16 Wash. 625 | Wash. | 1897
The opinion of the court was delivered by
This suit was brought by the city of Seattle against the appellant to foreclose an assessment lien. Action was commenced by filing a complaint on the 25th day of January, 1893; no summons was then issued. On December 16, 1893, attorneys ior respondent had served upon appellant a summons which they personally issued. The complaint of the respondent set forth, among other things, that between the 18th day of April, 1890, and the 20th day ■of January, 1891, by virtue of ordinance No. 1339 passed by said city of Seattle, it did improve, grade and construct a sidewalk described; that by virtue of
“ That said improvements mentioned in said complaint were completed and accepted by said city of Seattle prior to the 16th day of December, 1890; that, bj^ virtue and in pursuance of the provisions of the said ordinances mentioned in the complaint, the above-lot was duly assessed prior to the 16th day of December, 1890; the amount charged on its proportion of said improvements was found to be and was prior to-said December 16th, assessed in the sum of one hundred and fifty-six ($156) dollars, and prior to said December 16, 1890, by ordinance dated and enacted by said city of Seattle prior to said date said assessment was made and levied on said lot in the sum of one-hundred and fifty-six dollars ($156) as appears by the assessment roll duly approved and filed in the office-of the city treasurer of said city; and that said assessment was completed prior to said December 16,1890.”'
The answer also alleged in substance that said assessment became payable on December 16, 1890, and became delinquent on January 25, 1891. The notice,, under publication of which the tax levied became-payable, was as follows:
“ Terrace Street Tax Notice.
“ The tax levied by the city council in the district, created by ordinance No. 1339 to provide for the grading of Terrace street from Yesler avenue to Broadway street and constructing sidewalks thereon is now due- and payable at the office of the city treasurer. All taxes not paid within forty days of the first publication of this notice will be declared delinquent, a penalty of five per cent added, and interest at the rate of ten per cent, charged. H. W. Miller, City Clerk.
“First publication of this notice December 16, 1890.
It is conceded that the action was properly commenced by filing the complaint on January 25, 1893. It is also conceded that no summons was -issued until December 16, 1893, when summons was issued by the plaintiff’s attorney in the manner and form prescribed by the law now in force. On March 15, 1893, however, an act of the legislature was approved by the governor, entitled, “ An act to provide for the manner of commencing civil actions in the superior courts and -bringing the same to trial.” Laws 1893, p. 407. This law provides that
“ Civil actions in the several superior courts of this ■ state shall be commenced by the service of a summons, as hereinafter provided.”
This act took effect June 7, 1893, more than four months after the filing of the complaint herein, and it is the contention of the appellant that the passage of the act of 1893 and the repeal of the prior act thereby, both being in their nature remedial, not only took away the right to proceed further under the prior law, but rendered the filing of the complaint thereunder null and inoperative, inasmuch as no jurisdiction had been or could be acquired over the persons of the defendants by compliance with its provisions. There is some conflict of authority in relation to this question, some courts holding that the repeal of the
“ The doctrine, indeed, of the destruction of imperfect rights and actions depending on statutes, by their repeal, must not be carried beyond its proper scope. It has been said that an act repealing, or in anywise modifying, the remedy of a party by action or suit, should not be construed to affect actions or suits brought before the repeal or modification. [Citing Newsom v. Greenwood, 4 Ore. 119]. Whilst this statement is probably too broad, it is nevertheless true, that, where the effect of the new legislation is not to take away the jurisdiction or right previously existing, nor to deny a remedy for its enforcement substantially like the one previously allowed, but merely to change the remedy, the right and the jurisdiction continue under the form directed by the new act, where it applies, or else under the old law.”
It seems to us that a liberal and sensible construction of this statute will lead to the conclusion that it was not the intention of the legislature to interfere with or destroy actions which had already been commenced, to tbe extent, at least, of depriving the court of the jurisdiction of the subject matter of the action.
Section 15 of the Laws of 1893, p. 412, provides that:
“From the time of the service of the summons in a civil action, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant is equivalent to a personal service of the summons upon him.”
And § 16 provides that:
“A defendant appears in an action when he answers, demurs, makes any application for an order therein, or gives the plaintiff written notice of his appearance.”
The court, then, having jurisdiction, by the filing of the complaint, of the subject matter of the action, and having jurisdiction of the parties by their voluntary appearance in the case, it would seem that the first contention of appellant is untenable.
A more troublesome question, to our mind, is the second contention, namely, that the statute of limitations had expired prior to the commencement of the action. If the statute commenced to run from the date that.the lien attached as shown by the ordinance, then the plaintiff is barred, for the action was not commenced until two years and forty days after such publication, but it is conceded that if the statute did
“ Where an assessment or tax is laid, and by ordinance or statute a certain time is fixed within which it may be paid, the person against whom it is laid has the whole of such period wjthin which to. pay it, and the statute does not begin to run thereon until such time has expired.”
And in Reynolds v. Green, 27 Ohio St. 416, this identical question was decided. There, by ordinance of the city council, the assessment for an improvement was made November 20, 1861, and it was provided in the ordinance that the owners of the lots on which the assessments were made should pay the amounts severally due within twenty days from the date of the ordinance, or be subject to the interest and penalty allowed thereon by law, and it was held that defendants could not be regarded as in default until the expiration of twenty days thereafter, and that the right of action therefor to enforce the assessment did not accrue until December 10, 1861, which was twenty days after the notice.
We think the contention of the appellant that she can be in any way injured by the adoption of this rule is more fanciful than real; that the right of action did not accrue until the forty days expressed
The judgment will be affirmed.
Scott, C. J., and Anders and Reavis, JJ., concur.
Gordon, J., dissents.