Barker v. Seattle, 97 Wash. 511, 166 Pac. 1143 (1917).

 512    BARKER v. SEATTLE.
                     Opinion Per PARKER, J.           97 Wash.

SAME - JUDGMENT - AWARDING DAMAGES - VACATION - SATISFACTION
BY WARRANTS - RIGHTS OF ASSIGNEE - NOTICE, The vacation of a
Judgment for damages in eminent domain proceedings, for which a
city warrant had been issued in satisfaction of the judgment, is
binding and conclusive upon an assignee of the warrant, where the
city had no notice of the assignment, and proceeded against the
judgment creditor as the apparent party in interest; since such
warrants are not negotiable instruments precluding settlement with
the judgment creditor apparently holding the judgment, especially
where no local assessment fund had been provided for the payment
of the warrant.

MUNICIPAL CORPORATIONS - ASSESSMENTS - WARRANTS - LIABILITY -
FAILURE TO PROVIDE FUND. The failure of a city to provide a local
assessment fund for the payment of a warrant given in satisfaction
of a judgment for damages payable out of the fund, does not make
the warrant a general fund warrant.

Appeal from a judgment of the superior court for King
county, Frater, J., entered September 18, 1916, upon
findings in favor of the plaintiff, in an action for damages,
tried to the court. Reversed.

Hugh M. Caldwell and James A. Dougan, for appellant.

Kerr & McCord, for respondent.

                         BARKER v. SEATTLE.                513
 Aug. 1917               Opinion Per PARKER, J.

In August, 1909, there was passed and approved by the
city council and mayor of the city of Seattle an ordinance
providing for the acquisition, by eminent domain proceedings,
of a strip of land eighty feet wide for the extension of
Phinney avenue in that city. The ordinance also provided that
the land so acquired should be paid for by special assessment
upon the property benefited by such extension, and that any
part of the cost of such extension not finally assessed against
the property specially benefited should be paid from the
general funds of the city. Eminent domain proceedings were
accordingly instituted in the superior court for King county,
resulting in a verdict and judgment rendered thereon in
January, 1911, awarding to Olof Nelson, as the owner of
the land to be taken, the sum of $5,898. Neither the city nor
Nelson appealed from that judgment, but both being then
satisfied therewith, the city issued to Nelson, against the
prospective special assessment fund, four warrants
aggregating the total amount of the judgment and costs, one of
which warrants was the $1,689 warrant here in question. In
the body of this warrant, after the direction of payment from
the special assessment fund, appears the following: "This
warrant is not a general debt of the city of Seattle and is
payable only out of the proceeds of the collections of the
special assessment made for the condemnation for which it is
issued." Upon receiving these warrants, Nelson satisfied the
judgment upon the records of the superior court.
Thereafter, by mesne assignments and by bequest, respondent
became the holder of the $1,689 warrant and, as such, succeeded
to all of the rights of Nelson.

In December, 1911, the city filed its petition in the superior
court for King county seeking vacation and annulment of
the verdict and judgment awarding compensation to Nelson
as owner of the land. Nelson was duly notified and appeared
generally in the vacation proceeding, and the question of
the vacation of the verdict and judgment being presented to

 514    BARKER v. SEATTLE.
                     Opinion Per PARKER, J.           97 Wash.

and submitted to the superior court upon the merits, that
court, on April 20, 1912, entered its order vacating and
setting aside the verdict and judgment awarding to Nelson
compensation for which the warrants against the prospective
local assessment fund were issued. This order of vacation has
never been appealed from, vacated or set aside. While the
warrant here in question was assigned by Nelson before the
vacation of the eminent domain judgment, no one was made a
party defendant in the vacation proceeding other than
Nelson, the judgment creditor; so none of Nelson's successors
in interest, including respondent, ever had an opportunity to
resist the city's application to vacate the judgment. Nor
did any of Nelson's successors in interest learn of the city's
application to vacate that judgment or of the order vacating
it until long after the order of vacation was entered. The
record before us compels us to proceed upon the assumption
that, at the time the city applied to vacate the judgment
and at the time of the entering of the order of vacation,
the city had no notice that Nelson had, prior thereto,
assigned the warrant here in question.

