Shephard v. Gove
Shephard v. Gove
Opinion of the Court
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
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
• Reavis, C. J., and Anders, White, Mount, Fullerton, and Hadley, JJ., concur.
Reference
- Full Case Name
- Charles Shephard v. G. W. Gove
- Cited By
- 18 cases
- Status
- Published
- Syllabus
- JUDGES-CORRECTION OF ERRONEOUS DECISION BY SUCCESSOR IN OFFICE. Erroneous decisions made by a judge in an action are properly correctible by his successor in office, where the action was not heard and determined prior to the succession to office .of the later incumbent. APPEAL — OBJECTIONS NOT URGED BELOW. Where objection was not raised in the lower court that defendant had no right to interpose by answer the same defense that had been overruled on demurrer, it cannot be urged on appeal. FINDINGS OF FACT AND CONCLUSIONS OF LAW-SEPARATE STATEMENT. Under Bal. Code, § 5029, which provides that, in giving the decision in an action tried by the court, the facts found and the conclusions of law shall be separately stated, it is sufficient, where the findings and conclusions are placed under one cover, if they are separately and specifically set forth under their appropriate headings. LIMITATIONS-ACTION ON DOMESTIC JUDGMENT. Actions on domestic judgments fall within the provision of Bal. Code, § 4798, which limits actions on judgments of any state or territory to a period of six years after the accrual of a cause of action.