31 Wash. 485 | Wash. | 1903
— This is an action for the possession of certain real estate which respondent seeks to recover from appellants. The complaint alleges that respondent is the owner of the property and that appellants, without his permission and without any color of title thereto, unlawfully and without right entered upon the premises by force and stealth, and obtained entrance to the dwelling house thereon by breaking open the windows and doors thereof. It is also averred that respondent served upon appellants a three days’ notice to vacate the premises. Upon their failure to comply with the notice, this suit was brought to recover possession and damages for the unlawful detention of the premises. The answer is a general denial. A trial was had before a jury, resulting in a verdict that respondent is entitled to the possession of the property. Judgment was entered upon the verdict, directing the issuance of a writ of restitution and awarding costs to respondent. From said judgment this appeal was taken.
It is assigned that the court erred in denying apjiellants’ motion to quash the service of summons. Under special appearance appellants moved to quash the service upon the ground that no complaint was filed in the office of the clerk prior to the issuance and service of the summons, as appears to be contemplated by the forcible entry and detainer law as found in § 5532, Bal. Code. Since the passage of that statute the general method of commencing actions and of serving summons has been changed and the precise question presented here was decided adversely to appellants’ contention in Security Savings & Trust Co. v. Hackett, 21 Wash. 247 (67 Pac. 607).
It is nest urged that the court erred in admitting any evidence under the complaint. Appellants objected to
“It is well settled that title is not involved in either a criminal prosecution for, or a civil action of, forcible entry and detainer, and that, therefore, as a general rule, evidence thereof is inadmissible.” 13 Am. & Eng. Enc. Law (2d ed.), p. 753.
For respondent to recover it must appear that he was in actual possession of the property when appellants forcibly entered. The only fact alleged that tends to show that respondent was then in possession is that, he was the owner
Assuming, however, that the court properly ruled that evidence showing possession could be introduced Tinder the complaint, we find that two deeds were admitted in evidence over objection, one running to the respondent’s grantor and the other from the latter to respondent. It was stated that they were not offered for the purpose of showing title in respondent, but only as tending to show possession in him. But whatever weight might properly have been given to the deeds for that purpose, still upon the trial respondent and his counsel admitted that the deed to respondent’s grantor was made as security for an advancement of money. It was therefore no more than a mortgage, and respondent holds by no greater ’ right than did his grantor, the mortgagee. It may have been the theory of the court that, even though respondent admittedly held only the rights of a mortgagee, it might be shown that he held as a mortgagee in possession. But the allegation of the complaint is that he held as owner only; arid, even if that allegation showed possession, it is not supported by the proof, which is inconsistent therewith. The
Respondent seems to have permitted this case to go bv default in this court, and has filed no brief. As we understand the record, the cause should be reversed for reasons stated above. The judgment is reversed and the cause remanded, with instructions to tire trial court to grant the challenge to the evidence and enter judgment for appellants.
Fullerton, O. J., and Mount, Anders and Dunbar, JR, concur.