Shephard v. Gove , 26 Wash. 452 ( 1901 )

The opinion, of the court was delivered by

Dunbar, J.

On June 5, 1886, appellant and another recovered judgment in the district court of the third judicial district of the territory of Washington, for the sum of $490.82, and $27.35 costs. Thereafter appellant acquired the interest of the other plaintiff in said judgment, and about November 1, 1900, brought suit thereon in the superior court of King county. The complaint was in the usual form. Defendant Wilson defaulted and defendant Gove (respondent here) appeared and filed a demurrer on two grounds: (1) Because the complaint did not state facts sufficient to constitute a cause of action; (2) because said action had not been commenced within the time limited by law. This demurrer came on for hearing before Judge Jacobs, who was then a judge of the superior court of King County, and was by him overruled.- Thereafter the defendant Gove answered, among other things, to the effect that the cause of action mentioned in the complaint did not accrue within six years before the commencement of the action. These affirmative defenses were denied by plaintiff, and,'on March 28, 1901, the cause came on for trial before Hon. Arthur E. Griffin, judge of the superior court of King county, who had succeeded Judge Jacobs. No evidence was introduced by the respondent, but it is asserted by the appellant that the respondent argued in support of his affirmative defense, as though it was a demurrer to the complaint on the ground that the action was not brought within the time limited by law. Judge Griffin decided the case, and directed judgment in favor of the defendant Gove, from which judgment this appeal was taken.

The appellant assigns five errors: (1) In considering that the question of the statute of limitations was an open one in this case; (2) in considering the question of the statute of limitations, for the reason that a demurrer on this ground had been interposed and overruled, and that the respondent had thereafter answered in the case and thereby waived his right to interpose the plea; (3) in signing the findings and conclusions over the objection of the appellant that they were not separated as required by law; (4) in denying appellant’s motion for a rehearing; (5) in holding that the statute of limitations of the state of Washington applied to an action on a domestic judgment.

The first and second assignments may be considered together. It is insisted by the appellant that Judge Griffin had no right to overrule a decision made by Judge Jacobs in the case. But the succession of judges cannot be considered by this court; the office is a continuing one; the personality of the judge is of no legal importance. The action of Judge Griffin was in legal effect a correction of his own action, which he deemed to have been erroneous; and it were far better that he should correct it, than to perpetuate an error which would have to be corrected by this court. As to the right of the respondent to interpose by answer the plea of the statute of limitations, it appears from the record that the respondent was at every step earnestly attempting to raise this question ; but whatever his right may have been, under the circumstances of this case, the appellant did not move against the answer or in any manner object to it in the court below, but joined issue upon the answer by replying to the same without objection. Under the repeated rulings of this court, he thereby waived all right to object here to the action of the court which was not objected to at the trial.

The third assignment is a little difficult to understand, in the face of the statute and the record. The assignment is that the court erred iu signing the findings and conclusions over the objection of the appellant that they were not separated as required by law. The objection raised at the time was “because the findings were not presented under a separate heading from the conclusions.” Of course, the assignment of error must correspond with the objection in that particular, but, as we view the case, no objection of any kind could be raised to the manner in which the findings of fact and conclusions of law were made and stated. The statute provides (§ 5029, Bah Code), that, in giving the decision, the facts found and the conclusions of law shall be separately stated. The record shows that the statute was followed explicitly °in that respect. The findings and conclusions are not under separate covers, if that is the objection which the appellant intends to urge, nor does the statute provide that they should be; but under the title of “Findings of Fact” the findings from one to twelve are set forth specifically, stated under specific numbers. Then comes the announcement, “Conclusions of Law,” and the conclusions of law are as specifically stated as were the findings of fact. The objection is untenable, for the record in this respect is in conformity with the provisions of the statute and the usual practice. The fourth assignment, that the court erred in denying appellant’s motion for a rehearing and new trial in said cause, will depend upon the view that the court takes of the fifth, which is that the court erred in holding and deciding that the statute of limitations of the state of Washington applied to an action on a domestic judgment. This question having been recently examined by this court in the case of Citizens National Bank v. Lucas, ante, p 417, and it having been there determined that domestic judgments fall within the provisions of 4798, Bal. Code, the judgment in this case will he affirmed.

• Reavis, C. J., and Anders, White, Mount, Fullerton, and Hadley, JJ., concur.