94 STATE v. McCOY.
Opinion Per HOLCOMB, J. 122 Wash.
[No. 17135. Department One. October 30, 1922.]
THE STATE OF WASHINGTON, Appellant, v. E. W. McCoY,
Respondent. «1»
INJUNCTION (59) - NOTICE - REQUISITES. Rem. Comp. Stat. SSSS 718,
722, providing that restraining orders and injunctions shall not
be granted without reasonable notice, have no application to an
injunction in a final judgment, entered on default, after personal
service of the summons and complaint.
SAME (41) - BOND - NECESSITY. Upon granting an injunction in
a final judgment determining the case, no bond need be given as
provided for by Rem. Comp. Stat., SS 725, in case of injunctions
before final decree.
MASTER AND SERVANT (121-2) - REMEDIES UNDER WORKMEN'S
COMPENSATION ACT. Upon default in an action by the state to collect
premiums from an employer in extra-hazardous employments, it is
mandatory to render judgment and grant an injunction against
conducting the business until the judgment is paid.
CONTEMPT (6, 8) - DISOBEDIENCE OF JUDGMENT - NOTICE. One
personally served with summons and complaint in an action for
an injunction, need not be served with notice of the judgment, in
order to be in contempt of court for violating the judgment.
SAME (13) - POWER TO PUNISH. It is the duty of the courts to
enforce their valid orders by punishment for contempt when notified
that they are not obeyed.
Appeal from a judgment of the superior court for
Lewis county, Reynolds, J., entered March 3, 1922, in
favor of the defendant, dismissing a show cause order
for contempt for violating a judgment, after a hearing
before the court. Reversed.
The Attorney General, John H. Dunbar, Assistant,
and M. H. Wight, for appellant.
HOLCOMB, J. - On December 11, 1920, the state
instituted an action in the superior court of Lewis
county by making personal service of summons and
«1» Reported in 209 Pac. 1112.
STATE v. McCOY. 95
Oct. 1922 Opinion Per HOLCOMB, J.
complaint upon respondent in Lewis county. The
complaint contained two causes of action; the first
was to recover the sum of $87.50 due the state for industrial
insurance and medical aid premiums or assessments;
and the second was to enjoin the defendant
from further engaging in or prosecuting any extrahazardous
business or industry until a bond to insure
the payment of future premiums, as demanded by the
state, had been furnished. The summons and complaint
were personally served upon respondent within
the state, and the county where the action was brought.
Respondent having failed to appear, answer, demur,
or otherwise plead within the time allowed by law,
appellant duly filed an affidavit setting forth these
facts, together with motion for default and judgment,
and such judgment was accordingly entered as prayed
for in the complaint of appellant. Thereafter on the
21st day of January, 1921, a copy of the default and
judgment, duly certified by the clerk of the court, was
served upon respondent personally by the sheriff.
Thereafter the affidavit of Edward Clifford, director
of the department of labor and industries, was filed
in the cause, wherein it appeared that respondent,
since the entry and service of the judgment, as aforesaid,
had been engaged in extra-hazardous business
or industry, but that he had absolutely failed to furnish,
or offer to furnish, to the state of Washington
for the benefit of the accident and medical aid funds
a bond in the penal sum of $500, or in any sum whatsoever,
and upon this affidavit the court issued an
order to respondent directing him to show cause at
a day and hour certain why he should not be punished
for contempt for violating the judgment. At the return
time specified in the show cause order, the court
heard the arguments of counsel, and thereafter entered
96 STATE v. McCOY.
Opinion Per HOLCOMB, J. 122 Wash.
judgment dismissing the order to show cause and released
the respondent "from any liability of said
injunction, on the ground and for the reason that there
was no reasonable or proper notice of the time and
place of making application for said injunction, and
that no proper notice had been made to the defendant
of said application, or of the hearing to be had
thereon."
The injunction in this action was secured under and
by virtue of SS 7682, Rem. Comp. Stat., as amended
by SS 5, ch. 120, p. 474, Laws of 1917, being a part of
what is known as the workmen's compensation act,
which provides that:
". . . the commission may require from the defaulting
employer a bond to the state for the benefit
of the accident and medical aid funds, with surety to
their satisfaction, in the penalty of double the amount
of the estimated payments which will be required
from such employer into the said funds for and during
the ensuing one year, conditioned for the prompt and
punctual making of all payments into said funds required
during said year period, together with any
penalty or penalties incurred. In case of refusal or
failure after written demand personally served to
furnish such bond, the state in an action brought by
the attorney general in its name shall be entitled to
an injunction restraining such delinquent from prosecuting
an extra hazardous occupation or work until
such bond shall be furnished. . . ."
The trial judge, in dismissing the show cause order,
probably relied upon SS 718 et seq., Rem. Comp. Stat.,
which relates to restraining orders and injunctions,
and he had especially in mind SS 722, Rem. Comp. Stat.,
which provides:
"No injunction shall be granted until it shall appear
to the court or judge granting it that some one
or more of the opposite party concerned has had
STATE v. McCOY. 97
Oct. 1922 Opinion Per HOLCOMB, J.
reasonable notice of the time and place of making
application, . . ."
A reading of the sections referred to, however,
clearly shows that they have no application to the
case at bar. Section 721, Rem. Comp. Stat., for instance,
states that:
"The injunction may be granted at the time of commencing
the action, or at any time afterward, before
judgment in that proceeding."
In the present case the injunction was final in nature,
that is, it resulted from the final determination of the
case. It was not interlocutory, temporary, or ancillary,
or issued before judgment, but was in fact the
final judgment or decree itself. Section 725, Rem.
Comp. Stat., provides that:
"No injunction or restraining order shall be granted
until the party asking it shall enter into a bond, . . ."
Certainly no bond could be required upon the final
entry of a judgment granting an injunction, because
by such decree the court has determined the rights of
the parties upon the merits.
The complaint alleged facts which, under the
workmen's compensation act, SS 7682, Rem. Comp. Stat., as
amended by ch. 120, SS 5, p. 474, Laws of 1917, rendered
it good as against demurrer, and warrants, if true, the
relief demanded. In view of the failure of respondent
to answer, it was proper, and indeed mandatory, to
grant the injunction against him. Cross v. Johnson,
20 Wash. 124, 54 Pac. 1000.
Having been personally served with the summons
and complaint, it was not necessary to serve the
judgment by default, which contained the injunction, upon
him, as was done. However, out of an abundance of
care or consideration, he was personally served with
98 INSLEY v. WEBB.
Syllabus. 122 Wash.
the judgment of injunction, and as appears from the
affidavit of the officer of the department, wilfully
violated it.
It is the duty of the courts to enforce their valid
orders, and when it comes to their knowledge that
such orders are not obeyed they should enforce
obedience by punishment for contempt. State ex rel.
Smith v. Smith, 17 Wash. 430, 50 Pac. 52.
The judgment is reversed, with directions to the
superior court to proceed to hear and determine the
contempt proceeding upon the affidavit of the officer
of the department.
PARKER, C. J., MACKINTOSH, BRIDGES, and MITCHELL,
JJ. concur.