Snohomish Land Co. v. Blood , 40 Wash. 626 ( 1905 )

Fullerton, J.

In May, 1903, the- respondent began the above entitled action against the defendants, to qniet title in itself to eighty acres of land, situated in Snohomish county, to which the defendants were making adverse claims. The defendant Nicholas Schlungs alone appeared and defended. He set up title in himself by virtue of a deed acquired in a tax foreclosure proceeding, at the sale under which he became the purchaser. The respondent, in its reply, set up matters tending to show that the proceedings on which Schlungs relied were invalid; alleging, further, that it had theretofore tendered him the amount the assessment rolls showed he had paid as taxes, with interest, and offering to pay any such sum as the court should find to be due him on account of taxes p!aid by him on the property in dispute. A trial was had on these issues, at which the court held the tax deed invalid, found that Schlungs had paid a definite sum as taxes, and adjudged that the respondent pay the amount thereof into court for him, and that thereupon the respondent’s title to the land be quieted. The money was paid into court, and afterwards withdrawn by Schlungs’ attorneys and tendered him. He, however, refused to accept the amount paid, and it was retained by the attorneys awaiting his order at the time of the trial.

Some nine months after the judgment was entered, Schlungs employed other counsel, and instituted this proceeding to set the judgment aside. In the petition to vacate, he alleges, first, that the judgment is void; next, that if not void, it is erroneous; and, lastly, that it was obtained by collusion between his former counsel and the plaintiff in that case; respondent here, by which he was defrauded of his interests in the property. He alleged, also, that he was foreign bom, having but an imperfect acquaintance- with the English language; and was unable to understand the proceedings sufficiently to protect himself against the fraudulent acts of his counsel. The trial court denied the application, and this appeal is taken therefrom.

The reason assigned for the first contention is that the record fails to show that the complaint was filed with the clerk of the court on, or before the day the cause was called for trial. On this point, the court found that the complaint was tendered for filing, and left with the clerk at the proper time, but that the clerk omitted to place the customary file marks thereon, or record the filing in the appearance docket. It would seem that, if it were necessary to file the complaint in order to give the court jurisdiction to enter a judgment in the cause, that the act of the plaintiff shown here would be a sufficient compliance with the requirement. But we cannot hold that, were there a total omission in this regard, the judgment would be void. Should a defendant object to proceeding with a case until the complaint is filed, and should the trial court overrule that objection, this ruling might, owing to the somewhat peculiar requirements of our statute, be error sufficient to reverse the case on appeal (Ashcraft v. Powers, 22 Wash. 440, 61 Pac. 161); but this is the extent of the rule. Since an action can be commenced without the filing of a complaint, it may proceed to judgment without such filing, and a judgment entered thereon is not void, however erroneous it may be.

The judgment not being void, the appellant was not entitled to have it vacated unless he showed it to be erroneous, and that it was obtained in the manner alleged in his petition to vacate it. On the question of fraud on the part of his counsel, there was no proof whatever. It appears that his counsel not only acted in good faith towards him, but that they made all proper defenses, and failed only because the trial court disagreed with them as to the law of the case. True, it is complained now that the appellant had made improvements on the land, while holding under his tax deed, on the faith of his title, and that he was entitled to be paid for these improvements aS a condition precedent to a vacation of the tax sale, and that no claim was made for the value of these improvements in the answer. But if this were a cause for vacating the judgment, a question we do not decide, it appears that this matter was taken up with the ape pellant before tbe answer was filed, and it was agreed that these improvements were not of sufficient value to make them worthy of a contest. This being true, there could be no fraud or neglect on the part of his counsel for failing to make the claim.

The other grounds urged for vacating the judgment are equally untenable. The trial court found, and the record sustains the finding, that the appellant was not hampered in his defense by any want of familiarity with the English language; and the claim that the judgment is erroneous, even if well founded, is not, standing alone, a ground for vacating it. Eor mere error, the statute of appeals furnishes an' ample remedy, and appeal must be resorted to for its correction.

The order appealed from is affirmed.

Mount, C. J., Rudkin, Crow, Dunbar, and Hadley, JJ., concur.