Hotchkin v. Bussell

Citations

• 46 Wash. 7
• 89 P. 183
• 1907 Wash. LEXIS 547

Syllabus

<p>Judgments — Vacation — Death of Party — ■ Right to Relief. Where H., having an interest in tide lands, contracted with C. to obtain the title from the state, and C. took an appeal from the decision of the board of land commissioners awarding the property to other parties, but died pending final judgment on the appeal, which judgment recited the fact of C.’s death and that his heirs at law, who also had since died, had conveyed their interests to others, to whom the decree then awarded the property, H. cannot sustain an action by her to set aside the judgment as in fraud of her right, by allegations that parties to the action were dead before entry of the judgment, and that their interests had not been represented by an executor or administrator or other legal representative; since the death of a party does not render the judgment void or subject to collateral attack, but only voidable on timely motion; and since the decree was not rendered in a strictly adversary proceeding, nor by the court of original jurisdiction, but was an appellate decree, the vacation of which would only reinstate the appeal and not necessarily benefit the plaintiff.</p> <p>Same — Trusts—Conveyance by Trustee. In such a case,'the assignment by the heirs at law of C. passed his preference right to purchase the tide lands, without the appointment of an administrator, and was properly recognized by the court in entering the decree, which was conclusive of the fact that the right passed by the assignment; and the recourse of H., if C. was acting as her trustee, must be against the other parties to the proceeding, for an accounting, the decree being .valid although the trusteeship continues.</p> <p>Same — Pleading. In such a case, an allegation that a ’different decree would have been rendered, had C. been alive or had an administrator been substituted, is an expression of opinion and not an allegation of fact.</p>