The ground of the city's application for vacation of the
judgment in the eminent domain proceeding appears to be
that it was discovered, after the rendering of that judgment,
that Nelson was not in fact the owner of the whole of the
eighty-foot strip of land sought to be condemned, but was
the owner of only a twenty-foot strip along the east side
thereof. This, however, as we proceed, we think, will appear
to he of no moment so far as our present inquiry is
concerned, since it would have to do only with questions of error
in the entering of the order of vacation, which order, as we
have noticed, has never been appealed from or set aside.
There has never been any special assessment made and
confirmed looking to the creation of a fund to pay the warrants
issued to Nelson following the rendering of the judgment
awarding him compensation in the eminent domain proceeding.
In January, 1912, the city council and mayor of the city

                     BARKER v. SEATTLE.                515
 Aug. 1917               Opinion Per PARKER, J.

passed and approved an ordinance purporting to amend the
original ordinance providing for the acquisition of the
eighty foot strip of land for the extension of Phinney avenue, in
effect repealing the provisions of that ordinance in so far
as it contemplated acquisition of the entire eighty-foot strip,
and providing for the acquisition by eminent domain
proceedings of a twenty-foot strip of land along the east side
of the eighty-foot strip for use as a part of Phinney avenue.

If this action were being prosecuted by Nelson, to whom
the warrants were originally issued, it would seem plain that
he could not recover because of the order vacating and
setting aside the judgment awarding him compensation for
which the warrants were issued. It may be that error was
committed by the superior court in vacating that judgment
such as would call for the reversal of the order of vacation
upon appeal; but we have seen that Nelson was a party to
the vacation proceeding; that he received due notice and
appeared generally therein; that the issues in that proceeding
were disposed of upon the merits, resulting in a final order
vacating the eminent domain judgment; and that the order
of vacation has not been appealed from or set aside, but
remains in full force and effect in so far as the rights of Nelson
are concerned. That superior courts have jurisdiction of
the subject-matter of the vacation of final judgments and
that their final orders rendered in vacation proceedings are
as conclusive as other judgments, is thoroughly settled by our
decisions. Chezum v. Claypool, 22 Wash. 498, 61 Pac. 157,
79 Am. St. 955; Wilson v. Seattle Dry Dock & Ship Bldg.
Co., 26 Wash. 297, 66 Pac. 384: Peyton v. Peyton 28 Wash. 278,
68 Pac. 757; Meisenheimer v. Meisenheimer,
55 Wash. 32, 104 Pac. 159, 133 Am. St. 1005; Flueck v. Pedigo,
55 Wash. 646, 104 Pac. 1119; Newell v. Young,
59 Wash. 286,
109 Pac. 801; Kelley v. Sakai, 72 Wash. 364, 130 Pac. 503,

Contention is made in respondent's behalf that, because
the judgment awarding Nelson compensation was rendered
in an eminent domain proceeding, it was not within the power

