, 1892-01-06
'MARSTON VS.. HUMES.
! PETITION DENIED In A KING
COUNTY CASE.
The Petitioners Ailege. the Action
Of the Judge of the Lower Court
Was I'm Excess sof His Jurisdic-

w sSs Am EACesS leDA AAAS y u ABe BeAAC,
tion.
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Fl. L. Marston ct at, petitioners, Z. J.
Humes judge, ct al, respondents
1t appears from the petition filed herein
that petitioners duly obtained Judgment in
the superior court Of King county against
John I'll. McGraw, one of the defendants
herein that at the time of the rendition oil
such judgment said superior court had
jurisdiction Of the subject natter Of the
action, and of the person of the said John
II. McGraw, That said judgment remained
in full force on the records of said court
for more than one year after its rendition
That during said year no appeal had been
taken, nor had any proceedings been in
stituted in said superior court to reverse
modify and set aside said judgment. Thai
On the 18th day Of October, 1891, and when
said judgment was IN full force, and part
OF the records OF said county, and entirely
unsatisfied, one Of the other defendants
the Hon. t. J. Humes, one Of the judges o1
said superior court of King county, made
AID caused to be entered III the cause in
which. said judgment was rendered, the
following order.
s'This cause came on regularly to be
tober 1891, before the Honorable T. j.
Humes, one Of the Judges Of said court,
upon the motion Of the defendant. T. HI.
McGraw, that the Judgment heretofore, to-
wit; The End day Of August, 1890, entered
herein against him, the said ] ! IT. McGraW,
for the sum of $3.50, and costs, and for the
return of certain personal property, OF in
case return Of said property could not be
had, for judgment against him for the ad-
ditionaf sum of $2650.92 be vacated; the
said ]. III. McGraw appearing by his attor-
neys, the Hon. j. A. Stratton and Messrs.
Preston, Carr and Preston, and the plaint-
itfs appearing by their attorneys. Messrs.
Austin and Baker.
After hearing and considering the affida-
Wits filed here in support of the motion,
and the counter affidaylts of Fred. Page
Tustin, and hearing argument of counsel,
and the court being fully advised in the
premises it is by the court here and now
ordered that upon the payment by the de-
fendant ]. i'll. McGraw of the costs of said
action to this date the said Judgment be
vacated, and set aside.N
And now on this 18th day of October,
1891, it appearing to the court that said
costs have been by the defendant fully
paid, 1T is here and now ordered that the
judgment heretofore on the End day of Au-
gust, 1890, rendered herein against the sal
defendant J. FL. McGraw, and the whole
hereby vacated and set aside.
Further ordered that the defendant Nc
Graw have until October 25, 1891, to file his
answer herein.
Dated at Seattle this 18th day Of October,
1891. I. J. HUMEs, Judge.n
And the petitioners allege that the action
OF said judge in making and entering said
said court, and that the order SO entered
was and is absolutely void. That SO long
as the same remains apparently in force
they could not collect their said Judgment,
and that for that reason they were entitled
to have the record certified here and the
said order set aside, as having been made
without Jurisdiction.
The particular grounds upon which the
court made said order do not appear in the
petition herein. and this being so, it is con-
ceded in the argument that if said court had
the power in any case to vacate a Judgment
regularly entered after the expiration of
one year from the date Of the rendition
thereof the petition should be Denied but
it is contended that under our statutes the
power of the court to interfere with judg-
ment SO entered was expressly limited to
one year, and that as one year had elapsed
in this case the court was pOWerless to re-
lieve the defendant under any circum-
stances that might be made to appear.
Some other questions were argued, but
the conclusion to which we have come to
as to the statutue law Of this state on the
subject Of this controversy make them i'm
material. Provisions of the code of 1881,
so far as they are material to this enquiry
are contained in sections 437, 438 and 439,
contained in the chapter relating to the re-
yersal vacation and modification Of judg-
ments in the courts in which rendered,
and in section 109 Of the chapter relating to
mistakes i'll pleadings and amendments.
nj rcf
sections above mentioned, the trial court
is authorized to yacate judgments for GER
tain reasons thereid specified, but the time
in which this may be done is limited to one
year; and by the provisions Of section 100
above mentioned the court was likewise
allowed to vacate judgment within a
reasonable time, not exceeding live months
after the adjournment of the term at which
it was rendered. And if these
provisions of the code are now in
force, the contention of the petit
tioners that under the circumstances of
this case their interest in the Judgment be-
came vested at the end of one year, SO that
the trial court could not interfere there
with, must be sustained. The legislature
of 1891, however, amended or attempted to
amend all of the sections a boye referred to.
The amendment to the three sections con-
tanned in the chapter relating to vacation
of judgments was so far as this question is
concerned immaterial as the limitation of
time contained in the sections amended was
also contained In the amendatory sections.
There is, however, a provision in the same
act which thus amended the sections under
discussion, contained in section four of
said act, which is somewhat material to
the consideration Of the questions to be
hereafter discussed. Said section is as
follows: "The provisions of this chapter
shall not be SO construed as to affect the
no of ho tr,x ~
judgments or orders, as elsewhere in this
code provided, nor shall any judgment OF
acquittal in a criminal action be vacated
under the provisions Of this chapter.n
From this provision it will be seen that
the legislature evidently had in mind the
provisions of section 1G9 Of said code above
referred to, and intended to preserve to the
court the right to relieve against judg-
ment as provided in said section. but, as
as the relief provided for under that sec
tion can only be extended during period
of five mouths after the ADJOURNMENT OF
the term, if it had been left by the legisIa-
ture as it stands in the code, it would have
been immaterial SO far as the discussion OF
this question is concerned, but the same
legislature passed an act entitled sAn ac,
relating to pleadings in civil actions and
amending sections rs, N and 100 of the
code of Washington of 1881, = by the pro-
visions of which act said said section los
was so amended chat the limitation of five
months therein contained was entirely
omitted and the limitation of time within
which relief might be extended Hereunder
entirely removed. And if this section as
amended was the law at the time the order
complained of was entered in the court be-
low, it is practically conceded by the pc
titioners that, excepting for one PROPOSE
ton which we shall hereafter discuss, the
court has Jurisdiction to enter the order in
question and the petition must be denied
To be Continued
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