59 Wash. 580 | Wash. | 1910
On August 7, 1907, the respondent, being the holder of a certificate of delinquency for unpaid taxes on certain land situated in South Aberdeen, Chehalis county, Washington, made application to foreclose the same, making parties thereto Edwin Schneider, the person in whose name the property was assessed, “and all persons unknown, if any, having or claiming to have any interest in and to the real estate hereinafter described.” Summons was duly issued and placed in the hands of the sheriff for service, who made return thereon to the effect that defendant Edwin Schneider could not be found in Chehalis county, but said nothing as to the efforts he made to find and serve the “unknown” interested parties. The applicant thereupon proceeded to serve the
On October 26, 1908, and within one year from the entry of the judgment, the appellant, Howard, applied to the court by petition to vacate the judgment. In his petition he alleged ownership of the property, that he was in possession thereof during the time the foreclosure proceedings were pending, that neither the summons nor notice of the pendency of the proceedings of any kind were served upon him, and that he had no knowledge of the fact that any such proceedings were pending until after the judgment had been entered therein; that he had at divers and sundry times paid taxes on his property and believed he had fully paid all taxes assessed thereon. He further alleged that the plaintiff, well knowing that he resided upon the property, sought to keep the foreclosure proceedings secret and hidden from him, and to that end caused the summons to be published in a newspaper of small circulation published in distant part of the county, a proceeding “calculated and designed to prevent said notice reaching defendant and informing him as to the pendency of said action.” An allegation of tender of the amount of taxes due, and other allegations tending to show an excuse for the delay in making the application were made. The petition concluded with a prayer to the effect that the judgment be vacated and the petitioner be allowed to defend the action. An answer was filed to the petition, to which the petitioner filed a reply; the allegations contained in these pleadings need not be noticed, however, since the statute provides that the petition shall be deemed denied without answer, and that “the defendant shall introduce no new cause, and the cause of the petition shall alone be tried.” Rem. & Bal. Code, § 468. The hearing resulted in a denial of the petition.
The proofs on the part of the petitioner tended in the main
The plaintiff moves to strike the appellant’s brief and dismiss the appeal on the ground that the brief is wrongly entitled. The brief is faulty in this respect, but nevertheless we must deny the motion. Neither the court nor the respondent has been misled by the error, and it would be a gross injustice to impose so’ heavy a penalty for a mere harmless mistake.
On the merits of the controversy, it is our opinion that the petitioner showed sufficient cause for a vacation of the judgment, and that the trial court erred in denying his petition therefor. Aside from the general equitable features presented by the facts in the case, which appeal strongly to the conscience of the court, there was a good-faith effort made on
The judgment appealed from will therefore be reversed, and the cause remanded with instruction to vacate the tax judgment and allow the petitioner to appear and defend the .foreclosure proceedings.
Rudkin, C. J., Gose, Morris, and Chadwick, JJ., concur.