Gordon v. Hillman

Citations

• 102 Wash. 411

Syllabus

<p>Courts—Supreme Courts—Terms. Under Const., art. 4, § 2, providing that the supreme court shall always be open, there are no terms of court, and the close and termination of a session, provided for by Rem. Code, § 4, does not preclude the court from entertaining an application to recall a remittitur and vacate a judgment entered at such term.</p> <p>Appeal—Decision—Recall of Remittitur. It is within the inherent power of the supreme court, under its appellate and revisory jurisdiction, to recall a remittitur and vacate its judgments in a proper case.</p> <p>Abatement and Revival—Death Pending Appeal. Under Rem. Code, § 193, which abrogates the common law and provides that no action shall abate by the death of a party if the cause survives, and Id., § 1743, providing for substitutions in case of the death of a party after final judgment from which appeal has been taken, the supreme court having acquired jurisdiction of a party before death, and having jurisdiction of the subject-matter of a trial de novo on appeal, there is no abatement of the cause of action by a death which was not brought to the attention of the court; and the judgment and proceedings are not void or voidable, but only erroneous.</p> <p>Appeal—Review—Recall of Remittitur—Diligence. Petitions to recall two remittiturs and vacate judgments in two cases, because of the death of a party coming to the knowledge of the petitioners only after the first judgment was entered, will be denied for want of diligence, where petitioners had notice of the death at. the time the decree was presented to the court below after remittitur went down in the lower court, and failed to then petition for relief, or to suggest a substitution upon a hearing of the subsequent case.</p> <p>Stipulations—Writing. Stipulations not made in writing or in the record of the court cannot be considered.</p> <p>Appeal — Decision — Recall of Remittitur — Grounds — Relief Prom Erroneous Judgment. In an action for rescission of a trade o