Opinion
No. 427-41433-1.
March 1, 1971.
[1] Judgment — Vacation — Fraud — Perjury — Discretion of Court. A motion to vacate a judgment on the ground that fraud in the nature of perjured testimony was practiced by the successful party, lies within the discretion of the trial court. [See 46 Am.Jur.2d, Judgments § 682.]
[2] Execution — Sale — Sale by Individual Parcels — Discretion of Court. Whether real property is sold pursuant to a judgment by individual parcels or en masse lies within the discretion of the trial court.
Appeal from a judgment of the Superior Court for King County, No. 591422, Howard J. Thompson, J., entered February 7, 1968.
Clarence L. Gere, for appellant.
J. Carroll Schueller, for respondents.
Affirmed.
Action for an accounting and dissolution of a partnership. Defendant appeals from a refusal to vacate the judgment and from an order confirming an execution sale.
An appeal is taken from the action of the superior court denying a motion to vacate a judgment and an order entered subsequent to judgment approving the action of a commissioner appointed to sell three parcels of property, which were the subject of the judgment. These parcels were authorized by the court to be sold en masse rather than individually.
[1] The ground alleged for vacation of the judgment was that of fraud practiced by the successful party in obtaining the judgment. The trial was a complex action involving an accounting and dissolution of a partnership, rife with allegations and counter-allegations of fraud and improper conduct. The alleged fraud is apparently in the nature of perjured testimony which would not in and of itself appear to warrant the vacation of a judgment. Doss v. Schuller, 47 Wn.2d 520, 288 P.2d 475 (1956). The granting or denial of this motion was within the discretion of the trial court. There is, in addition, no record before us of the testimony introduced at trial, and we are in no position to hold there was an abuse of discretion. Yeck v. Department of Labor Indus., 27 Wn.2d 92, 176 P.2d 359 (1947); McCord v. McCord, 24 Wn. 529, 64 P. 748 (1901).
[2] Assuming, without deciding, the order approving the sale of the parcels is appealable, authority exists which indicates a preference for real property to be sold in parcels rather than en masse; however, the determination is one involving discretion and there is no absolute rule. Investment Exch. Corp. v. Magnum T., Inc., 3 Wn. App. 612, 614, 476 P.2d 731 (1970). We find no abuse of discretion and the judgment of the trial court is affirmed.
HOROWITZ, C.J., and WILLIAMS, J., concur.
Petition for rehearing denied March 25, 1971.
Review denied by Supreme Court May 6, 1971.