Jones v. Wolverton

15 Wash. 590 | Wash. | 1896

The opinion of the court was delivered by

Scott, J.

The plaintiffs brought this action to foreclose a real estate mortgage, and from a judgment in their favor the defendant Russelí has appealed. The respondents moved to dismiss the appeal on the ground that the appeal notice was not served upon the defendants Wolverton. This is conceded by the appellant, but it is contended that said defendants were not entitled to notice, and the question to be determined is whether they had appeared in the action.

The action was commenced in the superior court of Douglas county, and it appears that said defendants joined in a stipulation with the attorneys for the plaintiffs, and the attorneys for the defendant Russell, stipulating that the cause might be tried in Spokane county. Did this stipulation by them constitute an appearance in the action? The statute, (Laws 1893, p. 412, § 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.”

It seems to us that, under the rule laid down by the majority of the court in the case of Cornell University v. Denny Hotel Co., ante, p. 433, this stipulation constituted an appearance upon the part of the defendants Wolverton. It was a written notice of appearance in the action, of which the plaintiffs and defendant Russell had notice by joining therein. In order to constitute it' a written notice of appearance it was not necessary that the writing should recite that said defendants appeared. The fact of participating in the proceedings was an appearance. It was also in effect an application for an order, for the cause could not have been transferred without an order.

Some question is made about the validity of such an order, but this seems to us to be immaterial in considering the question of an appearance or an application for an order.

It is further contended by the appellant that the court should not consider said stipulation as an appearance for the reason that it purports to be signed by the defendants Wolverton in person, and there was no proof of their signatures. Although the court will not take judicial notice of the signatures of parties and there must ordinarily be proof of their genuineness, the appellant is not in a position to insist upon that objection raised here, for he joined in the stipulation and thus in effect authenticated its genuineness.

Under the authority of the case cited, the appeal must be dismissed.

Dunbar, Anders and Gordon, JJ., concur.

Hoyt, C. J., dissents.