Collins v. Kinnear

37 Wash. 453 | Wash. | 1905

Hadley, J.

This is an appeal from a denial o: a petition to vacate a judgment. The judgment was rendered in the superior court, on appeal thereto from the board of state land commissioners. The proceeding involved the right to purchase certain tide lands, for which there were a number of applicants. By the terms of the judgment in the superior court, the right to purchase was awarded to George Kinnear, W. R. Brawley, D. C. Brawley, and McNaught-Collins Improvement Company, intervenor. Delia M. Hotchkin, who was not a party to said proceedings, either before the board of land commissioners or in the superior court, petitioned for the vacation of the judgment. The petition in form complied with the statute, and was duly verified. In response to the summons or notice issued thereon, the McNaught-Collins Improvement Company, one of the beneficiaries under the original judgment, appeared. The other beneficiaries, George Kinnear, W. R. Brawley and D. C. Brawley, did not themse Ives appear; but a written stipulation, signed by counsel for tbe respective parties, was filed, and it contained tbe following:

“That in all matters herein relating to the petition of Delia M. Hotchkin to vacate the judgment heretofore rendered in this proceeding, the said C. B. Bussell and E. Y. Bussell are to be considered as the real parties in interest instead of the respondents George Kinnear and W. R. and D. C. Brawley.”

The above amounted to an agreed substitution of the two Bussells, as the real parties in interest, instead of George Kinnear and the two Brawleys. The Bussells appeared to the petition. The said appearing parties, HcHaugbtCollins Improvement Company and the two Bussells, demurred to the petition, on the ground that it does not state facts sufficient to entitle the petitioner to have the judgment vacated. Ho other parties appeared. The demurrers were sustained, and judgment was entered dismissing the petition. The petitioner has appealed.

Respondents moved to dismiss the appeal. Other grounds are urged, but we shall confine our discussion to the contention that appellant did not, within five days after the service of the notice of appeal, file with the clerk of the superior court either the original or a copy of such notice, with proof or written admission of service thereof. It appears that the notice of appeal was served upon a number who were parties in the original action, but who did not appear to the petition to vacate the judgment. The only parties 'who appeared to the petition were those who prevailed in the original judgment. This appearance, as we have seen, was made by one in its own behalf, and by the others through agreed substituted parties.

The notice of appeal was served upon those who appeared to the petition on March 31, 1904. But tl e notice, with the proof of its service', was not filed in tie clerk’s office until June 22, 1904. Service of the notice was made upon others who were parties to the origin il action at the same time it was made upon those who ap>] ¡eared to the petition. Subsequently, on the Fifth of Junt, service was made upon two others who were parties in the original action, but who did not appear to the petitioi. Five days after the last named service, the notice ot appeal, with proof of its service upon the respective parties and upon the respective dates aforesaid, was filed.

Appellant argues that it is often a physical impossibility to serve all parties with notice of appeal upon the same day, and that the five-day period must begir to run from the date of the last service which constitutes the completed service, provided it is made within the statutory time for taking the appeal. Whatever foice there may be in appellant’s argument, when applied t> a case where the parties served upon different dates a:e necessary parties to the appeal, still we think it does n >t apply to the conditions of this appeal. Under the terim of Bal. Code, § 6504, it is not required that the notice o: appeal shall be served upon any except those “who have g ppeared in the action or proceeding.” Manifestly this meg ns those who have appeared in the- proceeding wherein the judgment is rendered and from which the appeal was taken, which in this case was the proceeding to vacate the judgment. Service upon others can effect no vital purp ose, and amounts to a mere nullity. Such was therefore tn e of the last service in this ease. It follows that the only >ffective service was made when the parties who appeared and defended against the petition were served on March 31. The notice-, with proof of its service, was not fib d until eighty-two days after that time. Bal. Code, § 6503, requires that the notice of appeal, or a copy thereof, with proof of its service, shall he filed with the clerk of the superior court within five days after its service. It has been frequently held that this requirement is jurisdictional. Puckett v. Moody, 17 Wash. 609, 50 Pae. 494; Hibbard v. Delanty, 20 Wash. 539, 56 Pac. 34; Van Dusen v. Kelleher, 20 Wash. 716, 56 Pac. 35; Best v. Best, 22 Wash. 695, 60 Pac. 58.

In view of the foregoing, it is unnecessary to discuss other points urged against the sufficiency of the notice and the appeal bond. The appeal is dismissed.

Mount, C. J., Fullerton, and Dunbar, JJ., concur.

Rudkin, Root, and Crow, JJ., took no part.