63 Wash. 452 | Wash. | 1911
In this action the respondents sought to quiet title as against appellant, and being successful in the lower court, we are asked to review the judgment upon assignments of error, one of which is jurisdictional and, if allowed, defeats the judgment.
It is the rule in this state, as in most others, that, where jurisdiction is sought to be obtained through a service by publication, the affidavit required by the statute shall be in strict compliance with all the statutory requirements, and that an affidavit which fails in any of these essentials will not support a publication of summons, nor confer jurisdiction through such publication; McManus v. Morgan, 38 Wash. 528, 80 Pac. 786; Felsinger v. Quinn, 62 Wash. 188, 113 Pac. 275; the reason for such a rule being that, constructive service being of purely statutory creation and in derogation of the common law, the statutes authorizing such service must be strictly pursued in order to confer jurisdiction. Wick v. Rea, 54 Wash. 424, 108 Pac. 462, and cases cited.
Respondents attempt to meet this situation, (1) by showing that, some two years after the defective affidavit was filed and sixteen months after the entry of judgment, an amended affidavit was filed, reciting that on October 8, 1907, the date of the first affidavit, the affiant did not know the residence of
There are many defects that sometimes affect judgments that may be cured by amendment; such as the affidavit or return of service, because jurisdiction is obtained from the service itself and not from the proof of service. So the affidavit of publication of summons, or other errors or defects in the record, however important a part of the record, may be cured by amendment when they occur through the act or omission of the clerk of the court in entering, or in failing to enter, of record; and many other like matters might be cited in which the right to amend is recognized. Freeman, Judgments, §§71, 89b; 32 Cyc. 540.
But we know of no instance, where jurisdiction is lacking, where it is held that jurisdiction may be conferred by amendment. It was held by us in Felsinger v. Quinn, supra, in adopting the rule as announced in Gilmore v. Lampman, 86 Minn. 493, 90 N. W. 1113, 91 Am. St. 373, in construing a similar statute, that the affidavit must be complete in itself as to all material matters, and cannot be aided by reference to other papers of record. Respondents cite cases from Kansas where amendments to the affidavit for publication have been permitted, and an examination of those cases and others from the same state shows such to be the rule in that state.
“If there is a total want of evidence upon a vital point in the affidavit, the court acquires no jurisdiction by publication of the summons; but where there is not an entire omission to state some material fact, but it is inferentially or insufficiently set forth, the proceedings are merely voidable;”
and in the latter cases the defect may be cured by permitting an amended affidavit to be filed. The affidavit before us failed to show the mailing of a copy of the summons and complaint. It was silent as to the residence of Muller not being known, so as to excuse the mailing of such copies, as demanded by the statute, except such residence be unknown. It was therefore within the Kansas rule, in that there was “a total want of evidence upon a vital point,” and hence, under those authorities, no jurisdiction was conferred, and the judgment was void.
It is next contended that the defect is cured by the recitals in the judgment of due and legal service of summons by publication, “after filing of an affidavit for publication by the attorney for the plaintiff, stating the matters required by statute;” and citation is made of the many authoi’ities in this state where it has been held that such recitals cured alleged defects in the judgment. It will be found, however, that such a rule has only been announced where there was nothing in the record to contradict the recitals of the judgment, and the judgment was being collaterally attacked.
“Under this rule the evidence upon which the court based its finding need not appear affirmatively in the record. It is enough if the contrary does not appear.” Wick v. Rea, supra.
citing the cases relied upon by respondents. It is likewise said in that case:
“The converse of this l’ule follows, and is sustained by the same authorities. So that, although the judgment recites jui’isdiction, if a want of jurisdiction affii’matively appears*456 upon the face of the whole record, the judgment will be held to be void upon collateral as well as direct attack.”
So that, as in Rogers v. Miller, 13 Wash. 82, 42 Pac. 525, 52 Am. St. 20, the recital of due service is not contradicted by merely showing that a summons which was legally insufficient had in fact been published, where it appeared there was ample time after the completion of such publication for another and sufficient summons to have been issued; and in the absence of any evidence, this court would presume, in aid of the judgment and as against collateral attack, that such was the fact.
“Every fact not negatived by the record will be presumed in aid of the judgment, and it will only be held void when it affirmatively appears from the record that the court had no jurisdiction to render it.” Munch v. McLaren, 9 Wash. 676, 38 Pac. 205.
In Christofferson v. Pfennig, 16 Wash. 491, 48 Pac. 264, upon which respondent strongly relies, the publication of summons was based upon an affidavit of F. S. Blattner, as attorney for plaintiff, to the effect that he did not know where the defendant resided. It was contended that, as the plaintiff had several other attorneys of record, and there was nothing to show that they did not know, or that the plaintiff did not know, where the defendant resided, the showing was insufficient. The court said that the recital of due service created a presumption of valid service, and we would be bound to presume that other and sufficient affidavits were filed. So in all the cases where this rule has been applied there was no affirmative showing to contradict the recitals of the judgment, and that has been the controlling reason why such recitals have been given effect by the court. In this case the recitals are contradicted by an affirmative showing in the record. That the defective affidavit was the only affidavit, and the one relied upon to obtain service by publication, is affirmatively shown when the attorney for respondent, confessing its insufficiency to support a valid publication, attempts to
We are, therefore, of the opinion that the judgment under which respondent claims title was void, and the judgment herein is for such reason reversed.
Crow, Chadwick, and Ellis, JJ., concur.