it seems
1891.) plain to us that under the provisions of this
PRINCIPAL AND SURETY-STATUTE FOR PROTECTION law the court obtained jurisdiction of the OF SURETIES-JUDGMENT AGAINST SEVERAL DEperson of the defendant by the service upon FENDANTS-RES ADJUDICATA-EVIDEXCE-JUDG
MENT AGAINST PRINCIPAL – SUIT BY ExecutOR him of the summons prescribed in the act.
AFTER FINAL ACCOUNTING-NONRESIDENT-LimIf such was the case, the court having jurisdiction of the person and of the subject-mat- 1. Code Proc. $ 756 et seq., giving a surety ter, any subsequent error committed by the a right to call on the creditor to sue the prin- . court in rendering the judgment-providing,
cipal, and entitling the surety to a discharge if
the creditor refuses to do so, affords an addiof course, the judgment rendered was such a
tional remedy, and does not deprive a surety judgment as it had power to render under the of any right which he had before its enactment. pleadings-was a mere irregularity, which
2. Where an action is brought against a could not be collaterally attacked in this ac
principal and surety, and the principal, because
of his nonresidence, is not served, the fact that tion. It appeared in this case that the judg. a judgment was rendered against the surety, ment was entered by default, but the record and no judgment was rendered against the shows that the witnesses were duly exam
principal, is not conclusive, as against the prinined, and testimony taken on behalf of the
cipal's liability to the surety.
3. Where an action is commenced against plaintiffs therein, Surber and Eagan; that a principal and surety, and the former, by findings of fact and conclusions of law were
reason of nonresidence, is not served, and, after
a defense, judgment is rendered against the duly filed, and upon such testimony and such
surety, such judgment is admissible in evidence findings the judgment was awarded. It is in ap action by the surety against the principal difficult to base an argument upon the bare to recover the amount paid thereon, and is, construction of a statute, but it seems to us
prima facie, sufficient to authorize the surety
to recover such amount. that it is plain that it was the intention of the 4. It is no defense to an action by execulawmakers, in the act of 1888, to establish the ors to recover a debt due the estate that they jurisdiction of the court over the person of
had rendered a final accounting, where they had the defendant when the complaint was filed
not been finally discharged, nor their bondsmen
released. and the summons prescribed by law served. 5. "The fact that a nonresident has property This seems to have been the logic of the de- in the state will not affect the suspension of cision of this court in Spokane Falls v. Curry,
the statute of limitations during his nonresi
dence. 2 Wash. St. 541, -27 Pac. 477, and our conclusion would be borne out by the language
Appeal from superior court, King county; used in that case, even were it conceded that
R. Osborn, Judge. the law of 1881 governed this action, instead
Action by A. A. Denny and F. X. Prefonof the law of 1888. It seems to us, also, that
taine, executors, against William P. Say. the judgment rendered in this action
ward. From a judgment for plaintiffs, desuch a judgment as was warranted by the
fendant appeals. Affirmed. pleadings in the case, or, at least, it was a Battle & Shipley, for appellant. Bausman, judgment that the court would have been au- Kelleher & Emory, for respondents. thorized to enter under the proofs which might have been introduced in that case. HOYT, J. Plaintiffs brought this action to And the presumption being that the court recover money alleged to have been paid by acted within its jurisdiction, unless it clearly them in part satisfaction of a judgment appears to the contrary, it will be presumed against their decedent. Such judgment was that, even though the pleadings as they were recovered in a suit brought upon a contract filed would not support the judgment ren- which was in substantially the following landered, th court may have considered the guage: “This agreement, made and entered pleadings amended to correspond with the into this 3d day of September, 1890, by and proof offered, and have entered a judgment between George A. Meigs and William P. in pursuance of such amendment. It being | Sayward, by his attorney in fact and manaonce ascertained that the court had jurisdic- ging agent, George A. Meigs, and James Craw. tion of the person and of the subject-matter, ford and William A. Harrington, partners, the presumption will attach and continue, doing business under the firm name of Craw
