Dickson v. Matheson 12 Wash. 196

The opinion of the court was delivered by

Gordon, J.

An action was commenced by the respondent in the superior court of Kittitas county, against David Matheson and Charles Dickson, partners as Matheson & Dickson, upon a promissory note, and personal service of summons in said action was had upon each of said partners, on August 11, 1894. On the 18th day of August, 1894, the said Charles Dickson made, subscribed and acknowledged a written statement and confession, consenting to and authorizing the entry of judgment in favor of plaintiff for the amount claimed in the complaint, which amount included the sum of $68 attorney’s fees, provided in the note -to be paid in case of suit or action being brought. The written instrument and confession thus made set out the facts upon which the indebtedness arose, in compliance with the statute, and authorized the enter*197ing of a judgment in favor of the plaintiff and against the defendants for the sum aforesaid; and upon such statement judgment was duly entered in favor of respondent against appellants, David Matheson and Charles Dickson, and said judgment provided that the same should be satisfied out of the joint property of Matheson and Dickson and the separate property of said Charles Dickson, in compliance with § 416, Code Proc. Thereafter a petition was filed by appellants to vacate and set aside said judgment, and from an order sustaining respondent’s demurrer to an amended petition filed therein, this appeal is taken.'

The principal ground relied upon by the appellants for the reversal, and the only one that need be considered, is that the court erred in including the sum of $68 as attorney’s fees in said judgment upon confession, inasmuch as respondent had not appeared by attorney in said action. Assuming, without deciding, that respondent was not entitled to any allowance as attorney’s fees in said judgment, we think that appellants have mistaken their remedy and that the demurrer to the amended petition was properly sustained. The statement made by Dickson, upon which the judgment was entered, sets out fully each of the items going to make up the amount for which the judgment was entered, viz., principal, interest and attorney’s fees. Nothing was withheld or concealed from the court. And upon this statement judgment was entered. No fraud was .practiced, and, at most, there was simply error of law upon the part of the court in giving-judgment for the amount claimed as attorney’s fees. But we do not think that a petition to vacate the judgment is the proper proceeding for the purpose of correcting an error of law, and the statute which authorizes proceeding by petition to vacate, and modify *198a judgment in the court in which it is rendered (Title 14, Code Proc.) does not include an “error of law” within the causes for which such proceedings may be taken. The final judgment pronounced upon a hearing upon the merits cannot be set aside by the petition under the statute for mere error into which the court may have fallen.

“ It is not intended to be used as a means for the court to review or revise its own final judgments, or to correct any errors of law into which it may have fallen. That a judgme'nt is erroneous as a matter of law is ground for an appeal, writ of error, or certiorari, according to the case, but it is no ground for setting aside the judgment on motion.” 1 Black, Judgments, § 329.

The order appealed from is affirmed.

Dunbar, Anders and Scott, JJ., concur.

Hoyt, C. J.

(dissenting).-—-I am unable to agree with the foregoing opinion. The rights of Matheson, the real appellant, had been decided in the court below without notice to him, and for that reason the question which the court passed upon, as it affected his interests, had never been called to the attention of that court. This being so, this court could not rightfully give him any relief against such ruling until he had first asked for it in the court-below; and if he must first apply there, the ruling obtained upon such application ought to be reviewed here.