 516    BARKER v. SEATTLE.
                     Opinion Per PARKER, J.          97 Wash.

of the superior court to vacate it; that, in doing so, that
court acted without the jurisdiction of the subject-matter,
and that therefore its order of vacation is void and not
conclusive upon any one. Counsel argue that our general statute
relating to the vacation of judgments, Rem. Code, SS 464
et seq., has no application to the vacation of judgments in
eminent domain proceedings, and float our eminent domain
statute negatives the idea that judgments rendered in such
proceedings may be vacated for any cause except by appeal.
This argument seems to be rested upon the fact that our
eminent domain statute does not, in terms, provide for the
vacation of a judgment of award rendered in proceedings
had thereunder, and also upon that portion of Rem. Code,
SS 7783, reading as follows: "Such judgment or judgments
shall be final and conclusive as to the damages caused by
such improvement unless appealed from . . ." We do not
view this language as an attempt on the part of the
legislature to curtail the power of our superior courts to vacate
and set aside judgments rendered in eminent domain
proceedings. Being courts of general common law and equity
jurisdiction, and SS 16, art. 1 of our constitution providing,
in substance, that the exercise of the power of eminent
domain shall be by judicial proceedings and that compensation
shall be ascertained therein "as in other civil cases," it seems
plain to us that the inherent power of the superior courts to
vacate such judgments upon proper showing remains
undisturbed. We do not think that this statutory declaration as
to the finality of the judgments in eminent domain
proceedings makes such judgments conclusive in any other sense
than a final judgment becomes conclusive in any other
proceeding. Our general statute relating to the vacation of
judgments in civil actions, while in terms purporting to
confer the power of vacation upon superior courts, is in effect
only a statute of procedure. The power is inherent in courts
of general jurisdiction, such as our superior courts, in the
absence of statute. 15 R. C. L. 688; 28 Cyc. 890.

                     BARKER v. SEATTLE.                517
 Aug. 1917               Opinion Per PARKER, J.

Some contention is made that the superior court had no
power to vacate the eminent domain judgment because it was
satisfied upon the superior court records. As a question of
error in entering the vacation order, this suggests a problem
of interest as to which there seems to be some conflict in the
decisions. 23 Cyc. 893. It seems plain to us, however, that
it does not have any controlling force upon the question of
the jurisdiction of the superior court over the subject-matter
of vacating the eminent domain judgment as exercised in
the vacation proceeding here in question. We conclude that
the order of vacation is not void for want of jurisdiction over
the subject-matter, and not being void for want of due process
as against Nelson, it follows as a matter of course that it is
conclusive as to him, and, at all events, would have prevented
recovery in this action were he the plaintiff herein.

Does the order of vacation have a like effect upon the rights
of respondent in this action? We feel constrained to hold that
it does. It has become the settled law of this state, in
harmony with the rule elsewhere, that municipal and state
warrants are not negotiable instruments, and that, when in the
hands of assignees of persons to whom they were issued, they
evidence no more binding obligation upon the municipality
or state issuing them than when in the hands of the persons
to whom issued. In other words, they are simply assignable
as nonnegotiable choses in action. Bardsley v. Sternberg,
17 Wash. 243, 49 Pac. 499; West Philadelphia Title & Trust
Co. v. Olympia, 19 Wash. 150, 52 Pac. 1015; State ex rel.
Olympia Nat. Bank v. Lewis, 62 Wash. 266, 113 Pac. 629;
University State Bank v. Bremerton, 86 Wash. 261, 150
Pac. 429; 1 Daniel, Negotiable Instruments (6th ed.), SS
28 Cyc. 1570.

Counsel for respondent argue, however, that, because
respondent was not made a party to the vacation proceeding,
and he being a holder of the warrant in question at the time
of the institution of that proceeding and the entering of the
order therein vacating the eminent domain judgment, that

 518    BARKER v, SEATTLE.
                     Opinion Per PARKER, J.           97 Wash.

order is not conclusive upon him. We have seen that the
city had no notice of any one other than Nelson having any
right, by assignment or otherwise, in the award of
compensation made in the eminent domain judgment until after the
entry of the order vacating that judgment. In other words,
in prosecuting the vacation proceeding, the city gave notice
to, and made defendant in that proceeding, the only person,
to wit, Nelson, whom it had any knowledge of then having
any interest in the eminent domain judgment and the
warrants issued thereon. Now, because of this want of notice on
the part of the city, and the fact that the city's obligation to
pay the eminent domain judgment was not evidenced by
negotiable instruments, the rule that the debtor may, without
notice of assignment of such a debt by his creditor, safely
settle such debt with his creditor and render himself free from
all obligation to his creditor's assignees, seems of controlling
force here. 5 C. J. 960; 2 R. C. L. 622.