ford & Harrington, the parties of the first if the said logs are not all removed by the part, and Granville 0. Haller and Donald 1st day of March, 18881, still the balance Dingwall, by their attorney in fact and agent, remaining shall be paid for as aforesaid, G. Morris Haller, the parties of the second sixty days from said time, the same as if part, witnesseth: That the parties of the said logs were removed on said day; and first part agree to and have purchased from said parties of the first part also agree to and of the parties of the second part, and pay as aforesaid, at the time the last paythe said parties of the second part agree ment of said logs is due as aforesaid, whatto and have sold to the said parties of the ever balance remains due upon said judgfirst part, all the saw logs belonging to the ment, together with the costs therein. In said Donald Dingwall, and which the said witness whereof, the parties hereto have Granville 0. Haller has a mortgage upon, hereunto set their hands and seals, this 8th now situate, lying, or being in the Samish day of September, 1880. (Signed] G. A. river and the sloughs adjacent thereto in Meigs. [Seal.] W. P. Sayward, [Seal.) by Whatcom county, W. T., and estimated to His Attorney in fact, G. A. Meigs. (Seal.] be about three and one half million feet, James Crawford. [Seal.] Wm. A. Harringmore or less, upon the terms and conditions ton. [Seal.) Crawford & Harrington. [Seal.) following, to wit, that is to say: Whereas Granville 0. Haller, by His Attorney in Fact, the Meigs Lumber and Ship Building Com- G. Morris Haller. [Seal.] Donald Dingwall, pany is indebted to Granville 0. Haller in by His Attorney in Fact, G. Morris Haller, the sum of three thousand five hundred and [Seal.]” ninety-six and 75/100 ($3,596.75) dollars, with The ground upon which the recovery was interest thereon from May 20, 1879, until sought in this action was that James Crawpaid, at the rate of ten per cent, per annum, ford and William A. Harrington, against besides costs, upon a judgment entered in whom the judgment was rendered which the district court of the 3d judicial district | plaintiffs had been required to pay, were, of Washington Territory, holding terms at thongh named as principals in said contract, Port Townsend, on the 22d day of May, in fact only sureties for the defendant. Upon 1879, and wholly unpaid: Now, therefore, the trial the following facts were sufficiently the said logs are sold at Samish river, and proven to require their submission to the are to be scaled by Edward McTaggert, the jury for determination: That, prior to 1880, government surveyor of logs at said place, George A. Meigs, or the Meigs Lumber & before removal therefrom, said surveyor to Ship Building Company, was the owner and scale the same according to the laws of operator of certain sawmills known as the Washington Territory now in force, and is "Port Madison Mills," together with a large to exclude from said scale the damaged sap amount of timber land and other property upon said logs, and also such logs as are usually owned in connection with the operanot merchantable. The said parties of the tion of such mills; that thereafter, and befirst part shall furnish to said parties of the fore the execution of the contract above resecond part such additional boom chains as ferred to, these mills and the property owned shall be necessary for booming said logs, in connection therewith were sold to the deand shall begin taking said logs at once, fendant; that he entered into the possession and shall continue taking said logs at the thereof, and continued to operate said mills rate of at least five hundred thousand feet as they had been before operated; that for per month if the said Dingwall shall have the purposes of the operation of such mills dethem boomed that fast, and shall have all fendant constituted George A. Meigs his said logs turned away by the first day of agent, with full power to transact all busiMarch, 1881, and shall pay for the same to ness necessary to or usual in connection with G. Morris Haller, or his order, at the rate of such operation, including the purchasing of five dollars per thousand feet for each and logs for the use of the mills and the sale of every thousand feet so scaled, according to their products; that said Meigs, as such the certificate of said Edward McTaggert; agent, had been so operating these mills for and, for every thousand feet so paid for, said some time before the contract in question parties of the second part shall credit one was entered into, and, as incident to such dollar upon the said judgment, said payments operation, had, in the name of said defendto be made by said Crawford and Harring- ant, purchased large amounts of saw logs ton at the bank of Dexter, Horton & Co., for cash and upon credit; that his action in in Seattle, sixty days from the date of the so doing was known to the defendant, and removal of each boom of said logs from said had been fully ratified and confirmed by him; Samish river, and shall be of the full price of that the said Meigs, as such agent, desired the logs so removed; and, in case said logs to purchase for the use of said mills a lot are not removed as fast as five hundred of saw logs, consisting of about 3,500,000 feet, thousand feet per month, still the said logs owned by one Donald Dingwall.and situated shall be paid for sixty days from the date in the Samish slough, upon which logs Granthat notice is given to said Crawford and ville 0. Haller had a mortgage, so that they Harrington that such amount is ready for re- could not be sold without his consent; that he moval, the same as if they had been taken desired to purchase the same upon credit; and removed on the date of said notice. And that the owner and said Haller refused to
