20 Wash. 450 | Wash. | 1898
The opinion of the court was delivered by
This was an action by the appellant against the respondent on a judgment obtained in the state of Idaho. The respondent moves to dismiss this appeal for the following reasons: (1) Because no bill of exceptions or statement of facts has been settled or certified as provided by law, or at all; (2) because the alleged notice of application to settle bill of exceptions or statement of facts is wholly insufficient; (3) because the certificate of the trial judge is wholly insufficient, and not such a certificate as is required by law, or any certificate whatever. There seems to be no merit in the first two objections, and, the third is not tenable under the law of 1893. Motion denied.
The case was before this court formerly, and is reported in 18 Wash. 521 (52 Pac. 235), where a statement of the
“ Respondent tendered in evidence on the trial in the ■superior court what purported to be a copy of the designation of Jesse Ooulter, as agent for the defendant corporation under the above statute certified as of record in the district court, where the purported judgment was rendered, but not a part of the proceedings in the cause. The designation of agent so certified was received by the superior court over the objection of defendant. We do not think this certificate was a part of the record of the judgment, or of the record of the court in which the judgment was rendered. The judgment roll itself must affirmatively ■show jurisdiction in this class of cases.”
Subsequent to the reversal of that judgment an amendment to the return to correspond with the facts was allowed by the district court in Idaho showing that the person served was the agent of the defendant. That proof was offered in the last trial of the cause in the superior court of this state, hut it was held that it was not competent, because the record did not affirmatively show that the court had jurisdiction to amend the return; in other words, that it was not shown that personal service of the notice to amend the return was made. It is conceded that notice was given to the company in the state of Washington, so that they had notice in fact. ITnder the statutes of Idaho it is not necessary to give personal notice of a motion of this kind in a case where the defendants have not appeared, hut where judgment has been taken by default. But it is objected by the respondent, and is a general rule, no doubt, that, before a statute of a foreign state can be invoked, it must
“ If the return upon the summons or other writ designed to give the court jurisdiction over the person of the defendant is omitted, or incorrectly made, but the facts really existed which were required to give the court jurisdiction, the weight of authority at the present time permits the officer to correct or supply his return until it states the truth, though by such correction a judgment apparently void is made valid.”
And the note commenting upon Reinhart v. Lugo, 21 Am. St. Rep. 52 (86 Cal. 395, 24 Pac. 1089), where it is said:
“ To support judgments entered upon insufficient proof of service of process, or without the proof of such service appearing in the record, courts have uniformly permitted such proof to be amended or supplied, not for the purpose of authorizing them to enter new judgments based upon such proof, but to show that judgments previously entered were not entered without jurisdiction, and are not, and never were, void.”
The last cited case (Reinhart v. Lugo), which holds to the contrary, is cited by the court in Herman v. Santee, but in commenting upon it the court holds that it is not in accordance with the weight of authority. In this case the court certified that it appeared to it that due notice of plaintiff’s motion to amend had been given. We think it would be carrying the rule too far to reject the record in this case as presented by the appellant. The judgment will be reversed, and the cause remanded, with instructions to the lower court to overrule the objections to the admission of the testimony offered.
Soott, O. J., and Goedokt, Reavis and Andebs, JJ., concur.