*1 findings fact made considered in the light of the records of this court properly us, do not judgment, the should be reversed and the action dismissed. concurs with Grady,
Beals, J. Department 6, 29397. One.
[No. October W. R. et al., Respondents, v. Victor Zabroski, Larson
Appellant.1 Hunter Eisenhower, & Rams for dell, appellant. John T. McCutcheon, respondents.
1Reported (2d) 154. in 152 P. and delivered executed J. Victor Millard, Schlegel for one note to Otto June payment payable June dollars, thousand prop- mortgage real on certain first note secured *2 note, erty payments the made on in were Tacoma. No assigned plaintiffs, default obtained a which who was January judgment against the face 1944, for attorney’s plus mo- Defendant’s fees. amount of the note judgment February of the for vacation 9, 1944, tion filed against upon ground judgment him was taken the that the neg- through surprise, or excusable mistake, answer lect, further that his failure to and for the reason by complaint occa- the the time limited law was within by casualty denied. misfortune, sioned unavoidable was appealed. Defendant sup-
Appellant’s judgment motion to was vacate ported by appellant time his that at no affidavit entry any knowledge judgment that had the ac- action had been He first that commenced. learned friend, tion had been commenced so advised shortly judgment entry judgment, after of the against appellant, taken his friend which information through Daily obtained the Tacoma Index. investiga- upon
Appellant’s that, affidavit further recites appellant December tion, that, on about ascertained lady young house at 4414 S. Sheri- at the 1943, delivered boarding rooming and affiant had been dan, Tacoma, where papers, left which A1 Elkins at that address. A1 also resides Elkins, one who copies apparently put papers, of summons which were upon upon complaint note, table in the action and hallway resided and of the house which did not see the did not deliver them to judgment, since, them and able to locate he been . nor “. delivery until subse- same not advised he was entry of said quent suspect that an action no reason had “That affiant brought upon and if he had note, said knowlédge interposed thereof, he would have a defense to the same, but because of the fact that no time knowledge of the same, commencement of the he could not against against through defend taken him, surprise neglect.” mistake, inadvertence, or excusable contemporaneously answer, filed affirmatively motion, motion and affidavit alleged obligation upon sought which recovery was barred the statute limitations. The gist solely matter was heard affidavit of —the appellant’s stipulation recited above—and copy, duly regu- of-the summons and and larly- Elkins, him same with one A1 residing and discretion at the room- ing boarding house resided. The trial court observed that the service was appellant got it; notice of *3 any just “It ais document and I doubt if one would away. get just it throw I think he would it same as gets says mail; but I have to concede he he did not get it, but it was due and service and I think it justifies judgment.” appellant concede that the service
Counsel for copy at his the summons and of a of place place abode, he had resided usual of a requirements of the statute 12). (Rem. § § [P. However, 8438], subd. Stat., 226 Rev. of substituted service counsel for while insist papers by leaving of a defendant’s fam a member same with ily the matter would be of each of which member degree that a mem of assurance such concern as to afford handing family complete the service ber of the would calling papers defendant, or at least to the intended stranger leaving of attention, same to his as a member of the blood, is not concerned to the family statute, be, is not within legal and trial court did not exercise a sound therefore the judg refusing impartial to vacate discretion ruling only justified upon urged can be It ment. assumption, record, shown an unwarranted manner in some Elkins handed service. was advised legislature service un- that substituted Had the intended restricted, § to de- Stat., subd. der Rem. Rev. livery copy kin, kith or it of a an intended defendant’s reading statute, follows, as would have stated. The so made in con- clear, and it is conceded that service was formity requirements that statute: by delivering copy
“The summons shall be served thereof as follows: “ copy . . of the summons at the house of his usual abode with § 226, Stat.,
discretion then resident Rem. Rev. therein.” subd. 12. (2d) (2d)
In v. 126P. Illman, 14Wn. question in which we on the reviewed our decisions judgments, of vacation of default we stated the rule was applications well established the vacation of de judgments fault are addressed to sound discretion of the trial court disturb an order we either granting denying unless it such an can be said that there has been a manifest abuse discretion. guilty trial court in the case of manifest Rightly ap abuse of discretion. the court pellant received notice. affidavit is self-serving unsupported by any declaration evidence of disregard appellant’s other facts which would excuse service. Somervill, Rule as was observed
While *4 relieve suitor from con- Pac. will Wash. sequences command of a if writ such of disobedience result of mis- shown to be the is disobedience neglect, court from fortune, relieve excusable disobedience, or a disobedience which is the from a wilful neglect. inattention or result of a mere by the to be exercised court cases of The discretion is not a mental discretion of the one to be character grace, as matter of but discretion to be exercised law, exercised in justice. manner to subserve the ends of substantial In a plain supra, case, we stated Illman, this dis- perform. cretion no office correctly The trial court on facts could not have granted judgment. to vacate the default proper There had been service the summons which it necessary knowledge. defendant actual have neglect practiced There was no fraud or upon appellant. showing by appellant upon made presenting burden whom facts to the court justify which would discretion to vacate the dis neglect appellant’s part. pre closes inattention or He nothing except unsupported sented to the court word regularly he that he aware had been until after His own affi placed davit discloses that the on a table in hallway, placed, where doubtless his mail was a table passed years day no doubt he at least twice and from picked up papers and mail intended for him. The order affirmed. Steinert, and Grady, concur. JJ.,
Simpson, Jeffers, Rehearing.
On January 16, [En Banc. Upon rehearing, En Banc, the court ad- Per Curiam. Departmental opinion
heres to the heretofore filed herein.