21 Wash. 102 | Wash. | 1899
The opinion of the court was delivered by
Appeal from an order granting a motion to quash return of service of summons. October 26, 1897, appellant filed its complaint, in which it was alleged that all the defendants were non-residents of, and absent from, this state, and that they resided in the state of New York. On November 9th following, appellant applied for an order directing service of summons to be made by publication, basing the application upon an affidavit filed on that day. The order for service by publication was made and the publication of summons followed, the first publication having been made on November 12, 1897. Within sixty days after this date, respondents appeared separately, specially, and moved to quash the return of service, on the ground that it appears on the face of the record that it was not an action wherein a publication of summons is authorized by law, or in which jurisdiction could be obtained by the publication of summons. The motion to quash the service
The various appealable orders are stated in Bal. Code, § 6500, and it is there declared that an appeal lies “ from any order affecting a substantial right in a civil action or proceeding which in effect determines the action or proceeding and prevents a final judgment therein.” In Embree v. McLennan, 18 Wash. 651 (52 Pac. 241), it was determined that an order of the court quashing a summons is appealable when, in effect, it determines the action or proceeding and prevents a final judgment therein. The court will look at the sirbstance of such a motion, and its effect, to ascertain whether the order is appealable, and, if it in effect determines the action, it is appealable. Appellant cannot now have the first order quashing the service of summons reviewed here, as no exception or appeal was taken within time to appeal therefrom. The statute
“ Section 1. Civil actions in the several superior courts of this state shall he commenced by the service of a summons, as hereinafter provided.”
But in the statute of 1895 (Laws 1895, p. 170), it was provided:
'' Section 1. That section one of an act entitled 'An act to provide for the manner of commencing civil actions in the superior courts, and to bring the same to trial/ approved March 15, 1893, be and the same is hereby amended to read as follows: Civil actions in the several superior courts of this state shall be commenced by the service of a summons, as hereinafter provided, or by filing a complaint with the county clerk as clerk of the court: Provided, That unless service has been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint.” Bal. Code, § 4869.
Under the provisions of the existing statute, civil actions are commenced either by the service of a summons, after which the complaint may be filed at any time when an order is required, or by filing a complaint, and either personally serving one or more of the defendants or commencing service by publication within ninety days from the date of filing the complaint. It is apparent that, when the action is initiated by filing the complaint for service by publication of the summons, it is not commenced within the meaning of the statute until commencement of service by publication. That is, the act of filing the complaint and the commencement of service by publication must both exist before the action is commenced, and the limitation of time in the commencement of service by publication of ninety days is mandatory. Therefore, the determination of the motion to quash the service by publication of the
We conclude that the order quashing such service is appealable, but, upon the merits, the judgment of the superior court must be affirmed, unless, as maintained by the appellant, respondents made a general appearance in their motion to quash the service of summons in stating the second reason for their motion. Section 4886, Bal. Code, provides what is deemed an appearance by defendant; but certainly it does not specify every act which may constitute an appearance. It would seem that the mode of appearance mentioned in the section merely determines that when a defendant has, in either of the ways mentioned, made an appearance, he is. entitled to notice of all subsequent proceedings. Under the same section, a special appearance is authorized, and the defendant must state that he specially appears, or it will be general. The test as to whether an appearance is general or special is usually the relief asked. If the granting of the relief requested in the appearance is consistent with a want of jurisdiction over the person, the defendant may appear for a special purpose, without submitting himself to the jurisdiction of the court for any other purpose. It is evident that the motion to the jurisdiction made by defendants (respondents) was personal, and the relief demanded was that the service of the summons be quashed. The best considered authorities appear to support this conclusion. Harkness v. Hyde, 98 U. S. 476; Belknap v. Charlton, 25 Ore. 41 (34 Pac. 758); Kingsley v. Great Northern Ry. Co., 91 Wis. 380 (64 N. W. 1036) ; Paxton v. Daniell, 1 Wash. 19 (23 Pac. 441) ; United States v. American Bell Telephone Co., 29 Fed. 17.
Gordon, C. J., and Fullerton and Dunbar, JJ\, concur.
Anders, J., concurs in the result.