sell the logs on credit, unless security in visions of section 756 et seq., Code Proc., 1 and writing for the performance of the contract that, having failed to do so, he is without of purchase were furnished by said Meigs, remedy. In our opinion, this statute in no as agent for the defendant; that it was way limited the rights of sureties as they agreed between said Meigs, as such agent, 1 existed before its enactment. The object of and said Dingwall and Haller, that they the statute was to afford an additional and would make the sale upon credit if James more complete remedy than existed, and not Crawford and William A. Harrington would to deprive a surety of rights which he had become sureties for the performance of the before its enactment. See Harker v. Glideterms thereof by the defendant; that for the well, 23 Ind. 219; Brandt, Sur. $ 214. purpose of evidencing such sale, and the The next objection upon the trial was as agreement of surety ship upon the part of to the introduction of any testimony on the said James Crawford and William A. Har- part of the plaintiffs, and, as reasons for rington, the contract above set out was such objection, it was contended that since entered into; that, for convenience, the said the defendant was a party to the former acCrawford and Harrington and the said Meigs tion, and no judgment was taken against were joined with defendant as principals, him, it was res adjudicata in his favor. Such but that in fact they only signed and be- | might be the rule as between the original came liable upon the contract as sureties for plaintiff and the defendant, but could not said defendant; that thereafter, and upon be as between the latter and a codefendant alleged noncompliance with the terms of the in that action; especially where, as in this contract, an action was brought by Granville case, the defendant was a nonresident of the 0. Haller, who had succeeded to the rights state, and never appeared in the action. See of said Donald Dingwall, against said George Snider v. Greathouse, 16 Ark. 72; Peters v. A. Veigs, the defendant, James Crawford, Barnhill, 1 Hill (S. C.) 234. and William A. Harrington; that in such suit Upon the trial the court allowed answers no service was had upon the defendant; that of the defendant to certain interrogatories the defendants Crawford and Harrington ap- propounded to him by the plaintiffs to be peared and defended the action; that the put in evidence, and it is alleged that this said George A. Meigs also defended; that
No authorities are cited to susthe cause, as against the defendants who tain this allegation of error, and no reason were served, was tried upon its merits, and satisfactory to our minds has been suggested resulted in a judgment of $15,000, or more, why such answers could not be shown as adagainst them; that thereafter said Crawford missions against interest. Besides, the statdied, leaving a last will and testament, of ute seems to contemplate that the answers which the plaintiffs were duly appointed and shall be put in evidence, and, when in, shall qualified as executors; that, as such execu- be subject to contradiction. See sections tors, they were called upon to and did pay sev- 1660-1665, Code Proc. en or eight thousand dollars of the judgment The fourth objection grows out of the terms so recovered; that said defendant, at the of the contract above set out. It is claimed time of the execution of said contract was, that it appears from its terms that it was and ever since has been, a nonresident of entered into, in part at least, to secure the the state of Washington, residing in the payment of the debt of the agent, George A. province of British Columbia. Other facts Meigs, or of the Meigs Lumber & Ship Buildnecessary for an understanding of the points ing Company, of which he was the manager, decided will appear in the course of the opin- and that for that reason it was not in the ion. The trial resulted in favor of the plain- | power of said Meigs, as agent, to bind the tiffs, and from the judgment against him defendant, as his principal, to its performthe defendant has appealed. He here attacks
If the primary object of the executhe proceedings in a voluminous brief, pre- tion of the contract had been to secure the pared with care and ability. The numerous payment of this debt, there would be force questions presented by the record are fully in this objection; but an examination of all discussed, and it seems to us the best possi- | the language used fails to satisfy us that ble showing for the reversal of the judgment such was the object. On the contrary, it has been made. Such brief is so voluminous, sufficiently appears that the object sought and the points, when considered separately, was to secure for the defendant a large quanare so numerous, that we shall not attempt tity of logs, at a sum per thousand which it such consideration, but shall follow the group is not claimed was in excess of the market ing under principal points of the appellant's price. And, this being so, we think its exebrief, without attempting a detailed discus-cution was within the power of said Meigs, sion of the several subpoints under each as agent for the defendant. It was within principal one.
the scope of his authority in conducting the The first error assigned is in the overruling mill business, a part of which was the seof defendant's demurrer to the complaint. curing of logs for its use. The principal reason suggested why the com
1 Code Proc. $ 756 et seq. gives a surety a plaint is insufficient is that the plaintiffs'
right to call on the creditor to sue the principal, decedent, as a surety, should have protected
and entitles the surety to a discharge if the himself in the original action, under the pro- creditar iefuses to dedi.
