State ex rel. Boyle v. Superior Court , 19 Wash. 128 ( 1898 )

The opinion of the court was delivered by

Scott, C. J.

This is an application for a writ to proKbit the respondent from vacating a judgment rendered in January, 1894, in favor of tbe Tacoma National Bank, as plaintiff, against Otis Sprague and Mave FL Sprague, bus-band and wife, defendants, tbe relator being now tbe owner of tbe judgment. Tbe judgment contained a recital tbat eacb of tbe defendants “was duly served with a copy of tbe summons and complaint” and tbat eacb of tbem bad failed to appear within tbe time prescribed. On tbe 25th day of February last tbe defendants appeared specially and moved to vacate tbe judgment, serving notice of tbe motion on tbe relator and tbe attorney of record of tbe plaintiff. Tbe motion to vacate was on tbe ground tbat there was no proof of tbe service of tbe process. There was no allegation nor showing tbat tbe process bad not in fact been served. There was a document on file in tbe form of an affidavit showing personal service of tbe process upon eacb of tbe defendants. Tbe same was not sworn to, and tbe contention of tbe respondent is tbat it must be presumed tbat this was tbe only proof of service made, and, it not being sworn to, tbat tbe judgment was void. We think under tbe holdings of this court in Rogers v. Miller, 13 Wash. 82 (42 Pac. 525); Christofferson v. Pfennig, 16 Wash. 491 (48 Pac. 264), and Kizer v. Caufield, 17 Wash. 417 (49 Pac. 1064), tbe presumption must be tbat there was a valid service. TKs document might in fact have been sworn to in open court before tbe judge at tbe time tbe judgment was taken. Although it was irregular not to have proof of service appear of record, this would not affect tbe jurisdiction of tbe court to render judgment. Furthermore, we do not tKnk tbe court would have any authority years after tbe rendition of this judgment to vacate it upon a mere motion like tbe present one. Tbe plaintiff, or its successor in interest, was not before tbe court for any such purpose and could only be brought in after tKs lapse of time by tbe service of process. A bill in equity, or perhaps a petition, would lie to set aside the judgment, but in such case the plaintiff or the party in interest would have to be legally brought in by service of process, and just cause for setting aside the judgment would have to be shown; for instance, that the process in fact had not been served, and this alone might not be sufficient, for a party is bound to proceed with reasonable diligence. It is also alleged in this case that the defendants have recognized the judgment by making several payments upon it. We think a good cause is- shown for the issuance of the writ. State ex rel. Nolte v. Superior Court, 15 Wash. 500 (46 Pac. 1031); State ex rel. Dodge v. Langhorne, 12 Wash. 588 (41 Pac. 911).

Writ granted.

Gordon and Beavts, JJ., concur.

Anders, J.

I think the judgment sought to be set aside in this case was not void, for the reason that the recital therein" that the defendants were duly served with a copy of the complaint and summons, is not contradicted by anything appearing to the contrary in the record. In such cases the recital is itself an adjudication of the fact recited. But I am of the opinion that a void judgment may be set aside at any time on motion; and I therefore concur in the result.