This principle was recognized and applied in our decision
in Dial v. Inland Logging Co., 52 Wash. 81, 100 Pac. 157.
Counsel for respondent cite and rely upon our decision in
State ex rel. Reed v. Gormley, 40 Wash. 601, 82 Pac. 929,
3 L. R. A. (N. S.) 256, holding in substance that, in an
action to enjoin the payment of general current expense fund
county warrants issued by order of the county commissioners
of King county for services rendered to the county, there
was a defect of parties defendant in failing to make assignees
of the original holder of the warrants parties to the case, the
county having knowledge that the original holder had sold
and assigned the warrants to third persons. The warrants
there in question became contracts for the payment of money
as a general indebtedness of the county, as was in effect held
in Union Savings Bank & Trust Co. v. Gelbach, 8 Wash. 497,
36 Pac. 467, 24 L. R. A. 359. The warrant here in question
does not purport to evidence a general indebtedness of the
city. Indeed, by its very terms, as we have noticed, it
expressly declares otherwise. Nor would the fact that the city

                     BARKER v. SEATTLE.                    519
 Aug. 1917               Opinion Per PARKER, J.

failed to provide a local assessment fund to pay the warrant,
or the fact that the city might have provided such a fund
and wrongfully diverted it, make the warrant a general fund
warrant. This is not an action to recover from the city upon
the warrant. Indeed, no such action could be maintained.
But it is an action to recover damages for the alleged wrong
of the city in failing to provide a local assessment fund to
pay the warrant. Quaker City Nat. Bank v. Tacoma,
27 Wash. 259, 67 Pac. 710; Jurey v. Seattle, 50 Wash. 272, 97
Pac. 107. Now, since the award made to Nelson by the
eminent domain judgment constituted an obligation which the
city could have settled or compromised with Nelson in any
manner mutually satisfactory to him and the city, thereby
freeing the city from all liability to his assignees, who had
acquired interests therein by assignment without notice to the
city, it seems to us that the city could render itself equally
free from all claims of Nelson's assignees against it of whom
it had no notice, by this vacation proceeding instituted and
prosecuted against Nelson in the superior court, resulting in
a final order vacating the judgment upon which the warrant
was issued. This manifestly was as conclusive a settlement
and abrogation of the rights of Nelson and his assignees as
a mutual voluntary settlement between Nelson and the city
would have been.

We have not lost sight of the fact that the warrant in
question constitutes such a chose in action as may be
transferred by mere indorsement and delivery, and it may be that
the city could not safely pay to Nelson from the special
assessment fund, if one had been created, the amount called
for by the warrant without surrender of the warrant.
Probably the well known custom of dealing in such contracts for
the payment of money is sufficient to make the surrender of
such warrants upon their payment necessary in order to
render the city free from liability in some form of action to an
assignee. There is not here involved the payment of the
warrant to the wrong person, but simply the question of the

 520    BARKER v. SEATTLE.
                     Opinion Per PARKER, J.           97 Wash.

conclusiveness of the order vacating the eminent domain
judgment as against Nelson's assignees, of whom the city had no
notice until after the entry of the order of vacation. We feel
constrained to hold that assignees of such warrants take
them with notice of the possibility of the judgment upon
which they are issued being vacated, at least upon application
filed within the year prescribed by our statute relating
to the vacation of judgments, as the application for vacation
here involved was filed, and that assignees of whom the city
has no notice will be bound by in order of vacation in a
proceeding to which the judgment creditor is a party.

To what extent respondent may be entitled to relief as
against the special assessment fund which may be hereafter
created to pay the award which presumably will be made to
Nelson in another eminent domain proceeding looking to the
acquisition of the twenty-foot strip of land for use as a part
of Phinney avenue, we do not here decide. We hold only that
the city cannot be compelled to respond in damages in this
action.

We conclude that the judgment of the trial court must be
reversed and the action dismissed. It is so ordered.

ELLIS, C. J., MOUNT, and FULLERTON, JJ., concur.