The next contention grows out of the ac- sought an independent recovery of money tion of the court in admitting in evidence a which they had paid on account of the decopy of the judgment upon which the money fendant, and introduced the judgment only sought to be recovered had been paid by for the purpose of showing that such pay. plaintiffs. The reason for objecting to the ment was not a voluntary one. As stated introduction of this copy was that the de- before, the weight of authority is to the effendant had not been served with process in fect that a judgment like the one sought to the action, and could not be affected by the be introduced in the case at bar is at least judgment. Authorities have been cited to prima facie evidence as against the princiestablish the doctrine that one not served pal; and that it is conclusive unless some with process in an action is not bound by a collusion or fraud upon the part of the surejudgment rendered therein; but they are ty is shown. The testimony offered by the none of them in point, under the circum- defendant did not tend to show any such stances of this case. A judgment against fraud or collusion, and, if it did, it was not the sureties, rendered without their consent, competent under the pleadings. There was and especially after a defense made in good no sufficient allegation of fraud or collusion faith by them, is at least prima facie suffi- on the part of the sureties in the answer. cient to authorize them to recover of their Besides, we think the evidence disclosed a principal the amount which they have been state of facts from which it could be fairly called upon to pay thereon; and if the prin- presumed that defendant had notice of the cipal had knowledge of the pendency of the pendency of the former suit. action, even though he was not served with It is next claimed that the contract, for the process therein, the judgment rendered violation of which the original action was against the sureties, without fault on their prosecuted, was so ambiguous that evidence part, would be conclusive in an action by dehors the instrument was admissible to them to recover money which they had paid on show the intention of the parties. But an account of such judgment. The effect of this examination of the language of the contract judgment upon the defendant was in issue fails to show us any such ambiguity as would in the case of Dexter v. Sayward, 66 Fed. warrant evidence of that kind. 265; and the conclusion reached by the learn. Defendant claims that he should have been ed judge who tried the case was in accord allowed to prove that administration of the with the above suggestions. See, also, Wil- partnership of Crawford & Harrington was siams v. Greer, 4 Hayw. (Tenn.) 235; Bone v. pending. But what we have said in referTorry, 16 Ark. 83; Lewis v. Fort, 75 N. C. ence to the question of variance between the 251; Hare v. Grant, 77 N. C. 203.
judgment pleaded and the one proven is sutThe next objection grows out of an alleged ficient answer to the contention in that revariance between the judgment proven and gard. the judgment introduced in evidence. There It is next contended that the estate of may be some question as to whether or not James Crawford, under his will, had been the former judgment was against James completely settled, and that, for tbat reason, Crawford and William A. Harrington as in- the executors had no authority to maintain dividuals or as members of the partnership the action. It appeared from the testimony of Crawford & Harrington; but it does not that administration of the estate had so far so clearly appear that the defendant was in- progressed that there had been a final acjured by any questions growing out of this count rendered, and an order of distribution variance, If variance it was, as to justify a made and carried into effect. It is possible reversal. Defendant objects to the judgment that these acts would, for certain purposes, upon the ground that it does not show that it
warrant the presumption that administration was ever entered in the journals of the court of the estate had been closed. But this prein which it was rendered. We have examined sumption cannot be invoked by the defend. the transcript of the judgment, together with ant for the purposes sought. When the inits authentication, and are unable to see terests of the estate require the exercise of anything which would authorize its rejection authority by an executor, his right to act for the reason suggested.
should be upheld, if he has not received his The next objection is not, in our opinion, final discharge, unless his bondsmen have warranted by the proofs. We are unable to been released. find from the record that the payment upon The defendant invokes the aid of the statthe judgment was other than compulsory on ute of limitations. It appears that, from the the part of the plaintiff's.
time the right of action accrued until the The foundation of the next allegation of suit thereon was commenced, the defendant error is stated by the appellant as follows: had been a nonresident of the state, and ab"In a suit by surety for subrogation, princi- sent therefrom. This, it is conceded, would pal entitled to use every legal defense." prevent the running of the statute were it This is not an exact statement of the prin- not for the fact that defendant had property ciple which it is claimed was negatived by in the state liable to attachments. But it is the court upon the trial. The plaintiffs did argued that since the plaintiffs could, by sunot seek a technical subrogation to the rights ing out a writ of attachment, have prosecutof the plaiatiff in the original action; they ed their action without personal service upon